Let’s Cross-examine the Case Before We Decide to File that Lawsuit

by Michael A. Zeytoonian
January 2016

Dispute Settlement Counsel by Michael Zeytoonian.

Michael A.  Zeytoonian
I think it’s a good idea for people who find themselves in a dispute to do some cross-examining before they file a lawsuit.

Sounds odd, right? After all, based on what we know about litigation and how the legal process works from what we see on TV and in the movies, cross-examination is the high point of the lawsuit; it’s what everything builds up to, right?

There’s My Cousin Vinnie Gambini, (Joe Pesci), cross-examining the witness about how long it took him to cook his grits: “Were those magic grits, like the beans Jack bought to grow his beanstalk?”

Or passionate Lt. Calley (Tom Cruise) cross-examining high ranking Colonel Jessup (Jack Nicholson): “I want the truth!” “You can’t handle the truth!”

Matthew McConaughey in A Time to Kill: “Imagine the girl is white.” Atticus Finch in To Kill a Mockingbird. You can probably name ten more great TV scenes and riveting cross-examinations.

Real life court cases are not that way. First, less than 4% of the cases that get filed in court ever get to trial. Yes, you read that right. It happens rarely, and when it does, it is are not the stuff Hollywood is made of.

So back to my opening suggestion: Do some “cross-examining” of the case before deciding to file a lawsuit or hire a scorched earth litigator. Let’s move the spotlight around from just one place where your supposed “smoking gun” evidence is. Let’s examine behind the obvious and the positional statements, and peer into the corners of the other considerations about this case of ours. Test our assumptions, our biases and our maybe overconfidence about our “slam-dunk” case. Let’s ask a few more “why” questions before we start.

“I want to sue the other side,” you tell the lawyer you interview.

“Ok. Can I ask you why? What do you hope to achieve by litigating?”

“I want my day in court. I want the other side to suffer. I was wronged here; I want that wrong fixed and to get some justice.”

Suppose the lawyer stopped the inquiry of the client here and said “OK, let’s get started. We’re going to file a complaint, move things along and get you justice. Let me get some of the facts and then we’ll start wearing down the defendants into submission.”

You feel good hearing that. Pumped up. Yeah, baby; that’s what I’m talking about. You get your emotional high. Unfortunately, that high you’re feeling is very short-lived.

But you really haven’t had your dispute and your situation cross-examined to truly know what is ahead or what your options are. That was barely sufficient questioning to sign you up as a client. But not nearly enough to set you and your case up right. The lawyer didn’t even ask you what your desired goal was, or what you would consider to be a good outcome!

Now here’s what I’m talking about. A reality check. A cross-examination of the client about what she really wants, the interests underneath the position, her emotional bandwidth, pragmatic needs and level of risk aversion.

I’m reading another wonderful book by Dan and Chip Heath called Decisive. It cautions us against “the four villains of decision making”: Narrow framing, confirmation bias, short-term emotion and overconfidence. Essentially, the Heath brothers tell us with a great collection of story-telling and examples that we make poor decision because one or more of these factors is at play in our decision-making process, and explain how to avoid them. Decisive, like their other books, Made to Stick and Switch, is a must read.

It is up to one’s lawyer, as a trusted advisor, especially if that lawyer is a person’s “Primary Care Lawyer (PCL)”, to cross-examine the client before deciding what course of action to take. Here are some recommended inquiries for you as a client to hear your lawyer ask you, before you sign on with the lawyer and absolutely before you choose a dispute resolution process. If your lawyer is not “cross examining” you with these before you start working together, think hard about getting a second opinion or interviewing more lawyers!

What is your goal here? What would a good outcome for you look like?

What does getting your day in court mean to you? What do you hope to get out of it?

Have you considered other ways of accomplishing your goals besides litigating?

What is your time frame for when you need to have this dispute resolved?

What is the skeleton in your closet that I need to know now so I’m not blind-sided later?

What is your level of risk aversion? Put it this way: A jury could decide this case the other way and you’d get nothing after spending several years and several tens of thousands of dollars on this litigation. How does that sit with you?

Do you want to control the outcome? Or would you prefer to leave the decision-making about your case to a jury of people you don’t know? Or an arbitrator who is probably very knowledgeable in the subject matter and applicable law in this case?

Can you negotiate or collaborate with the other side with some professional assistance from negotiation-style lawyers and/or a mediator?

Are there other parties and other considerations that we can include in our assessment of this dispute that will help us expand the pie of possible options for settlement?

How important is it to maintain a healthy (business, civic, organizational or family) relationship with the other party(ies)?

How important is confidentiality to the parties in this case?

This inquiry lays a solid foundation for going forward in a way that will achieve the best outcome. This cross-examination, done before you start, is likely far more valuable than the Hollywood one that will almost certainly never happen.


Michael A. Zeytoonian is the Founding Member and Director of Dispute Resolution Counsel, LLC and is a lawyer, mediator and ombudsman. He is formerly a partner and now Of Counsel at Hutchings, Barsamian, Mandelcorn & Zeytoonian, LLP, in Wellesley Hills, MA. He specializes in employment law, business law, special education law, mediation, collaborative law and administrative law. He is admitted to practice in the state and federal district courts of Massachusetts and New York (Southern District) and the state of Connecticut. He has served as a mediator on the MWI panel in the district courts and on the BBA panel in the Boston Municipal Court.

He is a member and Massachusetts Bar Association and is chair of the MBA’s ADR committee and a member of the labor/employment section. He is a Past President (2006-2007) and member of the Massachusetts Collaborative Law Council, the International Academy of Collaborative Professionals and the New England Association for Conflict Resolution. He writes frequently on collaborative law and alternative dispute resolution (ADR) and has trained lawyers and presented in collaborative law and ADR around the U.S., Canada and Ireland. He has lectured at Northeastern University School of Law, Suffolk University School of Law, New England Law Boston, UMASS School of Law and Roger Williams University School of Law.

He served as Assistant Attorney General in the Office of the Attorney General of the State of New York, as a deputy overseeing litigation in the State Counsel Bureau in Westchester, Rockland and Putnam Counties and working on consumer advocacy cases. Prior to his work at the Attorney General’s Office, he was an Assistant County Attorney in the Westchester County (NY) Law Department, in the litigation and family court bureaus. His litigation work at both the County Law Department and the Attorney General’s office included cases in employment; labor; state, county and local municipal matters; environmental law; construction, administrative and tort law, and the prosecution of child abuse and neglect cases. His undergraduate education was at Boston College and Iona College, where he received his Bachelor of Arts degree is history and education. He earned his J. D. from Pace University School of Law with a Certificate in Environmental Law in 1990.

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