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Advocatus Diaboli Grand Prize Award

Did You Know?

Susman Godfrey just won a Grand Prize award honoring Barnett's Notes on Commercial LItigation in the Advocatus Diaboli competition for law firm newsletters. Imagine that.

Especially attentive readers of the September issue noticed the Advocatus Diaboli emblem at the bottom of the Did You Know? column. It appeared without explanation. Let's fix that now.

The Advocatus Diaboli competition evaluates and rewards firms with recognition for outstanding newsletters and marketing brochures. This year, it singled out three firms.

I want to thank my teachers, particularly Mrs. Brice and Mrs. Hall, for encouraging me; my parents for allowing me to survive childhood; Nacogdoches High, Yale, and Harvard for permitting me to graduate; and Advocatus Diaboli for the award.

Plus a special shout out thank you to our loyal subscribers. We appreciate your support!

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Extremely Intelligent Design

The Texas and Oklahoma chapter of the International Interior Design Association has awarded architecture firm Gensler the Commercial Design Excellence Award for its design of our new Dallas offices.

We and our clients and visitors love the design -- especially the light colors and concrete pillars, the profusion of glass walls and sunlight, the slanting corridor, and the sweeping openness. Great work!

You can see photographs of the offices here. (Thank you to photographer Tom Jenkins for his impressive work.)

Better yet, come see us at 5100 Bank of America Plaza, 901 Main Street, Dallas, Texas 75202. Just call ahead (214-754-1900) to let us know when you want to visit.

Congratulations and sincere thanks to Gensler and the design team, especially Edward Folse, Carole Nicholson, and Emily. Y'all did a terrific job!

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Hot Lunch

John Keats ends his wondrous poem, Ode on a Grecian Urn (1884), with "Beauty is truth, truth beauty -- that is all/Ye know on earth, and all ye need to know." How beautiful -- and true!

Keats speaks of an ancient marble vase but uses it (as I read him) to sum up, and to equate, two dominant aspects of human experience -- logic and reason, on the one hand, and emotion and art, on the other. I fancy that Oliver Wendell Holmes means something similar when he writes, in The Common Law, that "[t]he life of the law has not been logic: it has been experience."

Trial lawyers for millennia have pointed out that their cases proceed on two levels. The first involves the sometimes tedious and dry job of putting on evidence that satisfies the formal burden of proof as to each element of a charge or claim. The other level engages the emotions and tries to explain why human actors did right or wrong, whether they deserve our sympathy or scorn, what our sense of justice requires for them.

Conventional wisdom suggests that the first level, the conscious thinking level, aims at satisfying the judge who tries the case and the appellate judges who later review his judgment. The second level, the unconscious emotional one, recognizes the persuasive limitations of reason and the necessity therefore of establishing the emotional truth of the case.

Keats says that only the second kind of truth matters to us mortals. And Holmes agrees that even the high priests of syllogistic truth cannot help but guide the law towards principles that fit a communal feeling of right and wrong.

Not all emotion follows the Keatsian conception. The great historian Shelby Foote, probably adverting to William Faulkner, once noted a distinction between "the heart" and "the glands". The heart corresponds to emotion, the glands to impulses. The former merits praise; the latter deserves, if not our condemnation, at least our understanding that people sometimes do things for no good reason or for a bad reason. We forgive people who act out of love, for example, but blame those who let lust get the better of them.

* * * *

Trial lawyers, like poets, use words as their stock in trade. Most of us think of rhetoric as manipulating language in the service of persuasion. But rhetoric teaches a lot more than how to arrange words, sentences, and paragraphs. The force of an argument depends far more on the moral standing of the arguer.

Take Ross Perot as a for instance. When he ran for president in 1992, he espoused some unusual ideas. People who didn't know his background and heard his squeaky Texas twang regarded him as quaint if not nutty and discounted his proposals. But those who heard that he built Electronic Data Systems from nothing, that he spent his own money and risked his own life to rescue EDS employees from an Iranian prison, that he devoted himself to improving public education in his home state, and that he raised a family who put public service ahead of personal gain -- these folks listened to him and believed him, and some even admired him.

* * * *

Jurors start out as skeptics of trial lawyers. They know we have a job to do. They won't trust us unless we earn it. If we recognize that we must show them that we serve the truth -- both logical and emotional -- we give our clients our best. Beauty becomes truth.

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Eating What You Kill

Francisco Goya, Saturn Devouring One of His Children (1821-23), Museo Del Prado, Madrid. The titan Saturn killed and ate his kids so that they wouldn't overthrow him when they reached adulthood. Which one did he miss? Little Zeus.

I don't watch Curb Your Enthusiasm, but a recent incident prompted me to run an Internet search on it. And on that Googling hangs a story.

The American Lawyer published an article about the firm during my first year as an associate. It attributed a quote to Your Editor. I'd apparently babbled to the reporter that "at Susman Godfrey, you eat what you kill." Of that specific utterance I had no memory, but I did like the quote.

Recalling that long-ago philological glory led me, hopefully, to Google eat what you kill. The search returned a gratifying 35.6 million hits. But none of them credited or even mentioned Your Editor. Rats!

One result, on WordSpy, did give a good definition: "The business philosophy that a person who accomplishes something should get the full financial benefit that results from that accomplishment." But, to my dismay, WordSpy listed the "Earliest Citation" as a September 1987 article . Double rats!

