The managing partner of one of my past firms once said, “I hate when litigators come around. It’s just so much bad feeling! Most of what I do is building things and creating things and making people happy. I love making people happy. But when you bring in a litigator, no one’s happy. It’s all fighting and destruction. I see them coming and want to run.'” He was a highly successful M&A lawyer and he was only partly joking.

At the time I was a mid-level associate and his words really rubbed me the wrong way. I loved my job and I loved my clients and was thinking “Why do you have to be hating on litigators! Maybe you shouldn’t screw stuff up so we don’t have to bail you out.” But as time went on, I got a better feel for what he was talking about. No one needs a litigator unless something bad is happening, or is pretty likely to happen soon. Litigation is expensive, it isn’t in anyone’s plan and unless you’re big enough to have constant or regular litigation, it throws everyone off their game and budget. So I tried to get in the habit of telling new clients, “I’m sorry you have to even deal with me. Just because I like my job doesn’t mean you like having me here, and we’re going to try to make this go away as painlessly as possible.”

This is a hard lesson to learn for a lot of litigators. Most litigators do it because they love it. Classic litigation has a gladiatorial adrenaline charge. Even if you’re not going to trial often (and most commercial litigators don’t), the jousting with opposing counsel on the phone, on paper and in hearings can be a lot of fun. At least that’s why a lot of litigators do it. They like the zip and thrill of it: the battle, the risk and the eventual triumph. But commercial litigation costs a lot of money, even if you can turn it into a rational business process (I think you can, but that’s the topic of another post). When I as the litigator get paid, that means someone’s paying me instead of using their money to do something they really wanted to do. I have to keep that in mind.

That’s the other thing I remember learning: the first time I heard someone say “clients aren’t in the business of litigation, they’re in the business of making stuff, or selling stuff or buying stuff.” That’s pretty basic, but it’s a hard thing for outside litigators to remember because we ARE in the business of litigation. It’s the stuff we “sell”. It really does help to say it out loud, to oneself and one’s clients.

So that’s the challenge. Being a litigator means your bedside manner has to be serious and conciliatory. Don’t be the oncologist waltzing in and saying “I looovve these tumors! Let’s do this thing!” Seriously, I’ve been doing this for a while and I’m still reminding myself. Because to be honest, I do kind of love it.