David A. Grabhorn

Since childhood, I always knew I wanted to be a lawyer, but I cannot point to any one thing as the “why” of it. In retrospect, maybe it was because I was the oldest of eight children living in a rural area without any close neighbors. Being charged with guarding the little ones, mediating disputes between them, and applying the rules of the house, probably led to my schoolhouse interest in advocacy and wordsmithing. The high school debate team, speech club, student congress, and similar advocacy competitions were fun and appealed to me from my freshman year. So, when I answered “pre-law” to all career questions from school counselors, none were surprised, nor did they waste time suggesting other careers.

I get immense satisfaction, which I cannot explain, from assisting others in fixing their problems. Sometimes, that includes positioning the client to avoid issues before they become problems. In any case, I thoroughly enjoy finding mutually acceptable resolutions to disputes, crafting unbreakable contract language, vindicating the violated rights of the offended, or successfully defending the unfairly accused.

Of course, one can be an advocate in many different forums without being a lawyer, just as one can perform first-aid without being a doctor. The difference between being an advocate and a lawyer is the difference between being an amateur and a professional.

The short answer is: because I like the law and the legal profession. I like and respect the process; I enjoy research, writing, parsing meaning, and applying the rules; and, I love the feeling I get from a successful outcome.

Synergy. Legal problems seldom confine themselves to a single area of law. Individuals frequently seek out the services of a lawyer concerned about one problem, unaware of other issues, then quickly find themselves in the midst of complex litigation. Real estate transactions can morph into business torts or even personal injury lawsuits. Likewise, business transactions frequently implicate real estate law, employment law, or business torts as well. The mere ownership of a small business usually includes questions of succession, which may give rise to issues involving contracts, wills, and trusts. Settlement of any legal dispute will have collection and tax implications, even if the specter of bankruptcy did not already arise as a cause or consequence of the underlying legal action. Finally, all judgments are subject to appeal.

As a result, the sole practitioner risks either overlooking or being forced to outsource some aspect of the case. Small boutique firms that limit themselves to a single practice area often do no better for their client than the sole practitioner on such collateral legal issues. Huge mega-firms with entire departments devoted to various areas of law practice divide the legal work accordingly. However, that division comes at the price of little day-to-day input between the departments or of greatly increased legal fees. Our firm consists of partners with complimentary rather than duplicated legal experience. Our partners have years of practical experience in business transactions and litigation, labor and employment transactions and litigation, taxes and bankruptcy, trusts and probate litigation, appeals and judgment collection. We work in close enough proximity that each of us routinely, almost unconsciously and without double billing, shares the facts and progress of every case from the perspective of our own practice area. The result is an holistic client representation that is automatic and inherent in the way we interact within our office. Our synergy is what sets us apart.

I am most proud of cases that settled, but they had nondisclosure agreements. There are, however, two matters that come to mind that I remember with a great deal of satisfaction and pride. They were very similar but occurred years apart and involved unrelated companies. One was in the steel industry and one in the newspaper industry. Both were Fortune 500 employers struggling to control the costs of providing health insurance for their employees and faced with expensive litigation and labor strife if they failed to do so. I was able to craft an innovative settlement that reduced and capped the cost to the employer for 3 years into the future at the same time it actually improved the health care coverage for those employees. The final agreement lowered the employer’s existing cost of insurance by purchasing a cheaper plan with higher deductibles and office charges. Then, the settlement took part of the savings to fund an individual employee health reimbursement account, maintained and managed by the employer, that virtually paid 100% of the deductibles and office charges incurred by the employees. The employees had an incentive to refrain from abusing the benefits because whatever the individual did not spend was rolled over into his or her account that the individual could utilize upon retirement as a post-retirement benefit. The employer’s costs were reduced, known, and contractually guaranteed for three years. The reductions in cost even inspired the employer to improve wages.

Assuming “difficult” is defined to mean a close question on the facts or law, assuming “case” means litigation rather than a transaction, the methodology for a difficult case is essentially the same as for an easy case. But there is a difference in the manner of executing these steps when the client is an unsophisticated individual, rather than an institution with a knowledgeable professional as the contact person. In both cases, though, involving the client in the preparation is paramount.

Indeed, keeping the client involved throughout the case is the best way to avoid an unsatisfied client. I learned a long time ago that a brilliantly managed case resulting in a superb outcome for the client is of much less value if the client is unsatisfied because he or she does not understand and appreciate what was accomplished. Lawyers who make spectators rather than participants out of their clients run the risk of winning the case and losing the client.

