Up in the Cowfields

This is a cautionary tale. It's about never underestimating your adversaries, even the ones up in the sticks.

I join my present firm in 1976. I'd practiced before as a Legal Services do-gooder, first briefly in rural Florida, then in Washington, DC. I'd followed that with four years with the DC Public Defender Service. I return to Connecticut, my home state, as an Assistant United States Attorney and work under and with the incomparable Peter Dorsey, now a Senior District Court Judge whose gifts of compassion, humor and insight have graced our Federal Court for almost thirty years.

I never practiced in New York. Never wanted to. Oh, I know that many lawyers consider New York the Major Leagues of lawyering. That's where all the hotshots practice "real law". I am about to be introduced to that practice. At the time our firm is local counsel to a big New York firm that represents the plaintiff in a huge anti-trust case. The defendant is similarly armed. The great minds decide to litigate this case in Connecticut. It would, lawyers for both sides believe, really dazzle the folks up there in the cowfields.

When I say the case was big, I mean big. This was real big-time New York practice. Everything and everyone is really important. Not only is no stone left unturned, each is intensely scrutinized, analyzed and categorized. Four separate firms represent the plaintiff. Armies of full-time and contract lawyers, paralegals, secretaries--both day and a night versions-- work 7 days a week, 12 or more hours a day, and sometimes through the night. All are located on two full floors of an office building on Madison Avenue with a multi-year lease dedicated to work solely on "the case".

Discovery-depositions, digesting depositions, painstakingly seeking needles of proposed findings of facts from huge haystacks of paper-- takes almost four years People fly around the country and around the world deposing high-level, mid-level and seldom-level executives and their staffs about deeds, misdeeds and irrelevant minutia. In fact I once fly to Cleveland to attend the deposition of a supposed "Custodian of Records" only to learn that the witness was really the custodian. You know, the guy with the feather duster and vacuum cleaner who shows up after hours to empty the wastebaskets and clean the floors. [Ask me sometime about wastebasket liners and shredders.]

And that's just one side of the case. The cadres of corresponding lemmings on the other side are equally industrious, voluminous and myopic.

It's certain that all the lawyers probably know more about the Federal Rules of Civil Procedure than the late Fleming James. Most can research, analyze and write like mini-Brandeis's. Whether anyone has ever appeared in court is questionable. More doubtful is whether any have ever gotten closer to a jury than a balcony seat for a screening of Twelve Angry Men. Despite these deficits, attorneys on each side see this case as a trip to the country where they can teach the locals how law is practiced in the Big City, the way it should be. It's a kind of legal Peace Corps mission to the Nutmeg State.

It is often unwise to assume others know less than you. This is an example of such an error of judgment. You see our friends from Gotham had made two miscalculations. First they didn't realize they would run into the smartest person I've ever seen in a robe, Judge Jon Newman, who would ultimately go on to become Chief Judge of the United States Court of Appeals for the Second Circuit. He plays them like a Wurlitzer, always at least two steps ahead and always in control.

The second is that one of the local yokels, my partner, Ira Grudberg, is just as smart or smarter than any two of them, has tried a ton of jury cases, knows how to examine and cross-examine witnesses better than anyone on the East Coast and, significantly, can talk to people--judges and juries--in a way that is convincing because it is laced with common sense. He knows, as they say, his way around a courtroom. One of Ira's gifts is making the complex seem simple and persuasively obvious.

All of this plays out, of course. Ira is the only one in the courtroom who knows what he's doing. Due, it large part, to his skills the jury actually awards the plaintiff a substantial award. Unfortunately, Judge Newman, ever in control, ultimately, rules that the plaintiff's verdict is not supported by the evidence and sets it aside. Not the result we, nor our more refined brethren and sistren, were hoping for. And our adversaries knew they were more lucky than good.

The legions from Metropolis return from whence they came.. Perhaps a lesson learned. You have to be careful when you walk through a cowfield. Sometimes you step in things when you're not looking and you can get your feet dirty. Up here in the cowfields we may not be all that glitzy but we actually do know what we're doing when it comes to walking around a courtroom and talking to people. It's a mistake to think otherwise.