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.”