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June 01, 2011

Sidebar: Lies We Tell Ourselves

Trial lawyers are entertainers of a kind, but must remember to separate reality from illusion--at least in their own minds.

Kenneth P. Nolan

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Paparazzi aren’t stalking us as we sip our cappuccino. TMZ doesn’t report how sexy we look in our Brooks Brothers blue. And we’re certainly not tabloid famous like sad Lindsay Lohan or crazed Charlie Sheen. Our names don’t grace the side of a trailer on a movie set, and we don’t stroll the red carpet in Chanel before screaming fans.

Sure, I’d love to pal with Jack Nicholson at a Lakers game, have a Sam Adams with Matt Damon in Southie, or split pasta at Del Posto with Meryl Streep. But I’m not that cool. I’m not Hollywood. Neither are you.


But we are in the entertainment business—without the fame, money, and arm candy, of course. We’re actors, after all. We stand before a judge or jury and feign outrage, evoke sympathy, and, on occasion, cause a chuckle. For when we step into a courtroom, we play a part, a role. We adopt a persona, speak and move with purpose, all to convince a weary, apathetic audience we’re right. We memorize lines, argue and beg, strut about, and use the many skills of Oscar winners in our pursuit of success. Alas, no visual effects make us beautiful, nor are there a dozen takes before someone screams, “That’s a wrap!” Our performance is spontaneous, done every day and all day, and if we bomb, catcalls are heard from clients, partners, spouses, even kids.

Many varied scenes make up our performances. Meeting the client. Deposing witnesses. Arguing motions. Cross-examination. If we’re effective and can convince a jury, we win, only to have to do it again tomorrow, next month, next year. We play a role in a show that never ends, for trial lawyers are thespians always on stage.

Most lawyers can separate reality from illusion. They can drop the façade once the simple gold earrings are removed or the black loafers are taken off. Others, however, invest such time and effort that they can no longer differentiate their own thoughts from those of the client. They have swallowed the Kool-Aid, and objectivity and perspective have vanished. No longer are they sage advocates; the “just, sacred” cause becomes their life, invading all aspects. Victory affirms for them that integrity and goodness exist while an unexpected loss is a personal rejection that devastates and leads to self-doubt, anguish, and despair.

No way can we lose. Through our ability to act, lawyers convince not only others but also ourselves of the virtue of our arguments. Years of contentious litigation, weeks of trial—hand-to-hand combat, really—too easily lead to demonizing our adversaries and an unquestioning belief in the glorious cause. Every snide remark becomes personal as our emotions trump wisdom. We justify every adverse ruling and see triumph in every setback, for we refuse to accept the possibility of defeat—we are Ahab chasing the white whale, soldiers fighting to the death on Iwo Jima.

And when we disregard judgment, a certain arrogance, pride can invade our personality and, if we’re not careful, our work. Crucial documents are hidden, damaging precedent omitted from briefs, accusations falsely hurled. The end, we whisper, justifies the sins committed along the way.

It’s easy to become immersed in the minutiae of litigation, the thousands of documents, the issues involving electronically stored information, the petty disputes that permeate discovery. It’s natural to dislike and then despise your adversary, for even routine matters deteriorate into battles because the stakes are so large and the pressure to succeed so relentless. Our environment fosters such a parochial perception. Around the crisp conference room, you and your colleagues mock the opposition’s supercilious attempt to suck up to the judge. You ridicule the devastating injuries and emotional scars as pure hyperbole and greed. Heads nod and voices applaud the party line. You’ll kick butt . . . not settle . . . screw those lying . . . .

Soon the maelstrom engulfs you, and you’re in the eddy unable to escape. You rebuff settlement. You insult: I’ll never pay a nickel for this piece of crap. You fail to perceive weakness or vulnerability in the facts, the law, yourself. The slam-dunk case becomes a devastating defeat simply because pride—the greatest sin—deprived you of reason. The chorus of sycophants urging you to soldier on has quieted and, instead, is now questioning your strategy, your judgment, your ability.

