Reprinted with permission from the American Bar Association, The Journal of the Section of Litigation.
It is frequently said that Plato’s Republic presents a picture of an ideal state, or even an imaginary one, that could never come close to actually existing. Socrates expressly says otherwise. He insists that the regime he is considering—in his articulation, the rule of the philosopher-king—is not only “best” but “possible.” He admits it could come into existence only by chance, if a philosopher somehow happened to become king, or a king a philosopher. And he intimates that the regime is unstable too. Philosophers don’t have time to rule, and kings have no time to philosophize, so that, like Shakespeare’s Prospero, the best ruler can easily be toppled. It is also short-lived, as a comparably talented successor is never assured.
Still, for Plato at least, the “best city” is no mere “utopia,” a Greek word meaning “nowhere.” It can and perhaps will exist from time to time. Its very possibility, however remote, is instructive, showing us what would be necessary for any existing regime to become “best” and allowing us to measure how near or far any particular regime is to that standard.
Few Would Call Our Legal System “Best”
Few among even the most upbeat observers of the American legal system would ever be tempted to deem it perfect or ever say it was “best.” At most it might be said, to paraphrase Winston Churchill, that ours is the worst of all such systems except for all the others, which may be, in that sense, good enough. Socrates anticipates just such a possibility too. If the regime Socrates describes in the Republic is the “best city in speech,” there may still be a “best city in deed,” i.e., the city that has actually conducted itself and functions practically, day-to-day, in the best way. The “best city in deed” is not “best” simply, of course. It does not ever meet a true standard of excellence.This regime knows it has far to go to be “best” in that sense. But it works well, given the practical interferences every city routinely experiences with its aspirations toward the highest standards. According to Plato, this best city in deed was the ancient, not-to-say mythological, city of Atlantis, the deficiencies of which are underscored by its now being submerged somewhere in the vast ocean.
It still seems almost ludicrous to think of the world of contemporary litigation as “best” even in this lesser sense. Too many headaches and unnecessary arguments; too much litigation and not enough trials; document production nightmares galore; and, at least from the client’s standpoint, costs through the roof. Endless work, endless trouble, endless irritation, endless expense. Clients are fed up. Litigators too. Statistics tell us that many litigators are getting out, or want to do so, unable to bear the difficulties, not to say hardships, of contemporary litigation, even if it is striking that there seems to be no shortage of young lawyers coming in. Older lawyers lament that litigation has gotten so much worse since their younger days. Younger litigators want to take the place of their elders, freed from the next morning’s continued review of a mountain of electronically stored information (ESI), always wondering if the supply of such mind-numbing stuff will ever be exhausted (don’t count on it).
But we might want to set aside for a moment the bother and expense of document review in this Internet-obsessed world (“other than that, Mrs. Lincoln, how did you enjoy the show?”) and look at the current landscape in a different way. Litigators seem not to have noticed that they have passed into nearly a nirvana for the exercise of their skills, a “best” situation in reality if not in concept.
How’s that, you ask? Consider the old days, as they were, in which it was nearly always the case that litigators spent scads of time (and money) simply trying to figure out what happened. Then, as now, giant chronologies were constructed to try to make sure that the actual events were identified and understood. Then, unlike now, there were huge gaps in what a lawyer knew or found out. Lengthy depositions were necessary just to discover the most basic information and cross-check everything that was testified to. It is possible that the most frequently asked question in a deposition before the year 2000 was “What happened next?” Litigators entered into the discovery process as blindfolded persons into a dark, but furnished, room. The goal was to determine through documents and depositions at least some idea where the furniture was. After many stubbed toes or unwanted falls, a general idea might be formed, though often a side table or more was never found at all.
No longer. The reason is that we quickly have in most cases a detailed map how the room is organized. The source of that map: email and other ESI. The very same contemporary development tormenting young lawyers—that unhappy process of having to collect, sort, review, and produce email and related ESI—has also given rise to a far happier consequence on the other end. In many, if not most, cases we find ourselves by the end of the document production process with an almost perfect record of what happened. Human tendencies being what they are, emails tell you everything you need to know, and then some. You know who was involved. You know who said what to whom and when. You know what the response was. You know what action was taken as a result and what the outcome was. Along the way, you even likely learned a lot about the witnesses at issue, their playfulness or seriousness, their outlook on their jobs, and even what they liked to eat for dinner.
