McElhaney on Litigation

Way to Go--Too Far

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What is it with some lawyers?” said Barbara Swanson. “They seem to have a reverse Midas touch that turns every argument they make into a lump of coal instead of gold.”

“Don’t complain,” I said. “Think of it as a gift that makes it easier for you to look reasonable.”

“Ordinarily that’s what I do,” said Barbara. “But this week I’m sitting as a mediator in a contract dispute, and I’m stuck listening to a couple of total jerks who each argue over everything the other one says.

“Each side has pressed its case so far beyond its logical limits that it’s impossible to believe either one. They are firing so many misshapen bombs and missiles at each other that I’m going to put in for combat pay.”

Angus smiled. “There are a lot of different reasons why lawyers push arguments that don’t make sense,” he said. “And sometimes knowing why they do it can give you an advantage.”

I already had my legal pad out, so I started taking notes. Here is what Angus said: Part of the problem comes from the law itself. The common law in particular seems to have a “whole hog or none” approach to deciding disputes.

Take the old law of negligence, for example. If the defendant was negligent and you were not, you won.

But if you were guilty of even a little contributory negligence, the defendant won and you got nothing. Even if you were guilty of serious contributory negligence, if the defendant had the last clear chance to prevent your injury, the switch flipped back again, and once more you got everything.

It was a back and forth, win or lose game that dominated tort law until comparative negligence came along. And this yes/no, on/off approach still governs all kinds of legal issues in a broad range of subjects, including agency, partnership, contracts, real property, and wills and trusts.

Trained in this kind of thinking, it is understandable that some lawyers feel compelled to argue every question as if it had only one side.

Another source of unreasonable arguments is law school, where you were rewarded with good grades for spotting and articulating every possible legal theory whether or not it was remotely plausible.

The legacy of that training permeates our profession through the thousands of lawyers who routinely make every argument they can think of.

Another cause of arguments that go over the top is the “adversary system” itself, which somehow makes lawyers think that the more adversarial they are, the better they are doing their job.

Then there is the marketing factor. Just watch the posturing some lawyers go through in an effort to win and keep clients–especially the lawyers who try to create the impression that they are the meanest dogs in town.

Looking Bad on Purpose

There are still more reasons why lawyers make it hard to win their cases. One of them is client entertainment.

A U.S. district court judge in Cleveland had a serious problem on her hands. The two lawyers in an important case had exchanged a whole series of vituperative letters, motions, briefs and arguments.

They charged each other–and each other’s clients–with acts of fraud, dishonesty, manufacturing evidence, lying in their depositions, and making false representations to each other and to the court.

These were good lawyers from fine firms, and the judge was concerned. When she had them come to her chambers to discuss the problem a few weeks before the pretrial conference, she was afraid they might physically attack each other.

At the start of the meeting, the judge said she had never seen such acrimonious attacks between two lawyers. “What is going on?” she said.

“We don’t have any problem at all,” one of the lawyers said. “We’re actually best friends.”

“You see,” said the other, “we get along fine. But our clients hate each other, and we’re doing this for them.”

The judge was not amused. “I don’t care,” she said. “Stop it.”

It’s not an isolated problem. Some litigants just don’t think they’re being properly represented unless their lawyer writes nasty letters, makes wild accusations, and refuses to make any kind of accommodation to the other side.

In that situation, a lawyer who is being pushed into the role of legal bully is sometimes more reasonable when the client isn’t at the hearing.

The hardball litigant is so common that often the most difficult job of persuasion is talking sense into the client. And if a client simmers long enough in the juice of his own anger, it can make settlement impossible and almost guarantee a posturing, blustering witness who destroys his own case.

So when your client shows signs of being out of control, think about calling in another lawyer or some other consultant familiar with this kind of case who can give your client a dose of reality.

A Fool for a Client

The difficulty of dealing with unreasonable attitudes becomes intolerable when it looks like your own client cooked some of the facts.

And that happens all the time in all kinds of cases, not just criminal trials.

Take the case of the California fruit farmer whose business depended on getting his produce to market fresh, ripe and unspoiled.

One season he bought a new kind of cardboard box for shipping his fruit. Then he ran into problems. Many of the new boxes were collapsing in transit. Naturally, the fruit inside was spoiled when it was crushed by the weight of the boxes of fruit on top of it. So the farmer sued the manufacturer of the new cardboard boxes for the $10 million worth of fruit that was ruined in shipping.

The box maker’s defense was predictable: “Our boxes are just fine. They only collapse when they get wet. And they only get wet if you pack fruit that is soft and overripe or already soaking wet. Take a look at the boxes that collapsed. They’re stained with fruit juice. You were shipping fruit that had already gone bad.”

“Nope,” said the fruit farmer. “Your boxes aren’t strong enough. When they collapsed, the fruit got squeezed and bruised, and that’s what made the boxes wet.”

The farmer had a pretty good case because the older kind of boxes turned out to be stronger than the new ones and didn’t collapse so easily. And no matter why a box collapsed, when it gave way, all the fruit inside–ripe and overripe–was ruined.

But pretty good was not good enough for the farmer. In his deposition, he insisted that he had never had any trouble with any fruit boxes collapsing before he tried the defendant’s new ones.

Imagine the lawyer’s distress when he later found settlement documents in the farmer’s files for an earlier collapsing box case against another manufacturer–one that had made the old fashioned kind.

“Why didn’t you tell me about this?” said the lawyer.

“Those papers don’t have anything to do with this lawsuit,” said the farmer. “They’re from another case.”

“I don’t care,” said the lawyer. “You swore that this had never happened before.”

“I can just make those settlement papers go away,” said the farmer.

“No, you can’t. And I can’t let you get on the witness stand and tell a lie.”

So the farmer agreed to leave the papers alone, and the lawyer went home, wondering how to handle the situation.

But the farmer had not finished trying to improve his case. When the lawyer went back to the farmer’s office the next day, the settlement documents were gone.

“Where are those papers?” said the lawyer.

“I don’t know what you’re talking about,” said the farmer.

“You’re a fool,” said the lawyer. “You haven’t made those documents go away.”

“Why not?” said the farmer.

“Because of that invention,” said the lawyer, pointing at the farmer’s copying machine. “There was another side in that case, and they have copies of those papers you destroyed. And you can count on the fact that the defendant in this case already has copies of those papers, too.

“And even if they don’t, I’m still not going to let you lie on the witness stand. You’re going to have to admit you lied in your deposition, or I’ll have to ask the court for permission to withdraw from the case and the judge will probably make me explain why.”

The results of the farmer’s “home improvement job” on his own case were typical. It settled for $5 million to $6 million less than it would have been worth if the lie had never been told in the first place.

Besides refusing to ever represent the farmer again, the lawyer learned an important lesson: You need to do everything you can to keep your client from lying in the first place. Cases like that are hard to win.

McElhaney at His Best

The ABA Journal is occasionally reprinting some of James McElhaney’s most popular columns from past years. This article originally appeared in the Journal’s January 1998 issue under the headline “Over the Top Arguments.”

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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