The Lawyer Who Broke the Retaining Wall

The Lawyer Who Brokethe Retaining Wall

by Edward Michaels"'A daring pilot in extremity, but for a calm unfit.' Dryden, Ithink. It's the sort of person you need," Henry Charles said.

Jason Drakeman, general counsel, swirled his Glen-morangie single malt in the glass to melt the ice. He did notlook like a man relaxing after a hard trip. He cocked his headto one side and peered at Charles over the rim of his glass.

"I don't see how it can be done," he said. "They've en-joined release of our picture for three weeks, within whichtime we hold a full trial on whether we stole this manNewton's story idea."

Charles made that gesture of his, tenting his fingertips,while looking suitably pensive. Pensive with an overlay ofmelancholy, I should say, for he was on one of his periodicvacations from alcohol and sipped Ozarka water while therest of us had what we called-in those days before Charlesquit alcohol altogether-a "real drink." We were in the livingroom of the big old house in Mirabeau, Texas, where Charlesand I, Edward Michaels, live and office.

Jason Drakeman had been Charles's law school classmate.He was general counsel for World Film Enterprises, thethird-largest of the major studios.

Drakeman finally registered what Charles had said. "Pi-lot?" he asked.

"I have been working out a theory of the trial lawyer'spersonality. Dryden's words struck me. They are a riposte, ifyou will, to the British redcoats theory of litigation now invogue at the largest law firms. They capture the restless,insistent dedication that marks the trial lawyer's persona.'Pleas'd with the danger, when the waves went high, hesought the storms."'

I moved to head off Charles's train of thought before it leftthe rest of us station-bound. "Let's see where we are.Drakeman, you need a lawyer-or rather, World needs one.Brendan Newton sent World a film story idea in 1979. Yourpeople liked it. They agreed, so Newton says, to pay him asmall gross profit percentage if the story was made into a

Edward Michaels is the pen name of a lawyer in Texas.

Litigation Fall 1991

movie and to give him a prominent screen credit.""Ah yes," said Charles, "the money's fine, but the message

is the massage. Money has time value, but it's still money.The screen credit promise raised a specter-now suitablyanimate-of enjoining your film because Fig Newton'sname isn't on it."

"Henry," Jason said, "you're overstating it. We don't makescreen credit deals at the story treatment or idea stage.Newton's purported 'credit' deal is not written. We deny it.As Goldwyn said, sort of, it ain't worth the paper it isn'twritten on. The whole idea is preposterous. We get hundredsof story ideas a week. Almost all of them are so vague-or sotrite-as to be useless. Henry, there's not much time. This isa Friday night. Two weeks from Monday, we've got a trial.I'm here because I don't know where else to go."

"Is this," I asked, "one of those 'bet the company' cases?""No, Edward, it's not. It's a 'bet Drakeman's job' case. A

dozen people are after my ass. I hired my old firm to defendthe preliminary injunction. That's my call. Their call was wecouldn't lose. They blew it. At precisely one o'clock thisafternoon we got hammered-gored if you like the combat-in-the-afternoon metaphor.

"The rest of my day you can guess. Comforting words tomanagement. A promise to come up with a trial plan. Forgetthat some veep in Creative didn't have the good sense to geta release from this guy. Forget the, shall we say, unfortunatepaper trail."

"And," Charles said, looking at his watch, "three hours onthe company's very fine Falcon 20 jet brings you toMirabeau. What do you want me to do?"

"Henry, I know your reputation. You try cases. You're notbeholden to any of the big firms we use. You're your ownman. But you know the guys who can try this case. I need anew team."

Had Drakeman known Charles better, he would have seenthe warning signs. Charles's right eyebrow went up almostimperceptibly. His nostrils flared. He turned his head to faceDrakeman directly. Drakeman, oblivious to all but his ownconcerns, kept on.

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"We've been using my old firm, Watson & Durning. Goodlitigation department. Plenty of depth. Some people say, getout of L.A., go to one of the multicity shops like Hormel &Rath. I just don't know. I've called a dozen lawyers I knowto get some ideas on these guys."

Charles asked, "Is outside plumbing a qualification?""I beg your pardon?""Outside plumbing," Charles repeated. "Males have it.

Females don't. It's the way they are made. I am my ownperson. 'Guys' are not the only litigators."

