A new Litigator is like a young clown in a circus looking for guidance from the old clowns
I was in college when Prince’s song “1999” came out. At that point, the next millennium being seventeen years in the future, it was way too far away for my then nineteen year old brain to fathom. But those seventeen years went by quickly. Before I knew it, it was 1999 and I was a thirty-six year old lawyer who was already two years into his Firehose. I was a new clown in the circus trying to figure things out. So, logically, I looked to the old clowns for a little guidance.
Usually what I’d get from them came in the form of stories. Which was odd, at least to me then. I would ask my boss how to do something specific and he would respond with a story that usually didn’t seem to have anything to do with what I was asking. The stories were interesting (mostly) and I appreciated the old clowns telling them, but I would walk away no more informed (I thought) than I had been before I heard them. I learned later that I was wrong about that. I learned a lot from the stories, but just not in the linear way in which I had been taught in school to learn.
Old Litigators have a lot of stories because they have made a lot of mistakes
I made a mistake a few years ago. I had tried a case with a young lawyer who I left alone to cover us during jury deliberations. I gave the closing and was there when the jurors went out to deliberate, but I had a personal thing I had to do the next day so I left the young guy there. I was pretty sure we were going to get a verdict (and we did, ultimately) and didn’t foresee much of a problem that he couldn’t handle—although he was only halfway through his Firehose.
The night before I left, my young associate asked me for specific instructions about what he should be doing during deliberations the next day because he had never done it before. Instead of answering his question directly, I told him a story about a lawyer who had mistakenly polled the jury after receiving an adverse verdict. Polling the jury means having the judge ask each juror if that was in fact his verdict. The idea is to discover whether any of the jurors has had his will overcome by the others. You don’t do it because you don’t like the verdict, you do it because a juror is making crazy faces at you while the verdict is being read.
The point of my story was that there were almost NO circumstances under which a lawyer should poll the jury. We finished our beers and I bid my young friend good luck, telling him to call me if he had any problems and I left town.
Of course, a trial being the circus it often is, the monkeys got loose and the jury came back with a verdict that confused everybody. They had made a mistake that negated their obvious intent to see my client get a judgment, but the mistake was not the result of anybody’s will being overcome. The judge, who happened to be brand new herself, suggested to my associate that he should poll the jury. Under the circumstances, that would have been the exact wrong thing to do, but he didn’t know that. All he had to go on was my stupid clown story from the night before, which was just enough to keep him from polling the jury—which turned out to be right call.
In Litigation, there is no way to anticipate all the crazy things that can happen
I tell this story here to illustrate why old lawyers tell stories to young lawyers who are in their Firehose. We can’t anticipate every single thing that might happen, so we give broad guidance through what are essentially parables of success or (more commonly) failure. The idea is to help the younger lawyer think for himself rather than give him specific checklists that could never be complete anyway. Litigation just doesn’t work that way.
So that is another reason why I have launched the Missional Litigator. Just like those seventeen years between college and 1999, the last twenty years have gone by for me in the blink of an eye. During my Firehose I had very little to share because I could barely breath. But after that, I learned some things that I hope will be helpful to younger lawyers, things I believe are worth sharing.
But I have to start with a caveat. Like Prince says in 1999, “I was dreaming when wrote this, so forgive me if goes astray”. In other words, while not quite a stream of consciousness, this story does not follow a perfectly straight course. It’s a series of parables of failure that meander a bit, like a river flowing out to sea.
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