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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