"Well," Drakeman began, but Charles continued."Now let me ask you. You went to law school in Austin,

Texas. If you were going to buy a bass boat and fit it out forthe Highland lakes, whose opinion would you value most onthe kind of equipment to have?"

"I don't see what that has to do with it, but, all right, Isuppose one of those pros on the sports channel. They'vealways got the latest stuff."

"Precisely. You would ask the high-priced fisherman. Theopinion you want is that of thefish."

"Jesus, Charles!" I said. "Incanting that old wheeze gets usnowhere. Jason wants to know what to do."

Charles smiled. "Incanting, eh? Like an old whine in newbattles?"

Drakeman was beginning to look like a deer caught in twosets of headlights. "Look, fellows, I',e got the idea. Okay?And I think I understand about the fish. Now that Newton has

a preliminary injunction, he's on a roll with this judge, so hewants both sides to waive a jury. The judge and jury-they're the fish, right?"

Charles nodded. "I hear your pain, Drakeman. I do notmake light of it. We shall focus upon how you can win avictory you deserve and then upon the kind of lawyers youthink you would like to have." He unfolded himself from hischair, stretching as he did so. "Let's get some coffee and goupstairs. Jason, can you spend the night in Mirabeau? In thenext two hours, Michaels and I will try to surround yourproblem."

"Sure," Drakeman said. "The pilots flew a full day, and I'dprefer they be rested before we go again. I'll call the hotel ina few minutes and tell them."

Drakeman and I went along the hallway to the kitchen,where Charles was already at the Gaggia espresso machine.Drakeman loosened his tie and took off his suit jacket.

"Charles never mentioned you," I said. "Strange, sinceyou were in law school together."

Drakeman shrugged. "Not strange. I was a year behindand an outlander. I couldn't get into Yale or Chicago, and I'mafraid I acted a little superior to all the Texans. Henry's justgetting even."

"I hope not," I replied. "Don't be put off by Charles'smanner. He goes through this with every client in yourposition. He calls it 'breaking the retaining wall,' getting youto focus eventually on a broader group, a broader idea, oflawyers than you are used to."

Charles overheard me. "Not 'every client,' Michaels," hesaid. "That is not the point. The point is that someone likeJason here-as some would say, a sophisticated consumer oflegal services-easily falls prey to preconceptions about hislawsuit and his lawyers." He turned a handle, and steamcascaded into the milk pitcher.

Mugs in hand, we went up the stairs to our mock court-room, library, and conference space. We set the coffee on atable, and Charles put up two "whiteboards" on easels. Thesepanels are better than chalkboards because one can usewashable felt-tip markers in many colors. They can be takento court. Charles also points out that when one writes onthem, the jurors are not gritting their teeth in fear of thatfingernails-on-the-blackboard screech.

On one board, Charles wrote "ERRORS" in red. He wrote"PLANS" on the other, in blue. He faced us with professorialbearing and mien.

"Now, Drakeman, tell me in a sentence or two why thiscase upsets you."

"Well, damn it, man, this Brendan Newton is a Hollywoodhanger-on who has two meetings with our VP and claims wepromised him the moon."

Under "ERRORS," Charles wrote "1. Arrogance." Heraised a hand to forestall Drakeman's retort. "Nothing per-sonal. I mean situational arrogance, the natural condition ofclients. You don't like the idea that World Films has to dealwith the likes of Newton, though if you hired him on yourterms, it would be different. You don't like the whole idea ofan oral contract for what may be millions. You don't like thelegal rule that is being invoked against you. You regard thelawsuit as a many-layered betrayal. You make such noises toyour lawyers. They reflect this sense of superiority to youand, worse yet, to the judge and jury. You are like a divorceclient whose lawyers won't tell him or her to calm down.

28Litigation Fall 1991 Volume 18 Number I


You fall prey to blowhards and smart alecks who tell youwhat they think you want to hear and not what you musthear."

Drakeman subsided but tightened his jaw muscles. "I see,"he said.

Charles smiled. "Sorry for the lecture. Well, not really, butfor the minatory tone." He wrote "2. Complexity." "Here is alittle more arrogance of my own."

"You mean," I interjected, "assuming how Drakeman'slawyers must have treated the case?"

"Michaels," Charles said with some asperity, "I do notassume. It is as clear as can be. This is a simple case. Wasthere a deal or not? Newton is on the stand. As MiyamotoMusashi would say, he perishes quickly by the short swordor he prevails."

