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Litigation Journal

Fall 2023: Game On

Play the Game

Kenneth P Nolan


  • Pretending that winning is unimportant is horrible preparation for that cruel, miserable world out there.
  • Since I lost at every sport, I always knew that I would never win every case.
  • Trash talking is acceptable on the basketball court, but not in court.
Play the Game
skynesher via Getty Images

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All our heroes were sports stars. We idolized Mickey Mantle, Joe Namath, Walt Frazier. We walked and talked like them, and dreamed of hitting the homer, throwing the touchdown. Our parents, relatives, neighbors were extraordinarily good, we later realized, but back then you couldn’t adore a guy who rode the subway to work, whose only achievement was washing the car on Saturday.

So we ran to Holy Name schoolyard and played basketball, stickball, touch football endlessly. Those were innocent, blissful times of family, friends, and faith. But as much as we vowed to Mrs. Lynch, our third-grade teacher, that we wanted to be a lawyer, doctor, or priest, we only yearned to be a Knick or Yankee.

We played all day, every day, since our moms kicked us out by 9—“Get out and play”—and, except for lunch, ordered us not to return until dinner. Our concrete streets and schoolyards were our only respite—we’d shovel snow off the basketball court or burn all afternoon in the sweltering summer sun. Our homes were so small, always a battle over the one bathroom, and “No, you can’t—you know TV’s not good for you.” Which carried over to my parenting, since my kids always moan that they had to attend college to watch cable TV.

It was different, better no doubt, because at age 6, 7, 8, we roamed our Brooklyn streets without fear or supervision. Today, parents or nannies pick up children through middle school. My mother walked me once, the first day of first grade. After that, my brother, two years older, was in charge. T-ball, soccer, and ballet didn’t exist, nor did we ever hear of after-school activities like acting lab or game room. We were on our own; happy to play our many street games with the only adult voice being the one shrieking that we were too noisy.

Sports Kept You Honest

This world was democratic. We’d “chose up” sides. Two guys would pick their teams. The best was selected first, and you knew your worth by when you were chosen. Sometimes you’d hear: “I’m not picking you—you stink.” A bit cruel, perhaps, but you learned early that if you weren’t skilled, you wouldn’t play. The same with our organized basketball and baseball teams—only the best were selected and only the better ones played. Kind of like the college and pro leagues today.

We kept score. Since there were hordes of kids and space was limited, you waited your turn. If you lost, you sat. We strived to win at everything, all the time. Winning was fun, was rewarded, so we hated to lose. But playing every day, all day, you lost—a lot. Someone was always bigger, faster, a better hitter. Losing, we realized, was part of life.

When the jury rules against you, when the judge dismisses your case, it hurts. Having to explain to clients why you were tossed out is never a joy. Every trial lawyer finds himself or herself in that uncomfortable situation. Since I lost at every sport, I always knew that I would never win every case. I was never the best at anything—why should law be different? And when I lost in suit and tie, I accepted it, for I was used to it.

Today some believe keeping score is somehow harmful, and “it’s OK that you didn’t catch the ball, Hudson. You tried really hard.” Kids aren’t stupid. They know who’s talented and who’s terrible. Pretending that winning is unimportant is horrible preparation for that cruel, miserable world out there. The one who sells the most cars makes the most money; the lawyer who wins nearly every trial has the most clients. In every venue, whether Wall Street or Main Street, winners are cheered; losers booed.

Trying to delay the realization and pain of losing only increases the danger that, as an adult, you can’t cope with disappointment and adversity. Nothing was sugarcoated on my Brooklyn streets—“No. You know we can’t afford it.” Our cars were used, our clothes were hand-me-downs, our shoes—“well, you’ll grow into them.” And when our 25-cent pink rubber “Spaldeen” was hit on the school roof, someone with Spiderman skills would risk life to retrieve the valued ball.

If someone claimed that life was carefree and comfortable, we’d laugh. We witnessed the sacrifice and diligence of our parents and grandparents to make our lives better, which they did, but it was never painless. We were raised to recognize and appreciate what we had and what we didn’t. If we wanted to start on our basketball team, we had to practice daily; if we wanted to live in the suburbs with a big backyard and swimming pool, we’d have to study always.

