“Why do we even bother?” asked an exasperated litigator after the court denied a motion.
“What do you mean?” his colleague asked with a smile.
“We work so hard, we write and rewrite our briefs many times over,” the complainer retorted. “We bring to bear the best research and the most cogent arguments, and we have all the facts on our side, and we still lose, just possibly because the judge never bothered even to read our briefs. What we do is a complete waste of time. We should stop putting so much effort in.”
“I disagree,” said his cheerful interlocutor. “Litigation is like baseball. When there was a 154-game schedule, they used to say that you’d win 50 games no matter what you do and lose 50 games no matter what you do. It’s what you do with the other 50 games that makes all the difference. And no one knows which game is in which 50. So you work hard in all the games to make sure you end up with a winning, even the winningest record.”
How true. Just as no game is as frustrating and unpredictable as baseball, no profession compares with litigation in a similar respect. Preexisting facts, random judicial selection, goofy case law, inattentive witnesses, an inordinately skillful adversary, and a decision by a neutral and sometimes heavily biased decision maker all make for a rare experience that has sent many a litigator packing in search of better prospects in some other line of work. The history of baseball is littered with talented rookies who could not make the pressured adjustment to the major leagues or rising stars who could not take the months-long daily slog that a baseball season represents or established ones who could not sustain the effort year after year. Litigation has similarly ruined the careers of the easily daunted, frustrated the hell out of those who saw their careers briefly become ascendant, or retired off those who had just plain had enough.
Like getting older, baseball and litigation are not for sissies. They are incessantly demanding, requiring sustained excellence and continued sacrifice to really succeed. A brief review of the similarities is striking indeed.
Not limited by the possibilities. Mark Twain once said that truth is always stranger than fiction because fiction is limited by the possibilities. In baseball, too, as Yogi Berra once said, you don’t know nothing. It’s the frequent experience in baseball for a baseball announcer, usually some retired star of yesteryear, to remark that “I’ve never seen that before.” And in litigation too. Litigators are natural storytellers, of course, because it’s all about the narrative, but there’s always so much good raw material. Every case is different, or ought to be viewed as such, as repetition and rote procedures are likely to doom you to failure. Every case requires unique consideration, and an approach of “round up the usual suspects” or “paint by numbers” is sure to bring disaster.
Failure. Baseball isn’t really about failure but about dealing with it. The best hitters in baseball fail approximately two-thirds of the time, and in a long baseball season, a team that wins 100 games out of 162 is truly exceptional. The question is how you continue to maintain your aggressiveness and morale despite losing cases, sometimes badly, sometimes by a whisker, or even one of those possibilities you’d not expected. Litigation is about failure too. Most litigators never get used to losing. A Chicago litigator who was once asked by a young lawyer whether he had become accustomed to failure, responded, “Sure. Now it only feels as if my heart was ripped out.” Within a case too, you can never allow the loss of a motion or an objection to daunt you. Never panic.
Humility. And never gloat. Yes, in baseball, confidence is important. You need to believe that you are going to be able to hit the blinding fastball of the stud reliever or adjust to the 9-to-6 curveball of some string-bean starter. But gloating never works. Try that out on the Don Drysdales of this world. Don Drysdale was known to give an intentional walk by throwing four knockdown pitches. Gloating always comes back to haunt you. And the same is true in litigation. It makes you careless, less attentive to the details of the other side’s case, which you must understand to have your own succeed.
Fives. In baseball, we talk of a “five tool” position player who can hit, run, catch, throw, and field. Or the five elements of pitching: speed, type of pitch, location, sequence, and “stuff.” Litigation requires a similar proliferation of skills. You must talk well, write better, and narrate. You must characterize the facts and know the law. You must lead your team, examine, and cross-examine. Few professions require such a wide variety of talents.
Losing to win. Consider the baseball sacrifice. As the name suggests, a batter sacrifices himself to advance the good of the team, making an out to advance a runner. Litigation has this too. Think about the motion to dismiss that you know you will lose or that your adversary can overcome by amendment. Still, you might file it just to get the plaintiff locked into a certain set of facts or claims. Or you could, as a plaintiff’s lawyer, file a claim as a stalking horse for some wider objective.
Ninety percent and the other half. Yogi Berra once said that baseball is 90 percent mental and the other half physical. While the same might be said of litigation, there’s the further rule that cross-examination is 90 percent preparation and the other half talent.
Complexity. Enough said.
Team and player. Baseball is a team sport played by individual players or an individual sport played as a team. No game requires the same combination of team play and individual effort. Litigation too. These days there is the tendency to celebrate celebrity lawyers who go from client to client while making themselves the real news. But even the best of them know they cannot do it without a team of other lawyers, paralegals, secretaries, messengers, and more behind them. Likewise, no matter how well-staffed your case, someone must take the lead, set the narrative, take the toughest witnesses, and make the key arguments. Leadership is key.
