Of the five basic rules that a litigator should follow according to Bradley Rost, as discussed in "The Litigation Paradox," which one do you think may be the most important for an attorney to follow in a situation in which a commercial real estate owner has gone into default on a piece of property due to a precipitous decline in property value, and why?

1. Keep the club in one hand, and the olive bravch in the other hand I tell my clients that [ will keep swinging the club in one hand until the other side accepts the settlement demand we are offering in the other hand. It seems that as long as you continue to talk tough with the client and back it up with some concrete action and a monthly invoice for legal fees (i.e., file that motion, take a deposition, etc.), you will have a client who is more receptive to the notion of settlement and at the same time will not lose faith in you for mentioning the option of settling, It is a balancing act between the conflicting messages and you have to develop an instinct and understanding of your client to know when to talk war and when to talk peace. Every case and client is different. Although the goal should always be to achieve peace sooner than later, many times you have to get deep into the process before you can achieve peace. I like the phrase \"Keep the club in one hand, and the olive branch in the other hand,\" because it keeps the concept of \"settlement\" in the discussions with your client while you are explaining your litigation strategy to win the case and make your client's nemesis pay for his misconduct. Without question, however, the number one reason why you will be successful at achieving peace on terms agreeable to your client is if you work to prepare your case for trial. Cases generally do not get resolved unless you work them. You 21 must be aggressive and continue to push the case through the trial preparations. You need to do that discovery work, take those depositions, file those motions, making sure that your opponent knows you are serious and ready to go to trial. You will achieve a better settlement for your client if you demonstrate to the other side that you are prepared to go to trial. The reality is that it is a game of attrition, and the number one way to inflict the necessary pain to get an acceptable settlement is to force the ather side to work the case by responding to you, and thus incurring their own attorney fees and costs. In the business world the expression is "you have to spend money to make money.\" In the litigation world, the expression is \"you have to spend money to make the other side spend money.\" At some point, one or both parties will cry uncle and come to the table to make a deal. 2, \"What's your story?\" There is a great scene in the movie "Amistad" where Morgan Freeman (who plays a freed slave and abolitionist) comes to see John Quincy Adams, played by Anthony Hopkins, to plead with the retired President to defend the slaves seized from a Spanish ship before the US. Supreme Court. Former President Adams asks Freeman's character to tell him their story. Freeman proceeds to launch into a detailed lawyerly account of the issues and history of the case, whereupon Adams interrupts and says \"No, that's not what I want to know. What [ want to know is, what is their story? Because it has been my experience that the litigant with the better story is the one that usually prevails in court.\" And that, in a nutshell, sums up the key point in the litigation game. When I meet with a client for the first time, [ try to identify the theme of the case. From the facts I am hearing, how can I weave the evidence into a narrative that presents a single compelling point about an injustice that needs to be remedied? What is the basic pitch that I can make to the ultimate trier of fact (judge or jury), mediator, or whoever it is I must convince that my client's cause is just and proper and must be vindicated? Every case has one and once it is identified, everything that follows is focused on marshaling the evidence and case law around in support of that story so the client's cause can be presented in the most persuasive and concise manner as possible. l'am reminded of a book I read by a judge regarding how to conduct a successful appeal. His basic point was that with the advent of computer legal research, a creative lawyer can find a published decision somewhere in some court scattered among the fifty states, whether it be a state court, federal court or bankruptcy court, which will support the legal argument you want to make. What really matters, however, is what the \"facts\" of the case are or in other words what is the story? Judges are human like us mortals, with the same emotions and 22 instincts as we all have, Everyone likes a good story that gets you interested and sympathetic about the characters involved. 3. The Truth can indeed be an Elusive Mistress I once had a judge tell me that in the many years he had sat on the bench, he could count on one hand the number of times when he thought a witness was actually lying under oath committing perjury. His point was that humans have an uncanny ability to process and recall information in a fundamentally different way from each other. And your problem as the lawyer is that most clients are not prepared to accept the possibility that like them - their adversary may also be telling the truth. Just ask yourself about how many discussions (arguments?) you have had with your spouse about something that occurred months or years ago, and what was exactly said by the participants to that event. I am sure at times you have wondered whether the two of you are talking about the same thing. We see this phenomenon all the time with eyewitness identifications which are notoriously inaccurate. People just process and retain information about past experiences in a different way. No doubt the scientists can provide an explanation