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.