McElhaney on Litigation

Telling It to the Judge

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A year ago, Andy Lopez and five of his friends walked away in disgust from the massive litigation department of Windstrom & Crusher to start their own trial firm.

Yesterday, all six of the lawyers in Lopez & Wilson came to talk to Angus.

“We need your help,” said Andy Lopez. “We’re defending a case against a motion brought by our old firm. And the word on the street is that they’re pulling all the stops to punish us for walking out on them last year.”

“Right,” said Karen Krieger. “Windstrom has made a motion for summary judgment in our case, which is unfortunately assigned to Judge Alice Redding.”

“And ‘Ready Redding’ has the reputation for loving to help big firms nibble their opponents’ cases to death with summary judgment motions,” said Andy.

“So could you help Andy prepare to defend our case in Judge Redding’s court?” said Karen.

“Sure,” said Angus. “By the way, who’s arguing the case for Windstrom & Crusher?” “ ‘Tricky’ Strickland,” said Andy.

Angus smiled. “Under the circumstances,” he said, “I will be happy to take this case pro bono. There are some things that are truly for the public good.”

Beyond Winning

So last night all six lawyers from Lopez & Wilson came to the conference room in Angus’ offices. Karen Krieger played Judge Redding and Angus played Tricky Strickland, while I ran the video camera and took notes.

In less than 15 minutes, Angus laid out all 21 points in Windstrom & Crusher’s brief, creating a powerful impression that there was no real question of fact that would justify letting any part of the case go to trial.

Then Karen added to the chill in the room when (sounding just like Judge Redding) she said to Andy, “Counsel, you have 15 minutes before I rule on this motion.”

Andy stood up confidently and started his argument.

But in less than five minutes, Angus said, “Stop. What are you doing?”

“Trying desperately to win the argument,” said Andy, “because if I lose, our case is dead!”

“But you were starting to attack every point in Strickland’s motion,” Angus said. “Of course,” said Andy. “I want to knock down everything the defendant says.” “But why?” said Angus.

“Because it’s their motion and I’m opposing it.”

“That doesn’t mean you have to answer every shot they fire in their 21-gun salute,” said Angus. “A summary judgment motion is not a law school exam. You get no extra points for identifying and arguing every possible legal issue.

“Besides, don’t get drawn into trying to beat Windstrom & Crusher at their own game. A number of the points they make are perfectly valid, and if you seriously try to win those, you help them create the impression that you have a weak case.

“What’s more, you were tracking their outline talking about their issues in the order they picked making it natural for the judge to continue looking at the facts and the law from their point of view.”

“So what should I do?” said Andy. “Throw out my whole argument?”

“Exactly,” said Angus. “Tear it apart and put it together again so it’ll be obvious in the first few minutes that Windstrom & Crusher loses their motion. Not that you win, but that they lose.”

“What’s the difference?” said Andy.

“It’s in how you look at it,” said Angus. “What do the defendants have to establish to win their motion for a summary judgment?”

“Just like the rule says,” said Karen, “show there’s ‘no genuine issue as to any material fact.’ ”

“So what you have to do to make them lose is poke one hole in their motion,” said Angus.

“Just stand up and say, ‘Here’s a material fact that’s in issue, your honor?’ ” said Andy. “That’s the minimum if there’s just one egg and you only have one basket,” said Angus. “But there’s actually more to it than that. A summary judgment hearing is often the first time the judge seriously looks at the case. So this is typically your first opportunity to explain the case so the judge will not only rule in your favor but will also want you to win when the case comes to trial.”

“How in the world can you do all that?” said Karen.

“We’ll get to that in a few minutes,” said Angus. “First let’s have Andy take another shot at Tricky Strickland’s argument.”

When Andy stood up the second time, he started out by saying, “May it please this honorable court. There are five reasons why the defendant’s motion should be denied.” I looked around the room and you could see the smiles on people’s faces. But after a few summary facts, Andy started talking law. Rules. Leading cases. Obscure cases. Three- and four-pronged tests. Definitions, doctrines and guiding principles.

“Andy,” said Angus, “what are you doing?”

“Alice Redding loves law,” said Andy.

“And Windstrom & Crusher’s brief misstates so many rules, misses so many recent cases and has twisted so many definitions that I am certain she will love seeing their mistakes and outright dishonesty get shoved down their collective throat,” he added.

“This is neither moot court nor law review,” said Angus. “The problem with rules is, you can decide almost any case except the most obvious either way with equal legal plausibility. You’ve got to use rules, but most decisions are actually made on a deeper, more primitive level. Most people use rules to lend an air of objectivity to the decisions they’ve reached some other way.”

“So how do you get to the level where people really make decisions?” said Karen. “With stories,” said Angus. “Inner scripts. The lessons of personal experience. The way facts resonate through the layers of our personal experiences. Since the dawn of time, we have used stories to understand, to teach, to memorialize events and to instill moral values.

“Stories are how we process information and make decisions. And the heart of the winning story is the moral imperative. It’s the wrong that cries out to be set right when you represent the plaintiff or the wrong of an unfair verdict that needs to be prevented when you represent the defendant.”

“Say I go along with this idea,” said Andy. “How do I make it part of my argument–tell the judge, ‘Your honor, the strangest thing happened to me on the way to work this morning’?”

“No,” said Angus. “The most important part of any presentation is the statement of facts. It’s the story of the case. Put it together right and it will lead the judge or jurors to form their own ideas based on the moral imperative lurking in what you have to say and how you say it.”

“Wow,” said Karen. “That sounds hard.”

“It’s not difficult,” said Angus, “but it does require discipline.”

“Discipline?” said Andy.

“Exactly,” said Angus. “You have to develop the discipline to keep yourself from characterizing what happened as dishonest or unfair, or commenting on the conduct of the other side.”

“But why would you do that?” said Karen.

“Because when you characterize what happened–when you judge the events with your words–you are telling your listeners how to view the facts. And you don’t want to do that. As good writers say, you should show, not tell.”

Just the Facts

“But why don’t you want to tell them how bad the other side of the case has been?” said Andy.

“Because when you show people what happened, their reactions are their own–and people like their own ideas,” said Angus. “But when you tell people what to think, they resent the intrusion on their thoughts and values.

“Facts, not arguments, are what persuade,” said Angus.

You could see all six of the law-yers from Lopez & Wilson wrestling with this radical shift from the way they’d been trained.

So Angus said, “Let’s take a break and then try this again.”

Fifteen minutes later, Andy stood up and in three minutes told how Sandia Mountain Dairy refused to sell its ice cream business to Home Land Foods==a nationwide food marketing company–and just a few weeks later found its mixers and freezers had been sabotaged by intruders.

That put Sandia Mountain’s ice cream plant out of operation for a month.

But then they started up again. The next week they found that the brake lines on all their delivery trucks had been systematically cut so the brakes suddenly failed when they were on the road.

Six weeks later, 24 quart containers of Sandia Mountain ice cream that had been delivered to the shelves of local stores were found to have decapitated mouse torsos and their severed heads in the ice cream. It got prominent local and national radio, television and newspaper coverage.

The situation broke wide open when the FBI took an interest in the matter. Investigators located a number of e-mails that connected Home Land Foods to a sabotage ring that was being run out of Juarez, Mexico.

Andy read two of the e-mails out loud that tied the mouse parts to both the Juarez sabotage ring and Home Land Foods.

Then he stopped, looked up and said, “Now, your honor, let’s talk about why Mr. Strickland says we don’t have a case and why we can’t prove it if we do.”

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.

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