Opening Statement: Proud of Who We Are, Proud of What We DoAuthor(s): Dennis J. DrascoSource: Litigation, Vol. 30, No. 4, Risks, Responsibilities, Reforms (Summer 2004), pp. 1-2, 67-68Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/29760438 .

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There is an old joke that asks the differ? ence between trial lawyers and litigators. The answer suggests that "trial lawyers drink whiskey and try cases, while litiga? tors drink white wine and take deposi? tions." Although I drink more white wine than whiskey these days, nostalgia for our trial experiences raises serious ques? tions of who we are and what we do. This is especially true in light of the "Vanish?

ing Trial," see Vol. 30, No. 2 Litigation at 1 (Winter 2004).

I have always considered myself a trial lawyer. I like to hang around and socialize with trial lawyers. In fact, I was attracted to the Section of Litigation (I joined as a young lawyer almost 30

years ago) because I believed it was the

premier bar association for training the trial lawyer, and I still do. While the practice has changed and

the number of cases we all try has declined (I prefer "declined" to "van?

ished"), I gladly say that I am proud to be a trial lawyer and proud of what we do. Young lawyers today spend thou? sands of hours preparing and responding to discovery requests, taking deposi? tions, preparing motion practice, and

engaging in alternative dispute resolu? tion techniques, but I contend the same basic skills we learned as we became trial lawyers train us to handle the chal?

lenge of today's litigation practice. After all, the role of the trial lawyer is still the same: namely, to represent a litigant effectively in either a civil or criminal matter to resolve a dispute in the most efficient and cost-effective way possi? ble?to do justice for our clients in the

adversary system that still exists, notwithstanding the declining number of trials.

I am not suggesting that we should be

complacent about the decline in trials or that we should not question the useful? ness of ADR, the cost associated with trials, the increasing use of Rule 56 by our courts, and the trend of corporate America to seek private adjudications in

avoiding trials. Certainly, the availabil?

ity of civil and criminal trials is the very

Opening

Statement

Proud of

Wlio W e Are,

Proud of

What We Do

by Dennis J. Drasco

Chair, Section of Litigation

essence of our democracy. We must never waiver from affording the utmost

respect to the jury system and the work of jurors. This coming year, in particu? lar, ABA President Robert Grey is focus?

ing on issues relating to jury service. He is seeking ABA policy by the House of

Delegates to establish standards for jury service that are intended to enhance and

encourage service by our citizens. The Section of Litigation is proud to be a

partner in that effort. This year, the ABA and the Section will celebrate the consti? tutional right to trial by jury and con?

gratulate the work of our citizens who make the system work.

As the Section of Litigation, we must and will do more. We will work hard to continue the tradition of providing the finest advocacy training programs in the organized bar. Our Section Annual Conference in New York City in April 2005; our many committee CLE pro? grams; our long-distance and regional CLE; and our many publications, including Litigation, Litigation News, and Litigation Update, as well as our

many committee journals and newslet? ters, offer the best in advocacy training.

We have for a long time provided for the

training of legal services lawyers who could not afford to attend trial advisory courses on their own. Our Young Lawyer Advocacy Training Committee offers trial skills programs for young lawyers. We have reached out to young lawyers and law students, bringing our

programs and publications where they are needed to help train the next genera? tion of trial lawyers. This year we will also reach out to the numerous Inns in the American Inns of Court family to

cross-pollinate and help to bring the skills we have acquired to the next gen? eration of trial lawyers.

