Yeah, yeah: That title caught your eye.
I thought about titling this column “Litigation Aphorisms,” but who the heck would have read it?
So I went instead with the first of three critical things you should know about litigation, all of which I learned from Neil Falconer when I practiced at the 20-lawyer firm of Steinhart & Falconer in San Francisco back in the 1980s. (I also dedicated The Curmudgeon’s Guide to Neil. He wasn’t a “mentor”; he just accidentally taught young lawyers by osmosis what it meant to be a lawyer.)
Neil’s first aphorism was this: “Never tell a small child not to stick peanuts up his nose.”
Why does that matter?
Or maybe I should start with a more basic question: What the heck does that mean?
You’re writing an opening brief. You know what the other side’s best response will be to one of your arguments. So you drop a footnote saying: “In response to this point, the other side will surely say X. But X is wrong for the following three reasons. . . . ” And then you wrestle the other side’s argument to the ground.
Neil would look at the draft brief and say: “I think you have a peanuts problem here.”
“A peanuts problem?”
“Right: Never tell a small child not to stick peanuts up his nose. If you tell a small child not to stick peanuts up his nose, you’ve guaranteed yourself a trip to an ear, nose, and throat specialist, so the doctor can pry six peanuts out of the kid’s nose.
“It’s the same with opposing counsel. You know a great argument that the other side should make. If you don’t mention the argument, the other side may miss it. But if you include your footnote preempting the other side’s best argument, you’ve guaranteed that a big chunk of the other side’s brief will wallow in your great argument. Be careful when you try to preempt the other side’s arguments; you may simply be telling a young child not to stick peanuts up his nose.”
Now Neil wasn’t crazy; far from it. If you were 100 percent certain that the other side would make an argument, then you might preempt it. If you were concerned that the other side might miss the argument, but the court would think of it, and you’d lose without having had a chance to brief the issue, then you might preempt the argument. But you always thought long and hard before anticipating the other side’s arguments, for fear of telling a small child not to stick peanuts up his nose.
(If you and Neil worried together about an argument the other side would make, and they never made it, Neil would rub his hands together in glee: “I told you, Mark! I’ve lived a hard life, and most of it never happened!” That man, God love him, was full of bromides.)
Neil’s second aphorism: “You’re on trial when you’re within three blocks of the courthouse.”
What did he mean? If you leave your Rolex watch and Savile Row suit at home during jury trials, because you want the jury to think that you’re just a tort lawyer from Conshohocken, you’d better not drive to court in your BMW 7-Series and park that puppy two blocks from the courthouse. If you do, then Juror Number 6 is sure to be parking her used Nissan Versa in the spot right behind you, and you’ve blown your cover.
When you’re in the elevator in the courthouse, or washing your hands in the restroom, it’s a bad time to mention to co-counsel that the judge is a jerk or Juror Number 4 nodded off and was drooling. Because the strangers in the elevator with you are sure to be the judge’s clerks and the guy you don’t see in the stall behind you is Juror Number 4.
You’re on trial when you’re within three blocks of the courthouse.
Finally, the last of today’s aphorisms: “During a jury trial, always come out of chambers smiling.”
Because the jury doesn’t know what you were arguing behind closed doors, and the jury doesn’t know who won the argument. If the other side comes out of chambers looking jubilant, and you’re hanging your head in defeat, then the jury will conclude that you just lost something important. Maybe you did and maybe you didn’t, but there’s no reason to let the jury know. Come out of chambers grinning like the Cheshire cat and the jury will peg you as a winner. That can’t hurt.
(Neil felt the same way about reacting to the judge’s rulings on objections: You object. The judge overrules. Smile broadly as you sit down. “The jury doesn’t know what an objection is or what ‘overruled’ means. The jury knows only that you look like you won or lost something. So look like you won something; it can’t hurt.”)
As I’ve said before, I never thought I needed a formally assigned mentor to treat me to mandatory monthly lunches. All I ever needed was someone who cared deeply about the law and passing his wisdom on to the next generation.
I was lucky to have that; I wish I had an aphorism for it.
Mark Herrmann is the Chief Counsel – Litigation and Global Chief Compliance Officer at Aon, the world’s leading provider of risk management services, insurance and reinsurance brokerage, and human capital and management consulting. He is the author of The Curmudgeon’s Guide to Practicing Law and Inside Straight: Advice About Lawyering, In-House And Out, That Only The Internet Could Provide (affiliate links). You can reach him by email at firstname.lastname@example.org.