Maybe Non-Litigators Don't Understand: No Matter What You Do, You're Always Wrong

Non-litigators have (to my eye) an unusual way of looking at the world. If you made a mistake, non-litigators wonder why you made the mistake, and they assume that, if you hadn’t made the mistake, then life would be better.

Thus: You run a pharmaceutical company. The result of some study comes in.  The study suggests that your drug could cause a previously unknown side effect.  You immediately ask your internal scientists to validate the result of the study, so that you don’t act too quickly (and incorrectly) based on information that later proves to be wrong. You confirm with the FDA that it has no objection to your warning about the new side effect. You change the label on your product to warn about the new side effect.

This sounds responsible, right?

Not to the plaintiffs who had previously suffered the side effect and immediately sue you for not having warned about it.

Why didn’t you warn about the side effect earlier, they ask.

Because the study hadn’t been done earlier.

Why didn’t you do the study earlier?

No one was focused on this possible side effect. It came out of the blue.

Why wasn’t anyone focused on this side effect? You run a billion-dollar company, for heaven’s sake. It’s your drug. Who the heck was supposed to focus on the possible side effects if not you?

Not only that: Why did you take so long to warn about the side effect after you knew the result of the study?

Because we had to validate the result of the study.

And that took you two months? You run a billion-dollar company filled with hot and cold running scientists. You couldn’t have assigned a few more scientists to the project and validated the study more quickly? How irresponsible of you!

See? It doesn’t matter what you do; you’re always wrong.

Here’s another example:

You get sued for a billion dollars for breach of contract. Clause 1, which governs this dispute and which the plaintiff focuses on, is in fact a little ambiguous. A non-litigator might think: “What a shame that someone drafted clause 1 that way.  If clause 1 had only been drafted differently, there would be no lawsuit.”

But every litigator knows that’s wrong.  Suppose the contract had been drafted differently.  You still would have been sued.  With a billion dollars on the line, the lawyers on the other side weren’t going to give up just because clause 1 looked okay.  They were instead going to find some other ambiguity in clause 1. Or maybe they wouldn’t have sued you over clause 1; they would have sued you for the ambiguity in clause 2 instead. Or clause 3 or 4. The one thing that’s inconceivable is that the other side would say you did a fine job drafting the contract. There always was going to be a lawsuit; no matter what you did, you always did something wrong.

In this respect, politics is precisely the same as high-stakes litigation. The other side has lots of money and lots of people thinking about how they can criticize you, and those people are motivated entirely by finding fault with what you did. It doesn’t matter what you do; the other side will always say that you did something wrong.

Suppose there’s a war in Ukraine. You fund the Ukrainian defense. Why did you give so little money to Ukraine? Why didn’t you give better weapons more quickly? Why didn’t you give even better weapons even more quickly than that?

In the end, Ukraine wins. Look at the turmoil that you created in Russia! By supporting Ukraine, you’ve created the possibility of civil war in Russia, which means that nuclear weapons may fall into the hands of thugs. Why didn’t you anticipate that and prevent it?

Or Ukraine loses. Look at all the money and weapons you wasted in Ukraine, and Ukraine lost anyway! And Ukraine isn’t vital to any American interest! What kind of idiot are you?

See? It doesn’t matter. You were always wrong, no matter what you did.

As a litigator, you develop an immunity to this. Over the course of years, you stop worrying about whether you (or your client) could have avoided a problem, and you focus only on what the plaintiff’s next argument will be.

I hope you, as a politician, figure out what you believe to be the best course of action, and you act.

But you act with absolute knowledge that you’ll be criticized for whatever you do.  It makes no difference what you do, because you have a well-funded, smart opponent who is highly motivated to find fault in your conduct.

Don’t be surprised. This is the way of the world. But maybe only litigators and politicians realize it.

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Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at inhouse@abovethelaw.com.