Litigating and Mediating

People frequently ask whether I intend to give up my law practice so I can mediate full time. The answer is no. I enjoy litigation too much. Sound strange? Let me explain.

A very successful trial lawyer I know once told me what he loved so much about doing trials. "I get to just talk to the judge and jury. At a certain point everything falls into place, and it's like the other attorney isn't even there. Whatever he has to say, it doesn't even matter."

I'm not as smooth as this guy, but I do enjoy being in Court, and I do sometimes have the sense that it's just me and the judge or jury, and the other lawyer is out in the cold. It doesn't matter what he or she says, because I know that I'll have a better answer and that I'll prevail.

It feels similar to the way that athletes describe being "in the zone." You don't have to think about what you're going to do next or worry that you're going to make the wrong move. Everything you do, everything you say, just works.

A quick example: I was in Court a couple of weeks ago on my clients' motions for summary adjudication of the defendant's independent contractor and exemption defenses. I felt very comfortable with our position, the facts, and the law. The defense made a couple of good arguments, but I had better responses.

Maybe more importantly, I felt completely at ease with myself and the situation, and I could focus completely on the judge's concerns. I was able to tune out the typical bs from the other side, focus on what mattered to the judge, respond to his concerns, and lead him to where I needed him to go.

The judge took the matter under submission, but I remained confident that we would win, which we did. To be honest, whether we had won or lost, it was this amazing sense of being in control of the situation without trying to be in control that I enjoyed so much.

When you feel like that, how can you lose?