I tried again. "Charles, do you think we need metaphorsfrom your favorite 16th-century Buddhist?"

Jason brightened. "Yeah, Henry, that was Zen--this is now."Charles held up a hand. "Truce. I mean only that you chose

a law firm and not a trial lawyer. You invited a bureaucraticresponse to your problem, and you got it. Your lawyersmarched in open square formation and were picked off fromthe trees."

"But Watson & Durning is a great firm. They do a lot ofwork for us. And their senior litigation people..."

"Their 'senior litigation people,"' Charles said, "long agograduated to big cases. Discovery is done. Paper is pushed.Outlines are prepared. All in the passive voice. The smell ofrisk has gone from their nostrils. Real trial lawyers-andthere are many of them in big firms and small-are subjectsand not objects of action. They know how to cross-examinebecause they do it. They don't price or organize themselvesout of the battles that keep weapons sharp.

"I ask you, when World makes a film, do they trust theircapital to somebody who is all hat and no cattle but whoplays golf cunningly?"

Drakeman laughed. "Henry, have you been to the movieslately?"

"Oh, I see what you mean. Well, then, choosing a lawyershould be different." Quickly he wrote "3. No story."

"All I mean is that your redcoats let Newton dictate thebattle. They opposed their complexity to his simple assertionthat he had a deal. They were unconvincing because theyappeared evasive. They interrupted Newton's story but didnot have one of their own. True?"

Drakeman nodded in agreement."Charles," I said, "it would help if you annotated the

parables." I turned to Drakeman. "Look, man, there are morethan 100,000 lawyers out there who call themselves triallawyers or litigators. Every week we read that one of themhas won some big case or other. If that lawyer is not a big-firm partner, does that mean she or he doesn't deserve that 15minutes in the limelight?"

"I've seen some of those lawyers at the victory pressconferences-or on the cable channel or the talk shows,"Drakeman replied. "Their victories don't necessarily meanthey qualify to try the next lawsuit that comes along. Not ifit's my lawsuit."

"Right!" Charles said. "We're agreed. Away with all falsevalues. The point is that there are many great trial lawyers, inall sorts of law firms, even solo, in all sizes, colors, andgenders, and sporting degrees from all 170 or so law schools

that propel graduates into the profession. When one of theselawyers wins a case, it is because she or he was talented allalong and not because of some transitory and sudden alienvisitation." He wrote under "PLANS": "1. Investigation, 2.Case theory, 3. Who?"

"Drakeman, here is what you know. Brendan Newton mettwice with a vice president, Wilson Turner. Newton handedin a story idea-a film treatment, really. Turner made notes.He says he wrote down key words only to remind himself ofwhat Newton wanted. Newton, with the memo in hand afterWorld's document production, claims that words like 'screencredit' and 'half a point of B.O.'-I assume that's box of-fice-memorialize a deal.

"World passed Newton's idea around. It looked too muchlike an idea you already had. You didn't use it.

"If the jury finds that the facts are as you claim, you win.Maybe you owe Newton a little something. If Newton isright, you are in for contract damages, the screen credit, andmaybe more. Depends on California law. Do I have it?"

"Close enough.""Then, there is number one. The world is full of garrulity,

Drakeman. Sometime and somewhere, Newton and Turnerand the Great Spirit know who else talked and probablywrote about this matter. Investigation. Then a theory of thecase. If the witnesses you find and the silent witness ofpapers left along their way do not come together, you hadbetter have a settlement theory and not a trial theory."

"Charles," I said, "you would be first to say, 'No settle-ment now.' Newton's early win puts too high a price onthe case."

"It's more than that," Drakeman said. "We can't let everyguy-excuse me, every writer-who ever sent us scribbleson a cocktail napkin think we can be held up."

"Agreed," Charles said. "I simply iterate that you needcandor now and not sycophancy. Jason, I want you to meeta lawyer."

I noticed that Charles was now using Drakeman's firstname. "Henry," Drakeman replied, "I thought I was talkingto lawyers. Unless you say things like 'iterate' to juries."

"Jason, I forebear to stress that this is the first time youhave even hinted that you wanted me to try this lawsuit."

"Hell, man, I guess I hadn't been thinking of you as anintellectual property lawyer."

"There is another of your errors. Some lawsuits are plantedso thick with arcana that you must see a specialist. But mosttimes a trial is a trial. I'll let that pass, however. I would liketo try your case. I am honored that you would entrust it to me.If you would trust me that far, I want you to trust me tochoose a lawyer for you."

