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War Stories: Tales From The Trenches Of Litigation

When you’re a real litigator — at a firm, in the trenches, arguing stuff and getting your hands dirty — you see and hear the coolest things.

So I’m sharing a couple of litigation war stories with you today, and soliciting you to share others in the comments.

I’m in the California Court of Appeal in San Francisco. My case is third or fourth on the calendar, so I’m watching the arguments before mine. In the first case, the appellant had been convicted of a bunch of gruesome crimes. It was hard to tell without having read the briefs, but the litany plainly included rape, murder, and the desecration of a corpse. Defense counsel had not exactly lucked out in the selection of an appellate panel: He was arguing to three female judges, all of whom had formerly been prosecutors.

For reasons not entirely clear, counsel was trying to reverse the conviction for desecration of a corpse. He insisted that no evidence supported the verdict, because there was no evidence (I kid you not) that the defendant had jammed the stones inside the victim after she had died. As one of several arguments, counsel tried an appeal to reason. He asked the (seemingly) rhetorical question: “But why would my client have shoved rocks inside the body after she was dead?”

The question wasn’t so rhetorical, after all. One of the judges leaned forward incredulously and asked, with a snarl: “Excuse me, but . . .

. . . why would he have shoved rocks inside the body while she was still alive?”

I swear I heard that exchange. I never saw the resulting opinion, but I’d bet the mortgage it was an affirmance. (I no longer remember the name of the case that I was arguing that day, and a quick search suggests it must have resulted in an unpublished opinion, but it raised the question of federal preemption of claims against manufacturers of medical devices. Maybe a sleuth can do some online archaeology and identify the hapless defense counsel in the criminal case.)

Travel with me, if you will, to the Eastern District of Pennsylvania in 2006. I’m arguing a motion to dismiss. Plaintiffs’ complaint ropes together the claims of ten people from different states who all took the same prescription drug. The complaint says, with no detail whatsoever, that the plaintiffs ingested the drug, suffered unspecified injuries, and are entitled to a king’s ransom in damages. The judge was well into his 80s; he was generally a tough customer, and he wasn’t in a particularly good mood that morning.

He sneered down at plaintiffs’ counsel: “This complaint doesn’t say anything about any individual plaintiff. It doesn’t say where or when or why they each took the drug or how the drug hurt them. Aren’t you familiar with the part of Rule 8 that says that a plaintiff must state a claim for relief?”

“Rule 8 also says the complaint should be short and plain . . . ”

“But you have to tell the defendant what it’s accused of.”

“We’ve wrestled with the tensions inherent in Rule 8.”

“Not very successfully.”

It didn’t get any better as the argument went on. When it was my turn to speak, I said little — in the words of an old pro, “once you’ve won, sit down” — and did my best not to laugh at opposing counsel’s torment.

After the argument, opposing counsel came over to me. Instead of shaking hands, he turned around, leaned over, and said to me (basically speaking to me backwards from between his legs): “Well, Herrmann, do you want to take a chaw out of my other cheek?”

(Need proof that it happened? Here’s a link to the resulting opinion. (Although the judge didn’t appreciate some of the tactical choices that we’d made, he gave us the relief we sought — separate cases, coordinated pretrial proceedings followed by motions to change venue, and all without the adverse publicity caused by creating a consolidated MDL proceeding.))

Are those the best war stories ever? Of course not. I’ve surely forgotten more and better stories than occurred to me when I sat down to type this morning.

But I miss those events now that my cushy in-house job has lifted me out of the litigation fray, and I’d love to hear your best tales. Please share them in the comments.

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

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