McElhaney on Litigation
Greed Is Not Good
The problem isn’t just asking for too much, but how you try to get it
Posted May 1, 2010 2:20 AM CDT
By Jim McElhaney
After three miserable years as a “litigator” with Windstrom & Crusher, Ernie Romero decided it was high time to quit the firm and hang out his own shingle—despite the state of the economy and his lack of any serious courtroom experience.
But within a few weeks of being on his own, lightning struck. Ernie suddenly found himself representing a young motorcyclist who had lost his right leg in a collision with a semitruck that had crossed over the centerline of a four-lane highway.
Ernie filed the case and promptly started following a careful discovery plan. He also immersed himself in books, articles and video demonstrations on trial techniques, and he sat in on as many civil trials at the courthouse as he could find time for.
Then, less than a month before his case was scheduled for trial, Ernie came to Angus for help with his trial techniques.
Holding court in the firm’s library, Angus was the judge and I was the jury for Ernie’s opening statement. At the end of an interesting 20-minute presentation, Angus said, “Ernie, we’ve got a lot to talk about, but first I have a compliment. You didn’t sound like a lawyer. You didn’t use any legalese. You came across like a thoughtful person who cares about what happened to his client.”
“Thanks,” said Ernie. “Three years of listening to insufferable legal pomposity at the most arrogant firm in town cured me of how I learned to talk in law school. I’m sold—legalese is no way to talk to anybody, including judges, juries and clients. Besides, I got a refresher course on plain language from you and Judge Standwell at one of your programs last year.”
Angus smiled and said, “OK, Ernie, let’s get down to work. While I have a good picture of what happened, my problem is that your opening statement suffers from a serious overdose of greed.”
“Greed!” said Ernie. “What are you talking about? I was just following the examples of those big-time trial lawyers whose articles, videos and trial transcripts I’ve been studying for the past year.”
ONE OF THE SEVEN DEADLY SINS
“Which explains where all that greed came from,” said Angus. “First of all, understand that the sense of greed is a product of how most lawyers in this country try their cases. Greed is one of the most self-destructive forces in litigation. It lurks in everything most lawyers say and do—especially when they’re trying to be persuasive.
“But that’s only part of the problem. Another part is that most Americans think lawyers are just as greedy as professional athletes and almost as grossly overpaid. People think it’s a lawyer’s job to be professionally greedy. They sense it in the cases we take, the fees we charge, the people we represent, the evidence we introduce and the arguments we make.
“Greed is one of the legal profession’s seven deadly sins. It is the driving force behind how most of us argue cases. And it shows up in all kinds of ways. The big three are:
“Overdramatizing the evidence we introduce to prove our cases.
“Unfairly attacking the other party, the other lawyer or both.
“Exaggerating our client’s damages when we rep resent the plaintiff or overdoing our attacks on the plaintiff’s claims when we represent the defendant.
“The result is that the various ways we tend to try cases all shout ‘greed.’ They’re aimed at emptying the other side’s pocketbook into ours or unfairly protecting our client’s own.
“But the fascinating thing is, the harder we argue—the more we overstate our cases or understate the other side’s—the more suspicious people are of us and what we say. An exaggerated claim, just like a misleading defense, is a powerfully destructive force.”
Ernie looked stunned. Finally he said, “This seems to make sense, and yet if you’re right, what can I do—what can anyone do—to honestly and fairly win a case?”
“Before we get to that,” said Angus, “you have another problem that complicates your case: your client’s motorcycle. Most jurors don’t like motorcycles or the people who ride them. Like most people, they feel motorcycles are noisy and dangerous to ride. They disrupt traffic and make problems for other vehicles on the road. Motorcyclists are always taking risks, pulling in and out of traffic, cutting in too close and going too fast. Besides, they wear black leather jackets decorated with offensive slogans and go around in gangs. Or at least that’s the perception.”
“There are some things that help,” said Ernie. “My client, 23-year-old John Randall, was taking a course to become a motorcycle traffic officer when he got hit by the defendant’s semi. He wasn’t riding a big ‘hog’ with loud exhaust pipes but a nice, quiet silver bike. He was wearing a white helmet with a full-size, clear-plastic face guard and a protective cloth motorcycle suit.
“And if he hadn’t taken immediate evasive action when the semi came at him, he would have been crushed to death instead of just losing a leg.
“Then there’s the trucking company. It kept this driver on for years even though he had a record of five arrests for driving while intoxicated and had been in three other multivehicle collisions before this one.”
“Why did they keep him behind the wheel?” said Angus. “Is he related to someone in the company’s management?”
“He’s the brother of the young woman the ‘happily married’ president of the company is currently dating,” said Ernie. “And he’s still working for them.”
“Is the trucking company aware that you know any of this?” said Angus.
“No,” said Ernie. “I didn’t believe what they said in their depositions, so I hired a good private investigator, and I won’t use any of this until the time is right.”
“Good,” said Angus. “Let’s turn to how to talk about liability and damages without pushing the greed button.
“First, both you and the other lawyer are ‘on trial’ from the moment the jury panel is brought into the courtroom. And while you’re picking a jury, they’re picking a lawyer. Remember, first impressions tend to stick.”
“Marty Flannigan is representing the defendants in this case,” said Ernie, “and every time I see him he’s got some nasty crack like whether it’s true that I got fired from Windstrom & Crusher for submitting false expense reports, or whether I was caught having sex with Marty Crusher’s teenage daughter in the firm library.”
“Outrageous,” said Angus. “What did you do?”
“I was warned about Flannigan by some friends from Windstrom & Crusher, so I said, ‘I can’t believe that I’ve got you this worried already. The word on the street is you don’t start pulling this stuff until right before trial.’ ”
DON’T PUSH THAT BUTTON
“Good for you,” said Angus. “keep on being polite and respectful to everybody on the other side—including Marty Flannigan—especially when they get rude, arrogant and nasty. It’s what they do for a living.
“Next,” said Angus, “most people figure that we charge so much for what we do, more than just our time must be for sale. We must be fundamentally dishonest. This fits right into how juries react when we go over the top. That’s one of the reasons why the more you push, the harder you argue, the more suspicious people are of you and what you say. Facts—not opinions, exag gerations, put-downs or vicious characterizations—are the heart of a persuasive story.
“And stay away from all kinds of purple prose and fancy words.”
“I won’t have any trouble doing that,” said Ernie.
“But go even further than you did in your opening,” said Angus. “Tell the story with nouns and verbs—stay away from adjectives and adverbs.
“You want the judge and jury to be mad at your op ponent for what they did that provoked this case and for how they behave in trial. If you beat up the other side with your words, whether in opening statement or final argument, the jurors will have less need to do it with their verdict.”
“Marty Flannigan is such an obnoxious guy,” said Ernie. “I’ve really got to let that sink in so I won’t overreact at the trial.”
“By George, I think you’ve got it,” said Angus.
Jim McElhaney is the Baker and Hostetler Distinguished Scholar in Trial Practice at Case Western Reserve University School of Law in Cleveland and the Joseph C. Hutcheson Distinguished Lecturer in Trial Advocacy at South Texas College of Law in Houston.