Drakeman looked pained. I said, "Charles, you could do it.You could get somebody from Lipset's shop in California todo the sleuthing."

Now Charles's jaw tightened. He thought it over for amoment. "No. My ego won't let me. I've just told Jason thathe chose wrong. He's here because we went to law schooltogether. I am flattered. I also harbor a lingering sense thatJason has run from one false standard to another-I'm justanother strand of the old boy net."

"That's not it," Drakeman said."Prove it," Charles replied."How?""Hire Psalmer to do your case."



"Which one," I asked, "Richard Psalmer or SusanPsalmer?"

"Susan, I think.""Who are these people?" Drakeman asked."Tell him, Michaels.""Susan and Richard Psalmer have a small Beverly Hills

firm. They do entertainment litigation and many other sorts.They represented Kinsman in the tax shelter case."

"That thief," Drakeman said. It was not a question."That alleged maker of bargains he allegedly did not

keep," Charles corrected. "A circumstance with which youmay be familiar."

"Henry," Drakeman said, "why are you doing this to me?If it's because I wrote a parody of your obscure law reviewcomment, I'm sorry. But that was 20 years ago, and Profes-sor Corwin Johnson put me up to it."

"At which level do you want an answer?""All you've got.""Level one: I thought Susman wrote the parody, so that's

not it. Level two: I want you to find justice in your cause,and Susan Psalmer is as good a lawyer as you'll find. Levelthree: I want to break the mirror in which you-and all otherswho face choices like this-have been accustomed to look atyourselves."

"What the hell are you talking about?""It goes back to the words I recalled from Dryden-when

you weren't listening. Trial lawyers are different, and eventhe one who mainly tries contract cases resembles more apersonal injury trial lawyer than somebody who draftscontracts."

"Surely," I said, "you don't suggest that anybody wholoves adventure and risk can be a good trial lawyer."

"Of course not. I am describing a necessary, but not suffi-cient, condition. If your lawyer does not quest for excitementor has begun to settle for something instead of continuingrestlessly to reach for something else, then that's not theperson for you."

Drakeman thought for a moment. "Henry, in my business Isee too many people who are intensity junkies of the kindyou're talking about. They can't keep it up. They crash andbum. Jesus, man, you can't mean that I have to limit mysearch to people who are self-destructive. Don't you haveany trial lawyers who maybe learned to say 'Enough'?"

"Point taken. Perhaps I am Exhibit A. I drink water andcoffee tonight in part because I reflect on the costs I haveimposed on myself-and others-by failing to distinguishthe professional intensity I need to try cases from the mis-placed personal intensity that aggressively shatters relation-ships. The fondness for alcohol or other substances is often asymptom of this. I am, after all, a giant ego suspended over achasm of insecurity.

"So, yes. There is such a thing as 'enough,' and a triallawyer can find it and not lose the edge. But having experi-enced such an epiphany, the trial lawyer remains a loner."

"Charles," I interjected, "you seem to be saying thatlitigators can't live in large law firms."

"Certainly they change firms and form and dissolve pro-fessional partnerships more often than other kinds of lawyersdo. A trial lawyer can live happily and successfully in a largefirm but conditionally. To be happy, a real trial lawyer mustfind ego satisfaction and room for independent judgment. Tobe successful-and here we rejoin Drakeman's problem-

one must maintain a certain style of practice. The advocatemust continue to see the case as a whole and not as a series ofisolated discovery battles and document tidbits. In largerfirms and with larger cases, there is always the temptation tolose the picture."

Drakeman leaned back in his chair, clenched his fists, andstared at the ceiling for a full 30 seconds. At last, he leanedforward and looked directly at Charles. "Will you play a role,Henry?"

"A role? Cameo? Walk-on? Or like Hitchcock, lurking inthe shadows or running for a bus, for those in the know todiscern?"

Drakeman hesitated, choosing his words. "God damn it,Henry. I'm not going to be managed on this one. I'll inter-view Psalmer, if. If you'll be on the plane with me in themorning. If you'll go with me to meet her. If I'm damn wellsatisfied she can win this lawsuit, and if I'm sure this is notjust one more chapter in some empirical research you two aredoing."

