Having The Touch

Exceptional shooters in basketball all share a common quality known as having “the touch”. The touch is an unteachable skill that enables a shooter to know just how much force it will take to make the ball go through the hoop.

Exceptional lawyers and judges share this same quality. They also have “the touch”. They know just how much it takes to get the job done and, just as important, when to use it. I first understood the use of that skill when I helped my senior partner try a civil case. This one was like many, significant injuries and difficult liability. It was a case, like many, that should be settled. For reasons I can’t now remember settlement was not going to happen before trial and, despite our efforts, was not going to be settled during jury selection. It looked like the case was going to have to be tried, exposing our client to the risk of losing any compensation for her serious injuries.

And so we prepared for trial. We profiled our ideal jurors. Our witnesses were scheduled. The doctor would testify about the injuries; the engineer about the defects; and our client about her pain, the operations, the fall that caused her injuries, her present limitations and the pessimism that clouded her vision of the future.

Jury selection was interrupted by settlement discussions with the other side. Nothing. The selection resumed and was completed in a day. We began our case. The engineer offered his favorable analysis and was wounded a good bit on cross. The doctor showed x-rays, described the injury and spoke of future medical needs and permanent disability. He emerged for the most part unscathed. The day ended with a portion of our client’s direct. We would resume the following morning to complete the direct to be followed by her cross examination which we knew would be effective and damaging.

We arrived earlier than usual for court the next day. We got there before our adversary and began to set up shop when my partner showed me what touch was all about. He said casually to the clerk, “Tell the judge that this would be a good day to talk to us”.

The message was clear. Now was the time to settle. That message meant our case had almost reached its apex, that we were willing to talk, and that, with the judge’s help, our adversary would understand that the time was right to resolve the case.

That is exactly what happened. The judge properly read my partner’s signal. He called us into chambers and began to work on both sides, outlining the risks for each. Then speaking to us separately he deflated our demand and elevated our opponent’s offer and the case was settled. My partner had the touch. He knew when the time was right and knew our opponent would, with the help of an intelligent judge, recognize that the case should and could be settled.