Over-the-Top Arguments: Lawyers can cause trouble for themselves by going too farAuthor(s): JAMES W. McELHANEYSource: ABA Journal, Vol. 84, No. 1 (JANUARY 1998), pp. 70-71Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/27839800 .

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LITIGATION

Over-the-Top Arguments Lawyers can cause trouble for themselves by going too far BY JAMES W. McELHANEY

"What is it with some law yers?" said Barbara Swanson. "They seem to have a reverse Midas touch that turns every argument they make into a lump of coal in stead 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 logi cal limits that it's impossible to believe either one. They are firing so many mis shapen 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 J??k it can give you an

advantage." I already had my legal pad

out, so I started taking notes. Here is what Angus had to say:

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 noth ing. Even if you were guilty of seri ous contributory negligence, if the

James W. McElhaney is Joseph C. Hostetler Professor of Trial Prac tice and Advocacy at Case Western

Reserve University School of Law in Cleveland. He is a senior editor and columnist for Litigation, the journal of the ABA Section of Litigation.

defendant had the last clear chance to prevent your injury, the switch I ^mmm flipped back flL^^^^H again and ^^ ^^ once more jBUfi^^H you got ^HH^I every- ?l^H^H^HH! thing. -# ^^^^^ !1

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 ap proach still governs all kinds of

legal issues in a broad range of subjects, including agency, partner ship, contracts, real property, and wills and trusts.

Trained in this kind of think ing, it is understandable that some

lawyers feel compelled to argue every question as if it had only one side.

Another source of unreason able arguments is law school, where you were rewarded with good grades for spotting and articulat ing every possible legal theory?

whether or not it was remotely plausible.

The legacy ofthat training per meates our profession through the thousands of lawyers who routinely

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make every argument they can think of.

Another cause of arguments that go over the top is the "adver

sary" 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 ef fort to win and keep clients?espe cially the lawyers who try to create the impression they are the mean est dogs in town.

Fighting to Make Clients Happy 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

70 ABA JOURNAL / JANUARY 1998 GRAPHIC BY JOHN SCHMELZER

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important case had exchanged a whole series of vituperative letters, motions, briefs and arguments, all of them filed with the court.

They charged each other?and each other's clients?with acts of

i; fraud, dishonesty, manufacturing I'L evidence, lying in their depositions,

? ^^ and making false |^H^^^^^?- representations L^^H^H^^^^ ^ j?^ to each other I^^H^H|^^^Hfl^fl^ft and to the

?^^^^^ L These ^^^^^^^^^^H^^^H^^^Hk^ were ^^^^^^^^ ^^^ ^^ ? lawyers ^^^^^^^^^ fl^^l^^^Hr from fine |^^^^^^^^HB|^^H^^Bp firms, I^^^^^^^^^^^^^^HHHf the f^^^^^^^^^^^^^^KpliP was con l^^^^^^^^^^^^^^l^^^.. cerned. |^^^^^^^^^^^^^ |^ |' When she had ^^^l^^^^^^^^^|^p?ii|hem come to ^^^^^^^^^^^^^^^K|i|^. chambers to L^^^^^^^^^^^^^^plliicuss the prob ^^^^^^^^^^^^^^ ^P^' a few weeks ^^^^^^^^^^^^^|ftp|pre the pretrial ^^^^^^^^^^^^^^^^?^|;ence, she was

they might ^^^^^^^^^^^^^Bii^^cally attack

^^^^^Khv ' ea? other.

^^^^^^^^^^ ^^ : At the start

^^^^^^^^^^^^HS??^ of the meeting,

^^^^^^^H^^^9^|Bjl to lawyers ^^^^^^^^^^I^I^^bL she ^^^^^^^^|^|HHHfelhi never seen ^^^^^^^HH^^^^^^^^^^?l sucn acri ^^^^^^^^^^^^^^^^B|^S monious ^^^^KB??jKKj^^^^^^^ attacks |HPHHPR^^^^^^^^^":'''

': 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 is not an isolated problem. Some litigants just don't think they are being properly represented un less their lawyer writes nasty let ters, makes wild accusations and refuses to make any kind of accom modation 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 is not at the hear ing.

The hardball litigant is so com mon that often the most difficult job of persuasion is talking sense into

the client. And if the client simmers long enough in the juice of his own anger, it can make settlement im possible 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 Case of Fruit Gone Bad The difficulty of dealing with

unreasonable attitudes becomes in tolerable 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 crimi nal trials.

Take the case of the California fruit farmer whose business de pended 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 prob lems. 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 manu facturer of the new cardboard boxes for the $10 million worth of fruit that got 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 over ripe 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. 'Tour 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 did not col lapse so easily. And no matter why a box collapsed, when it gave way, all the fruit inside?ripe and over ripe?got ruined.

But pretty good was not good enough for the farmer. In his depo sition, 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 doc uments 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 any thing to do with this lawsuit," said the farmer. "They're from another case."

"I don't care," said the lawyer. "You swore this had never hap pened before."

"I can just make those settle ment papers go away," said the farmer.

"No, you can't," said the law yer. "And I can't let you get on the witness stand and tell a lie."

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

But the farmer had not fin ished trying to improve his case.

When the lawyer went back to the farmer's office the next day, the set tlement documents were gone.

"Where are those papers?" said the lawyer.

"I don't know what you're talk ing about," said the farmer.

"You're a fool," said the lawyer. "You haven't made those docu

ments 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 per mission 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 repre sent 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.

ABA JOURNAL / JANUARY 1998 71

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