Charles picked up the cordless phone. "On your terms,done. I'll double my hourly rate for the inconvenience anddifficulty." Drakeman nodded. "I'll print out a retaineragreement on the word processor in a bit. It's nearly sevenin L.A. Let me try her at home." He took out his pocketaddress book.

"Is Susan Psalmer there? This is Henry Charles calling.Oh, hello, Richard. Sure.

"Susan, how are you?"Good. Say, did you read in the trades about Newton and

World Film? Oh, that's awful." He covered the mouthpiece."She says the Variety headline on Turner's unfortunatememo is 'World Pix Fig Leaf for Newton.'

"Susan, I'm here with Jason Drakeman. Yes, the JasonDrakeman. They've tried to cast a double for the stunts, butnobody qualifies. Could you represent World? And couldyou meet us tomorrow at Casino on Wilshire for coffee? Allright. We'll wait for your call."

He switched off the handset. "She'll call back in 15 min-utes, after she runs a conflict check. And she says, to hellwith Casino cafeteria; she and Richard have finally bought aproper coffee machine for their office."

We made more coffee while we waited. Drakeman putBlack Bushmill's in his.

Henry took the call. "Splendid! Well, we can talk detailstomorrow. Please be clear that Drakeman hasn't made hischoice yet. This is still a hey-look-me-over and not a bird'snest on the ground. But can you call Lipset's office? Who'sthat sharp literary one we used in the master record case?Right, Cynthia Scoure. If you liked her work, you mightwant to see whether she could turn over some rocks for you.

"No, not Los Angeles International. Drakeman's got thecompany plane. We'll get to Martin Aviation at BurbankAirport by 8:30 tomorrow morning. Is that suitable? Good.See you then."

Charles and I flew together with Drakeman the next morn-ing. Susan Psalmer did not meet us at the airport but sent acar. The driver bore a note that said she was taking theopportunity to review some information she had obtainedabout the case.

Susan Psalmer greeted us in her conference room. She hadstaked out the head of the oak table. She stubbed out hercigarette as we entered, brushed back her salt-and-pepper



hair with her left hand, and introduced herself."Henry has told me a lot about you," Drakeman said."I hope you didn't get the Homeric poem on trial lawyers."

Drakeman grinned. "Oh, I see you did. Well, not to worry.Like a lot of myths, maybe it tells us something, maybe not.You're looking for a lawyer, and you want to know whether Ifit the bill. Right?"

"True.""Have a seat. Anybody wants coffee, tell my secretary,

Bill. Croissants are on the sideboard." We placed our orders."I think trial lawyers are storytellers. It's easier to see that

if you're a plaintiff-something happened, somebody wasinjured in some way, you want justice. For a defendant, it'sharder. There's such a temptation to pick away at theplaintiff's version instead of presenting a coherent alterna-tive. Take your case. What's your story?"

"There was no contract.""No. Decidedly no. Who ever heard of a story about what's

not? A story is about what is or was." Charles started to saysomething. "Yes, Henry, I know-sometimes in a criminalcase, you argue about burden of proof. But you still have astory. You simply remind the jury at the end that your storydoesn't have to be more probable than theirs or even as prob-able. You want pop psychology? The most important contribu-tion of Gestalt theory is the understanding that people want tosee things holistically. When they remember a past event, theirminds will even fill in the gaps so that the story holds together.You can't fight that fact about perception.

"Trial lawyers take raw facts and distill out the story. Theyunderstand that television has trained us to put the story intoa smaller space but always with a resolution of the importantconflicts. Lawyers who get hypnotized by the small stuff hadbetter stick to office law."

"Ms. Psalmer," Drakeman said, "I barely know you. But Iask you the thing I ask Henry here. What does this have to dowith my case?"

"Everything, but maybe in too general a way to be ofmuch help. I was simply trying to move the Henry Charlescosmic viewpoint a little closer to where you stand. If youhire me, I am going to tell your story. More precisely, Iwould narrate your story. We would tell this jury howmovies are really made and, along the way, how Newton'sstory makes no sense."

"Is that all?" Drakeman asked."No, but even that is a lot more than you did in the

preliminary injunction hearing. You also need to show thejury why Newton can't be believed. The reality you depictgets brighter if we catch Newton inventing the elements ofhis version. To use one of Henry's metaphors, that's short-sword work."

