SWIMMING WITH THE SHARKS

In 1981 in the American Journal of Nursing published an article by Voltaire Cousteau he titled: “How to Swim with the sharks: A primer.” The author died in Paris in 1812. Apparently he was an ancestor of the modern Cousteau and this article was written for the benefit of sponge divers. It was previously translated from French and reprinted in 1973 in a medical journal.

While  it was written for a different audience I kept it because it seemed to me to be a wonderful set of instructions for plaintiff lawyers dealing with the typical defense lawyer.

The author begins by saying: “swimming with sharks is like any other skill: it cannot be learned from books alone; but novice must practice in order to develop the skill. The following rules simply set forth the fundamental principles which, if followed, will make it possible to survive while becoming expert through practice”  So, here is a summary of the rules.

  1. Rule one. Assume unidentified fish are sharks. Not all sharks look like sharks, and some fish which are not sharks sometimes act like sharks.
  2. Rule two. Do not bleed. It is a cardinal principle that if you are injured  either by accident or by intent you must not bleed. Experience shows that bleeding prompts an even more aggressive attack. Diligent practice, will permit the experienced minor to sustain a serious laceration without bleeding  and without even exhibiting any loss of composure. The shark will be confused as to whether or not his attack has injured you, and confusion is to the swimmers advantage.
  3. Rule three. Counter any aggression promptly. Sharks rarely attack a swimmer without warning. Usually there is some tentative exploratory action.The appropriate counter move is a sharp blow to the nose. Almost invariably this will prevent a full scale attack, for it makes it clear that you understand the sharks intentions and are prepared to use whatever force is necessary to repel his aggressive actions. Some swimmers mistakenly believe that an ingratiating  attitude will dispel an attack under these circumstances. This is not correct; such a response provokes a shark attack. Those who hold this erroneous view can usually be identified by their missing limb.
  4. Rule four. Get out if someone else is bleeding. If another swimmer has been injured and is bleeding get out of the water promptly. The presence of blood and thrashing of water will elicit aggressive behavior even in the most docile of sharks. They may attack uninvolved swimmers. No useful purpose is served in attempting to rescue the injured swimmer. He either will or will not survive the attack and your intervention cannot protect him once blood has been shed.
  5. Rule five. Use anticipatory retaliation. A constant danger to the skilled swimmer is that the sharks will forget that he is skilled and may attack again. Some sharks have notoriously poor memories in this regard. This memory loss can be prevented by a program of anticipatory retaliation. The procedure may need to be repeated frequently with forgetful sharks and may be needed to be done only once for other sharks. The procedure is essentially the same as described for – a sharp blow to the nose. Here, however, the blow was unexpected and serves to remind the shark that you are both alert and unafraid.
  6. Rule six. Disorganized and organized attacks. Usually sharks are sufficiently self-centered that they do not act in concert against a swimmer. However, upon occasion the sharks make a coordinated attack upon a swimmer. The proper strategy is diversion. Sharks can be diverted from their organized attack in one of two ways. First sharks as a group are usually prone to internal dissension. The experience swimmer can divert an organized attack by introducing something, often something minor or trivial, which sets the sharks to fighting among themselves. A second mechanism of diversion is to introduce something which so enrages the members of the group that they begin to lash out in all directions, even attacking inanimate objects in their fury. It is scarcely necessary to state that it is unethical for a swimmer under attack by a group of sharks to  divert them to another swimmer. It is, however, common to see this done by novice swimmers and by sharks when they fall under concerted attack.

Now, I ask you, if you reflect on trials against many defense lawyers don’t each of these rules apply to situations you and I have  encountered. The rules are valid for us. I particularly like the rule that says trying to defend against an attack by ingratiating  behavior results in the loss of a limb. This should  be required reading for all plaintiff’s lawyers in my view.

 

 

MORE RANDOM IDEAS TO THINK ABOUT

As I sort through  the materials I’ve accumulated over more than fifty years of law practice I continue to find ideas that might be of interest to others. Nothing profound here, but maybe you’ll find it worth reading. Here are the latest selections.