A factotum (at length) tracked down a copy of the American Lawyer article. As you can see here, this gem of legal journalism bears a publication date of September 1986 -- a full twelvemonth before WordSpy's "Earliest Citation".

A skeptical client, overhearing my claim of eat what you kill coinage, related that a character in Curb Your Enthusiasm had similarly asserted provenance of a famous saying. I Googled curb your enthusiasm and found that, in the "The Nanny from Hell" episode, Richard Lewis had indeed tried to persuade the publisher of Bartlett's Familiar Quotations to add "[blank] from hell" to Bartlett's and to name Lewis as originator.

Aha! Your Editor's thirst for fame as progenitor of eat what you kill soared. No longer did I want mere credit for a phrase that WordSpy says "is now quite common throughout the business world." No, Your Editor desired the prestige, the acclaim, the immortality that inclusion in Bartlett's assures.

Good luck with that, I hear you saying, probably under your breath. But I defy you to find a pre-September 1986 printing of eat what you kill in its modern sense.

As I await your reply, let me offer some thoughts about what eat what you kill signifies in the context of practicing law, specifically commercial trial law. Several sources, including the book Eat What You Kill: The Fall of a Wall Street Lawyer (2004), emphasize the perils of linking compensation to business-getting. The real-life subject of the book allowed the rewards of making rain to blind him to his ethical lapses. Bad stuff ensued. Other commentators condemn the intra-firm competition, resentment, and selfishness that they imagine an eat what you kill philosophy breeds.

Sorry, but I don't see it that way. I perceive no conflict between high ethical standards and high earnings. The one promotes the other. Lawyers and clients who think otherwise have misjudged reality.

Nor do I believe that eating what you kill corrodes a firm's soul, certainly not at a commercial trial firm. Trial work in commercial cases, by its nature, requires collaboration. Its intensity and complexity demand collegial relationships and respect among professionals. And it rewards excellence and spreads success, especially in contingent fee cases.

Eat what you kill doesn't provide long-term security. But business people want performance from their lawyers. If they think of their lawyers' security at all, they want it to result from producing results for them.

Year in and year out, lawyers in a commercial trial firm depend on each other too much to seek short-term gain at another's expense. Maybe that helps explain why Susman Godfrey has lasted more than a quarter-century -- and why I've never practiced, and never wanted to practice, anywhere else.

Barry Barnett, Editor

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Killing the Law

Henry William Bunbury, Dick the Butcher and Smith the Weaver Seizing the Clerk of Chatham (1795), Fine Arts Museum of San Francisco. Dick wields the axe. Note the hanging post at right; it awaits the Clerk of Chatham, who loses his life for knowing how to write his name.

Speaking of famous sayings and mortality, have you ever met a member of the bar who likes the line from Dick the Butcher in Shakespeare's Henry VI, Part 2 (1592-93) -- "The first thing we do, let's kill all the lawyers"? Do you relish it? No? Perhaps you should.

Dick's slap at the legal profession waylays our sense of humor. "Kill all the lawyers" hurts our feelings. It makes us defensive. It also, bizarrely, swells our self-importance.

Think about it. You've read any number of columns patiently explaining that Shakespeare really wanted to underscore the importance of lawyers in holding society together. Dick the Butcher, his regicidal boss Jack Cade, and their, er, colleagues intended to overthrow the existing order and unleash the very chaos, discord, and anarchy that lawyers work so hard -- SO HARD -- every day to forefend.

The earnest heat of such columns can make one blush. No, gentle reader, the fault lies not in those who mistake the meaning of Dick the Butcher but in ourselves.

I respectfully suggest that, the next time you hear the quote, try a different approach. Instead of hotly insisting that Dick in actual fact complimented lawyers for their indispensability, say something like: "That Dick -- he can kill me anytime!" or "I almost die every time I hear that!"

Just remember to smile when you say it.

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Eating the Law

Parody of a poster for Soylent Green (1973), by FreakingNews.com. Charleton Heston ended the movie with his famous line -- "Soylent Green is people!" I wonder if it got him into Barlett's.

I don't know about you, but all this talk about death and The Law makes me hungry.

Which reminds us that Charleton Heston once starred in a futuristic movie centering on a government that fed the starving masses the same thing at every meal -- Soylent Green, Soylent Red, or Soylent Yellow. The film represented a bit of a come-down for Heston from his role in The Ten Commandments (1956) as Moses, the imperious and hirsute law-giver. But both gigs involved him in The Law. And here eat what you kill intersects with Dick the Butcher. Stay with me.

Soylent Green, you see, consisted partly of human flesh. Those who ran the world in the movie bumped off people they found undesirable or inconvenient and processed their corpses into tasty and nutritious sustenance for the compliant folk who remained. The victims included law-enforcer-types who, like Heston's police detective in the movie, figured out the scam and didn't cotton to it.

As Soylent Green (1973) did 350 years later, Henry VI, Part 2 pointed up the consequences of undercutting enforcers of The Law, the bulwark of a free society. But not even Dick the Butcher suggested eating those he proposed to murther. That innovation required the gloom of Vietnam and Watergate and the imagination of Hollywood. My, how times have changed!

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Bonus Program

Copyright © The New Yorker. Used with permission.

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