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Shoot the messenger

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Go ahead and shoot me for saying so, but in our society people are obsessed with war, sports, and games.

Lawyers, too. Litigators in particular need to have someone (you, maybe) call them out. Because they have this compulsion—in spades.

How do I know? It’s the words they use.

You may think I’m playing hard ball. But I’m not going to pull any punches.

The worst offenders are the heavy hitters. Sometimes, when there is a tough motion to be argued they tell you to run with it. Yet it’s not always so easy to tackle the key issue. And if you are dumb enough to cry foul, the big gun is apt to fire back with “No dice, Louie, even if you think you’ve been dealt a bad hand, I’m counting on you to step up to the plate and hit one out of the park!” “Ugh,” you’re thinking “Oh well, if I look hard I’ll find an ace in the hole. That would turn this into a whole new ball game. I’d be able to dodge the bullet. And I wouldn’t get the axe, no sir. Still it’s a long shot. I’m scared I’ll drop the ball.”

In the legal world, both the good guys and the bad guys share this war-sports-gaming preoccupation.
What’s nice, though, is that the good guys have your back, especially when you’re on deck. They have your back, and your sides, and the top of your head. And the bottoms of your feet. Where the sun never shines. Happily, the good guys don’t have an axe to grind. And one of them will always offer to ride shotgun just in case you bet on the wrong horse. On the other hand, if you are dealt a bad hand, or the cards are stacked against you, they won’t go for your jugular if you call a spade a spade. They just want you to give it your best shot before you throw in the towel. They will gently urge you to get the ball rolling and not pull any punches.

The bad guys are, well, bad. Watch out when they offer to bury the hatchet. Right after you bury it, they will ace one over on you. Once the ball lands over in your court, you might decide to take one for the team. Don’t. That’s when the bad guys show their true colors, pile on, and go right for your jugular. They march you out of the deposition room at gunpoint. You’re paniced they’re going to pull the trigger. But with great discipline, you manage to keep your powder dry and hold your fire. Certain that they are going to hack you to shreds, you cut and run, sprinting for the courtroom door. You figure that, no matter what, the judge won’t leave you high and dry.

Phew. Now the ball is in the judge’s court. But you’re about to be blindsided. Everyone at counsel’s table knows the scuttlebutt except you. She has decided that your brief doesn’t pass muster, so she plans to move the goal posts and fire a shot over your bow. Some people think she is a loose cannon with a reputation for going off half-cocked. If she did that now, you’d be hung out to dry. Keep in mind that is the mainstay of her judicial style. Luckily, though, this time she has decided to toss you a slow pitch instead of throwing you a curve ball. That’s good because you have an ace up your sleeve, or in the hole, whatever. Heads up, though. Opposing counsel is the wild card in the room. You’ve already decided that if he tries to torpedo your oral argument, you will have to bite the bullet, slice him up, set off an explosion, and hit a home run. You figure the judge will understand the force of your position because the intel is that she, unlike some of the shorter judges, has a deep bench.

Meanwhile back at the war room in the hotel, the client is huddling with your partner, going over the playbook. The client is going to call the shots, of course. He has been batting around whether the whole case is just a house of cards or—instead—your guys are on a roll, and he should bite the bullet and let you fire away. I mean let you play your best hand. So to speak. No one knows exactly what he is thinking because he is holding his cards too close to the vest. On the one hand he might double down. Then again, he may fold. He’s puzzled. Should he punt? Or lateral the case to his competitor? Can he have the confidence that you will hit a home run or is he wiser to assume you will strike out. It’s a toss up, really.

Finally, after consulting the coach, he decides to have you step up to the plate. Play hard ball. And put on a full court press.

Otherwise, like the Bismarck, he’ll be sunk.

Just my two cents.

Written by thinker

February 4th, 2016 at 4:14 pm

Black rocks

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I’m not sure what it is about seeing a litigator dressed in a black suit with a chartreuse polka-dot tie that sends my heart aflutter. It can’t be the chartreuse tie; the same thing happens with aqua, teal, and hot pink. It must be the black suit. Yes, that’s it. There is something about black. It’s so “take-no-prisoners”, so “I totally, completely, and unequivocally fit in”, so—well—so black.

And I’m happy to report that this undertaker look seems to be on the rise among hot-shot trial lawyers. And semi-hot-shot courtroom wannabes, too, for that matter.

This is especially true when a litigator has to meet up somewhere with another, opposing litigator, called a “bad guy.” Say at a deposition or a negotiation or in court.

To set the record straight right up front, there’s nothing that awful about bad guys, really. If you bumped into one at a gala dinner of the International Rottweiler Owners Association or even at your kid’s Saturday soccer match, you’d be perfectly comfortable chatting with him, at least until you found out he was one of the bad guys. Even then, a chat would be fine. Deep down, the good guys know full well that a bad guy is really just one of the guys. But calling him a bad guy remains de rigueur.

The confusing thing is that a good guy who is on the other side is actually a bad guy if you’re one of the good guys, and a bad guy on your side is really a good guy, even if you’re one of the bad guys (good guys?). Somehow even the average guys seem to keep it all straight. It’s so necessary that they do keep it all straight, as this is a very important part of litigating. And, of course, it makes everyone feel better to do some finger pointing.

Anyway, when a good guy and a bad guy are in a room together, say at a video-taped deposition of an inventor, they definitely are both going to do the mortician thing—the black suits and pastel ties—that takes my breath away. And this isn’t just a matter of appearance. No, sir. The good guy and the bad guy actually perform better in black. And, honestly you’re just less likely to stand out in a crowd of black suit guys if you’re wearing basic black. You know: “I see by your outfit that you are a …”

The poor videographer faces a conundrum, though. He generally is not supposed to appear IN the video. Unless something odd is going on in the deposition room. Okay, maybe he appears in a corner of the frame when he reaches for one of those cheese and bean quesadillas left over from lunch. But it’s only for a moment, so it isn’t clear whether he has to wear the obligatory black suit. Ditto the guy who slipped into the room to put the vegetarian lunch wraps and seltzer on the side board.

This good guy-bad guy mix-up probably explains why you never see one of these hot shot litigators dressed in a white suit with a chartreuse tie. A white suit sure seems like a good way to signal he is one of the good guys. But the bad guys (good guys?) on the other side would become hopelessly confused or start tittering. It’s probably just as well. I mean, try walking into a courtroom wearing a white suit.

The puzzling thing is that these litigator guys wouldn’t be caught dead in a black suit when they are dropping by Starbucks for one of those $8.95 Iced Caramel Macchiato’s. No way. They know the black suit would look dumb and be wildly uncomfortable. And the tiny spilled specks of that cinnamon whipped cream would leave grotesque grease spots in the most unfortunate places. So in Starbucks, they wear cutoffs and flip flops like any other self-respecting American consumer.

Every so often some Neanderthal litigator makes the mistake of violating the strict black and chartreuse dress code. He shows up in a dark gray suit or a dark dark gray suit. Or a dark navy suit (which frankly is pretty hard to tell from a dark dark grey suit). Or he enters the conference room sporting an aquamarine or malachite tie.

Disgusting.