Communication

For a lot of years I kept the following as a reminder about all you had to know in conducting a direct examination of a witness or interviewing a client or witness. Rudyard Kipling wrote: “I kept six honest serving men (They taught me all I knew); their names are what and Why and When and How and Where and who.”

We know that the current research indicates an average attention span of about twenty minutes due, in part,  to the timing of TV before a commercial comes on. But, the idea of brevity is certainly not new in communications. Horace who lived 65 BC wrote: “Unless you are brief, your complete plan of thought will seldom be grasped. Before you reach the conclusion, the reader or listener has forgotten the beginning and the middle.”

The first rule of making a good impression?  Smile

Cross Examination 

The English barrister F.E. Smith was famous for his wit and trial skills. In a case tried to the bench the judge suggested that some of the issues were unclear. Smith gave the judge a short but very cogent account of the issues and their implications. The judge thanked him and said: “Thank you, but I am sorry to say I am none the wiser.” Smith rose and said: “Possibly my lord, but you are far better informed.”

In a case involving a man claiming injuries to his arm Smith was defending the bus company. On cross examination he said to the plaintiff: “Would you please show us how high you can raise your arm now?” The witness slowly raised it to shoulder level. “Thank you,” said Smith, “And now please show us high you could lift it before the accident.” The witness quickly shot his arm up above his head. Defense verdict.

Then there is the cross  examination reported in the book Anguished English

Q. Did you stay all night with this man in New York?

A. I refuse to answer the question

Q. Did you stay all night with this man in Chicago?

A. I refuse to answer the question

Q. Did you stay with this man in Miami?

A. Certainly not

Preparation

There is no substitute for  hard work in preparation. Winston Churchill was famous for his wonderful speeches and his oratory. However, according to Sir John Colville, one of his secretaries, Churchill would devote approximately one hour of preparation for every minute of delivery of his wartime speeches.

I kept a newspaper article that I thought was  a tragic example  of why we should carefully prepare. Like a pilot of an airplane, I believe we need checklists we go over for each repeat work we do as a trial lawyers. Here’s the story.

On Tuesday April 5, 1988 the United Press International ran an article entitled: “Sky diver may have forgotten parachute.” It read in part:

“Louisburg, N.C. a veteran sky diver who fell 10,500 feet to his death apparently forgot to wear a parachute in his excitement to film other sky divers, police said after seeing footage taken by the man during his final fall.

Ivan Lester McGuire, 35 of Durham died in the bizarre accident Saturday. McGuire was filming a jump by other parachutists. Footage recorded a voice-activated camera attached to his helmet…and it sounded like he may have said, Oh no.’ “

Determination 

We all have fears  and are nervous to some degree when we act for our clients in trial.

John Wayne’s rule: “courage is being scared to death and saddling up anyway.”

Someone has said: “Don’t quit. The reason pit bulls are the best fighting dogs is not because they are the biggest or strongest or scariest. It’s because they are the most tenacious.”

Dealing with failure

Another problem we deal with as trial lawyers are our failures. Harold Kushner in his book Becoming Aware wrote: “Life is not a spelling bee, where no matter how many words you have gotten right, if you make one mistake you are disqualified. Life is more like a baseball season, where even the best team loses one-third of its games and even the worst team has its days of brilliance. Our goal is not to go all year without ever losing a game. Our goal is to win more than we lose, and if we can do that constantly enough, then when the end comes we will have won.”

Someone wrote “rules for being human.” They included some of the following:

  1. You will learn lessons. You are in enrolled in a full time school called life. Each day in this school you will have the opportunity to learn lessons.
  2. There are no mistakes, only lessons. The schooling involves a process of trial and error and failed lessons are as much a part of the process as successful ones.
  3. A lesson will be repeated until learned Lessons will be presented to you until you have learned it. When you have learned it you can go on to the next lesson.
  4. The lessons do not end. There is no part of the school of life that does not include lessons to be learned.
  5. The answers lie inside of you. The answers to all life’s questions lie inside you. You need to stop, listen and trust your inner voice.

