HOW TO SWIM WITH SHARKS

HOW TO SWIM WITH SHARKS

I published this article sometime ago in the Washington State Bar News. I thought it was one that I should publish here because of it’s application to trial lawyers. I hope you agree. Little is known about the author, who died in Paris in 1812. He may have been a descendant of Francois  Voltaire and an ancestor of Jacques Cousteau. Apparently this essay was written for sponge divers. Because it may have broader implications, it was translated from the French by Richard J. Johns, an obscure French scholar and Massey Professor and Director of the Department of Biomedical Engineering, The Johns Hopkins University and Hospital, 720 Rutland Avenue, Baltimore, Maryland 21203..

Voltaire Cousteau, who died in Paris in 1812, wrote an essay How to Swim with Sharks: A Primer. He wrote it as advice to sponge divers about how to protect themselves from shark attacks while diving. It was previously translated from the French and originally published in Biology and Medicine in 1973. In 1981 it was reprinted in the American Journal of Nursing where I read it. In fact, it has been republished or referred to in medical publications since then with some frequency usually as a comment about aspects of medical practice. I too was immediately struck by this article being a metaphor about plaintiff’s personal injury work. Haven’t we, as plaintiff’s attorneys, had experiences with an opponent who can truly be classified as a “shark”? These are lawyers whose tactics and general approach to representing their side of the case is unprofessional, if not, unethical. Dealing with them is the equivalent to swimming with sharks. Perhaps I’m stretching the situation a bit, but it seems to me Cousteau offers advice we might apply when we are dealing with adversaries like that. Here is his essay followed by my comments;

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                          HOW TO SWIM WITH SHARKS: A PRIMER

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                           By Votaire Cousteau

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These instructions are written primarily for the benefit of those who, by virtue of their occupation, find they must swim and find that the water is infested with sharks. Swimming with sharks is like any other skill: it cannot be learned from books alone; the 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.

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Rule 1. Assume unidentified fish are sharks. Not all sharks look like sharks, and some fish which are not sharks sometimes act like sharks. Unless you witnessed docile behavior in the presence of shed blood on more than one occasion, it is best to assume an unknown species is a shark.

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Comment: It’s been said that we should “trust everyone, but count the cards.” Until we have identified our opponent as a non-shark it is prudent to exercise caution. That is because we need to protect against surprise attacks. Our conduct should be right, proper and professional at all times and we should have professional civility, but experience has shown until we know it isn’t a shark we dealing with it is prudent to protect against surprise shark attacks by written confirmations and expressed agreements.

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Rule 2. 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 and even more aggressive attack. Admittedly, it is difficult not to bleed when injured. Indeed, at first this may seem impossible. Diligent practice, however, will permit the experienced swimmer to sustain a serious laceration without bleeding and without even exhibiting any loss of composure. This hemostatic reflex can in part be conditioned, but there may be constitutional aspects as well. Those who cannot learn to control their bleeding should not attempt to swim with sharks, for the peril is too great.

The control of bleeding has a positive protective element for the swimmer. The shark will be confused as to whether or not his attack has injured you, and confusion is to the swimmers advantage. On the other hand, the shark may know he has injured and be puzzled as to why you do not bleed or show distress. This also has a profound effect on sharks. They began questioning their own potency or, alternatively, believe the swimmer to have supernatural powers.

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Comment: This is excellent advice for trial lawyers about how to react to an opponent’s aggressive shark like attacks. It is an essential skill for a great trial lawyer to be able to maintain composure no matter what happens. As soon as your opponent realizes that you can be made angry or upset you are vulnerable to additional attacks. The more you demonstrate you are sensitive to the tactics of your opponent to throw you off balance the worse it is for you and your client. It is the cool, calm and professional demeanor that protects from repeated attacks. Your reaction to the underhanded or even unexpected must be calm, controlled and professional no matter how you feel.

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Rule 3. Counter any aggression promptly. Sharks rarely attack a swimmer without warning. Usually there is some tentative, exploratory aggressive action. It is important that the swimmer recognize that this behavior is a prelude to an attack and take prompt and vigorous remedial 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 shark’s 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.

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Comment:  Opponents who conduct their representation by unprofessional acts do so because they have found it works, at least with other lawyer opponents. That’s why Cousteau’s advice about prompt response applies to lawyers of that kind. Your failure to promptly respond gives your opponent the idea you are weak or vulnerable to tactical underhanded attacks. That only encourages more of the same. One can respond promptly in a professional manner through appropriate motions or other legal remedies. Tolerating or ignoring the wrongful conduct of this kind of opponent will not end it. Offering a friendly hand in response to aggressive tactics rarely if ever produces a change of conduct in this kind of opponent. Do that at your own risk. As Cousteau points out divers who respond to a shark attack with an ingratiating attitude can be identified by their missing limb.

