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April 01, 2014

Sidebar: Taking Risks

Trial practice involves constant analysis and risk.

Kenneth P. Nolan

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I was in Sicily when hundreds of desperate migrants drowned after their smugglers’ boat caught fire and capsized after they left North Africa for the promise of Italy. And when I returned to the comfort and chaos of New York, another decrepit ship sank in the Mediterranean sending scores to their deaths without ever experiencing a day of peace and prosperity.

More than 100 years ago, my maternal grandparents emigrated from Ireland, and I recently obtained a copy of my grandfather’s birth certificate, which evidenced poverty because a witness could only sign her name with an X. All whose ancestors voluntarily left Mexico or Poland or China yearned to live where the streets were paved with gold not only for themselves but also, as I was taught, for their children and grandchildren. We cannot overlook, however, those who arrived in chains and were driven not by dreams but by a whip. Theirs is a different story.

So when I hear about those who sneak across the border in the scorching heat or who sail through shark-infested waters to Florida, I think of my grandfather—who died before I was born—shoveling coal to pay for his passage to New York without money or relatives for security. I would have loved to ask whether he was brave or foolish, whether he was frightened or determined when he left home and family never to return.

“They do know they are risking their lives, but it is a rational decision,” a professor from the University of Notre Dame was quoted as saying about the migrant boat tragedy. “Because they know for a fact that they will be facing death or persecution at home—whatever remains of their home, or assuming there was a home in the first place.”

Most of us have never experienced the hopelessness and misery that compels these Somalis to board modern-day “coffin ships” for the hope of a life without violence or starvation. I certainly haven’t and I’m thankful my ancestors had the courage to leave Ireland for beautiful Brooklyn, where they quickly learned the streets were barely paved, never mind the gold.

We, as litigators, face no such obstacles. Our concern is not whether we have food but whether we should order the antipasto or insalata caprese to start. Mea maxima culpa. I say this not to belittle or celebrate our world but to be candid that our priorities are so different than those of most of the globe. Our risks are unlike the risks of others—not only those struggling to survive but other professions as well—because they involve every aspect of litigation: whether to accept the case, depose a witness, ask a question, settle, or go to verdict. Trial practice involves constant analysis and risk, from the time of the first phone call to the last.

We strive for decisions not made by anger or ego but rational ones based on an intelligent evaluation of the facts and law. Although our choices rarely involve life and death, each one is significant whether in small claims court or before the Supreme Court.

Stick to What You Know

The greatest risk, I’m certain, is the initial decision to accept or reject a case. I learned this not from some erudite law school professor or from some knowledgeable mentor (not sure I had either). It started decades ago with a phone call from a sister of a childhood friend who relayed a tale of woe concerning her marriage and its impending collapse. In my somewhat antiquated, hidden slice of Brooklyn, divorce was something we read about, saw on TV, but never experienced. People got divorced, but, like millionaires, I didn’t know any. I patiently detailed my inexperience and quickly declined despite the tears and protestations of a clearly desperate woman. Further telephone calls ensued not only from her but also from my pal and even his mom. They knew me, wanted me, trusted me. I never realized how great I was.

Finally, I agreed. How hard could it be? A couple in their mid-20s, no kids, no house—she a nurse, he a cop. A simple separation agreement copied from a form book. Fair and square—who would be so insane to object? A few weeks later, one tranquil Saturday evening, I picked up the phone only to hear the incensed wife scream that her no-good husband went to Philly for the Giants game so she’s going to empty the apartment of her stuff— TV, stereo, dishes, Waterford crystal candlesticks. “I can do it, right?”

Having no clue, I deferred. I tried reaching neighborhood lawyers who handled matrimonials, but in those primitive days, the only cell phone was on the wrist of Dick Tracy in the funnies. “No, you can’t,” I eventually told her, only to hear: “Well, I’m doing it anyway.” I’ve had more restful weekends.

By Monday noon, I had mailed a letter of resignation and arranged for my client to consult two lawyers who specialized in the insanity that is family law. A year later, the venom between these two wonderful people subsided, and the monumental decision of who should get which Beatle album was decided. I escaped but realized I should stick to what I knew—which at that time wasn’t much.

Beware of friends or family—eyes desperate, words pleading—as they tell you that you’re so spectacular, so brilliant that you and only you can save them. They’re lying. Cross-examine the cousin whose dispute with the crazy neighbor is never his fault; interview the doctor of your best friend to confirm that the bad back was caused by the fender bender. Once you’re in, it’s like the Mafia—you can only escape in a pine box.

If it’s not what you do every day, give names of others who do. Pay no attention to your husband as he shrieks that you’re insulting beloved Aunt Irene. You have limited time and resources. Six months after that first letter, you’ll be up to your ears in bigger, more profitable work. It’s not fun to hear your once good buddy say, “I got screwed. I shoulda won, but Mike did nothin’. It was a slam dunk. You couldn’t pay me to hire that lazy bum.” The best cases are the ones you reject.

Seek Advice

Throughout the lawsuit, risks pop up nearly every day. Venue, pleadings, depositions, experts, and on and on. You’re gonna make mistakes. More than one, and sometimes they’re whoppers. Everyone does. Even the Pope is infallible only on certain matters. Minimize the possibility through thought, analysis, and consultation. Consider alternatives before you mindlessly follow rote. Study the law and the facts before deciding. Talk to the experienced and the neophytes. Listen to them. Then shut off your iPhone and plan: If this happens, I’ll do this. If that happens, I’ll do that.

Ignore the critics. The only ones more annoying than politicians on the Sunday morning talk shows are those know-it-all partners who loudly whine whenever you hit a pothole. Only through the experience of being battered around a bit will you feel confident in your choices and be able to dismiss the carping of those who sound like the juveniles who run Congress.

I believe in aggressive, thorough litigation. When in doubt, ask the question, take the deposition, make the motion. It’s usually successful. Occasionally, I wish I were still in front of a classroom of 34 day-dreaming students. The more documents and testimony you accumulate, the better prepared for trial you are. Of course, the more you know, the more your adversary knows. In 98 percent of my cases, a decent defense attorney will discover all my client’s peccadilloes. Especially with the Internet. I’d rather obtain as much information about the incident or defendant as possible. Being ambushed at trial because you tried to hide a fault ain’t fun.

Develop your own style and strategy. Always—and I mean always—ask for advice. From different sources. You don’t have to follow it, but others will make invaluable suggestions that, even with your very expensive education, never entered your mind.

The ultimate risk is trial. Rare these days. Clients and litigators have become more risk-averse. Cost, runaway verdicts, and a philosophy that half a loaf is better than none have led to mediation being the usual tool to resolution. Yet, cases are still tried, and with client participation, an evaluation of your chances is necessary before you enter the courtroom. Your job is to evaluate the unknown—the judge, jury pool, venue, even the courtroom—to assess your prospects.

Sometimes you must take the risk. Try the darn case. That’s difficult for the generations who were raised in times when every player receives a trophy. I lost every day growing up. Bobby Welsh, Gerard Conlon, and I could win three-on-three basketball games for hours until a bigger, faster team appeared, and then we would sit on the sidelines waiting to play again. If you don’t take the risk, you’ll never lose. But then again, you’ll never win.

“Ever tried. Ever failed. No matter. Try again. Fail again. Fail better,” said Samuel Beckett. Applies to us, too.

Kenneth P. Nolan

The author, a senior editor of Litigation, is with Speiser, Krause, Nolan & Granito, Rye Brook, New York, and is the author of A Streetwise Guide to Litigation (ABA 2013).