Small Law Firms

The Gift Of Argument

Unlike with the holidays, in law, the best gifts are the ones you know are coming.

By Brian Grossman  
on

Giving and receiving gifts is a lot like making and hearing arguments in a court. As Forrest Gump once infamously said about a box of chocolates, “You never know what you’re gonna get!”

For this special holiday-themed Above the Law article, I thought it would be nice to compare two things all lawyers love: free stuff and novel legal arguments. Gifts and legal arguments oddly parallel one other. Have you ever gotten a gift you never knew you wanted and it turned out to be the best thing anyone ever gave you? Have you ever given a gift that you absolutely thought someone would love but it turned they hated it or could not care less?

These situations are analogous to giving and hearing arguments, sometimes you have to make arguments that you are either unprepared for — through no fault of your own — because a trier of fact focuses more on something that you — or sometimes your adversary — viewed as a less important issue.

How great would it be if you could fake give or receive a gift? You would know how the recipient would react, whether you should get them something else, and if they will ever use what you got them. Similarly, what if before you got a gift you would know what your reaction would be to that gift a few days, weeks, or months later; this would probably change everything. Barring time travel, identical mental twins, cloning, or some other thing that either is impossible or has not been invented yet (as far as I know), you will never have this opportunity when giving or receiving gifts. But you can have it as a litigator.

Judges Don’t Always Care About What You Care About

The best example of this is with judges, typically on an appeal. Recently, my colleagues and I had an appellate argument where the Second Circuit began questioning both sides on a point that was barely briefed in the main action, and what amounts to a factual contention on the appeal.

Judges — especially those with more experience on the bench or in appeals courts — have heard more arguments than anyone reading this has likely ever made, and have experience in what matters to them, juries, and to the law. It goes without saying, but I will say it anyway: if a judge asks you a question that you didn’t think relevant when preparing for your argument, you better answer it and take the hint that this is something the judge cares about. Don’t shoot yourself in both feet by failing to initially prepare appropriately by not knowing what the judge would care about, and then ignoring a not-so-subtle hint by the judge, simply because you think your argument is better; the judge decides who wins an argument, not you.

Sponsored

Juries Have Almost No Idea What They Are Doing

It’s impossible to know what is going on in a jury room as it is happening. In some instances, you do find out about deliberations, but only once it is too late to change anything you have done and res judicata has taken effect. Juries are a different animal than judges because in a typical case, there is not a single juror with any legal background, experience, or even interest; this is entirely by design, so both parties are on even footing going into a trial. People show up for jury duty because they have to, not because they care or want to, so remember that and make their jobs as easy as possible.

Because of this, it is impossible to know what a jury will rely on in making its decision, and sometimes you will never know. In a jury trial I was a part of, a jury decided, on its own and with no instruction from the judge, to effectively utilize the set-off affirmative defense. The jury did not know this is what they were doing, neither party to the lawsuit demonstrated any evidence of set-off, and the judge didn’t instruct on set-off, but the jury did it anyway because it made sense to them, as regular people.

Mock Juries and Mediators Are You Test “Presents”

As such, at our firm we almost always use mock juries before any jury trial, and when we agree to mediation, we prefer having a former judge. A mock jury both assists whomever is trying the case in presenting their evidence and shows what a typical juror will care about, allowing us to adjust either to go along with what a jury will care about, or work on our presentation so the jury cares more about what we want them to care about.

Sponsored

A lot of times when we have a mock jury, we will have almost a focus group at the end to discuss everything from their impressions of litigators, clients, and witnesses, to arguments, evidence, and how they came up with their determination. Sometimes we are right, in that the jury focuses on our arguments as planned, other times, juries have made determinations based on something that we could not have cared less about when initially preparing. For example, we may make an argument that a company breached its contract by showing the jury a copy of the contract, proof of an offer, acceptance, our client performing, and the other party breaching. To a judge, this would be clear cut (assuming no issues with proof, of course), but to a jury, they may focus on whether the contract was fair, or whether — despite the offer and acceptance — one party came out much better than the other. This lets you, as a litigator, know two things: one, that you should attempt to include in any jury instructions that the jury is not to weigh fairness but whether there was simply a breach, and two, that you should try and show during your presentation that the contract was fair, that both parties would have received what they bargained for but for the breach, and fairness is subjective.

As for former judges as mediators, this is a little more obtuse. Former judges make greater mediators because they have already had full career of mediating disputes and because they know how a party’s arguments will fair with a judge, because they are one. While the ultimate point of mediation is to settle a case, the next best thing is to get input from the mediator as to how a judge will respond to your arguments. A mediator is doing this anyway — determining the strength of one party’s claims against the defenses of another party, to help them find a settlement — so why not use someone that has previously done this for a living and will help you in case you don’t settle?

Unlike with the holidays, in law, the best gifts are the ones you know are coming. Happy holidays and happy New Year to everyone.

brian-grossmanBrian Grossman was an attorney at Balestriere Fariello, a trial and investigations law firm which represents clients in all aspects of complex commercial litigation and arbitration from pre-filing investigations to trial and appeals. You can reach firm partner John Balestriere at john.g.balestriere@balestrierefariello.com.

Topics

, , , ,