Sometimes Say Never

As published in The Chicago Daily Law Bulletin
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​I accept that Taylor Swift and I are never, ever getting back together.
 
I accept that I will never be Celt of the Year.
 
I accept that I will never dunk a basketball, Snapchat, or get my wife Holly anywhere on time. 
 
You can spit into the wind. You could pull on superman’s cape. But there are some true nevers.  Here are a few.

1. Never tell a judge, “With All Due Respect.”  This is very close to No.1 on many judges’ lists of nevers. It’s the protasis to an unspoken apodosis beginning with the word “but” and continuing “you’re an idiot.” The very fact that you have to especially point out your respect is a red flag of distress. Then there’s the troublesome word “due.”  In this context, due means none. Say what you have to say. If you see it differently from the judge, just say so politely. By the way, one of my favorite short stories illustrating this point is With All Due Respect,by Fred McMorrow. 
   
   
2.  Never be mean to a judge’s clerk. Judges see their staff as extensions of themselves. They will hear of it and it won’t be relayed kindly. You won’t like what follows.
   
   
3. Never tell a jury what it must do. The long-running Broadway hit, The Fantasticks, had a famous song with these lyrics, “Why do the kids put beans in their ears? No one can hear with beans in their ears. After a while the reason appears. They did it ‘cause we said no.” As a lawyer in a courtroom you are an authority figure but jurors do not have to do what you say. Few things in life feel as satisfying as sticking it to “The Man” who told you what you have to do. 
   
   
4. Never throw a fit after an adverse ruling. When my daughter Becky was two and she’d throw herself down on the grocery floor and start kicking her feet, I just calmly took off her shoes and began to walk away. You are not going to win every ruling. Don’t lose your shoes. Show your own strength by moving on. Don’t show the judge you’re too weak and too unprepared to handle an adverse ruling. Keep your wits and find another way.
   
   
5. Never leave out the part that hurts you. As a mediator, reading one side’s memo, I always get a kick when I see some huge fact the other side completely left out. Now I have the time to piece it all together. Judges don’t. They shouldn’t have to and it just makes you look silly. In front of your judge and in front of your jury, be very upfront with what you know the other side is going to say that will hurt. Burying your head in the sand and hoping it blows over only demonstrates how very important you think it is and how you have no response to it. Same for citations to depositions and to cases cited in briefs. Recognize the part that’s really going to hurt the very most, bring it right up and deal with it forthrightly. If there absolutely is no answer, at least get the points from admitting it.
   
   
6. Never forget that today’s hated opponent is tomorrow’s good friend. As a battle-focused trial lawyer, this took me a terribly long time to learn. Both of you are in the trenches fighting the same fight. I am so proud and happy that I have great friendships with so many of my former opponents. I am proud I got to work with so many brilliant, creative and tough attorneys. If you treat your opponents with respect, they can become your very best allies. After all, they know more about what you’re really like under pressure than anyone else.
   
   
7. Never tell a judge you’re going to reverse him or her. Don’t threaten. Do.
   
   
8. Never say you did when you didn’t. Never say you will when you won’t. Quoth the Beatles.
   
   
9. You’re never so stupid as when you’re being smart. I first heard this in a Charles Schultz’ Peanutsstrip and I think of it all the time. Just after you’ve brilliantly shown everyone how wrong they are and how you’re the one who really figured everything out, just after that, don’t be surprised to find out you completely missed the whole point. Better to ease into your revelation, making sure you’re really on solid ground. As hard as it may be, try keeping that ego in check.
   
   
10. Never tell a judge, “But that’s how Judge X does it.”I’d respond, “That’s because Judge X is a good judge. Now you got me.” This is the equivalent of “But Judy’s mother lets her stay up to 11:00.” I don’t know. How well did that ever work?
    
    
11. Never think it can’t happen to you. You can lose that motion. You can lose that verdict. Your witness can blow the key question. People change their minds. Be ready. The more you consider scenarios happening in alternate universes, the better prepared you are to deal with the inevitable surprises that will come. Both good and bad.
    
    
12. Never keep arguing when the judge is ruling for you. My former opponent, good friend, and later role model as a judge, Dorothy French Mallen, once asked me if I wanted to try to convince her otherwise after she indicated she was ruling for me.
    
    
13. Never say, “I have just a few questions.” Just ask them and sit down. No matter how few you have it’s never as few as you think. Same for, “I’ll be brief.”
    
    
14. Never act like your argument is a given.  “As you well know, Judge. . .,” “It goes without saying. . .,” “In all my many years, I have never…”, “You can dispose of this easily. . .” (especially wrong when said to a judge substituting for the day on a fully briefed motion), or “Everyone knows. . .” Confidence is great. Smugness is ugly.
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15. Never insult your opponent in front of the judge or jury. If your opponent is as bad as you say, and if he or she beats you, what does that say about you? Attack the argument. Never make it personal. If you simply lay out the facts, you shouldn’t have to get down in the dirt with insults.

For most mistakes, most judges will say, “Never mind.” As long, at least, you always mind the nevers.