Kenneth P. Nolan
The author, a senior editor of Litigation, is with Speiser, Krause, Nolan & Granito, New York City.
A petty discovery dispute deteriorated into a series of nasty, juvenile emails until plaintiff railed at the defense lawyer: “You’ll never try this case. You’re not allowed,” along with something about his mother’s morals. As I devoured this thread with obvious delight, I realized that the threat “I’ll try this case” is as empty as my boast that I’m gonna make this putt.
Used to be that it was easy to try a case, just like it was easy to commit a mortal sin—meat on Friday, miss Mass, covet the girlfriend of the only guy who had one. Now someone has to be wicked unreasonable to find yourself opening to a jury. And only millionaires and billionaires who refuse to pay all their earnings in taxes are going to hell.
A recent trial was a contentious med mal case where the primary target offered a decent amount just before trial. The doctor’s lawyer then promised to sweeten the pot so we’d all go home. A few days later, he advised that his client refused to settle. Having been raised where you never trusted nobody, I figured he wanted to waltz a bit before folding. While the judge was charging the jury, I realized the attorney was telling the truth. After I won, my adversary simply shrugged: “The guy’s a nut.”