The Jerk Store
Litigators too often take an overly cautious approach and are afraid of making decisions. Don't fall into this trap.
Litigators too often take an overly cautious approach and are afraid of making decisions. Don’t fall into this trap: you’re only hurting your clients and yourself.
The French have a phrase, l’esprit de l’escalier, translated usually as “staircase wit.” In the U.S., we just call it “jerk store.”
In the seminal Season 8, Episode 12 of Seinfeld, “The Comeback,” George is indulging in a bit too much shrimp at a business meeting. A colleague mocks him for it, telling him, “The ocean called, they’re running out of shrimp.”
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Speechless, George says nothing. He spends days stewing over, then focus-grouping with his friends, the perfect comeback. He finally settles on, “The jerk store called, and they’re running out of you,” and goes to appropriately comedic lengths to finally deliver his stinging comeback, including flying out to Akron. He succeeds in part, but much too late, and to no real effect. As Axl Rose also learned, once you take too long, nobody cares.
Litigators are called on all the time to make quick decisions. Judges hate it when you answer, “I need to check with my client on that.” If you’re not ready to immediately and bindingly speak on behalf of your client—implying you’re either too timid to make a decision or your client doesn’t trust you enough to give authority—you’re burning credibility every time you talk, and hurting your client in the process. If you dwell on it long enough later, some decisions may have been right and some may have been wrong, given hindsight and reflection. But that’s life. A perfect answer two days later gets you nothing. Even a mediocre comeback beats George sitting there, silent and stewing.
Speak Quickly And With Authority
Most obviously, any time you’re in front of a judge or opposing counsel, you’re expected to answer quickly and decisively, and your client is bound by whatever you say. Some lawyers are driven to caution by this. That is a mistake. Whether you’re in a deposition, a hearing, or on trial, you need to make swift decisions based on the information that you have available.
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If your client doesn’t trust you to make those calls, you might politely suggest that they find another lawyer whom they do trust. If you don’t trust yourself to make those calls, it may be time to find another profession. Any effective advocate must respond with authority. Even in email, if you routinely take days to respond to an adversary or need to check with your client on every issue, the message you’re sending is that you are weak and indecisive, and must run every decision past your client or a focus group. Your adversary will leap on that and rip your face off.
When It’s Due, It’s Done: Briefs
The jerk store principle extends equally strongly to briefs, the most considered form of advocacy. A former colleague of mine swore by the “When It’s Due It’s Done” rule of briefing. When the deadline comes, your brief may be perfect or deeply flawed, but it’s done, and nothing will change that. The fact that you could put together a better brief if given another twelve hours has as much relevance as the fact that you could be a superhero if you could fly and dodge bullets. Your job isn’t to put together the best brief possible, it’s to put together the best brief you can file in the time allotted.
When the time for filing does come, there will always be more that you could have added, just like nearly any deadline can be met if you throw sufficient resources at it and are ready to throw things overboard that you don’t have time to deal with. In one recent case, my colleagues and I were given 80 minutes from receiving the adversary’s reply brief to prepare and serve a sur-reply. We put together a pretty good brief; given more than an hour and a half, I’m sure that we could have written more and been more thorough, but that wasn’t the game. Tom Sargent’s maxim that most of economics can by summarized as “many things that are desirable are not feasible” may apply to many things as well, but it certainly applies to briefs.
Just Make A Decision: Discovery And Management
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Even outside of imposed deadlines, you need to make decisions. For instance, as you hopefully realized early in your career, many document review calls simply require a firm decision to be made. Given reflection, that call may have been different. But forcing your team to sit idle for a week while you meditate on metaphysical truth is an affirmative destruction of value. Your team needs a decision to act on, and that’s often the end of it. And sometimes, although not always, that decision is simply to quickly decide to revisit it later when you have more information.
The same is true of many, if not most, management decisions generally. There may be a right answer or a wrong answer, but most decisions are far from life-changing, and a decent decision now beats spending a week agonizing over it. You can revisit most things later if you think of a better idea. But if you habitually refuse to make and commit to a decision, you’ll lose the respect of your team and waste huge amounts of your own time.
Plan Ahead: Be Ready To Make Decisions
Of course, it takes preparation to be able to make decisions quickly. Usain Bolt doesn’t just sit on the couch every day, then every four years decide to head over to the Olympics and set a few world records. You need familiarity with your case, the situation at hand, and anything else relevant in order to make good decisions quickly.
Preparation involves more than just studying, it involves a lot of legwork. I’m sure that I’ve spent hundreds of hours preparing charts, tables, or demonstratives that were never used. None of this time was wasted. And there are certainly things that you need to clear with your client, but these can be nearly always be addressed by speaking with them in advance, discussing any concerns they have, and confirming that you have any required authority. Lay the groundwork to allow yourself to make the best decisions you can, and then make them.
You Need To Trust Your Gut — Or Get Another Job
As a litigator, the bottom line is that you need to be able to trust your intuition or find another job. In the end, much of the value you provide in life is your ability to make quick, decisive, correct decisions, both in litigation and in management of your subordinates. Like Max Fischer, sometimes you have to work without a net. But whatever you do, you should remember the lesson of George Costanza and the jerk store.
Matthew W. Schmidt has represented and counseled clients at all stages of litigation and in numerous matters including insider trading, fiduciary duty, antitrust law, and civil RICO. He is of counsel at the trial and investigations law firm Balestriere Fariello in New York, where he and his colleagues represent domestic and international clients in litigation, arbitration, appeals, and investigations. You can reach him by email at matthew.w.schmidt@balestrierefariello.com.
