Caesuras

Caesuras: How do you like that for a title?

(I bet I enticed two people to click through to read this column. Hi, Mom!)

The word “caesura” is typically used in verse or music. It refers to a pause — a break where one phrase ends and another begins.

But you can have a caesura in other contexts, too, and today I’m thinking about caesuras — nights and weekends — during long trials.

Decades ago, when I was about ten minutes out of a clerkship, I participated (in the way that junior associates do) in a battle of titans: Ray Bergan, then of Williams & Connolly, represented the other side. Herb Hafif, of the Law Offices of Herbert Hafif, was aligned with us. (I hadn’t thought about those guys for a long time. It pained me when I just created a link to an obituary for Ray; I’m delighted to see that Herb’s still with us.) (Herb’s last name, Hafif, is pronounced “half.” I’m told that lawyers opposing him would sometimes refer to his statements as “Hafif truths.” That’s terribly unfair to Herb — but awfully funny. So I’m sharing with you. Note to Herb: Please forgive me.)

Anyway, about caesuras.

Herb was a spectacular trial lawyer. He didn’t rely upon a single piece of paper containing notes throughout this entire trial — which started in January 1985 and ended in March. Herb whispered; he raged; he towered; he sank to his knees. He also won (in our case) what was then the largest punitive damage award in California history. This was a command performance.

(Ray was pretty good, too. But his cause was hopeless. When someone on our side congratulated Ray for having done a fine cross-examination of a witness, Ray muttered: “Rearranging deck chairs on the Titanic.”)

Anyway, Herb cared about the breaks.

If Herb was examining a witness a half hour before the end of a day, he always continued the examination until the day ended, and he always had a question or two to ask the next morning. If Herb was examining a witness on Friday afternoon, he always continued the examination to the end of the day, and he always had a question or two for Monday morning.

Why? Control the breaks.

Be sure the jury is always thinking about you during nights and weekends. Discourage the jury from thinking about the other side.

During that trial thirty years ago, the other side was examining a witness for most of the day. They ended their examination about five minutes before we’d be quitting for the day. Herb told the judge that we might as well start the cross-examination, and Herb ranted and raved in front of that witness for five minutes. Then we adjourned for the evening.

I no longer remember what Herb asked the witness. But that, of course, is the entire point.

In Herb’s words, as best I remember them thirty years later: “What fools! They had six hours of direct testimony, and the only thing the jury will remember is that I was mad about something today. Control the breaks!”

The subject comes up because in trials I’ve seen recently (even those pitting quite good lawyers against each other), counsel don’t seem to worry too much about the breaks. If an examination would naturally end five minutes before the end of the day, or five minutes before a weekend, lawyers stop asking questions and let the other side begin.

I don’t know if controlling the breaks is a lost art, or if people now try so few cases that they’re no longer sensitive to this, or if this is really a super-advanced suggestion in trial advocacy that people no longer worry about. (“I asked only leading questions on cross-examination. Isn’t that hard enough?”)

But I’m resurrecting this idea in case it’s time for folks to consider it again.

Caesuras: As in poetry and music, the breaks in trials matter.

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Mark Herrmann spent 17 years as a partner at a leading international law firm and is now responsible for litigation and employment matters at a large international company. 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 [email protected].