The vitality of our advocacy system depends upon the quality of advocacy. The quality of advocacy depends upon the level of skill and ethics of the

lawyers who represent the litigants. I am

proud to say that the Section continues to fill that role. The negativists ask,

Litigation Summer 2004 Volume 30 Number 4

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?^?7" The Journal Of The Section Of Litigation American Bar Association

Litigation Vol. 30 No. 4 Summer 2004

editor-in-chief Jeffrey Cole Cole and Staes Chicago, Illinois

executive Charles D.Tobin editor Holland & Knight LLP

Washington, D.C.

senior Peter D.Baird editors Lewis and Roca

Phoenix, Arizona

James W. McElhaney Case Western Reserve University School of Law ? Cleveland, Ohio

Jacob A. Stein Stein, Mitchell & Mezines Washington, D.C.

associate Kevin Abel editors Bryan Cave ? St. Louis, Missouri

Robert Aitken Law Office of Robert Aitken Palos Verdes Estates, California

Hon. Elaine E. Bucklo U.S. District Court ? Chicago, Illinois

Edna Selan Epstein Law Office of Edna Selan Epstein Chicago, Illinois

Hon. Robert W. Gettleman U.S. District Court ? Chicago, Illinois

Stephen G. Good Fletcher & Springer LLP Dallas, Texas

Hon. Joseph A. Greenaway, Jr.

U.S. District Court Newark, New Jersey

Howard Gutman Williams & Connolly Washington, D.C.

Pamela S. Menaker Clifford Law Offices Chicago, Illinois

Joyce S. Meyers Montgomery, McCracken.Walker & Rhoads, LLP Philadelphia, Pennsylvania

Lee Stapleton Milford Baker & McKenzie Miami, Florida

Steven J. Miller Goodman Weiss Miller LLP Cleveland, Ohio

Jason M. Murray Cariton Fields ? Miami, Florida

Maria Rodriguez Venable, Baetjer, and Howard LLP Baltimore, Maryland

Robert E. Shapiro Barack Ferrazzano Kirschbaum Perl man & Nagelberg

Chicago, Illinois

Laura Lee Stapleton Jackson Walker, LLP ? Austin, Texas

Robin Page West Cohan & West, P.C. Baltimore, Maryland

periodicals Monica Buckley director American Bar Association

managing Annemarie Micklo editor American Bar Association

art Liane Sebastian director MichaeLight Inc.

Evanston, Illinois

"Why are we training trial lawyers when trials are vanishing?" The answer is simple. First, there will always be tri? als, and we must have lawyers trained for them.

Second, and, perhaps more impor? tantly, whether you are preparing for a

trial, an ADR proceeding, a dispositive motion, or an administrative hearing, you are creating a record. A trained trial

lawyer who can effectively examine witnesses, present evidence, and argue for a result, is best able to do justice. The result, whether at trial, on motion, or by way of negotiated settlement, is the product of the skill of the advocates who represent the interests of the

respective parties?in each case, the skills of the trial lawyer.

At the annual Judicial Conference of the Federal Bar in New Jersey in March 2004,1 asked a panel of district court

judges and magistrates who were dis?

cussing the subject of declining trials whether, when given the opportunity, jurors reach the correct decision. Chief

Judge John Bissell of the District of New Jersey said that he is impressed with the fact that "jurors get it right." What that tells us, notwithstanding the decline in trials, is that the system is not broken and that jury trials should not be

replaced by any other means of dispute resolution on the theory that jurors can't handle complex or difficult cases. Com? mentators such as the authors of the

"Litigation Hell" article in the Novem? ber 2003 Newsweek, who argue that

complex cases should no longer be pre? sented to juries, are simply flat-out wrong. The Section of Litigation will continue to study ways the system can be improved, such as making better use of a jury's time, the speed at which tri? als unfold, and the cost of trial.

Therefore, the need to teach trial

attorney skills is as vital today as it was in 1973 when I tried my first jury case, one week after being admitted to the Bar. That trial opportunities are not as available because of the size of cases and the costs associated with trial, or that many cases simply do not go to trial, should encourage us (as experi? enced trial lawyers) to find other ways to import the skills we all learned, in

part, "by the seat of our pants." Our Section offers trial lawyers, young and old, that experience. In our programs, our publications, our mentoring, and our networking?in everything we do?we convey pride in who we are and

pride in what we do. If we do not exhibit

pride, we are doomed to the negative inference of the commentators who tell

lawyer jokes or seek to change our sys? tem of justice.

