I was taught very early in my career that information is king; find it, hold it, and then drop it like an atom bomb at the very moment it will cause the most harm to your opponent's case. So when I recently obtained the smoking gun in a business dispute at the very beginning of the case, what did I do with it? Exactly the opposite of what I was taught.
A client recently came to me because he had been sued for his role in brokering the purchase of a business. The Client was accused, among other things, of forging the plaintiff's signature on lease documents. At the very first meeting with the Client, he handed me the smoking gun--a document proving there was no forgery and that the plaintiff was lying.
My training told me to hold onto this document well into the litigation, disclose it at the last possible minute, and then use the document to tear apart the opponent's case during her deposition. If done properly, my Client would be in a tremendous position to settle the case for next to nothing and avoid a potentially expensive trial.
However, that would cost a significant amount of money, which my Client had . . . if he wanted to rob his childrens' college tuition fund. So we decided on a simple goal/mission statement to guide the litigation strategy: End the case as quickly, and cheaply, as possible.
With this goal in mind, I decided to do two things: First, disclose the smoking gun to opposing counsel right away; and second, ask for nothing in return other then a meeting. Many seasoned lawyers would brush this off as a "rookie" mistake because it could give opposing counsel time to fix the complaint, fill in holes, and change strategy before it was too late. While I don't disagree, my Client's goal didn't care about these things. His goal was to end the case now.
So I contacted opposing counsel and set up an informal meeting to discuss the smoking gun. Some lawyers would question this approach. After all, I was walking into a lawyer's office that graduated law school around the time I was born, seemed rather happy to be getting information for free, and probably questioned my sanity. The meeting was, predictably, a failure. Counsel dismissed the smoking gun as a document my client fabricated, a few heated words were exchanged, and we parted ways with my Client gaining nothing (or at least I thought at the time).
A few weeks later, thinking my strategy had backfired, I filed a motion to dismiss the plaintiff's complaint. On the day the plaintiff's opposition to the motion was due, I received a phone call from opposing counsel. He informed me that his client was dismissing the entire case (very, very early in the litigation and without asking for a penny in settlement money from my Client).
Had I waited to disclose the smoking gun at the typical point in litigation, I probably would have obtained the same result, but at a huge expense to my Client. Sometimes an expensive win is perfectly acceptable because certain clients can afford litigation and they revel in the process. Other clients, however, cannot afford litigation, experience anxiety, or simply have no time in their busy lives to deal with the process. That is why each case should be not only be guided by sound litigatoin strategies, but by the client's goal/mission statement as well. As lawyers, we can get caught up in strategy, advantages, and reputation to the point where we fail to recognize that simply sitting down with the other side and showing them your hand could result in an instant win. Not always, but sometimes. And if you hit that "sometimes" for a client, you are going to have one happy customer.
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