Chance Favors The Prepared Mind: Litigation Lessons From The Super Bowl

Bill Belichick knows that preparation is the key to winning, and Sunday’s Super Bowl confirms his thinking.    In the waning moments of the game Tom Brady sits dejected on the sidelines as his fourth Super Bowl win is evaporating before his eyes.  Jermaine Kearse had just made an insane catch, and everyone knows that a one-yard run from Marshawn Lynch is a gimmie.  In the blink of an eye, an unknown rookie cornerback snatches victory from the jaws of defeat.  Tom Brady is jumping up and down on the sidelines like a school boy who just heard that school was canceled for a snow day.

The pundits immediately began questioning Pete Carroll’s calling a pass play on the one-yard line.  In reality, the call was not a bad call.  New England was in a goal line defense and the Seahawk’s play was a slant with a pick built into it.  If the pass had been incomplete, Seattle still had a timeout and two plays for Lynch to run the ball.

So what does all this have to do with a products liability blog and litigation?    In the post-game interview, Malcolm Butler was unable to articulate much about his interception.   However, the one word that jumped out at me was “preparation.”  Clearly, Bill Belichick is a great coach, and part of his genius lies in motivating his players to be prepared for contingencies.  As litigators, we see a lot of different plays called throughout the course of a particular case.  However, chance favors the prepared mind.  Young lawyers in particular need to be mindful of the value of preparation; know the adversary, know the judge, review the facts, analyze the law, and then do it again.   When one steps into the arena, whether it is the Super Bowl or the courtroom, you cannot be overly prepared.   Malcolm Butler had studied game films that had suggested to him that the Seahawks formation could be a pass play across the middle.  Once he realized that, his instincts took over, and he made a great play on the ball.  Just two plays earlier, Jermaine Kearse’s preparation and practice of catching thousands of balls helped him to catch a ball that was uncatchable.  Repetition is the mother of all skill, but I will cover that in another post.

In the final analysis, New England won because of Malcolm Butler’s preparation.  He had properly prepared for the game, and when the crucial situation presented itself, his preparation paid off.   In the course of litigation, when critical opportunities present themselves, chance will always favor the prepared mind.

Law Day: The Great Equalizers

Recently, Pope Francis tweeted: “Inequality is the root of social evil.” I would like to go a little further and suggest that in the United States, lawyers are the great equalizers. Our Constitution was drafted, in part, by lawyers seeking to avoid the dangers of a monarchy and an overzealous government. Our Bill of Rights makes us unique and gives us not only rights, but responsibilities. In his speech at the Sorbonne on April 23, 1910, then former President Teddy Roosevelt, speaking most eloquently about the duties of citizens in a democracy, said, “To you and your kind much has been given, and from you much should be expected . . . no self-respecting individual, no self-respecting nation, can or ought to submit to wrong.”

Today, in this time of 24 hour news and 24/7 Internet bombardment of opinion and disinformation, there must be guardians of truth. Our Constitution sets forth the framework for finding the truth with rights, including but not limited to, free speech, due process of law, equal protection, counsel in criminal matters, and protection from illegal search and seizure. But this precious framework is worthless unless we have champions willing to stand in the breach and cry foul when these rights are abridged, either individually or against society as a whole. The list of legal championships is long, and in the history of the world unique to the United States of America: Marbury v. Madison, Brown v. Board of Education, and Gideon v. Wainwright are just a few examples. Each case was championed by a lawyer, who was not afraid to seek truth, justice and equality.

Just this week, the owner of the L.A. Clippers was banned from the NBA and fined $2,500,000.00 because of racist statements he made in a private conversation. The NBA may now try to take away his ownership of the team. Notwithstanding the despicable nature of his comments, the issue may come down to whether a citizen may be deprived of property as a result of a surreptitious private recording of his speech. He has the means to hire an army of lawyers to protect his property rights. But what about the aggrieved single mom who can’t support her family because of a deadbeat dad, the falsely accused indigent, or the individual who is the subject of racial, gender, age or religious discrimination? Who will take their cases? Most likely, it will not be an army of lawyers hired by a multimillionaire. No, it will be a solitary lawyer who takes seriously his or her oath “to preserve, protect and defend the Constitution of this State and of the United States . . . and to assist the defenseless or oppressed by ensuring that justice is available to all citizens. . . .” President Abraham Lincoln knew the trials and tribulations of a lawyer seeking justice, truth and equality. These lessons he learned so well were the foundation for his quest for equality for all Americans. Speaking on the issue of equality and the framers of the Constitution, he stated, “They meant to set up a standard maxim for free society which should be familiar to all – constantly looked to, constantly labored for, and, even though never perfectly attained, constantly approximated, and thereby constantly spreading and deepening its influence, and augmenting the happiness and value of life to all people, everywhere.