Let me take a moment to highlight the sometimes unnoticed work of our

more than 50 committees and task forces. First, the Section has a Task Force on the Image of the Profession. The work of this group concentrates on the public perception of our profession and the justice system. Recently, this

group, co-chaired by Henry Hoberman and George Freeman, of the ABC News and the New York Times legal depart? ments, respectively, held programs in New York and Phoenix. This task force

brought the television, radio, and print media together for a roundtable work

i

shop on the relationship of the media and the trial lawyer and how that rela?

tionship depicts and reflects the public image of the profession. Through com?

munication with the media, the work of trial lawyers, and jurors for that matter, will be better understood and, perhaps, more fairly portrayed in the media. We will continue this effort.

Our death penalty, Litigation Assis? tance Partnership Project (LAPP), chil? dren's rights, and legal services projects focus Section resources toward

extremely necessary good work. The Death Penalty Representation Project recruits and assists pro bono attorneys

(Please turn to page 67)

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After Binger gratuitously belittled Chambers on the paucity of his literary output, "pathetically little ," in Binger's view, "except hack work and transla? tions and a few poems," Murphy pounced: "Now Doctor, just let us see now: are you testifying now as doctor or as a literary expert? You are not telling this Court and this jury, are you, Doctor, as a qualified doctor that Chambers's work is hack work? Are you seriously telling us that?" Binger's "impression" that Chambers's story "The Devil" was

autobiographic prompted Murphy's sar? casm: "If I asked you [to identify] which character in the play The Man Who Came to Dinner Mr. Kaufman or Mr. Hart was portraying, could you?"

Perhaps the most telling inquiry put to

Binger concerned his own conduct.

Again, Murphy portrayed the danger from ascribing symptoms of a pathology to what was, arguably, ordinary behav? ior. Binger had drawn diagnostic signifi? cance from Chambers's gazing at the

ceiling from time to time, apparently unable or unwilling, in Binger's view, to connect with the examiner. Murphy worked the point in this exchange:

Q: Now Doctor, we made a count this morning of the number of times that you looked at the ceil?

ing, and during the first ten min? utes you looked at the ceiling 19 times; the next 15 minutes 20 times; and the next 15 minutes ten times; and the following ten

minutes ten times, making a total in 50 minutes of 59 times, and I was wondering, Doctor, whether that had any symptoms of a psychopathic personality?

A: Not alone.

In the end, Binger's testimony col?

lapsed on its subjective and vague underpinnings. Earlier in his cross examination, Murphy had obtained

Binger's endorsement of authorities

suggesting that the category of disorder known as a psychopathic personality was like a "scrap basket." Binger also conceded after initial resistance that the term "psychopathic personality" was

"vague." Because the diagnosis was

vague and subjective, Murphy exposed the opinion as lacking sufficient consid? eration of all the facts or having been shaded by bias.

Murphy's closing emphasized that

Binger could not testify as to the truth of anything Chambers had said. With

out an examination or tests, the opin? ion lacked foundation. Nor had Binger accepted a fee?perhaps he was

unconsciously biased, perhaps he had a cause and wanted to help a friend?or

explained his "bugaboo of Commu? nism" comments. In the end, Murphy urged, "[Y]ou cannot have a competent diagnosis merely by multiplying symptoms; you cannot unless we all have a number, you just cannot multi?

ply a hundred by zero and get anything but zero."

Aftermath On January 20, 1950, the jury found

Hiss guilty on two counts of perjury. A year later, he entered a federal prison to serve his five-year sentence. Chambers continued to write and to defend his

charges against Hiss; his autobiography, Witness, was a 1952 bestseller. But heart trouble eventually killed him in 1961 at the age of 60.

Murphy became a federal judge in New York. In that capacity, he met Cross for a final time when, in the mid-1960s, Cross appeared before him to oppose a motion to compel. Cross's opponent lost whatever chance he may have had, how? ever, by making a disparaging comment about Cross. Murphy upbraided the

attorney, commended Cross, and denied the motion. "May your honor state the basis for his ruling?" inquired the affronted attorney. Murphy obliged with his customary flair: The motion had been denied "for any and all reasons that

may be available."

