The Beauty Contest
Poise on the Runway and Descriptive Terms Will Take You Farther Than Hardball Tactics
Posted Nov 29, 2005 4:18 AM CDT
By James W. McElhaney
Nick Wheeler was waiting for Angus when he came into the office Tuesday morning. Nick was holding three large cups of dark mountain roast coffee and a whole box of fresh blueberry scones.
“Consider this in the nature of a serious bribe,” said Nick. “We need to talk.”
“What’s the matter?” said Angus. “You been indicted?”
“Worse than that,” said Nick. “Wheeler & Randolph is in serious trouble. We’re about to lose Southwest Developments our biggest and most important client.”
We went into the conference room where Angus and I could drink coffee and eat scones while Nick paced around and wrote names and drew charts on the board. Not that they made any difference. In less than five minutes it was obvious that Windstrom & Crusher was doing a good job of stealing Southwest Developments away from Wheeler & Randolph.
Southwest Developments is facing an $850 million breach-of-contract case brought by the city of Ramada. And the CEO of Southwest was at the annual autumn dinner of the civic club when he “happened to overhear” a conversation between G. Patton Quist--the head of Windstrom & Crusher’s 35-lawyer litigation team--and Joyce Michaelman, the firm’s top hardball strategist.
“From what Millard Rosen--Southwest’s CEO--told me,” Nick said, “it’s obvious that the whole conversation was staged between Pat Quist and Joyce Michaelman for Rosen’s benefit. He heard them talking about how ‘the old, staid integrity firms don’t understand modern litigation.’ How the ‘silk stocking lawyers don’t realize that litigation is war’ and that ‘major lawsuits require an army of ruthless, skilled trial strategists who can tear the opposing lawyers--and their clients--apart.’ ”
“That was last Saturday night,” said Nick. “This Monday morning Millard Rosen asked me to come to his office, where he told me about what he overheard at the civic club and said that he was afraid Wheeler & Randolph might not be the right firm to defend Southwest Developments in the city of Ramada’s massive contract case.”
“So another big corporation buys into this urban legend that the way to win a lawsuit is to hire the meanest dogs in town,” said Angus.
“Right,” said Nick. “I’m afraid that Rosen has already made up his mind to hire Windstrom & Crusher.”
Mongo Litigation Tactics
“The moles who have been able to dig their way out of Windstrom & Crusher say that the firm’s basic objective in pretrial discovery is to inflict pain on the opposing lawyers,” Angus said. “And G. Patton Quist claims that showing potential clients video clips of Windstrom & Crusher lawyers trashing opposing corporate officials in depositions is far more effective in recruiting clients than any fancy five-color brochure.”
“The word on the street is that Crusher has a video clip showing Joyce Michaelman make the head of an international banking corporation wet his pants in the middle of his deposition. It’s a great story,” I said, “but I don’t believe it.”
“True or not,” said Angus, “it shows that Mongo litigation tactics are not the practice of law--they’re client entertainment. And if paying an $850 million verdict is part of the price for watching your opponent squirm in a deposition, the cost of the ticket is too high.”
“Right,” I said. “Some clients may like sneering, argumentative pit-bull lawyers, but judges and juries sure don’t.”
Nick started grinning. “That’s terrific,” he said. “Now I know what I’m going to say in the beauty contest Millard Rosen wants us to participate in next week.”
“Anybody else in this contest besides Wheeler & Randolph and Windstrom & Crusher?” said Angus.
“Nope,” said Nick, “just our two firms.
“Millard Rosen had Southwest’s legal department prepare a 200-page notebook of letters, documents and an analysis of how the development contract fell apart, together with the city of Ramada’s claim that Southwest owes it $850 million.”
“What’s he going to have you do,” I said, “take opposite sides of the case?”
“No,” said Nick. “He wants each firm to do a separate two-hour presentation on how we would approach the preparation and trial of the case--discussing legal theories and trial strategies. And we’re going to do our presentations on separate days. Windstrom & Crusher does theirs next Wednesday, and we do ours on Thursday.”
“From what you said, I gather your idea about how to approach this beauty contest is to explain that good client entertainment is not good trial strategy.”
“Exactly,” said Nick.
“In other words,” said Angus, “you’re going to persuade Mr. Rosen to pick you by telling him that his ideas are all wrong?”
“Hey, wait a minute,” said Nick. “When you put it that way, it sounds like it won’t work.”
“Why is that?” said Angus.
“Because it sounds like I’ll be trying to get Rosen to change his mind by jamming my ideas down his throat.”
“What’s wrong with that?” said Angus.
“Plenty,” said Nick. “Like you always say, ‘People like their own ideas. So the heart of persuasion is to present a picture of the facts so the judge and jury can see for themselves what happened. That way it’s their idea, and they believe it.’ ”
Show ’Em What To Think
“Exactly,” said Angus. “that’s why in any kind of persuasive setting you want to show not tell.”
“Even in a law firm beauty contest?” said Nick.
“Before I answer that,” said Angus, “what do you think Windstrom & Crusher is going to do?”
“I think G. Patton Quist and Joyce Michaelman are going to bring a whole platoon of ‘ruthless, skilled trial strategists’ who are all congenital ‘tellers,’ ” said Nick. “They are going to give a fast-moving discussion that will be designed to overwhelm Mr. Rosen, but I don’t believe that they are going to demonstrate anything.”
“And how about you?” said Angus.
“I’m going to do what you suggested,” said Nick. “I’m going to demonstrate. I’m going to show, not tell.”
“Hold on,” said Angus. “That was your idea.”
“Only because you first planted it in my head,” said Nick, “two years ago when you taught me how to do opening statements without arguing and two minutes ago when you reminded me that I was talking about trying to persuade Mr. Rosen by telling him his ideas were wrong--an exercise that’s bound to fail.”
“How are you going to do this demonstration?” I said.
“As realistically as possible,” said Nick. “I might have one of our best business litigators do an opening for the city of Ramada, and then I’ll do an opening for Southwest Developments.
“I might even do two,” said Nick. “One standard, argumentative, legalistic opening filled with flashes of fire and bits of brimstone and practiced emotion. Then the other one would be an ‘Angus special’--a series of word pictures that would make the entire transaction come alive so the jurors could see for themselves how the city of Ramada kept changing its demands and frustrating everything Southwest was hired to do.
“I might even ask Millard Rosen to have two separate mock juries listen and react to the different sets of openings. That way Rosen could see for himself that it’s far more powerful to show instead of tell.
“Anything else I should think about?” said Nick.
“There sure is,” said Angus. “All the language of contracts, commercial transactions and breaches is deadly lawyer talk. If you want your word pictures to come alive, remember to use ‘real people’ words like ‘word,’ ‘promise,’ ‘deal,’ ‘trust,’ ‘rely’ and ‘count on’ to tell your story. When you’re painting pictures with words, you don’t want to sound like you’re from Windstrom & Crusher.”
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 Joseph C. Hutcheson 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.