First, I interview the client to understand his or her exact concern and the specific action by us that is expected. During that interview, I also look for other potential claims related to the specific problem that triggered the client’s request for our services. I try to give the client some homework in the nature of evidence production, identification of witnesses, listing of opposing claims, or answers to any specific questions the client was unable to answer during the interview. The purpose of the homework is to obtain evidence as quickly and efficiently as practicable, while at the same time educating the client on his own case, as well as keeping him or her involved in the case.

Second, I review any documents produced by the client and discuss the issues with the partners for their input from their various areas of practice. I survey the relevant statutes, regulations and case law. I outline an analysis of the case, listing the issues, evidence, problems, and potential courses of action. If litigation is an option, I list the potential causes of action and the proof needed.

Third, I meet with the client in person for an in-depth discussion of our assessment of the case. I explain the process of filing suit (or defending) in the specific context of the client’s problem. I discuss the potential costs, advantages, and disadvantages of each course of action. If litigation is an option, I explain the steps, including demand letters, discovery, settlement possibilities, and all potential outcomes—best case and worst case.

Fourth, I prepare the pleadings and review them with the client. I make a determination in consultation with the client and the partners whether and how to communicate a demand or settlement offer before filing suit.

The difference between a hard case and an easy one is a matter of the amount of work that is necessary to prepare. An easy case has three eyewitnesses supporting our facts—all clergymen, each of a different faith—all volunteering to testify. A hard case is a lack of credible witnesses or documents supporting our facts and credible opposing evidence. Therefore, the hard case requires more investigation, more discovery, more effort. I prepare for a hard case by working harder.

My role is to guide the client through the labyrinth known as the legal process as he tries to achieve his goal. My job is to identify options and to evaluate the different courses of action that will accomplish the client’s objective. My duty is to analyze, assess, and explain to the client the respective advantages and disadvantages of each different course of action as well as the likely legal ramifications of each. I identify pitfalls and advise the client regarding them. In most cases, following a thorough explanation, I owe the client a recommended course of action, based upon a reasoned cost/benefit/risk analysis. But, above all, it is my job is to accept the client’s choice of action, and then to assist in the execution of it. Finally, if at any time I am unable to ethically or legally follow my client’s instructions, it is my duty to withdraw as counsel.

My dedication to the client’s case and the extra effort it entails. When I am handling a case, it is always in the back of my mind even when I am working on other cases, or out of the office altogether. Until it is over, it is my case and I think about in my sleep. Moreover, the size of the case is irrelevant. I once tried and won a case in arbitration over $23.48 because the client wanted to vindicate its contractual right as matter of principle. My fees for that vindication cost the client over $5,000 for that contract dispute because I spent nearly as much time, preparation, and effort on it (including a post-hearing brief) as I spent winning a double discharge arbitration award for the same client on a subsequent occasion. I enjoy the process and the work itself, so I do not try to avoid either, even when the client’s matter will not make judicial history. I think my extra effort and dedication to the client’s cause is important because I think it is usually important to the client.

Experience benefits the client by reducing the cost of legal research and by avoiding the costs incurred exploring options that turn out to be dead ends. An experienced lawyer, having already been down that road, knows when a particular motion is likely to be a waste of time without filing it to find out. An experienced lawyer is simply more likely to find the right solution to the client’s legal problem and to find it faster. An inexperienced lawyer is forced to do more research and spend more time trying to find the optimum trial strategy for the client, assuming he can find it at all. That is why inexperienced lawyers usually have lower billing rates, but still wind up charging the client more at the end of the case. And, of course, if the inexperience causes the case to be lost, the client ultimately pays much more.

Achieving a resolution of the problem or the case that is such a good outcome the client smiles when he or she happily pays my bill.

In the context of transactional work, I most often advise the employer to take the recommended corrective action before the offending policy or practice becomes a costly legal problem. That course is immeasurably better for the client. Not only does fixing it now save the expense of legal defense and fines later, but it will probably enhance moral and make the management team more effective.

In the litigation context, the inevitable advice is: “Listen to the question and answer only what is asked.” Too often clients called upon to answer discovery, at depositions or at trial—answer in a way that damages their own case, because they are trying to advocate instead of answering. They know their own case, and they think they know the point opposing counsel is getting at, so they anticipate, they do not listen, and they try to out-maneuver opposing counsel. Frequently, such a client will answer without hearing or understanding the question. When that happens, even truthful answers are viewed with suspicion, because they are non-responsive and the witness appears to be dodging question as a result. Moreover, answers that go beyond the question asked unnecessarily increase the likelihood of the client damaging his or her own case.