Yes, when you make the error that allows the winning run, you’re mortified, humiliated, can’t sleep. Maybe you’ll practice a bit more; maybe you’ll realize that even superstars miss foul shots, throw interceptions. Maybe it makes you a better, more resilient, more understanding person. Playing those childhood games taught me to persevere when the judge favors a golfing buddy, when every evidentiary ruling is against me. “Don’t give up. Don’t ever give up,” Coach Jim Valvano preached, and it applies to litigation as well.

“Excellence is not an act, but a habit,” said Kobe Bryant, who was shooting jumpers at 8 a.m. after scoring 55 against the Knicks the night before. Greats always work to get better. In preparing to argue a motion or an appeal or to make an opening or closing statement, practice aloud in front of a mirror. Are the words clear and concise? Are you rushing, mumbling? Is your tone and emphasis appropriate? Is your theme, your message simple and logical? Are you still using legalese or idioms, like “red herring,” which are alien to a working-class jury? If Lebron James spends six hours in the gym on his days off, you can work until your argument is confident and convincing.

Find your skill; know your limitations. I was desperate to be a great basketball player, but I had only one problem—I wasn’t tall, fast, or athletic. I was heartbroken when I didn’t make the junior varsity team, but my mother ordered me—“You can’t just sit around and do nothing”—to try tennis. Since few played in Brooklyn at the time, I found a sport at which I wasn’t half bad and which provided enjoyment and competition. If you dread standing before a jury, are no good at it, then focus on depositions, motion practice, appeals, discovery. Law has myriad areas where you can become expert, where you can master the intricacies, where you can be an all-star.

“Twenty-six times I’ve been trusted to take the game-winning shot and missed. I’ve failed over and over and over again in my life. And that is why I succeed,” said Michael Jordan. In every career, there are times to swing for the fences, take the verdict, bet the company. If you fear losing, you will never win. Evaluate your case, and if you have a good chance, go for it. If you don’t have the skill or confidence, pass the ball; if the facts and law are against you, settle the case.

It Takes a Team to Win

Winning is a team effort in and on the court. Alas, too many trial lawyers are all about themselves. As a member of many a plaintiffs’ steering committee, I used to marvel at the chutzpah of those boors who brayed the loudest, especially before the media. When the real work began, we were happy to see them disappear. Yet, scars remain from the battles over who would open or take the critical deposition. Not easy to accept a lesser role for the greater good. But don’t forget: Michael Jordan passed to Steve Kerr for the winning basket that clinched a National Basketball Association championship.

Heroes are not perfect. Even the best strike out, blow a layup, drop a touchdown pass. Eventually, we learned they were flawed, not only on the field, but also in life. As is everyone—even judges. Easy to believe others are better, that you’re just not that good. Perfection is a touch difficult, so when you screw up, don’t be so hard on yourself. Recognize that you’re fallible; that, over the years, you will screw up time and again. Accept and learn from it.

Law Is Not a Sport

Don’t be a sore loser. Sure, we hated to lose, but there was always another game, another opportunity. Sulking, moaning, and throwing tantrums never changed the result. Nor did blaming others, even if deserving. Teach young lawyers to accept defeat with grace and equanimity. Some have been always praised, told how smart, how talented they are. They didn’t have the privilege of my childhood and its blunt and biting evaluations. Guide them through disappointment with compassion and education. They’ll need it.

Don’t act like you’re still in the schoolyard. Our arguments over whether you were safe or out were loud, long, and angry. Eventually, we’d turn to a bystander who’d end the debate, but that wouldn’t stop the chirping, the insistence that we were right. Law is not a sport. Don’t scream at the ref or throw a fastball (on paper) at your opponent’s head. Trash talking is acceptable on the basketball court, but not in court. Be civil, kind, professional.

We played these many games for fun, yet I learned more on those concrete courts than in school. I made lifelong friends, learned to compete, that you had to earn victory, never easy. I even learned to argue loudly and with reason, which, most likely, made me a better trial lawyer.