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Rule 4.  Get out of the water if someone is bleeding. If a swimmer (or shark) has been injured and is bleeding, get out of the water promptly. The presence of blood and the thrashing of water will elicit aggressive behavior even in the most docile of sharks. This latter group, poorly skilled in attacking, often behaves irrationally and may attack uninvolved swimmers or sharks. Some are so inept that in the confusion they injure themselves. No useful purpose is served and attempting to rescue the injured swimmer. He (or she) either will or will not survive the attack, and your intervention cannot protect him (or her) once blood has been shed.

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Comment: When the attack is made on someone other than you and does not impact your case or involve an obligation for you to intervene, keep out of it. It is prudent to try to avoid becoming involved in any battle when it isn’t your problem for a lot of reasons including possible harm to your own client’s interests. If you don’t have a dog in the fight don’t get involved.

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Rule 5 to. Use anticipatory retaliation. A constant danger to the skilled swimmer is that the sharks will forget that he (or she) is skilled and may attack in error. Some sharks have notoriously poor memories in this regard. This memory loss can be prevented by a program of anticipatory retaliation. The skilled swimmer should engage in these activities periodically, and the period should be less than the memory span of the shark. Thus, it is not possible to state fixed intervals. The procedure may need to be repeated frequently with forgetful sharks and need be done only once or sharks with total recall. The procedure is essentially the same as described under rule three, a sharp blow to the nose. Here, however, the blow is unexpected and serves to remind the shark that you are both alert and unafraid. Swimmers should take care not to injure the shark and draw blood during this exercise for two reasons. First, sharks often bleed profusely, and this leads to the chaotic situation described under rule four. Second, if swimmers act in this fashion it may not be possible to distinguish swimmers from sharks.

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Comment:  Opponents who are in the habit of using aggressive underhanded tactical maneuvers do so because it has worked for them resulting in the habit of repeat conduct. They may either underestimate you or have forgotten that you respond promptly when faced with this kind of unprofessional behavior. Anticipatory action should apply when we are dealing with known legal “sharks” and not used arbitrarily. Anticipatory retaliation is particularly appropriate when you have documented past unprofessional conduct by your opponent. Your anticipatory action can be as simple as filing a preliminary motion for an order prohibiting conduct which has not yet happened but which you can document your opponent has been guilty of in past cases. Copies of sanction orders from other cases would be an example of such documentation. The chief benefit is, as Cousteau points out, is to serve to remind this kind of lawyer you are both alert and unafraid as well as there are consequences for tactical wrongdoing.

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Rule 6. Disorganize an organized attack. Usually sharks are sufficiently self-centered that they do not act in concert against a swimmer. This lack of organization greatly reduces the risk of swimming among sharks. However, upon occasion the sharks may launch a coordinated attack upon a swimmer or even upon one of their number. The proper strategy is diversion. Sharks can be diverted from their organized attack in one of two ways. First, sharks as a group are especially prone to internal dissension. An experienced swimmer can divert an organized attack by introducing something, often something minor or trivial, which sets the sharks to fighting among themselves. Usually by the time the internal conflict to settle the sharks cannot even recall what they were setting about to do, much less get organized to do it. A second mechanism of diversion is to introduce something which so enrages the members of the group they began to lash out in all directions, even attacking inanimate objects in their fury. What should be introduced? Unfortunately, different things prompt internal dissension or blind fury in different groups of sharks. Here one must be experienced in dealing with the given group of sharks, for what enrages one group will pass unnoticed by another.

It is scarcely necessary to state that it is unethical for a swimmer under attack by a group of sharks to counter the attack by diverting them to another swimmer. It is, however common to see this done by novice swimmers and by sharks when they fall under a concerted attack.

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Comment Where several defendants are represented by different lawyers it is not uncommon for them to make agreements of understanding, either in writing or informally understood. They may involve such things as not attacking each other or for concerted attacks on your case. Causing disorganization is good advice in cases of this kind Often as the case progresses, they develop internal conflict. Sometimes the different insurance companies are the cause of dissention. Finding ways to divert this arrangement is usually very helpful to your case. The organized attack might be upset, for example, by a partial settlement or a dismissal of a party or a motion for disclosure of agreements. Look for ways to counter a concerted attack of sharks. The suggestion of causing divisions among multiple defendants is appropriate under these circumstances.

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                                   CONCLUSION

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Perhaps like me, you too see some of Cousteau’s advice for sponge divers having application to cases plaintiff’s trial lawyers are involved. In applying his advice, however, we need to make certain our own conduct doesn’t sink to the level of opponents who act like sharks. We need to make sure our conduct is professional and always within both the spirit as well as the letter of the rules we are supposed to follow. Our response to this kind of opponent must be prompt and effective, but without anger or inappropriate rhetoric. Within this framework of conduct we, like the sponge divers of the 1800’s can apply Cousteau’s advice for swimming with the sharks.

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