for this variance in the human mind based upon some neurological quirks of our brain syntax. But as trial lawyers we don't need to know or care about the reason we just know this to be case. Which means thal the question usually is not who is telling the truth, but whose version of the events is most reasonable and substantiated by the documents. And this is why the gathering and careful review of all documents arising out of or related to your particular case is so absolutely critical. With the exception of the rare forgery, documents do not lie. Emails, memorandums, letters, reports, or any other documents created contemporaneously with the events under scrutiny are the most accurate reflection of what really happened not what your client or witnesses are telling you month or years later after the event. To build the narrative for your story, you must construct in the most painstakingly detailed way possible a chronology of the entire case from the beginning until when your client first came to you. Who met with whom on what date at what location and who was present? What was said, who said it, who heard it, and most importantly, what documents do we have that corroborate those recollections? The most effective way to make the testimony of your witnesses credible is to weave in corroborating documents with the testimony. At the end of that process you should be able to recite that timeline in your sleep citing the appropriate documents and other physical evidence that directly or indirectly corroborates the testimony. ot And, of course, the most challenging part of that task is when you encounter the \"bad\" facts in the story. That is when your creative talents are really put to the test since obviously you cannot hide, distort, or otherwise eliminate the bad facts. You have to deal with them by deflecting attention from them, obscuring them with other more powerful and interesting points, or explaining them away. You can't ignore them, and must simply accept whatever body blow they might deliver to your case, move on, and try not to lose your momentum or the story line. If you tell a good story, you will be surprised to see that the bad facts tend to be ignored by the trier of fact. 4. What is the Other Side Thinking? From the moment you start hearing your client's story, you need to be thinking how your opposing counsel is going to defend or prosecute the claim. As in football, in litigation the best offense is a good defense. You must constantly be thinking about the weaknesses in your case, how the other side is going to exploit those weaknesses, and how you are going to deal with it. Anticipation and foresight by a trial attorney about what is likely to come down the road in the case is the greatest strength and skill a litigator can possess. The significant value that experience brings to the table is being able to understand where the case is likely to be in four or six months and what will need to occur and will happen to get to that point. Most clients understandably have no clue what is in store for them when they embark upon the litigation road. Your job is to predict the future as best you can and let them know what to expect as they work through the process. A corollary to this rule is the recognition that you will not be able to anticipate all the potential problems or legal issues at the inception of the case. No matter how hard you try to map out the case at the start, the reality is that it is likely that at some point during the case a piece of evidence will surface you had not anticipated or your adversary will raise a legal argument that you had not expected. It is going to happen and therefore you can never be complacent about the merits of your case. You must worry all the time about it. It is for that reason, and others, that if I can I will file motions for summary judgment. There is no better mechanism for flushing out your opponent's legal theories and strategy than forcing them to respond to such a motion. It also provides a very valuable exercise in thinking through the strengths and weaknesses of your own case, 5 Bring Your Client to Court Most court hearings prior to trial do not require the client's attendance. However, it is a mistake not to encourage or perhaps tell your client that he needs to come to the status conference or the hearing on a pre-trial motion. I am reminded of a case [ had where the client was adamantly opposed to settling the case on terms 24 proposed by the other side terms which I might add were reasonable. So the case went on and at some point the client attended a routine status conference where our case was but one of many on the docket and we got to sit through the cattle call while that docket got processed before our case was called. The judge assigned to our case had no business being on the bench. He was erratic, difficult, ill-tempered, and just not pleasant to be in front of. I have always said that the best judges are those individuals who possess the skill and temperament to hear your argument with respect and dignity and engage in a professional colloquy. Even if the judge rules against you, as an attorney you are at least satisfied knowing you had a fair hearing in court and your client and his cause were treated with respect. But this judge had a different judicial style - which was not pleasant to watch. After about an hour of sitting in the courtroom watching the show, the client took me aside and told me to accept the settlement offer he had so vehemently rejected earlierand that was that To say | was stunned would be an understaternent, but I learned a valuable lesson from that case in that you need to expose your client to the vagaries of the court room as soon and as often as possible in the case. The sooner the client is exposed to this reality the better off they will be and more likely to see the wisdom of settling the case - rather than taking their chances in court