McElhaney on Litigation

Clean Up Your Mess

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McElhaney At His Best

The ABA Journal will occasionally reprint some of James McElhaney’s most popular columns from past years. This article originally appeared in the Journal’s July 1999 issue under the headline “The Case Against Clutter.”

Angus was in the brief bag, looking pensive. A blank legal pad was lying on the table in front of him.

“What’s the matter?” I said. “Cat got your pen?”

Angus smiled without bothering to untwist my metaphor.

“No,” he said. “I was just thinking about whether cluttering is one of the seven deadly sins of trial lawyers.”

“How can that be a sin?” I said. “Where is it written, ‘Thou shalt not clutter?’ ”

“That’s what the pad is for,” said Angus.

“OK,” I said, “you got me. But why is a little clutter so serious?”

“You’ve got to understand,” said Angus. “I’m not talking about whether you keep a messy desk, or have too many notes and books and briefs piled on the table in your office. I’m talking about lawyers cluttering their clients’ cases.

“All cases collect clutter: unnecessary legal theories that can kill the case. Disconnected factual issues that alienate and confuse judges and juries. Witnesses who do more harm than good. Mountains of documents that smother simple facts and confound basic ideas. Clouds of needless exhibits that numb judges’ and juries’ perceptions.

“Then there’s verbal clutter: long, confusing questions that destroy the pace and flow of even the best witness’s testimony. Arcane legalisms that hamstring everyone’s comprehension. Strange, even silly, arguments that do serious damage to an otherwise powerful case.”

Beth Golden sat down and joined the conversation. “I agree,” she said. “Clutter is everywhere. The question is where does it come from?”

“It comes from lots of places,” said Angus. “Law school is a major source of sin. That’s where you were taught to identify and articulate every possible legal theory, but you were never given a good process for sifting out the bad ones.”

“Fear is another reason why we hang on to doubtful theories,” said Dick Mudger, pulling up a chair. “Just last week I heard an expert testify in a malpractice case against a lawyer. The expert said the lawyer was guilty of malpractice because she didn’t make a claim for specific performance in an ordinary contract case.

“The expert was full of beans,” said Mudger. “It was like telling a doctor to prescribe penicillin for colds. It’s a lot easier to get money damages than it is to get specific performance, and asking for specific performance would not have helped her case. But it shows that you’re more likely to be criticized for what you leave out than what you put in.”

“Another part of the problem,” said Angus, “is that we grow attached to our own ideas.” “Bishwah,” said Myra Hebert as she joined the group.

Angus looked at Myra over the top of his glasses and continued: “It’s kind of like pride of authorship. Once you’ve written something, it’s hard to let it go, even if it no longer fits what you’re working on.”

“You’re not alone,” I said. “Richard Leighton at Keller and Heckman in Washington, D.C., says, ‘After you’ve lived with an idea and worked on it for a number of years, it’s part of you. Getting rid of it is like cutting off one of your fingers.’ ”

“Which means,” said Angus, “that the sin of cluttering is not always letting something into the case but failing to get rid of it. What we need are techniques for clearing out the clutter.”

“Sounds great,” I said.

“I knew that’s why you were here,” Myra said to me. “You always come to the Brief Bag looking for Angus when you need something to put in your column.”

I tried to look at Myra over the top of my glasses the way Angus did. Anyway, here are my notes.

Dejunk Your Case Theory

Creating a unified, coherent theory is the most important job you’ve got in any case. It’s the blend of story and legal principle on which you hang all your important facts, and it should make the judge and jury want you to win. Approach this job with care. What you keep out of your theory of the case is just as important as what you include. Albert Zakarian at Day, Berry & Howard in Hartford, Conn., says, “More than half my time in final preparation is in thinking about what I’m not going to do.”

Think of putting your case together as if you were cleaning out your desk drawer. When it’s filled with three or four years’ accumulation of junk, the quickest way to set it right is to dump everything out on top of your desk and only put back what really belongs. The chicken soup theory is wrong when it comes to trying cases. While hot chicken soup may not cure the flu, people always say, “At least it can’t hurt.”

But when it comes to trying a case, if something does not help, it hurts. It’s clutter that gets in the way of something valuable.

Whenever you can, concede the points you are not going to win. Putting your heart into trying to prove a loser undercuts your credibility and poisons your whole case. Of course, there are times when your case demands jousting with a windmill. But only do it when you must. Don’t fight unnecessary battles.

Keep the claims that show the unfairness of your opponent. Asking the judge and jury to right a wrong is the most powerful thing you can do. Like they say, the key to big damages is big fault.

Get rid of claims or defenses that make you or your client look greedy, grasping, overreaching or vindictive. This will sometimes put you in the difficult position of trying to restrain an unreasonable client who has become the victim of his or her own rhetoric. You are not alone. Keeping a rein on your client is an important part of trial practice. Be consistent. Although the law specifically permits inconsistent defenses and claims, common sense says they often are an invitation to disaster.

No matter how much you like a theory or the evidence that proves it, if it doesn’t fit, get rid of it.

Talk to someone who has a fresh view of the case.

Don’t Use All Your Evidence

Prudence says start out having at least two ways to prove every fact essential to your claim or defense. You can use any combination of witnesses, documents, exhibits and depositions. This is not a legal requirement—just a good insurance policy.

Now that you’ve got more than enough evidence to prove your case, you are ready for the second rule: Don’t introduce everything you’ve got. First, you’ll put the judge and jury to sleep with needless repetition of things that really are not in dispute. Second, you’ll increase the risk of inconsistencies that will give your opponent something to attack you with.

Pick what is easy, simple and direct.

Choose witnesses who are pleasant, understandable and fun to listen to. Avoid long-winded, disagreeable, pompous and incomprehensible witnesses whenever you can.

Don’t haze the jurors by making them go through ev­erything you had to learn to understand your case. Use what is interesting, relevant and persuasive. Ask yourself, “What do they really have to hear, and what can I leave out?”

Use summaries, charts, diagrams and pictures (see Rule 1006 of the Federal Rules of Evidence) to avoid burying the judge and jury under a mountain of paper.

Address why things happened as part of your proof. Lawyers spend too much time proving “what” and tend to forget about “why.” But jurors care a lot about “why.” Without a good reason for some conduct or event, they may have trouble believing it actually happened.

Evidence that makes the case come alive, makes the jury care about your client, or makes the facts interesting and understandable is not clutter.

Don’t try to conceal evidence that hurts your case. Bring it out yourself in the middle of the case (so you don’t draw undue attention to it).

Don’t quibble on cross-examination or spend your time on picky little inconsistencies unless you can eventually make them pay off in a big way. Juries are not impressed when you impeach a witness on something that really is not important.

Don’t needlessly attack anyone—especially independent eyewitnesses or people you think the jury will like.

Think about what objections your opponent could make to each piece of potential evidence.

Always think about what doors to other proof you’re opening with each piece of evidence you’re planning to introduce.

Keep your questions clear and simple. It will improve all your witnesses’ answers.

When Angus stood up to leave, Myra Hebert said, “If cluttering is the best you can come up with for the first deadly sin of trial lawyers, you’ll have trouble coming up with six more.”

Angus looked at her over the top of his glasses.

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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