“Amarillo Slim” Prest6on was a high stakes poker player who lost in the 15th annual Las Vegas World Series of Poker in the final rounds. “Oh well, shed no tears, take no prisoners,” Preston said as he left the table.

Teaching by Example

My friend Gerry Spence would often stop someone at the Trial College who as  explaining or instructing and say “show us.” Here’s Edgar Guest’s poem about the importance  of showing and  not just talking.

Edgar A. Guest wrote Talking the Talk or Walking the Walk

“I’d rather see a sermon than hear one any day.

I’d rather once you walk with me

Than merely show the way.

The eye’s a better pupil

And more willing than the ear

Fine counsel is confusing

But the example’s always clear.

I soon can learn to do it

If you let me see it done.

I can see your hands in action

But your tongue too fast may run

And the lectures you deliver

May be fine and true.

But I’d rather get my lesson

By observing what you do…

Argument

There is the story told by the lawyer for plaintiff about the defenses raised by defendant. He said it’s like the case involving a man who sued for dog bites when attacked while walking on the sidewalk in front of defendant’s house. The Defendant responded: “My dog was chained to the house and the chain does not extend to the sidewalk. Besides my dog is an old dog and has no teeth so even if he bit him it wouldn’t hurt him much. Not only that, I don’t even own a dog.”

The great Houston criminal defense lawyer Richard “Racehorse” Haynes defended Morgana Roberts, known as baseball’s “kissing bandit” because of her habit of running out on the field and kissing players. . She was charged with trespassing for interrupting a Houston Astros season opening game when she kissed Nolan Ryan and shortstop Dickie Thon. Racehorse, noting Morgana’s measurements as 60-24-39 as a topless dancer, maintained it wasn’t his client’s fault she was on the field – it was gravity. He claimed she had leaned over the rail and her ample measurements caused her to lose her balance and fall. “Anybody who understands the laws of gravity will understand,” he said. “Seven out of ten times you lean her over the rail, she’s going to go over.”

Shakespeare wrote in Hamlet: “An honest tale speeds best, being plainly told” and that “Brevity is the soul of wit.” Which brings to mind W.C. Fields memory of a vaudeville routine where the comic says: “Duffy and Sweeney are on barstools drinking away until Sweeney keels over and falls to the floor. Duffy says: “I like a man who knows when to stop.”

Wit 

There are some things that I saved because they just made me smile. No particular lesson, but I thought they should be shared with you.

In Catch 22 Milo Mindbinder explains he is making a fortune buying eggs at three cents each and selling them for two cents. When asked how he could possibly make money buying eggs at three cents and selling them for two, he responds: “Volume.”

General Omar Bradley sent a message to George Patton in WW II ordering him not to capture the town of Trier because it had been arranged for the Russians to take the town instead. Patton, famous for his fast campaigns, had already captured it. He sent a message back: “Have already taken the city. Do you want me to give it back?”

General George McClellan was a large disappointment to President Lincoln for has caution and refusal to attack.  Finally, after a major missed opportunity by McClellan to have won a battle Lincoln wrote him: “My dear McClellan. If you don’t want to use the army I should like to borrow it for a while. Respectfully A. Lincoln.”

SOME THOUGHTS ABOUT MOTIVATION & SUCCESS

In sorting through my files to organize and to decide what goes to recycle I’ve selected some things I’ve saved over the years to share with you.  I’ve spent a lot of years reading material in the area of advertising, sales and human psychology. Industry has spent millions studying marketing, advertising  and decision making with much of  it available to us as trial lawyers. We are in the profession of persuasion for others and the material can be helpful. Here are a few examples to think about.

