Every litigator has seen (or been) a person who thinks that litigation is all a game.
There’s the covenant-not-to-compete case where the plaintiff’s lawyer doesn’t care about reality: “One of the 15 employees they stole from us had transferred documents to his home computer for years. He was probably just making it easy to work from home. But the transfer of documents violates company policy! And we can convince the jury that this was part of a scheme to steal information! I’m putting it into evidence! Who cares if we’re implying something that isn’t really true? It’s just a game; we have to win this trial. They don’t pay me $1,000 an hour to lose.”
Why are you doing this?
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You don’t need the evidence. It’s not true. And proffering this will steal a bit of your soul.
It’s not just litigation; it’s also real life. Stop.
You’ve seen (or done) the same thing in many different kinds of cases. There’s the personal injury case where one aspect of the injury plainly wasn’t caused by the defendant, but you seek to recover for it anyway: “I have to maximize damages! This is just a game; we have to recover as much as possible at trial. Let the defendant try to sort it out.”
There’s the defense that’s silly if you spend any time thinking about it, but you file a motion on it anyway: “If we convince the judge, then it’s a winner! We’re not selling truth here; we’re selling arguments! It’s just a game.”
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Who cares? Litigation isn’t real life anyway!
Now think of the folks in politics. They tweet their insane crap because it will help them get re-elected. Why not? “I’m not selling truth here; I’m selling myself to the public, and I have to get re-elected. I’ll say whatever’s necessary to achieve that goal. This is all a game.”
It isn’t real life anyway.
Think of the folks on television or social media: “I’ll increase my viewership, or my number of listeners, or my number of followers, or whatever I’m tracking. I’ll say that vaccines don’t work! That’ll grab ’em! That’ll be great! The idea is to increase my public appeal, and this will achieve that goal. Who cares if I’m speaking the truth? This is all a game.”
Who cares if you contributed to the deaths of 319,000 people?
It’s not real life anyway.
And it increased your audience! Don’t bother to slow down and think.
I have some news for you: You’ve been doing this for so long, and so intensely, that you think it’s all a game. It’s not; it’s real life. You’re tearing America apart, and you’re killing people.
And you’re sacrificing a piece of your soul.
Slow down and think.
Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at [email protected].