I know of no greater honor in civilian society than the privilege of representing a client in pursuit of truth, equality and justice. We lawyers must always be willing to stand in the breach between lies and truth, injustice and justice, and inequality and equality. So, on this Law Day 2014, take stock in the words of Pope Francis, President Lincoln, and President Teddy Roosevelt. In our society, we lawyers are the great equalizers and we must fight social evil by “constantly” laboring for equality. If he were alive on this Law Day 2014, I think that President Roosevelt would be telling us: The credit belongs to the lawyer who is actually in the courtroom… who strives valiantly; who errs… who comes short again and again… who does actually strive to do the deeds…. who knows great enthusiasm… who spends himself or herself in a worthy cause… who at best knows in the end the triumph of high achievement, and who at worst, if he/she fails, at least fails while daring greatly, so that his/her place shall never be with those cold and timid souls who neither know victory nor defeat.

Thoughts on the National Foundation for Judicial Excellence and its Ninth Annual Symposium

The National Foundation for Judicial Excellence just concluded its Ninth Annual Symposium, “From Jurisdiction to Jurisprudence:  Emerging Issues in State and Federal Constitutional Law.  Over 80 state court appellate judges from across the United States attended the event in Chicago.  Headline speakers included Rod Smolla, acclaimed First Amendment Scholar and noted appellate lawyer; Professor Richard Epstein of New York University School of Law and Professor Akhil Reed Amar of Yale University Law School, both known nationally as preeminent constitutional scholars.  The NFJE was created nine years ago for the purpose of providing and preserving an independent and well-educated judiciary.  The Board of the NFJE strives to provide an educational opportunity for State Appellate Court Judges that are on cutting edge legal issues from the point of view of Civil Defense Bar and Corporate America.

Recently, I was speaking to a group about the group, and I was asked, “Why are you willing to volunteer so much of your time to the NFJE?”  The answer to that question lies in the words of President Theodore Roosevelt, spoken during his Inaugural Address on March 4, 1905.  “Much has been given to us,” President Roosevelt said, “and much will rightfully be expected from us.  We have duties to others and duties to ourselves; and we can shirk neither.”

The Board and the Program Committee of the NFJE are made up of lawyers who give generously of their time, talent and treasure.  Each NFJE Symposium is a labor of love and our volunteers feel an obligation to improve our civil justice system.  Every citizen of the United States has a right to the peaceful resolution of their civil disputes.  As lawyers, we have the honor of advocating for our clients in matters brought before our state courts.  However, as officers of the court, we also have a duty to ensure that our courts are up to the tasks of making the right decisions, at the right time, in each and every case.  Our society is premised upon the rule of law and it is essential that our citizens have confidence in the ability of our courts to decide properly the matters brought before them.  The Constitution of the United States of America was established “. . . in Order to form a more perfect Union, establish Justice, insure domestic Tranquility… promote the General Welfare, and secure the Blessings of Liberty to ourselves and our Posterity . . .”  At the NFJE, we believe that a well-educated judiciary is the key to preserving the constitutional rule of law and our civil just system.

Executing the mission of the NFJE is no small endeavor.  Our successes flow from our strong Board, excellent Program Committee, and generous contributions from thousands of civil defense trial attorneys across the country.  Our volunteer lawyers shirk neither their duty to themselves nor to the civil justice system.  We believe that we are providing the judiciary with an educational opportunity that is vital to this grand democratic experiment and true to another one of President Theodore Roosevelt’s exhortations, “There is no good reason why we should fear the future, but there is every reason why we should face it seriously, neither hiding from ourselves the gravity of the problems before us nor fearing to approach these problems with the unbending, unflinching purpose to solve them aright.”

[Editor’s Note: Mills Gallivan served as the President of NFJE during this Symposium (July 2012 to 2013), and he will serve as Chairman of the Board in 2013-2014.]