Drakeman took a deep breath and exhaled. "Ms. Psalmer, Iam going to retain you. All of this short-sword, long-swordstuff is over my head. And quite frankly, I don't give a crapwhat personality quirks trial lawyers have or are supposed tohave. Chris Wall wrote a song about rodeo riders that JerryJeff Walker sings; it sounds like the same thing to me. You'rehired because I can see what you mean about stories. So gofor it. Henry here is on the team; that's the only condition.Deal?" He put out his hand.

"Deal." Susan shook on it.From some trials, it is difficult to pull the strands together

and weave a lesson. I have struggled in these accounts to

choose cases with which my powers can cope. I am fromMirabeau and not Bayeux.

Newton's lawyer, Donald Pittman, showed in openingstatement that he could devise a story. Then he showed thathe did not understand how to narrate.

He thought to glamorize his story by calling World'ssenior executives and creative people as adverse witnessesin the plaintiff's case. He perhaps forgot that he would haveto suffer long stretches of friendly cross by Susan Psalmer.Charles frowns on the hostile witness tactic, as a rule.

Susan convinced the judge to permit broad cross-exam-ination, beyond the scope of the direct. On friendly cross,she proved most of her opening statement story duringPittman's case. Pittman had thought to score a coup bycalling World's CEO, G. William Burley, as his first wit-ness. Psalmer's cross began, "Mr. Burley, can you tell ushow movies are really made?"

Pittman called Brendan Newton near the end of his case.Cynthia Scoure had done her job. Newton was a mainstay ofthe writers' workshop circuit.

"Mr. Newton," Susan Psalmer asked when her turn came,"you told the jury that when you left your second meetingwith Wilson Turner on February 15, 1980, you thought youhad a deal with World, correct?"

"That's what I said."I'll cut to the chase, as Drakeman would say. Brendan

Newton had given a lecture on how writers should protect(please turn to page 55)

31

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I.

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Litigation Fall 1991 Volume 18 Number I


you, maybe they'll like the principle.Maybe they'll like the image of beingmavericks or going against the grain.

The same thing is true even with themedia. If you have a case in whichnothing good can be said about the cli-ent and nobody is saying anythinggood, there will come a day when all ofthose rotten articles just aren't newsanymore. That is your chance. Thething that journalists want more thananything else is to be the first one tocome up with a new angle. There maybe a time-you may have to shut up,you may have to wait six months, aftereveryone has savaged your client everyday in every possible way-that somereporter is going to say: "What a bunchof crap. They're all on the same thing.There must be something under the sur-face here-something good about thisdefendant."

It's often a matter of developing arelationship with the press, a reputationfor honesty, limiting your statements,finding something and pushing it. Thenmaybe a year down the road, somebodystarts to write and says, "Well maybethese clients were bastards, but hell, Imean, Marcos is entitled to somethingthat a person who murdered sevenpeople got-some basic fairness." Iteventually comes, but it takes tremen-dous patience: I have seen cases whereI started to reap the benefits of develop-ing a public image for a client a decadeor 15 years earlier.

Hibey: There's something DennisRiordan said that I would like to expandon. He was talking about developing anappropriate self-image for the court andthe jury in order to put forth a credibledefense.

I agree with that. It strikes a blow forthe things that lawyers are supposed todo all the time. It's a question of trialpreparation, developing legal argu-ments, advancing them to the court in aresponsible fashion, being able to cutthrough the frivolous and get to themeritorious.

You invest a high degree of yourselfin the defense of the cases. That's ex-traordinarily important. It shouldn't belost. At the heart of it all, we're back tofundamentals. If this judge has got be-fore him a defendant who is considereda predator and the judge might havesome predisposition against the party,then it really is important for the lawyerto walk in there loaded in terms ofpreparation and presence.

Fleishman: I disagree with DennisRiordan about the predominance ofloss in the area that I'm familiar with-obscenity cases. It's said to be anunpopular subject. Still, I think there isan undercurrent there that more peopleare really for it than let on. Because ofthis, I found that I could hang mostjuries. That's what I used to play for. Itwas rare that I could get a unanimousjury in my favor, but it was also rarethat the prosecution could get theunanimous verdict it needed against us.Even though I have handled cases thatare generally unpopular, I can very of-ten get at least a minority who aregoing to hang in there for me.

Hibey: I probably appear to be moreof a gunslinger than anyone else, butthere was something I said at the begin-ning that is very important. I reallybelieve in the Constitution. I really be-lieve in the concept of the effectiveassistance of counsel. That is not a prin-ciple that is associated with anyparticular "liberal" or "conservative"viewpoint.

