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M ... I ... C ... See You Real Soon In Court

M ... I ... C ... See You Real Soon In Court<br />
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Government
May 2023

(Photo by Joe Raedle/Getty Images)

At Harvard Law School, Ron DeSantis clearly snoozed through both torts and con law. Phooey on free speech, phooey on learning anything about retaliation, but the most important lesson since HLS is that you do not mess with the Mouse House. Anaheim, California, home of Disneyland, could probably give DeSantis some pointers.

He is just another example of how a Harvard law degree doesn't translate to competent thinking in the real world, at least not in Florida. Watching DeSantis get thumped with the Mouse Ears will be fun to see.

Not to be outdone in this ongoing battle of "tag, you're it," the board of the special district created years ago for Disney World, a board now full of the governor's friends, has filed suit in Florida state court (a more hospitable venue for the board?) against Disney, alleging various theories.

Discovery in both cases should be fun. I wonder how many cringe-worthy emails, texts, and other writings the board will have to produce. Shades of Dominion v. Fox? My advice: never bet against the Mouse House.

If DeSantis likes the idea of putting a prison on what he considers to no longer be Disney's land, let me suggest that San Quentin prison up in Marin County is in the process of emptying out its death row. Perhaps Gov. Gavin Newsom can expedite relocation of the closed death row section to Florida for use there. Logistics is an issue, but I trust the two besties could work it out.

All lawyers of whatever vintage think about failure. (Am I predicting a DeSantis drubbing by Disney? Cue the alliteration.) It's only natural that in our adversarial profession there are winners and losers. And that's why so many lawyers become mediators (I plead guilty) because we think there's a better way to resolve disputes than going into court to duke it out Punch and Judy style.

I am always amused by prospective clients (e.g., lawyers) who want to know my "settlement rate." Does that mean that if the case doesn't settle at mediation, that's a mark against using me? What if the parties want time to think about the last offer made? What if they want to consider a mediator's proposal? What if they need to speak with family to pencil out whether the offer makes sense? What if there needs to be additional conversations with decision makers as to whether to accept or reject? Does the mere fact that there's no settlement agreement signed at the close of the mediation session mean that mediation failed? The parties failed? The lawyers failed? The mediator failed? What if the case eventually settles, soon after mediation, after more discovery, or even after a jury is selected like Dominion v. Fox? A failure? If I hear lawyers tell me one more time to "work your magic," I will barf. It won't be pretty. Mediation should be a collaborative process.

Lawyering is not like sports; there you know who wins and who loses at the end of the game. So, what, indeed, is failure? Who gets to define it? Does it always look the same?

Giannis Antetokounmpo, the Milwaukee Bucks star player, was spot on in replying to a question asked by a reporter if he considered the season a "failure." (For the non-NBA fans, the Bucks lost to the Miami Heat and were eliminated in the post-season). Antetokounmpo's words about moving forward from a loss are words that we lawyers should take to heart. While his words are directed at sports, they are universally true:

Do you get a promotion every year at your job? No, right? So every year, your work is a failure? No. Every year, you work towards something, which is a goal: It's to get a promotion, to be able to take care of your family, provide a house for them, or take care of your parents. It's not a failure, it's steps to success. There's always steps to it. Michael Jordan played for 15 years and won 6 championships. The other 9 years were a failure? That's what you're telling me.

There's no failure in sports. There's good days, bad days, some days you are able to be successful, some days you're not, some days it's your turn, some days it's not your turn. That's what sport's [sic] about. You don't always win, some other people are gonna win. And this year, someone else is gonna win. Simple as that.

So 50 years from 1971-2021 that we didn't win a championship, it was 50 years of failure? No it was not, there were steps to it, and we were able to win one, hopefully we can win another one.

From the time we enter law school (and even before), we are obsessed with winning: class standing, grades, law review, Order of the Coif, and of course, the juggernaut of the bar exam. After we land our first job, then it's all about proving yourself repeatedly. Do you get good assignments? Stellar reviews? What are your chances for partnership or promotion? Do you stay the course, roll the dice, and hope you get there? What if you don't?

We are so hard on ourselves, and I think that contributes mightily to the mental health issues we have. We don't cut ourselves any slack (I plead guilty) and we feel that we have let our clients down if it's not a perfect outcome. We need to remind ourselves that just because we don't win every time doesn't mean we have lost.


M ... I ... C ... See You Real Soon In Court
Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She's had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact -- it's not always civil. You can reach her by email at
[email protected].

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