Courtroom gladiator and proud of it, Michael J. McManus gives you a glimpse of what litigation practice is all about. His account of the incredible ups and downs that go with the job is replete with the high level of humor that is the hallmark and the respite of many a good litigator.
So you want to be a litigator-suing the bad guys and defending all the innocent lambs. You will call yourself, and be called by others, everything from a stand-up trial lawyer to a stand-up comic, mouthpiece, warrior, hired gun, perpetrator of evil, and defender of the faith. In a few short months, you can go from representing beautiful and helpless orphan children injured by corrupt aircraft corporations to defending chemical companies against middle-class families claiming to be injured by terrible toxins. Contradictory? No. It's just litigation. And, unlike those who have engaged themselves in the also noble tasks of drafting incomprehensible merger statements and interpreting mindless tax provisions, you will have fun. If you don't, you are not truly a litigator, because there is no other sane reason to take on this kind of job.
You might ask what in the world makes litigators think they are so special. After all, aren't the litigators clogging up the court system, wasting valuable public resources? Aren't litigators driving insurance rates and health-care costs right off the charts? Wouldn't litigators sell their very souls to the devil to win, simply for winning's sake? The answer to each of these questions is a resounding no.
Although, as with any profession or group, there are a few bad apples, the vast majority of litigators are responsible, ethical, and professional.
Litigation, whether involving a $5,000 fender bender or a $50,000 insurance dispute, can be an awful lot of fun, but rarely, if ever, is it easy. It shouldn't be. Litigators carry with them a responsibility that, at times, can be overwhelming. Absent flagrant violations of certain rules, it is clients and not attorneys who go to jail or lose their business or their life's savings. Litigators have an ethical obligation to subordinate any and all personal considerations to the goal of protecting and furthering their clients' valid interests.
The Right Stuff
What does it take to be a litigator, and how and where do you start? Most litigators were not born a Perry Mason or a Ben Matlock. If not blessed with the necessary talents, you must develop them-intuition, imagination, integrity, a sense of humor, perseverance, organization, flexibility, dedication to the client, confidence, a skin as tough as elephant hide, a poker face that Robin Williams couldn't crack, and even a little bit of acting ability. Add to that some basic legal research and writing skills and a working knowledge of the rules of evidence and procedure, and you will have a modest beginning. Next comes hard work.
The best ways to fulfill your duties and responsibilities to your clients are to be prepared, be prepared, and be prepared; and to be truly prepared can be a grueling task. Before the first words of any brilliant oratory are uttered, and before the first teardrop falls in response to a moving closing argument, a great deal of groundwork must be laid. Depending on the complexities of the case, for every hour spent in the thrill of courtroom battle there may be hundreds, sometimes thousands, of hours spent on tedious, difficult, and even boring tasks. The prepared lawyer must study every document, every word of every deposition, all relevant legal authority, and each argument advanced by opposing counsel. Case law must be analyzed and dissected. Facts must be evaluated from every conceivable angle. While crafting an imaginative position based on all of this information is indeed challenging and exciting, much of the underlying work is not. In fact, oftentimes it is downright torturous, but it must be done.
Anyone who has had medicine prescribed knows that the first qualification for being a doctor is to have failed penmanship. Just try reading hundreds of pages of doctor's "notes" in a serious medical malpractice case, a task comparable to capital punishment and usually meted out to first- and second-year associates in law firms. Follow that up by reading a plaintiff s deposition in a case involving a complex tort matter, where the most stimulating questions involve the type of carpeting in the plaintiff s house, or an excruciatingly detailed accounting of each and every time he had bloodshot eyes, spotty lungs, and excess gas. If you still haven't had enough fun, you always can review the insurance policies involved in a multimillion-dollar coverage dispute. After spending hours diagramming each and every sentence of those documents, drafted, it seems, by the same people who are now driving taxicabs in major cities, you can reach but one conclusion, or two, or possibly three. The insured has either paid $2-million for no coverage at all or now is the proud owner of one half of the first party of the second part, depending on the deductible by reference therein, or both of the above, maybe.
Tedious as it may seem, this kind of work is essential, and often it leads to the golden nuggets of information that bring the greatest reward.