Avoiding Hubris

How to avoid this? Consult others, especially those not involved in the case. Ask their thoughts before you email the scathing four-page response to a single deposition objection. Before you scream “I’ll never pay more than . . . ,” solicit those you trust, who’ve been around the block. On nearly every putt, I ask my buddy Joe Taranto for a read. Being Irish, I heed his advice only half the time, but I always ask. You should too.

Listen. Yes, we’re successful and experienced—but not perfect. No, not even you. Obtain a multitude of opinions. From ordinary folks, too. Take your time. Don’t decide based on passion or conceit. Use jury consultants, mock juries, focus groups. And don’t wait until the month before trial. If the case is worth it, hire them when retained and periodically employ them to shape and enhance your strategy. You’ll learn of flaws you never contemplated, problems you didn’t believe existed.

It’s the other guy’s fault. We often justify sketchy behavior because litigation is war and turning the other cheek is weakness. But we’re not in the tribal areas of Pakistan fighting the Taliban. Sure, this case is significant, but it’s money, not life and death. We convince ourselves that sharp elbows are essential, cutting corners justified, shady practices permitted because he did it first. Or everybody does it. We excuse unethical practices because we’re doing the Lord’s work. Yeah, right.

We can reject the juvenile tit for tat that wastes much of our time. We can practice honorable and aggressive litigation. We can be better. Just takes some decency and guts.

It’s not about the money. My philosophy is pure Jerry Maguire: “Show me the money!” Others can chant, “It’s all about principle, for the good of humanity” and all that bunk. They may even believe that tripe. Yet, for good or bad, almost everything has a price, especially in our profession. Cases settle because it makes smart business sense. Sure, corporations are fleeced, sued unfairly in plaintiff jurisdictions, or the horrifically injured receive pennies because jurors are disgusted with reading about the woman who sued the four-year-old for knocking her down with a tricycle. But be honest—it’s always about money. And whoever says it’s not is, well, lying.

I’m not afraid. I’m not sure I could make a foul shot with the score tied and no time remaining. I get nervous. It happens before picking a jury, taking a crucial deposition, arguing a simple motion. It passes quickly, but am I the only one? I doubt it, but no one else admits to butterflies. That’s why I love golf. After playing a round, you know who cheats, who chokes, and whose game is better in the bar than on the green.

So now I ignore the roars: “Wait ’til I cross-examine that bum. I’ll moider him.” Exaggeration abounds once you walk up those cold courthouse steps. So many promise verdicts but never seem to pick a jury. Hmmm.

I can wing it. I’ve seen it, done it all, I tell myself. Mostly true. So, why should I spend days preparing for a dep, reading every doc, memorizing the file? I’ll ask a million questions, and I’m bound to cover every issue. Well, almost.

Preparation is the difference between success and failure. Even superstars—Michael Jordan, Lebron, Peyton—practice as hard as they play. They’re focused, determined individuals who work to be better. Sure, they’re naturals, but their continual desire for excellence separates them from those who coast on talent alone. Unless you can dunk backwards, hit the books.

We’re not really suggesting what the witness says. Recently, a relatively unimportant witness admitted during her deposition to 40 hours (over six days) of prep by her lawyers, including videotaping so she could see how she appeared. I could predict which questions she’d answer with “I don’t know” or “I don’t remember.” No witness can resist hour after hour of “suggested” responses. They learn the party line and parrot it.

Well, it’s more than they gave us. Thousands of docs are dumped in no particular order and not categorized. Without a judge ordering parties to produce in a timely, orderly fashion, chaos and mistrust ensue. We then respond in kind, and the merry-go-round continues for years. Have we ever considered ethical practice as not only more efficient but more effective?

We sing well after a few shots. Even though my voice is hardly my best asset, I don’t need Patrón to croon like Sinatra. In my family, the crime was never singing too loudly or badly, only not singing at all. So relax. Whether it’s to Bon Jovi, Smokey Robinson, or Katy Perry, just grab that mic and belt it out. Feels good, doesn’t it?


Kenneth P. Nolan

The author, a senior editor of Litigation, is with Speiser, Krause, Nolan & Granito, New York City.