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In
This Issue |
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1. The Story of
Castor and Poleax. A myth takes on
bullet points -- and wins.
2. Did You Know ?
Plaintiffs' lawyers play defense, too.
3. Tips for Working with
Me. Helping New
Lawyers Get Ahead.
4. O Kenny Boy, the
Pipes Are Calling. Reflections on the
criminal trial of Enron's former CEO.
5. The Glasses That
Broke. Lawyer A makes a
spectacle of himself.
6. Hot Lunch.
Hero worship.
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Did You Know?
Lawyers -- plaintiffs' lawyers
especially -- generally prefer to take depositions
than to defend them. And many of them convince
themselves that their preference for attack reflects the
relative importance of attacking versus defending.
Wrong, wrong, wrong!
Ask yourself, which witnesses can
destroy your case in seconds -- the other side's people
or your client's people? The question almost
answers itself.
Don't skimp on the resources
that you devote to preparing your client to face hostile
questioning. As a general rule, the most
senior lawyer should work with your client's key
people to get them ready for deposition and
should represent them at the deposition
itself. The client will appreciate the
attention. You will bond. And you
will stand a far better chance of saving your
case from a savage
poleaxing. |
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O
Kenny Boy, the Pipes Are Calling.
Kenneth Lay.
What can commercial
trial lawyers learn from the criminal convictions
of Kenneth Lay and Jeffrey Skilling, the former
Enron masters of the universe? That an aggressive defense strategy doesn't
work? That the government had better
lawyers? That Messrs. Lay and Skilling should have
spent more than $60 million on their defense?
None of the above rings true
for me. But I do believe that something went wrong
with the defense. And I suspect that it started
when Mr. Lay decided he knew more about defending
the case than his lawyers.
Mr. Lay performed poorly as a
witness. He answered questions tetchily,
barking at his own lawyer. And he contacted
witnesses, without his lawyers' knowledge, in an effort
that the prosecution portrayed as an attempt to mold
their testimony.
I've seen similar
behavior by some top executives in civil
cases. They seem to view themselves as
victims and see their own lawyers as cogs in a
contemptible system. They thus put
themselves beyond their lawyers' help.
He whom the gods would
destroy they first make mad. So it went with Mr.
Lay.
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Hot Lunch
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As we enter the hot
summer months, let us pause to recall that every five years,
on the Ides of July, the ancient Romans
celebrated the festival of Castor and Pollux. Roman
cavalry paraded from the Temple of Mars outside the city
to the Forum at its center. The festival honored the
twins for bringing prophetic news of Rome's victory over
Macedon (the Dalmatians). The Romans also built (and
twice rebuilt) a Temple of Castor and Pollux at the
Forum. Three
columns from the remains of the temple stand to this
day.
Columns from Temple of Castor and Pollux,
Roman Forum.
Long before the Romans adopted the Dioscuri
(Zeus's boys), the Spartans adored Castor and
Pollux and considered them Sparta's greatest
heroes. These militarist Lacedaemonians especially
admired the warrior skills of Castor, a marvelous
horseman, and Pollux, a fantastic boxer.
We at Susman Godfrey admire prowess in
battle. Hail Castor and Pollux! |
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The Story of Castor
and Poleax
Castor, left, and
Pollux.
In the June Hot
Lunch column, I promised to talk this month
about the story of Castor and Poleax. As
students of the ancient world noted, Greek and
Roman mythology celebrates Castor
but knows nothing of Poleax.
My apologies. Poleax refers to a
medieval weapon for smiting enemies or to a device for
stunning livestock preparatory to slaughter.
Pollux, on the other hand, denotes Castor's
immortal twin. I deeply regret any
confusion that I may have caused.
Castor
and Pollux ride across the firmament at night,
forming the brightest stars in the constellation of Gemini
-- Latin for twins. Although stories about them
vary, these heroic brothers of Helen (she of Trojan
fame) travel much and fight more. They join Jason
and his Argonauts on his quest for the Golden
Fleece. And, when a cousin slays Castor,
the deathless Pollux begs his father Zeus
to let him join Castor in Hades. Pollux's
fraternal devotion so moves the king of the
gods that he instead allows Pollux to share his
immortality with his brother. So Castor and Pollux
alternate their days between Mount Olympus and the
land of the dead.