All litigators will have their stories about cases won that never should have been and cases lost that couldn't possibly have been. It is a fact of life to a litigator that, while the vast majority of cases are settled by compromise, for those that go to trial there is but one winner and one loser, and even the best lawyers lose on occasion. Sometimes, even hard work and all of your best efforts are not enough.
An important aspect of life as a litigator is dealing with the incredible highs and enormously depressing lows, joined together by innumerable challenges, rewards, tensions, and frustrations, all of which go with the job. Some brief examples follow.
You have just spent two weeks in trial, and the jury has been deliberating for four days. You can hear the jury members shouting at each other through the doors, but they are hopelessly deadlocked. The judge is ready to declare a mistrial, but you take the big gamble. The jury has reported it is deadlocked, six to one, but the judge does not ask which way it is leaning. With your client's consent, you propose to defendant's counsel that you will both abide by the decision of six, and not the usual seven, jurors. To your utter shock and amazement defense counsel agrees, and you now know that he is just as convinced of having six jurors on his side as you are.
The jurors are called into the courtroom and told that if they still are deadlocked six to one, then they are to retire to the jury room and return a verdict in favor of the party with six votes. They are told further that if the verdict on defendant's liability is for the plaintiff, your client, those six are to determine the amount of compensation to be awarded him, an often time-consuming task. The jurors file back into the jury room, and you literally hold your breath, knowing that if they return before you turn blue you have lost the case. The seconds, seeming like hours, pass by; you can no longer hold your breath. The jury has not returned, and you know that you and your client have won.
Or consider a case in which your client, a defendant in an automobile accident case, has rear-ended the plaintiff, who happened to be six months pregnant at the time of the accident. Your client is a salt-of-the- earth woman, as honest as the day is long, but, unfortunately for both of you, just as negligent. You have offered the plaintiff thousands of dollars to settle, but it appears that she is looking to make this case her retirement fund. Thankfully, her child was born healthy and uninjured. It becomes apparent during the trial, however, that while the plaintiff made a big deal about her mental anguish and distress over her unborn child, she never went to visit her pediatrician or her OB/GYN after the accident. The plaintiff was clearly reaching for too much, and you point this out to the jury. The jury finds in favor of the plaintiff, as it must pursuant to the judge's instructions, but the jurors have seen your point. You are elated, particularly since this is your first trial, as you hear the foreman read the words ". . . and we award damages in the amount of one dollar."
Finally, you have just spent two weeks in North Dakota trying a case where the outside temperature is a brisk forty below. It is a product liability case involving allegations of toxic chemical exposure, and on the night before closing argument the tragedy in Bhopal, India, occurs. Representing a chemical company in New York, you have just argued to the jury that you had such faith in your client's product and the North Dakota judicial system that you chose to present your defense to the jury, rather than settle the case as your co-defendants had done. While the jury is deliberating its verdict, your client's insurance carrier calls from New York City and literally orders you to settle the case, at whatever price it takes. The incredulous plaintiffs happily accept your generous offer, and the trial judge, just as happily, threatens to fine you thousands of dollars for wasting the court's and the jury's time on a case that, if it were going to be settled, should have been dispensed with before the trial began.
The jury's deliberation is interrupted, and it is advised of the settlement. A few minutes later you are politely asked to join the jurors in their room, and a broad grin crosses the judge's face as he pushes you in the door. Your only hope is that they heed your pleas for mercy before they tar and feather you and run you out of town. Fortunately, they give you an opportunity to explain what has just occurred, and since they have given two weeks of their life to this case you tell them everything; you tell them that the insurance carrier called the shots in this case and that because of the Indian disaster it was terrified that the North Dakota jury would return a runaway verdict against the chemical company.
You apologize, explain to them that you had confidence that they would decide the case fairly, and tell them that you have argued strenuously against any settlement. In fact, you were genuinely confident that they would have returned a verdict in your client's favor, and indeed they had. Moments before the bailiff entered their room to advise them of the settlement, they had completed their vote-12 to 0 in favor of your client. Some of the jurors were so impressed that they asked for the name of the nearest local distributor of your client's product. Although that verdict will never be recorded on the books, the civility and responsibility of that jury will never be forgotten. It all was worth it.