30th Anniversary: “Absence of Malice”

[Editor’s Note: Thirty years ago this week, on December 18, 1981, the film Absence of Malice was released to theatres.  If you’ve not seen it, go rent it immediately. Written by Kurt Luedtke and David Rayfiel, and directed by Sydney Pollack, the film starred Paul Newman and Sally Field.  But it was the cameo of Wilford Brimley in the film’s final scenes that really resonates with us all these years later.  So, we asked our fearless leader, Mills Gallivan, to share his thoughts on the film’s thirtieth anniversary, and he has done so in the piece below he calls “Abnormal Malice.”]

Even though Wilford Brimley’s portrayal of James J.Wells, U.S. Assistant Attorney General, in Absence of Malice is not a courtroom scene, it remains one of the truly great legal scenes in movie history. Brimley’s character appears late in the movie and steals the show from superstars Paul Newman and Sally Field. This Sunday marks the thirtieth anniversary of the film’s release and prompts reflection on the ongoing morality play occurring within the story

Anyone who has seen Absence of Malice could not forget Wells’ gravely southern drawl and down home demeanor when he says:

“Tell you what we’re gonna do. We’re gonna sit right here and talk about it. Now if you get tired of talking here, Mr. Marshal Elving Patrick there will hand you one of them subpoenas he’s got stuck down in his pocket and we’ll go downstairs and talk in front of the grand jury. Elliot? Jim? Fine. All right, Elving, hand whichever one of these fellas you like a subpoena and we’ll go on downstairs and talk in front of the grand jury.”

It is not just his suspenders that give Wells instant credibility, it is also his laser like focus and targeted approach to get to the bottom of a botched government investigation that has been compounded by press leaks. We are immediately drawn to Wells’ dedication to the truth; his character appeals to our natural morality and sense of fair play. This scene comes at the end of a twisting plot that takes protagonist, Michael Gallagher, played by Paul Newman, on a journey of manipulation by third parties who have destroyed his life.

Gallagher’s odyssey begins when over-zealous federal prosecutor Elliot Rosen leaks false information about Gallagher to Megan Carter, a young, naive and impetuous reporter played by Sally Field. Rosen hopes that the news story, albeit false, alleging that Gallagher is the target of an investigation into the murder of a local union official will lead him to a real suspect.  Megan seems to have no compunction about printing a story that has not been verified. Megan, like many people, does not learn from her mistakes. She continues putting out unverified stories and heaping more and more misery upon Gallagher, who quickly learns that absent actual malice, there is no legal recourse.

Realizing that he must do something, Gallagher takes Mark Twain’s advice not to start a war with the newspaper, which he knows “buys ink by the barrel.” Instead, he decides to get even; and with his own clever deceptions, orchestrates the events that culminate in the meeting with Assistant Attorney General Wells.

Near the end of the movie, Megan admits that there are no rules to direct when she should or should not print a story. When pressed by Wells to reveal the source for one of her stories she finally defaults to her own sense of right and wrong. Ultimately, she refuses to reveal additional sources in order to avoid further harm coming to others. Conversely, there are a myriad of rules relating to products liability law. We have statutes, case law, rules of civil procedure, local Federal Rules, product safety rules and regulations, and, most importantly for lawyers, the Rules of Professional Conduct.

So what has this to do with products liability and what the heck is Abnormal Malice? The gist of Abnormal Malice was best expressed by Assistant Attorney General Wells when he said to the assembled cast of guilty parties:

“Now we’ll talk all day if you want to. But, come sundown, there’s gonna be two things true that ain’t true now. One is that the United States Department of Justice is goin’ to know what in the good Christ – e’scuse me, Angie – is goin’ on around here. And the other’s I’m gonna have somebody’s ass in muh briefcase.”

This is a seminal moment for any lawyer; it is the instant when you know that you are getting the truth, and when you know “somebody’s ass” is in your briefcase. In today’s litigious society, lawyers often have to guard against abusive tactics aimed at putting our clients in precarious positions for the purpose of leveraging unreasonable settlements. We think of underhanded tactics as Abnormal Malice: attempts to direct the court and fact finders away from the truth through discovery abuses, frivolous motions, sanctions, and biased press coverage.