The careers of Nixon and Hiss, of course, were propelled into opposite tra?

jectories. Pursuing Hiss brought Nixon

publicity and political power. But 24

years later, in the wake of Watergate and

facing certain impeachment, Nixon

resigned the presidency. Nixon's descent was a counteracting force on Hiss's career, as Cross?ever loyal to his

clients?foresaw. On a night in October 1974, the year Nixon resigned, one of

Cross's partners, John Reed, visited Cross at Massachusetts General Hospi? tal. Reed knew Cross was dying; indeed, Cross died the next day. Among Cross's last words that night were those urging

Reed to seek Hiss's readmission to the Massachusetts Bar. Reed did so. On

August 5,1975, in a unanimous opinion and despite Hiss's conviction for perjury, the Massachusetts Supreme Judicial Court ruled that Hiss be readmitted to the bar as a lawyer in good standing. 10

Opening

Statement (Continued from page 2)

who represent capital defendants in

post-conviction proceedings. The Sec? tion also continues its financial support of the Texas Defenders Service (TDS), and the Equal Justice Initiative of Alabama (EJI). TDS tracks cases in Texas to ensure that prisoners on Death Row receive competent legal represen? tation. The EJI provides legal represen? tation to the poor in Alabama who oth? erwise would be denied effective

representation. The Section's LAPP links private

firm pro bono resources with legal ser? vice and public interest programs. Our Children's Rights Litigation Committee assists lawyers who represent children pro bono and supports development of

quality legal programs for children.

Additionally, our Section conducts free

three-day skills programs for legal ser? vices and public interest advocates

through our Legal Services Advocacy Training Program. For the past two

years, the Section Judicial Intern

Opportunity Program has placed more than 150 law students from law schools across the country in summer intern?

ships with state and federal judges in Houston and Chicago. The students par? ticipating in the program are financially disadvantaged or minority students who otherwise might not have the opportu? nity to work for a judge.

The pro bono and public service efforts of our members sometimes go unnoticed. This work is not so sensa? tional as representing Martha Stewart or Jason Williams, but the public needs to know how much time and effort goes into the pro bono activities of trial

lawyers and their law firms throughout the country. Communication with the

media will help balance the image of our profession. The Section's John Minor Wisdom Awards, given each year at the Section Annual Conference, recognize those individuals and law firms who devote great effort to repre? senting the poor and unrepresented in their community. Our International

Human Rights Awards, given at the ABA Annual Meeting, recognize

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lawyers who fight for human rights throughout the world.

Our Section is truly a family. Though 70,000 strong, we offer our members

opportunities to teach, write, learn, and network. I am not only proud to be a trial lawyer; I am proud to be a member of the Section of Litigation. Get more involved yourself. It's good for the pro? fession, good for the public, and good for you and your law firm, company, or

public entity. I will have no greater honor in my career than chairing our Section of Litigation. I look forward to

representing the profession and our members this year.

I will take this message everywhere I

go: Trial lawyers and litigators are

truly proud of who we are and proud of what we do. 10

Trial

Notebook

(Continued from page 60)

teaching advocacy. First of all, you should never argue every point you can think of?especially if you're winning. Second, you never persuade anyone by telling them that they're wrong?and I hear lawyers do it all the time."

"I agree," said Angus. "Argue to the

judge, not with the judge. People are attached to their own ideas?and telling the judge he's wrong amounts to a per? sonal attack. Besides, arguing with the court forces the judge to adopt your opponent's arguments in self-defense."

"Wait a minute," said Judge Standwell, "I want to write that down."

Base Your Argument on Obscure Technical Details

"I learned this rule the hard way," said Dick Mudger, "by losing a case I should have won.

"I had an iron-clad statistical case. The information was wonderful ?

absolutely unassailable. My expert was the head of the economics department at the university. He used graphs and charts and diagrams that nailed down

every conceivable point. They antici?

pated and refuted every possible attack.

