January 01, 2017

Sidebar: How Not to Litigate a Case

Kenneth P. Nolan

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A rookie cop was confronted by a maniac trying to whack him with an iron hammer. As taught, my buddy drew his gun and ordered him to drop the weapon. Instead, the guy charged. Reluctant to shoot, the cop ran behind a parked car. Anyone raised in Brooklyn knew that you could never be caught as long as you kept running around a car. If you kept the car between you and the punk who wanted to rub your face in the asphalt, you were safe. So the cop kept running around the car chased by the lunatic until backup arrived and the perpetrator was subdued and arrested.

Back at the precinct, the older cops chastised my pal. “You should have just shot him. . . . Why take the chance. . . . What’s the matter with you?” A few days later while walking the same beat, a woman approached. “I saw what you did. You could have shot that guy. Thank you for not shooting him.” Which confirmed that he had done the right thing. Killing the guy would have earned him props among most police officers. His restraint was courageous and insightful. It’s no wonder that my high school friend advanced quickly through the ranks and became one of the chiefs of the NYPD.

Litigators don’t carry guns, but the same reaction occurred early in my career whenever I returned from court and agreed to an adjournment, withdrew my motion for sanctions, or showed some other accommodation to a despised defendant. Litigation was war. Our adversary was evil, and anything other than total annihilation was failure.

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