The current economic and political environments have created a high level of distrust for Corporate America. Americans are very unsettled due to the Great Recession, TARP Bailouts, high unemployment and Congressional gridlock. Occupy Wall Street is just one example of the level of frustration and distrust. Nevertheless, it is incumbent upon us as attorneys to represent our clients to the best of our ability in the relentless pursuit of truth. We do this through zealous but fair advocacy to achieve a just result for our clients. Knowing the rules of the road is essential to the advocate seeking judicial decisions based upon the law and the facts on the record. Most cases do not go to trial, but fair and reasonable settlements are based on a good understanding of where the truth lies and the chips will fall.

Wells sums up the procedural essence of the search for truth: “Wonderful thing, a subpoena.”

In the last 30 years, the information age has all but killed newspapers. Instead, we are deluged 24/7 by information and misinformation. Even beyond the news channels and talk radio, we are just now seeing the potential for adverse impact on juries by social media outlets such as Google, Facebook and Twitter. As lawyers we must be ever vigilant against the omnipresent threat that Abnormal Malice may improperly influence the jury. At the end of the day, our juries are the factor that most distinguishes our civil justice system as the best in the world. In fact, our civil justice system is the best tool we have for seeking the truth, and it is all that protects us from the mayhem of no rule of law.

As lawyers we have a duty to make sure that our system of civil justice is fair and accessible to all. The citizens of our country and our potential jurors must have faith that our system works. They must believe that our courts are level playing fields and that all the players are abiding by the rules and being held accountable for any Abnormal Malice. Our courts must be seen as the place where things are made right in the eyes of the law. Assistant Attorney General Wells clarifies our expectations quite nicely:

“We can’t have people go around leaking stuff for their own reasons. It ain’t legal. And worse than that, by God, it ain’t right.”

Legal Lessons from The Magnificent Seven (1960) on its Fiftieth Anniversary

[Editor’s Note: This coming Saturday, October 23, 2010, marks the fiftieth anniversary of the release of the classic Western movie, The Magnificent Seven, which starred Yul Brynner, Robert Vaughn, Charles Bronson, James Coburn, and of course, Steve McQueen. Directed by John Sturges, the film was based upon the 1954 Japanese film, Seven Samurai, directed by Akira Kurosawa. To celebrate this occasion, we here at Abnormal Use asked our boss – senior partner Mills Gallivan – for his thoughts on the film and lessons we can learn from it as lawyers.]

“If God didn’t want them sheared, he would not have made them sheep.”

If you are familiar with this quote then you are probably a fan of Westerns and, in particular, The Magnificent Seven. This cult movie is on most, if not all lists of the Top Ten Westerns ever made. This week marks the fiftieth anniversary of the film’s American release. The movie was originally released in Europe and was so popular that it was re-released in America and immediately became a huge hit and financial success. The musical score for the movie was composed by Elmer Bernstein and nominated for an Academy Award in 1961. The theme song is stirring and has been used in numerous other movies, musical compositions and ads, including the old Marlboro commercials. Anyone over the age of fifty would immediately recognize it.

The movie is inspiring as you watch a small band of dedicated professional gunmen take on huge odds in the defense of a hapless Mexican village. I recently read about a college football coach who shows the movie to fire up his team the night before each game. Throughout his career, he has now shown it over 500 times to his various teams.

The quote above is from Calvera, the bandit who regularly pillages a small village in Mexico. He is speaking to the members of the Magnificent Seven, and trying to talk them out of defending the villagers, who he sees as his sheep. His is a great rationale if you are a bully and a thief! As you might expect, this argument does not persuade the seven professionals who have taken the job on a matter of principle. Consider the following exchange between Chris (Yul Brynner) and Vin (Steve McQueen), the two leaders, about their commitment:

Chris: You forget one thing. We took a contract.
Vin: It’s sure not the kind any court would enforce.
Chris: That’s just the kind you’ve got to keep.

So what does this have to do with products liability law?

Oftentimes, corporate defendants in products cases feel much like the villagers in the movie, victimized, bullied and about to be sheared. Certainly, the villagers are much more vulnerable and sympathetic than a corporate defendant. However, the often perceived motivation of the plaintiff’s trial bar is sometimes very similar to that of the bandit Calvera. This motivation can be greed, which is fueled by money and power. One has only to look at the tragic demise of the now infamous trial lawyer Dickie Scruggs to understand that for some plaintiff’s lawyers, justice is not the ultimate goal. Scruggs plead guilty to mail fraud and bribery and when Judge Glen Davidson imposed his sentence he quoted William Barclay, a Scottish philosopher, who said, “The Romans had a proverb that money was like sea water. The more you drink the thirstier you become.”

