McElhaney on Litigation

Bite Your Tongue


Sandy Ramirez, tight-lipped and staring straight ahead, walked over to the corner booth at Zapata’s Chili House, where Angus and I were having lunch. She dropped her briefcase on the floor and sat down without saying a word.

“What’s the matter?” said Angus. “You look like you just lost a $50 million case.”

“Not yet, but it could happen,” said Sandy. “Right now my problem is how to teach a smart young lawyer–my associate, Mike Torrent–to bite his tongue.”

“What did he do?” I said.

“We were in Judge Martinez’ court, arguing a summary judgment motion against a team of mad-dog litigators from Winstrom & Crusher,” said Sandy. “And the judge–who was obviously leaning our way–made a harmless comment about the statute of frauds. It was incorrect, but it made absolutely no difference to our case.

“But instead of letting it pass, Mike took Judge Marti­nez to task and said, ‘I’m sorry, Your Honor, but you’re wrong. That’s simply not the law. The rule only requires a memorandum signed by the party sought to be charged.’ ”

“Did Judge Martinez raise his famous bushy eyebrows?” I said.

“It was scary,” said Sandy. “First he furrowed both brows, then he raised them, one at a time. I had never seen that before. So I stood up and told the judge I certainly did not agree with my associate, and both of his bushy brows settled back down.

“Later I told Mike that one of the dumbest things you can do is tell a judge he or she is wrong–especially when you’re right. I also told Mike he wasn’t in court to make learned comments about the law when they didn’t make any difference to the case–and that he has to learn to bite his tongue.”

“I agree with what you told Mike,” I said. “But there are times when you have to correct a judge who makes a serious mistake that could cost you your case.”

“Absolutely,” said Angus. “But the important thing is to argue to the judge, not with the judge. You talk to the judge, but you attack your opponent’s reasoning–not the judge’s. “When you attack what the judge says, you force him to take your opponent’s position just to defend himself.”

The Cost of Speaking Up

“But talking to the judge isn’t the only time when you need to bite your tongue,” said Sandy.

“Right,” said Flash Magruder, the plaintiffs lawyer who had just joined the group. “It happened in a products liability case I was trying last week. The defendant made a weed trimmer with a flimsy safety guard that failed and caused the plaintiff’s injury.

The judge had granted the defendant’s motion to keep any evidence of the defendant’s improved safety guard out of the case because it was a subsequent remedial measure. But the defense law­yer got so worked up in her opening statement that she said, ‘The evidence will prove to you that this is the fin­est weed trimmer ever made, that you just can’t make them any better than this.’

“So we went to sidebar and the judge agreed that defense counsel had not only opened her case, but had opened the door to the defendant’s new safety guard, as well.” Angus said, “The law of ‘opening the door’ is basically a tribute to the unbitten tongues of lawyers and witnesses who saw a momentary advantage without calculating its cost.” “Right,” said Dick Mudger, the insurance defense law­yer who had come over to listen to what Flash Magru­der was saying. “Like when Flash offered a carefully gerrymandered statement into evidence to attack a witness’s credibility.

The judge said that under the rule of completeness the rest of the statement that Flash had cut out was admissible to show that his client had drunk eight beers before he started driving his car.”

“Or the time,” said Flash, “when Mudger carefully kept all evidence of insurance out of the case until he put an insurance adjuster on the witness stand instead of a cop. That opened the door to the defendant’s liability insurance because it showed the adjuster’s bias as a witness.”

“Thus do the rules of evidence bite us all in embarras­sing places,” said Mudger. “It happened to Professor Vince Warbler, who teaches procedure out at the law school,” said Sandy Ramirez. “I saw the only case he ever tried.

“Ramon Gonzalez represented a plaintiff who claimed his back had been permanently injured by a chiropractor’s improper treatment. Warbler represented the chiropractor.

“Warbler thought it would be a good idea to play the sympathy card and create the impression that the chiropractor–recently retired–did not have any insurance.

“Warbler figured that if he waited until final argument it would be too late for Gonzalez to do anything about it.

“So that’s when he delivered a classic ‘albatross argument.’

“ ‘And what a travesty!’ Vince said. ‘To hunt down the good doctor in his retirement after he has so nobly served our community throughout his entire professional career–and attempt to saddle him with a huge verdict like the one Mr. Gonzalez has so outrageously suggested.’

“Of course, Gonzalez could have objected as soon as Vince started arguing facts that weren’t on the record. But unlike Warbler, Gonzalez figured it would be better to bite his tongue.

“The judge agreed that, in effect, Warbler had told the jury the chiropractor would have to pay for the plaintiff’s verdict out of his own pocket when he actually had an insurance policy that covered the entire loss.

“So the judge let Gonzalez say in rebuttal, ‘Folks, you heard Professor Warbler tell you it would be unfair to make Dr. Reynolds personally pay for what he did to Don Michaels. But you don’t need to worry about whether it would affect his retirement because the truth is, not one penny of your verdict will come out of Dr. Reynolds’ own pocket.”

Going Down In Flames

“Wow,” said Mike Pirelli, who had just joined the group. “Going down in flames like that for not keeping your mouth shut is a lesson that would stick with you a long time.” “I agree,” said Angus. “And yet it’s interesting how a few careless words at the wrong time can cause even more damage than in any of those cases, and the lawyers who didn’t hold their tongues never even knew what they had done.”

“Like what?” said Mike.

“Like making derogatory comments about the opposing lawyer during a deposition and then later not understanding why she won’t cooperate in settlement discus- ­sions,” said Angus.

“Or gloating over a settlement agreement,” said Dick Mudger, “telling your opponent he never would have paid so much for the case if he had known that your client’s CEO had a conviction for fraud. That lawyer still doesn’t know how much his gloating will cost him.”

“Or listing all of your opponent’s weaknesses in a settlement discus­sion,” Flash Magruder said. “First, you may be educating the other side’s lawyers about weaknesses they didn’t know they had, taking away the element of surprise you might other­wise have at trial. And second, even if they already knew, they didn’t know that you knew–and now they do, so they are forewarned.”

“Or continually fighting for the last word by insisting on re-redirect or re-re-cross examination,” said Sandy. “Quibbling over minor details reduces your entire case to the lowest common denominator. It steals attention from what’s important in your case by focusing on meaningless word fights that are just verbal clutter.”

“Or viciously attacking a harmless witness on the other side that the jury really likes,” said Flash.

“Or conducting a boring three-hour direct exam of an expert when 20 minutes would do the job,” said Mudger.

“Or introducing 250 documents to do the work of five or six,” said Sandy. Mike took all this in and then turned to Angus and said, “These sound like they could destroy a case or even a ca­reer. Like my grandfather, who was in the Second World War, used to say, ‘Loose lips sink ships.’ Why do so many lawyers forget that?”

“The good ones don’t,” said Angus.


James W. McElhaney is the Baker and Hostetler Distinguished Scholar in Trial Practice at Case Western Reserve University School of Law in Cleveland and the Fred Parks Distinguished Lecturer in Trial Advocacy at South Texas College of Law in Houston. He is a senior editor and columnist for Litigation, the journal of the ABA Section of Litigation.


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