Litigation: It Doesn't Always Go As Planned - Plan On It

Jim Carrey in "Liar, Liar"

When counseling law students about what areas of practice to enter, or at least consider, the conversation always leads to personality and whether or not the student has ever thought about being a litigator. We will then generally discuss what courses need to be taken and what internships to consider.

Litigation (like JAG) is not for all. However, for someone like me, who was a classroom teacher for eight years prior to going to law school, there was nothing more that I really wanted to do but be in a courtroom. It is indeed like a melodrama. . A play that is acted out to an audience -- the jury. It is rough and tumble and, in the case of criminal law, deadly serious.You will hear in your law school clinics and internships that litigation is all about "preparation."

However,  there is one "take away" that all law students need to know. No matter how meticulously one plans for what is supposed to happen in a courtroom, remember that it rarely goes as planned -- and further remember that if your trial "goes South"  --- there may be a few laughs that go with it. Often at your own expense. So stay loose and have a good deprecating sense of humor (something few trial lawyers seem to have).

Learn how to "dodge and weave" and expect the unexpected when you enter a court room. Here are a few examples from my wacky life in court:

(1) "SIT DOWN, IT'S NOT YOUR TURN YET"

Here it was. The moment had finally arrived! I had finished law school; passed the bar; completed my training course with the Kings County (Brooklyn, NY) DA's Office. I was now ready to do my first misdemeanor trial!  I had prepared as I was told -- interviewed all the witnesses, written out all my questions and my closing argument (write it out and work backwards -- you'll only know what you need to prove and how to get the witnesses to testify, if you've already written out what you want them to say, right?) 

At the last minute, the defense filed a Motion in Limine on an Identification issue. Paperwork was submitted and the motion went for a hearing a week before the trial was scheduled to start.

I was ready. . Boy, was I READY. I was going to blow the defense lawyer out of the water with my brief and argument. I had practiced my technique before a mirror the night before (like just what hand gestures and facial expressions to use at any given moment: . . .  my "disbelief," "Come On, Now" looks, and my all time favorite look -- the "You've Got to Be Kidding Me!!(with apologies to John McEnroe) look.

The hearing got underway. There was a judge who must have been seventy-five if he was a day, on the bench. He just sat there -- not saying a word -- for at least seven minutes. Well, I got a little full of myself and decided to stand up and start my argument.

Suddenly, the judge came to life and blurted out --with absolutely no compassion for a young knucklehead Assistant District Attorney -- "Sit Down, It's Not Your Turn Yet!" . I looked around the courtroom. The defense lawyer had all he could do not to burst out laughing.

"Yes, Your Honor."  I smiled and sat back down. You can see that I still remember that day, many years later.

P.S. We did win the motion and the trial. . You knew that I had to get that in, didn't you?

(2) HERE'S YOUR "OPEN DISCOVERY, JERK!"

After leaving the D.A's Office, I joined a Wall Street Insurance Defense firm across the river in Manhattan.

It was a great place to work as the firm had Toyota as a top client and did the bulk of its Products Liability work. .Younger associates would always be selected to go to motions hearings and lesser depositions.

It was at such a deposition  that two of the five lawyers participating got into a hot disagreement regarding a discovery document. One of the attorneys was suggesting that he was about to call the judge because the other had not turned over all relevant documents and was, in fact, withholding documents. The accusation enraged the accused lawyer who sat at the other end of a long conference table from his accusing adversary.

Subsequent to this initial outburst, the accused lawyer, with one smooth  motion, sent his briefcase down the length of the conference table. (think bartender sending a beer down the length of a bar to costumer at other end).

"Here, you want to see what I have in my briefcase. . you want discovery. . Well here it is!' 

In one of life's great moments, the accusing attorney had picked that moment to turn away and have a conversation with another lawyer at the table.  He looked back at the last minute, but it was too late. The briefcase hit him square in the chest as he sat in a swivel conference room chair, knocking him, head over heels, to the floor of the room, papers flying around everywhere. I was sitting next to the floored lawyer and had to turn quickly to look out of the window so as not to burst out laughing in his face. . Class act that I was.

My definition of "open discovery."

(3)  "YOUR HONOR, MY WITNESS IS INDEED A ROCKET SCIENTIST!"

In all my years as a criminal and personal injury lawyer, I have had all types of witness: the good, the bad, the ugly, the hostile, the less-than-forthcoming, the "I have to drag it out of him/her" witness.

But one one shining day, I tried a personal injury case and was able to turn the old adage, "Well, he ain't no, rocket scientist!" on its head. . . One of my witnesses -- a guy who had simply been walking down the street and saw my client "T-boned" in an intersection accident -- was actually WAS  a Rocket Scientist for NASA. .

It was, only after a rigorous cross-examination by the insurance company lawyer, that I was able to stand up, look the judge (a friend of mine) in the eye and say, tongue firmly planted in cheek: "Judge, he's a rocket scientist ya gotta believe him!"

I don't know, many this is one of those "you had to be there" situations but all three of us: judge, plaintiff and defense counsel were bent over laughing to tears.

 - - -

Is there a point to these anecdotes (many more, but we'll stop at three)? Well, a law student is told from their first day in law school that to be a successful litigator, one has to prepare, prepare and then prepare some more. Even after the law student graduates and goes to a firm or starts trying cases, he/she is told the same.

That is very true. But remember that a lawyer can not control the outcome of a trial. Notwithstanding any amount of preparation. Remember that no matter how much you prepare for a trial -- it usually never goes as planned. Expect the unexpected and be prepared to flex and adapt to whatever is thrown your way.

Being able to do that is the mark of a great litigator.