"That was the basket I put my eggs in.

"The problem was all those charts and graphs and diagrams?not to men? tion my expert's testimony?were too

dense, and the jury just didn't get it. "It wasn't until later that I heard

Jeanne Fleming from Metricus, a jury research organization in Palo Alto, Cal?

ifornia, explain what's wrong with that

approach. "'When it comes to technical mat?

ters,' she said, 'most people have a lim? ited attention span. The heart of the case is plot, motive, and character.

'"When the jury can't understand what you're presenting, they turn their attention to something they can under?

stand?particularly motive and charac? ter. So never make the centerpiece of

your case something that doesn't relate to the interests or abilities of the fact finders.'"

Push a Good Point Too Far "Understatement is more powerful

than overstatement," said Beth Golden. "The harder you push?the more you tell everyone how they should think? the more sales resistance you get from the judge and jury. Which is what we

mean by Show?Don't Tell. "Sara Blooming was a school teacher

in a fact situation written by Gary Robb of Kansas City, Kansas. Sara was lead?

ing her third-grade class on a field trip through a soft-drink bottling company when a bottle exploded and a piece of

glass shrapnel came flying through the air and hit her in her right eye. It sliced

through her cornea, cut through the iris and lens, all the way back through the retina and severed her optic nerve.

"Because the optic nerve doesn't

regenerate, her right eye had to be sur?

gically removed and replaced with a

glass eye for cosmetic purposes. She could still see with her left eye, but it

periodically gives her trouble. "The case was argued before 700

lawyers in a Chicago continuing legal education program. The defense con? centrated on how well Sara was able to see. But they couldn't resist pushing too

hard, and kept talking about 'Sara's

good eye.' "It was the perfect setup for the plain?

tiff's rebuttal: 'Have you noticed how the defense keeps talking about 'Sara's

good eye'?as if she still has two eyes and the only problem is that one is not

quite as good as the other? I'm sorry, Mr. Wilson, but Sara only has one eye because of what your client did to her

other one. And the only eye she has left was not her good one.'"

Argue Irrelevant Facts "I just got dinged with this one last

week," said Regis McCormick. "I was in Judge Wallop's court, trying a little

one-day case without a jury, when Myra Hebert, who was defending the case, suddenly objected that one of my ques? tions called for hearsay.

"To be honest with you, I had no idea whether it violated the hearsay rule or not. But I had to say something. So I

said, 'Your Honor, this evidence is

absolutely crucial to my case. Without it we have a big hole in the facts that establish liability.'

"Then Judge Wallop said, 'Do you have any other response to the defen? dant's objection, counsel?'

"I said, 'No, Your Honor,' and Judge Wallop sustained the objection. He said I had admitted I had no legal basis for offering the testimony into evi? dence. When I said the evidence was crucial to my case, he said I was argu? ing something that was irrelevant to its

admissibility. "Then to add insult to injury, at the

end of the trial the defense argued that I had also admitted that I had failed to

prove an essential part of my case."

Judge Standwell said, "Regis, I've

got to compliment you. It took guts to tell that story on yourself."

"Thanks, Judge," said Regis. "So I hope you won't mind if I make

an additional suggestion," said the

judge. "Get rid of that phrase you use, 'To be honest with you.' Otherwise some day you'll find yourself using it to a jury. It says that with you truth is an option?one you don't always exercise."

Give In to Sudden Inspiration Then it was Flash Magruder's turn. "One of the most dangerous times in

any trial is when you're in the middle of final argument and out of the blue comes a stroke of brilliance?an idea for a wonderful argument that will win the case," he said.

"The problem with a sudden inspira? tion is you only have time to think of how to use this great idea?not to con? sider whether it might come back to bite

you?which it typically does. "Like the Illinois farmer who was

shopping in St. Louis, Missouri, and

slipped and fell in the defendant's store.

Litigation Summer 2004 Volume 30 Number 4

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