The point for me is this: The admin-istration of justice in this country ispredicated on an adversary process. Ifigure if I do my end well, then justicewill be served. I think that is a moralposition and it allows me to be able torepresent people who are considered byothers to be among the sleaze bags ofthe 20th century. G

RetainingWall

(continued from page 31)themselves in negotiation. His pictureof the "typical" negotiation and of hisown effusive style and expectations tal-lied with Wilson Turner's version oftheir meetings.

Charles and I came to court for thecross-examination. Charles shifted inhis seat while Psalmer took Newtonthrough a series of denials, just beforeshe pounced with Newton's old lecture."She's letting him get ahead," Charlesmuttered at one point. But later on, heturned to me to concede, "She's ropedhim. Now just take those dallies, jumpoff, and tie him."

"Charles," I whispered, "rodeo meta-

tion Fall 1991 5 5 Volume 18 Nur

phors encourage rejoinders that beginwith 'bull.'

Susan Psalmer wound up her cross."Mr. Newton, only a fool would claimhe had a deal on the basis of an ideameeting or two and a promise to thinkabout terms. Isn't that right?"

"It's not what I meant.""I am not asking you what you meant

or even about now. I'll put it up here onthe screen again." She turned on theoverhead projector and showed thetransparency copy of the exhibit. Shemarked the chosen words with ahighlighter pen.

"You wrote that, did you not, sir?""Yes.""And you believed it, then, didn't

you?""Yes.""Nothing further."Later, Drakeman wanted to know

why the lecture text hadn't turned up inthe discovery that Watson & Durninghad done. Susan, who by now hadjoined the conspiracy to reeducate Ja-son Drakeman, looked at him levelly.

"You want the lawbook answer or thelawyer answer?"

Drakeman, to his credit, had probablyjoined the conspiracy himself, thoughperhaps with enough mental reservationsto support a later renunciation should theneed arise. "Both," he said.

"Lawbook answer: A discovery re-quest broad enough to cover all hisprior lectures and writings is probablyobjectionable. In a hurry-up litigation,W & D might have decided it wasn'tworth the almost-inevitable fight. Theyprobably didn't think of a narrow re-quest on this subject. Even if they had,it might not have worked. Did you seethe scurrying at the plaintiff's tablewhen we surfaced it? I'm not sureNewton even kept a copy or remem-bered to tell his own lawyers.

"Lawyer answer: Sitting in your of-fice sifting discovery can't take theplace of real investigation. I do somemyself, but there are ethical problemsin using what I find in a case I'm try-ing. I can't take the stand. So I get acredible investigator who knows howto get what I need and is presentableenough to testify. Somebody has to getout of the office and dig.

"You see, I like facts. I think that'swhat makes a trial lawyer. You have toknow that facts never show up alonebut always attached to a fallible wit-ness, an ambiguous document, or a cir-

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cumstantial object. The witnesses'fragments of memory parade by.Documents and things are brought tocourt, also by witnesses. It's a puzzle.Jurors like to solve puzzles. If mystory seems true, it shows them howthe pieces fit."

Jason asked, "It's not a big-firm-little-firm thing?"

"Not necessarily," Susan replied."But you can't trust me on this. I'vechosen my style of practice, and I haveto tell clients I'm what they need. I'mwith Henry here. No preconceptions."

I was still puzzled. "At the pretrialconference, why didn't you have togive the other side the copy ofNewton's lecture?"

Susan Psalmer smiled. "Not re-quired. It was impeachment material. Iused the Sir Charles Russell gambit. Bythe time I had to show the document,the witness was already impaled on it."

Charles confessed having had reser-vations about Susan's style of cross-examination. "But in your hands itworked. You had just the right combi-nation of living dangerously and beingprepared. Like the old boy who kept abottle of whiskey in the desk drawer forsnakebite and in his other drawer kept abox of snakes."

