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How Litigation Skills Helped My Family Cope With Covid-19

Oct. 21, 2021, 8:01 AM

My family has been extremely fortunate throughout the Covid-19 pandemic. With help from grandparents and others, we avoided infection for more than a year. Finally, my wife and I were able to get vaccinated.

Then, out of nowhere, my wife lost her sense of taste and smell. Hours later, she tested positive for a breakthrough case, and I suddenly needed to quarantine two unvaccinated kids from her—and the rest of the world. We remained lucky. No one in my household developed severe symptoms. But in the stressful weeks that followed, I found myself relying on skills I had developed for a very different purpose: my career as a litigator.

Of course, we cannot litigate against a deadly disease. But when faced with a new and daunting challenge, I found it comforting that I could rely on familiar skills.

You Need to Pivot Quickly

Litigators are no strangers to quick pivots. The information they must consider changes constantly. Courts issue surprising new opinions. An adversary produces a bombshell in discovery, or declares that no documents have been retained. Even the business considerations a client raises can evolve. The strongest case a litigator can present changes based on each development, and the best litigators constantly adapt.

Responding to Covid-19 also required quick strategy changes in response to new information. When my wife tested positive, the rest of our family had to quarantine from her, almost immediately, to await our own symptoms or test results. That strategy confined my wife to our bedroom and forced our kids to see her only from a distance.

Then, everyone else’s results came back. My toddler son was positive, but my infant daughter and I were negative. All of a sudden, the landscape changed again dramatically. We sterilized the bedroom, and my daughter and I moved in so the negatives could quarantine from the positives. These changes perplexed my son, but we succeeded in avoiding further infections.

Focus on Long-Term Success

Litigators must prioritize long-term success. That can be hard, because litigation often presents opportunities to score short-term gains. When opposing counsel makes a mistake, scorched-earth tactics may obtain a temporary advantage. But such tactics can backfire in the long run if cooperation is required for a reasonable resolution.

Another difficult decision many lawyers face is whether to correct a witness or a judge who makes a favorable mistake. While the temporary benefit of the mistake may be attractive, the damage to the lawyer’s credibility when the mistake is realized always outweighs it.

Responding to Covid-19 also created conflicts between my short- and long-term interests. When my wife got her diagnosis, my cases didn’t go away, and I didn’t want to stop litigating them. After a full day of childcare, I wanted to stay up through the night to make the progress I had planned on.

But I also knew that doing so would increase the likelihood that I got sick. Contracting Covid would, at a minimum, mean a longer period of quarantine, and could lead to worse. So, I made the difficult decision to postpone everything I could and seek help on anything I couldn’t. Luckily, I have fantastic colleagues who pitched in to make sure everything got covered.

Storytelling Is Everything

Litigators need to do more than relay facts. They must make them come alive, so that complete strangers understand how the litigators’ clients experienced events and responded. To do that, litigators must be master storytellers, setting the scene, introducing characters, and building tension until it explodes into a lawsuit.

Covid-19 drew heavily on my resources as a storyteller. First, I had to explain why my toddler couldn’t see his mother, without completely terrifying him. I reminded him of a recent time when he was sick. Mommy felt as yucky as he had then, and she wanted more than anything not to make him feel that way again.

Then came the biggest challenge. My son tested positive, but felt fine. How could I persuade him that he had a dangerous disease? I told him about tiny particles called “germs” that jump from person to person, trying to make everyone sick. Even if they didn’t make us feel bad, we did not want to let them jump to anyone else. And I also reminded him of times when he did not feel hungry, thirsty, or tired, only to discover that he was when he tried to eat, drink, or sleep.

Stay Humble

My family’s response to Covid-19 also reminded me of another lesson from litigation: You can do everything right and still have things go wrong. My family did what we could to follow CDC guidance, but we still got sick. The same is true for many others.

Litigation is equally unpredictable. Cases, particularly the ones that go to trial, raise difficult issues that provoke a range of responses. Even a dazzling courtroom performance can fail to persuade, because the judges and jurors who decide cases have their own experiences and perspectives, and sometimes even make mistakes.

Despite getting Covid-19, my family remained incredibly lucky. We did not endure the hardship and loss that have affected so many. The stress we did experience, though, helped me understand anew how my career can shape my life. At their best, litigators help clients navigate and resolve their most difficult problems. It’s gratifying to discover that we can do the same for ourselves.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Caleb Hayes-Deats is counsel at MoloLamken in Washington, D.C., where he represents companies and individuals in high-stakes commercial disputes and government investigations. Before joining MoloLamken, he served as an assistant U.S. attorney in the Southern District of New York.

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