In 1985 Kay Porter and Judy Foster wrote a book The mental Athlete: Inner Training for Peak Performance (Wm C. Brown Publishers). They interviewed champions and applied their background in human behavior development to reach conclusions. They include some of the following:

  • Champions believe totally in themselves and in their talents
  • Their concentration and focus during competition is absolute
  • They employ the techniques of visualization for weeks before an event
  • They analyze loses carefully to refine technique, improve strategy and boost performance  levels
  • They put defeat behind them quickly and look forward to new challenges
  • Even  when losing, they never see themselves as losers
  • They always have goals

Brian Tracy was a well known writer and speaker on motivation and success. One of his presentations was about the techniques of self-made millionaires. His points included these:

  • Dream big dreams
  • Set clear goals
  • Do one thing at a time
  • Be honest with yourself and others
  • Be persistent 

In 1991 a magazine interviewed a number of elderly people and asked them for advice about life. One man, William Van Hooser, replied “Life’s a dance. Take it one step at a time and keep listening for the music.”

Helen Collier led a training firm in New York about how to communicate and how to reach goals. Here are some of her ideas:

  • Have a definite purpose . You need a clear cut plan for achieving your objectives
  • Believe in yourself.
  • Go the extra mile.
  • Speak clearly. You’ll be more convincing if you do.
  • Look the part. Dress and have the demeanor of a self confident person
  • Be enthusiastic

For many years Tom Lambert was the editor and heart of the American Trial Lawyers Association. His columns Tom on Tort were always inspirational. In one column he wrote about the role of the plaintiff’s trial lawyer:

“You cannot choose your battlefield. The Gods do that for you.  But you can plant a standard where a standard never flew”

Here are some quotes I have always liked:

  • “An appeaser is one who feeds the crocodile, hoping that it will eat him last.” Winston Churchill
  • “He was like the cock who thought the sun had risen to hear himself crow.” unknown
  • “If you want a friend in Washington, go buy a dog.” Harry Truman
  • “if an ocean liner could think and feel, it would never leave its dock. It would be afraid of the thousands of huge waves  it would encounter. It would fear all of the dangers at once – even though it had to meet them only one wave at a time.” Unknown
  • “You never know how a horse will pull until you hook him to a heavy load”  Paul “Bear” Bryant

Lee Ann Womack has sung some songs with truly wonderful lyrics. Here are some from the song Something Worth Leaving Behind:

I’ll probably never hold a brush that paints a masterpiece. Probably never find a pen that writes a symphony. But if I will love then I will find that I have touched another life and that something, something worth leaving behind.”

And Jimmy Buffet has many songs with lyrics worth studying. Here’s one from Cowboy in the Jungle:

“Roll with the punches, Play all his hunches. make the best of whatever came his way. What he lacked in ambition, he made up with intuition. Plowing straight ahead come what may.”

I read Roger Rosenblatt’s advise daily as reminder of the wisdom of these things he wrote:

  • Nobody is thinking about you. They are too busy thinking about themselves
  • Ignore your enemy or kill him. The idea is not to care –  not pretend but to really not care.
  • After the age of 30 it is unseemly  to blame your parents for one’s life.
  • A swine is always a swine. Yes, there may be a bad person who changes once in a great while, but on the whole accept the fact a swine will always  act like a swine
  • Envy  no one – ever
  • Live in the past, but do’t remember too much.
  • To thine own self be true (unless you need to change)

A golf pro was interviewed about golfing. His advice included the following:

  • You can only play one hole at a time. Keep your mind on that hole. don’t worry about the shot you just missed or the next one.

Lastly, there was a study of  what motivated the  average juror which was done some time ago, but it seems to me the principles haven’t changed. I have employed these thoughts in every jury argument I have made. Here is the list of powerful motivators for most people:

  1. Everyone wants to feel like they did the right thing under the circumstances.
  2. Everyone  wants to  achieve things  they can be proud about.
  3. Everyone wants to belong to a group that achieved something extraordinary
  4. Everyone wants respect and recognition for what they have achieved.

So, that’s enough for this writing. Maybe there is something here that you find helpful or inspiring. I hope so.