Psalmer gave Charles an appraisingglance, then said innocently, "Henry,old friend, if you're collecting phallicimagery, don't forget to say that it was aserpent who taught it all to Eve in thegarden." LO

AdversarySystem

(continued from page 26)regularly hold settlement conferencesin which they meet separately witheach side. As Magistrate Judge WayneBrazil notes in his fascinating article"What Lawyers Want from Judges inthe Settlement Arena," 106 F.R.D. 85(1985), judges may use these ex partemeetings to discuss with each side pri-vately the reasonableness of eachparty's settlement position and conces-sions worth considering. 106 FR.D. at87. With both sides present, the conver-sations could not be candid enough to

work. The impact of ex parte settlementdiscussions can be enormous. In oneparticularly significant instance ofshuttle diplomacy, a judge and threespecial masters managed to bridge asettlement gap that started at more thana quarter billion dollars. Schuck, TheRole of Judges in Settling ComplexCases: The Agent Orange Example, 53U. Chi. L. Rev. 337 (1986).

As part of this shuttle diplomacy,judges may require submission of anex parte written position paper or asummary of the evidence a party ex-pects to introduce at trial. Reviewingthe documents enables the judge tostreamline the settlement negotiations.But reviewing those documents mayalso shape the judge's view of the caseif settlement efforts fail.

Of course, a party need not agree toex parte settlement discussions. It canbe difficult, though, to thwart a judge'sdesire to facilitate settlement. Andsome judges will not assist settlement ifthe parties will not agree to proceed asthe judge considers most effective. Analternative solution is to suggest settle-ment discussions with a judge who willnot preside over the trial. See, e.g.,Manual for Complex Litigation, 2d §20.122. That may alienate the judgeeven more. Some judges deny the wis-dom of recusing themselves fromsettlement discussions, insisting thatthey can tune out the parties' confi-dences if they must later decide thecase on the merits. See Manual forComplex Litigation 2d § 23.11 at 160-61. Does anybody really believe that?

- Simultaneous sealed submissions.Federal Rule of Civil Procedure26(c)(8) permits the court to order si-multaneous submissions of documents"in sealed envelopes to be opened asdirected by the court." This provision issupposed to be valuable in patent cases,where the parties' respective interroga-tory answers about priority of inventionmay be decisive. 4 Moore's FederalPractice 2d 26.76. Wright and Milleracknowledge that a simultaneous-sub-mission requirement carries the unat-tractive implication that one partywould otherwise tailor its response tothe data provided by its opponent. Butthey justify the rule with the droll com-ment that it may be desirable to preventan unnecessary opportunity for fraud. 8Wright & Miller, Federal Practice andProcedure (Civil) § 2044 at 310.

Simultaneous sealed submissions

fon Fall 1991 5 6 volume 18 Nuir

have other questionable uses. For ex-ample, if intent is a key issue, it is oftenin the defendant's interest to do discov-ery first in order to find out whether theplaintiff has any direct proof or merelyhopes to go fishing through discovery.Reacting to such an improper effort, thecourt in Eastern Fireproofing Co. v.United States Gypsum Co., 21 ER.D.290, 291 (D.Mass. 1957), invoked Rule26(c)(8), requiring both parties to sub-mit their interrogatory answers simul-taneously, under seal, and without serv-ing copies to the other side.

We do not know whether the proce-dures followed in Eastern Fireproofingcut short the plaintiff's fishing trip, butthe potential for abuse should be appar-ent. Aware that its submission wouldget ex parte review, one party might betempted to argue its case, even thoughits submission might later be disclosed.And judicial review could hurt theplaintiff. In these days of heightenedRule 11 scrutiny, a judge who learnsthat the plaintiff filed a complaint withlittle more than a few scraps of evi-dence and a bare hunch may take a dimview of the plaintiff in subsequentproceedings.

Notwithstanding the court's good in-tentions, it is difficult to square the ap-proach in Eastern Fireproofing withadversarial principles. Rule 26(c)(8)should not be a vehicle for the parties tomake their cases to the judge under sealwithout revealing the argument to theother side. The rule's proper use shouldbe limited to controlling the timing ofdiscovery in the rare case in which aparty might obtain an unfair advantageif the other side made first production.Disclosure to the other side should thenfollow routinely.

- Informal contacts with the court.Perhaps because the courts havechipped away at the adversarial system,other types of ex parte contact alsoseem more prevalent these days. Forexample, counsel frequently addressletters to the court, bypassing the for-mal filing requirements. Indeed, somejudges occasionally request submis-sions in the form of correspondence tosave time and expense, most com-monly for procedural housekeeping.Counsel also occasionally use letters tocite additional authority after briefingis closed or to advise the court of erratain a brief.

The appropriate procedure is alwaysto send a copy of any letter to opposing

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The Lawyer Who Broke the Retaining Wall

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