Now, you may ask, what does the myth
of Castor and Pollux have to do with commercial
litigation? What can it teach our
profession -- beyond the foolhardiness
of promising (as I did in the June issue) to write
about something that you know next to nothing
about?
Plenty. Bear with me.
Cliff Atkinson's new book, Beyond
Bullet Points, urges speakers to change the way
they use the visual aid of commercial trial lawyers the
world over -- the PowerPoint presentation. The
bullet point, that scabrous blight and ubiquitous
crutch, permits presenters to bore and bewilder their
audiences by projecting on a screen an outline of the
words that they faithfully utter. They might as
well hand out their notes!
The key insight of Beyond Bullet Points
stresses the importance of using PowerPoint
to impart a story and to reinforce the telling of
the story with images. The
book recommends organizing presentations along
the lines of a screenplay, using the three-act
structure that Aristotle posited millennia ago in
his writings on rhetoric and persuasion.
Does this technique work? Give it a try and
judge for yourself. Say you want to convince your
firm to take a patent case on a contingency basis.
Maybe you depict the goal of the lawsuit
as recovering royalties -- the Golden
Fleece. The trial team may take the
guise of Argonauts and the lawsuit a journey to
get the Fleece back. Pictures could
represent the conflict, the perils of
the voyage, and the
rewards of success. And Pollux, a great
pugilist, might even show up as the victor in, say,
a
Markman hearing.
Sure, the Beyond Bullet Points
approach can come off as a little
too precious. But I tried it and liked the
results. The mediator who saw it said my
presentation "was hokey, but I loved it."
By the way, Castor and Pollux give Beyond Bullet
Points one and a half stars. Let me know if
you want to borrow my copy.
Barry
Barnett, Editor |
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Tips for Working with
Me
Bill the Buffalo. Know him, know
me.
Continuing (sort
of) the subject of astronomy, I read an
article in the Spring issue of the ABA's Litigation
magazine about the characteristics of "superstar
associates" -- junior lawyers highly likely to
make law firm partners. The
study tells how superstar associates think like
partners, treat everyone like a client, and love
what they do. It makes interesting reading,
underlining the point that even superstars need
help.
As do those with less ability. At
the start of my clerkship in 1984, Judge
Jerre Williams gave me and my fellow clerks a
memo that laid out his expectations of us. The
memo told us that he insisted on hard
work, reliability, and integrity. The
memo gave us confidence and made us
want to do our best.
Lawyers in my firm do something
similar. They take the time to set out, in
writing, what they hope to see from
associates. These "Tips for Working with Me"
detail the personal philosophies, preferences,
and expectations of partners with whom the newer
lawyers will work. They also point the way to
success.
I've put together my own "Tips" memo and offer
it for your consideration. No doubt you can
improve on it. No question you will have different
priorities and will emphasize different things.
Castor and Pollux say check it out. |
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The Glasses That
Broke
Envision a pair of lawyers standing just in
front of a judge's bench. The new one,
Lawyer A, speaks to Her Honor while Lawyer B
watches. Lawyer B turns his head towards
the first, listening to his argument and
waiting his turn.
Then an odd thing happens. Lawyer
A's eyeglasses start to come apart. The
right-hand arm of the spectacles separates
from the transparent tape that he has used
to tether the arm to the lens frame. The arm
drops further from the frame, pivoting downward on
the right ear and causing the frame to
tilt. Lawyer A pulls the glasses off,
just before the judge notices. Lawyer
B sees but gives no sign. Then he presents
his argument.
Imagine Lawyer A's mortification.
Feel his embarrassment. Sense his fear of
ridicule by the older adversary. But Lawyer
B pretends he doesn't notice. Why?
Maybe he feels sorry for Lawyer A. Possibly
he doesn't see an advantage in
making Lawyer A feel worse. Perhaps
he just can't stop chuckling to himself.
But Lawyer B's restraint, on the day that my glasses
broke, fits. Rod
Phelan gets terrific results for his clients
without low blows, and he makes friends of adversaries.
Castor and Pollux bestow their highest award
on the estimable Mr. Phelan -- two
stars. They also note that my eyes look
fabulous in contact lenses. |
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