So what makes The Magnificent Seven magnificent? I like to think it is their courage in the face of insurmountable odds and their unwillingness to cut and run when given the opportunity. One definition of magnificent is noble, and these hired guns see their salvation in taking up the noble defense of the villagers. They are determined that Calvera will not shear the villagers again without paying a heavy price. The bandit releases them after the first skirmish, thinking that they really are not willing to die for peasants who can not pay them and who will not fight for themselves. The concept of a noble cause also resonates with good defense trial lawyers; as a group we believe in our clients’ positions, seek justice and will not be intimidated by an adversary or judicial hellhole. Calvera underestimated the commitment of the men he faced and it was a huge mistake.

Shortly after being released and ordered back across the border to Texas, James Coburn’s character Britt foretells the final showdown when he says: “Nobody throws me my own guns and says run. Nobody!”

A capable plaintiff’s lawyer will not underestimate the defense legal team, or at least, not more than once. So when you are in a battle to defend your products and keep your company from being sheared, where do you turn? After fifty years, six of the members of the Magnificent Seven are dead, and the lone survivor Robert Vaughn (Lee) is an actor not a lawyer.

When it is all on the line, you need defense trial attorneys with consummate skill, integrity, courage and a willingness to fight to the last barricade. Lawyers who know that ultimately justice can and will prevail and who are not afraid to say to the Calveras of the world:

Calvera: Somehow I don’t think you’ve solved my problem.
Chris: Solving your problems is not our line.

Bluejays and Mockingbirds

“Shoot all the bluejays you want, if you can hit’em, but remember it’s a sin to kill a mockingbird.” This advice by Atticus Finch to his young daughter Scout is as poignant today as it was when Harper Lee first published it 50 years ago this week in To Kill a Mockingbird. This Sunday, July 11th, 2010 marks the Golden Anniversary of Lee’s iconic novel about courage, racial prejudice, compassion, and access to justice. This beloved story is second only to the Bible on several reading lists for books that “make a difference.”

While he is fictional, Atticus Finch has served as a role model and inspiration for many lawyers since his creation in 1960. His unwavering courage in defending Tom Robinson is best summed up in his own words to his son, Jem: Courage is “when you’re licked before you begin but you begin anyway and you see it through no matter what.” Atticus was persistent. He never lost faith in the American jury system, notwithstanding the terrible injustice of the guilty verdict rendered against his client.

What does Atticus Finch have to do with products liability? Not much. What does access to a jury trial have to do with products liability? Everything! In the same 50 years since the publication of To Kill a Mockingbird, the Federal Rules of Civil Procedure have been amended 10 times. With the exception of the rewrite in 2007 to make them easier to understand (which is worthy of an entirely separate blog entry), it is challenging to argue that the amendments have made access to a jury trial in federal court easier or more efficient. These assertions are borne out by the dramatic fall off in civil cases tried to a verdict in U.S. District Courts across the country. In 2009, according to the Clerk’s Office for the U.S. District Court of South Carolina; 3,532 cases were filed and only 21 cases or .0059% were actually tried to a verdict. Using a cost benefit analysis one must at least ask the question: Does this level of utilization justify the cost of the system?

Blame it on ADR, the FRCP, run away verdicts, cost, or the reason du jour. The fact of the matter is that the civil jury trial is on the endangered species list. The primary distinguishing factor of the American civil justice system is our jury trial. Access to the jury trial in Federal court must not only be preserved, it must be improved. If we truly view Atticus Finch as role model then it is time for lawyers to step up, shoot some bluejays and save the mockingbird. How do we do this?

On May 10th and 11th the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States sponsored a conference at Duke University School of Law. In addition to the judicial participants, over 70 panelists and speakers came together to discuss major substantive revisions to the FRCP, and ultimately, access to jury trials in federal court. Matters being considered included, but were not limited to: Pleadings, Discovery, Protective Orders, and Cost and Delay. Our firm’s lawyers through their membership in the Lawyers for Civil Justice have been involved in and supportive of this movement for improving the FRCP and access to the civil jury trial. Follow this link [PDF] to the LCJ White Paper submitted at the Duke Conference. If you have yet to get behind this effort, now is the time to make your position known. If you would like more information about this exciting opportunity for change please contact us.

And remember, while, “[i]t’s a sin to kill a mockingbird,” it may be a greater sin to let one die when there is an opportunity to revive it!