September 01, 2018 Sidebar

Keep Your Big Mouth Shut

To be successful, be direct, clear, and fair.

Kenneth P. Nolan

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I’m loud, opinionated, and demand the last word. Yes, I’m mostly annoying and wrong as well. But I was raised in a crowded house, played on crowded streets, and attended a crowded school—50 to a class—so only those who shouted, screamed, and badgered were heard. If you were quiet and polite, you’d never get into our one bathroom or be included in our games of stickball and basketball. “He’s shy” was always spoken in a pitying tone as if he was suffering from an incurable disease.

It’s not like today where parents patiently and quietly attempt to persuade their precious Barnaby or Luna to eat their broccolini. Back then, everyone shouted, and often. “You’re not leaving the table until you finish all your potatoes,” my mother would shriek. “Children are starving in China.” Whole conversations were barked across the street, and living in a row house, you constantly heard your neighbors bellowing at each other or, more likely, their kids. Back then, life was all noise as teachers, relatives, coaches all addressed us in critical and shrill voices. Today every little brat is gifted, is handed a trophy; back then no one hesitated to look you in the eye and announce, “You’re really stupid” or “You can’t catch.”

At Home in Chaotic Litigation

So, when I passed the bar and entered the chaotic world of New York litigation, I was at home. After all, I trusted no one and believed even less. It took only a few depositions where I was cruelly mocked by my more experienced adversaries to realize that a lawsuit was essentially a street brawl without the fists. Perfect for me because I was never the toughest guy on the block. “You were a nerd—you know that, right?” I was told by a childhood buddy I hadn’t seen in decades.

At every motion or conference, I would argue vociferously and endlessly. A simple deposition lasted all day for there was always another question, another long dispute over an objection to form. I reveled in the battle, wasting hours, days, and even weeks on minor discovery disputes, in trying to convince the judge that I was angelic and my adversary was Satan in a pinstriped suit. Even when my opponent suggested a reasonable compromise, my reaction was to defer, to question, and, eventually, to reject. Could anyone trust a personal injury lawyer from New York City? What are you, nuts?

As I handled more and larger cases, I was exposed to experienced partners whose weariness and ennui told of too many days waiting on dull, shabby benches in musty courtrooms. They would pull me aside and beg to work something out, avoid the two hours until we argued the meaningless motion. I would hesitate and usually refuse, although on occasion, when pressed for time, I would scribble a stipulation and run to another part. To my surprise, the agreement would be honored, and we would proceed to depositions and trial.

I began to question my strategy of overly aggressive litigation when judges repeatedly snapped: “Enough, counselor. You said that three times already,” which is Brooklynese for “Shut the *&%# up, you whining a**hole.” I even relaxed on occasion and initiated discussions with my adversary about how to resolve difficult discovery issues.

But the real revelation was when, back in the mid-1980s, I litigated an obstetrical malpractice case against an older, nondescript defense lawyer. I was told, “See that guy over there? He doesn’t play games. He’ll tell you what he has, and if you don’t take it, he’ll try it.” The ultimate compliment.

He deposed my clients in a direct, probing style. I reciprocated by questioning his doctors and nurses without the usual irrelevant inquiries. Liability was somewhat strong, but the issue of causation was problematic. I mastered the medicine and meticulously examined his neonatal pediatrician, attempting to connect the botched birth with my client’s disabilities. “You did a good job,” he said. “I may be able to get you some money.”

A few weeks later, he phoned. “You interested in settlement?” he asked. “Maybe,” I replied. “I have $950,000 or so. If you want it, let me know,” and then he hung up without even asking for a demand. I discussed this unusual negotiating technique with everyone—at the firm, in the street, in the courthouse. My adversary’s reputation was confirmed. “If you want a penny more than he offers, go to trial,” I was repeatedly told. Only then did I return his call.

“You interested in the money?” he asked without delay. “Yes,” I responded. “OK, I have $975,000. Is it settled?” “Yes,” I said. He hung up.

A Better Way?

This revelation wasn’t exactly Paul on the road to Damascus, but months of posturing, endless phone calls, and court conferences were avoided. My adversary saved his client a ton of legal fees, while my clients could access desperately needed funds without the usual torturous angst of being dragged to court. Maybe, just maybe, there was a better mousetrap.

No longer would I ask every conceivable question, demand every document, argue every insignificant motion. My caseload was large and my time precious, but more importantly, I realized that most adversaries were reasonable and their word was good. Not easy, because I was taught to believe only close relatives and those I had known since kindergarten. I adhered to the “trust, but verify” standard, and this led to hard-nosed, streamlined litigation without invective and insult.

I would ascertain my adversary’s reputation from colleagues, friends, the courthouse regulars. If it was legit, I would cooperate and the litigation would move. If I heard, “You gotta be careful,” then everything had to be in writing, no matter how trivial. As trial loomed, my paranoia increased, but rarely would an agreement be violated.

Judges always made me nervous. When I was just out of law school, I knew none and my adversaries had helped them get elected, bought them drinks and dinner, sponsored them at bar functions. As one Brooklyn probate judge responded when asked if he was going to appoint friends, “Who am I going to appoint, my enemies?”

Yet, after a few years and many bar association cocktail parties, I had begun to be recognized, and my belief that the judge was in the pocket of my opponent dissipated. Previously, I never admitted weakness in motion papers or argument. After all, some judges didn’t know the law and would use any admission to rule against me. Yet, this strategy often backfired when the judge was knowledgeable. “What about this case, counselor? You didn’t mention that.” I began to highlight any adverse decision. I would then distinguish it, silencing my opponent and making my position more credible. Know your judge, of course, but honesty and a clear, concise argument are much more effective than the juvenile games that are too often played during motion practice.

I also became more direct with clients. In the past, I never promised them the moon, but I hesitated to correct them when they argued that their broken arm was worth millions. I deferred, waiting until just before trial to inform them that their expectations were unattainable. In a medical malpractice case against a distinguished, handsome orthopedic surgeon who just happened to be the physician for the New York Knicks (when they actually won games), my client’s complaints about her dropped foot were loud and endless. On the stand, she whined about how she was crippled and couldn’t function. The bulldog defense attorney lit into her, and she screamed back. The jury took about a half hour to toss my case. No longer would I allow a client to exaggerate, to influence strategy.

If clients were unrealistic in complaints or expectations, I stopped them immediately and explained the facts of life. “You ain’t getting that kind of money,” or “No one will believe you can’t work because of your injury.” If they persisted, I told them to retain another lawyer. They never did. I wasn’t callous, but I would advise them in a pragmatic and firm manner. I would confirm this in writing so there was no misinterpretation. We would then discuss negotiating strategy and agree on a plan, which led not only to more satisfied clients but also to trial when the settlement offer was insufficient.

People reward honesty. Trying to hide a flaw or weakness at trial is a classic rookie mistake. Instead, in jury selection, I would reveal the peccadillo: By the way, I want to tell you now that my client’s no angel . . . my client was drinking . . . my client’s marriage wasn’t perfect. I would then have each juror agree, even with this knowledge, that he or she could rule for the plaintiff.

We’ve all made mistakes, I would remind them in my opening, trying to minimize the problem. Didn’t always work, but you have no choice. If you don’t admit fault, your adversary will trumpet it from the rooftops and the jury will view you as the stereotypical sleazy lawyer. Then they’ll punish you.

I still talk too much and too fast, as my daughters insist, in the worst Brooklyn accent. Yet, I’ve learned that in law, as in life, credibility is essential. Be direct, clear, and fair. Not only because it’s good practice, but because it’s successful.

Kenneth P. Nolan

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