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JANUARY 2014 - Levity
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"A Little Levity Please!" Series

Editor’s Note: Let’s face it – the practice of law can sometimes be a little stressful. Even if you’re the type who thrives on stress, it can still be good to crack a smile every now and again. In this "A Little Levity Please!” series, WLALA will feature stories designed to bring a little humor to your day. Submissions welcome from all members!

It's Personal, Not Business

By Noelle Natoli-Duffy

With the recent passing of James Gandolfini I am reminded of the many years he portrayed the mob boss Tony Soprano—a character you wanted to hate on moral grounds, but was just so utterly transparent with emotion you couldn’t help but fall for him time and again. Tony Soprano didn’t worry about feelings—he had an animalistic nature, often responding barbarically to situations—yet at the same time, his viewers always knew how Tony felt about the given situation.  He took things personal and he handled things personally, taking matters into his own hands.            

On a day to day basis, we, as attorneys battle the urge to take our cases personal, whether dealing with a cantankerous judge, a sniveling party, or a conniving attorney on the other side.  We are told to take the high road and ignore attacks on our credibility.  We are told to resist the urge to fight back when our reputation is tarnished in open court by false accusations.             

At the same time, when you are in the heat of it—when you are about to try a case—you are balancing all of the above with gathering the evidence, prepping the witnesses, deposing the experts, and getting that last minute dirt on the other side. That, my friends, is when we really need to have strict code to follow.            

So, what if we can do both?  What if we can maintain the dignity of our profession and beat them at their own game?  They put one of ours in the hospital? We put two of theirs in the morgue.            

So, I say if you want to make it as a trial attorney, you have to take some lessons from the mob…Il Mafioso…La Cosa Nostra if you wish. 

Rule #1:          EVERYONE HATES A RAT.  Juries hate plaintiffs who lie. Conduct complete and thorough pretrial investigation and discovery, including background investigation, and surveillance, and review medical, employment, and billing records.  If you can effectively impeach plaintiff without the jury’s empathizing with him, go for it. 

Rule #2:          KEEP YOUR HOUSE IN ORDER.  As the capo, it is your job to take command of the evidence. Know your documents, back and forth before you get to trial. Have a game plan for how you intend to introduce each piece of evidence, through which witness, and for what purpose.  Do the same for plaintiff’s documents and you will know your objections in advance. 

Rule #3:          PUT YOUR MONEY WHERE YOUR MOUTH IS. Retain all the experts you need. This is not the place to save money. Get them the materials they need to perform a thorough review of all the case facts.  Pay the extra money to sit down with them, go over all of their opinions, and get their take on the cross-exam of the plaintiff’s expert. 

Rule #4:          KEEP YOUR FRIENDS CLOSE, AND YOUR ENEMIES CLOSER.   If at all possible, work with the other parties as much and as long as possible.  Try to make a side deal to exchange information or other agreements that will be mutually beneficial.  Use your alliances to keep the target off your client.  This is where you save your client money—by not picking needless fights resulting in costly law and motion. 

Rule #5:          DISPOSE OF THE WEAK LINKS: Move to preclude introduction of evidence that either hurts your case in chief, or enhances plaintiff’s credibility.  Remove witnesses from your witness list and documents from your exhibit list that have little or no value.  Make sure plaintiff’s case in chief isn’t reliant on your witnesses or documents—and, if so, find a way to do without them. 

Rule #6:          SHOW PROPER RESPECT TO THE GODFATHER.  Comply with all of the court’s local rules.  Show up on time, in presentable attire, and show the proper deference to the Judge. Otherwise, you will find yourself getting "whacked” in front of the jury. 

Rule #7:          GO TO THE MATTRESSES.  Create a game plan and commit to it. Show the jury you are passionate about the position you have taken. Attack the evidence. Cross-examine witnesses with confidence.  Make opposing counsel very aware of the fact that you may be a "nice” guy/gal, but you have no hesitation shutting them down.   

Rule #8:          LEAVE THE GUN, TAKE THE CANNOLI.  Don’t let your personal preferences overpower your judgment.  Anticipate when it will better serve your client to user a softer touch instead of leveling the hammer.  Determine which technique will make the best impression with the jury. 

Rule #9:          LOOK OUT FOR UNCLE TONY.  Do not underestimate opposing counsel’s ability to bring out an enforcer.  Anticipate the ways in which the opposing party might try to surprise you with new evidence or testimony, and, more importantly, be prepared with a response BEFORE trial begins. 

Rule #10:        IT’S NOT PERSONAL, IT’S JUST BUSINESS.  This is the one rule I would not follow.  Trial IS personal. If you do not intend to take it personal, if it is not personal TO YOU, then you should not be there. Let somebody else try the case.

 

Noelle Natoli-Duffy is co-chair of WLALA's Business Development Committee and an attorney with Foley & Mansfield.  Her tongue-in-cheek comparison of mob tactics to trial practice was originally published in "The Voice," the weekly newsletter of the Defense Research Institute.

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*If you would like to contribute to this series, please contact the WLALA Communications Officer, Heather Stern at heather.stern@kralikjacobs.com.

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