There are exceptions, of course. There are the unfortunate games lawyers and their clients play in holding back relevant data. And no self-respecting litigator would forgo the opportunity to confirm in deposition that what the emails seemed to tell us was what really did happen. There are always a few gaps too. But this is a minor matter by comparison with the kind of fact finding that needed to be done previously. Indeed, today, you frequently can approach depositions in a case with a near-certain understanding of what actually took place. This is still true in even an arguable case too. Witnesses will still try to explain or explain away their own words, and every litigator must take steps to understand, exploit, or prevent this. But, again, this is a minor task by comparison with the sleuthing and basic fact finding that used to absorb the bulk of most litigators’ time.
Persuasion: The Highest Litigation Activity
It is difficult to overstate the impact of this on what litigators now do. Indeed, freed of the burden of finding out what the facts are, you might almost be left to wonder what a litigator should do at all. Is a litigator obsolete? Hardly. In fact, these changes to the world of litigation have made it possible for litigators to focus their attention, without distraction, on the highest of all litigation activities: persuasion.
This seems startling only because there is a common misconception, even some-times among litigators, of what litigation is all about. At a recent charity event, a well-known legal commentator, severely criticizing politicians’ uncertain relationship with the truth, stated (correctly) that lawyers know that we are not permitted to say things that are untrue. In the next breath, however, she went on to say (incorrectly) that “we all learned in law school” that you could “fiddle” with the facts “at the margin,” while never departing from the truth on a wholesale basis. Is this the litigator’s art?
Sorry, but no. Any law school that so instructs its students should lose its certification. Indeed, it’s the very notion that it’s OK to be fiddling at the margin that has helped to cultivate a world, participated in by all, in which “fake news” is perceived as OK. Lawyers are not permitted in any way, fiddling or otherwise, or in any place, at the margin or elsewhere, to depart from what’s true. This is what is called lying, and it is an outright failure of a lawyer’s duties as an officer of the court.
Persuasion comprises something different. To assist their clients, lawyers take the facts as they are and put them in the best light, a context that will persuade the trier of fact to find in their client’s favor. Take as an example the famous trial lawyer’s trick of showing her bare hand. She holds up her hand, palm facing the jury, and invites the jury to note how it looks. Then she flips her hand around so the knuckles are facing. Same hand. Different view. No “fiddling” there. Just a different perspective on the hand for the jury to consider. This is the true art of rhetoric, a knowledge of how to present what’s known (or possibly still unknown) in a way most likely to persuade the trier of fact to find for your client.
It is in this sense that contemporary litigation may have given us the “best of all possible worlds.” Having dispensed with the need (or perhaps unloaded it on associates) to develop the fundamental facts, litigators can now focus on what truly separates the Clarence Darrows from the Danny DeVitos. Can you portray the facts in a light so favorable to your client that you are likely to win? This is far more satisfying and challenging than figuring out “what happened next.” The truly skilled will here be at their “best.” It has been said that the greatest trial lawyers can take the other side’s best facts and make them their own. Without having to be diverted by the question of what the facts are, the trial lawyer can now pour all her talent into winning her case in this way. What could be better?
You may with some justice argue that this is an overstatement. Even if it is, it’s clear that today’s circumstances are unprecedented. At no other time in the short history of litigation has every litigator been able to play trial lawyer to this extent. Now it is no longer a remote possibility; it is what a skilled litigator is left to do.
The striking thing is how little litigators have noticed. The proof is the deposition. With the facts already mostly known, what is a deposition even good for anymore? Plenty. Just not of the old variety. Because you know the facts, you have only to figure out how you can most effectively present them, to succeed in your case. The question is no longer what the facts are; rather, the question is how you are going to prove your case based on these facts. The answer is rather simple: again, by putting them in the most favorable light. The good in a deposition can be, should be, to support and advance that final outcome.
What does this mean in practice? Have a favorable document? The usual tendency, a bit of a holdover from the days when you couldn’t be sure how it fit into the overall scheme of things, is to confront the witness with it. What was questionable in the old days is outright lunacy today. What will you learn by doing this? How will it advance your case? Its role in the sequence of events is already known. If the witness or his lawyer doesn’t know about the document for some reason, you’ve let the cat out of the bag. He sure knows about it now. And if the witness does know about it, have you accomplished anything by showing it to him besides the perverse and unhelpful pleasure you have gotten from making him squirm? And will he squirm, or just explain it away?
Yet, today, lawyers still go through their chronological pile of documents with the same mulish insistence they always did. At least in the old days, you had some chance of developing your understanding of events. Today, it is just plain worthless, at best.
A Better Idea for Questioning
What should be done instead? You know all the facts, or at least the vast majority of them. You know what you would like the trier of fact to believe about them, open hand or knuckles. You know also how this document relates to that exercise, as well as to the other documents that support or refute your position. Think about how you can use the document most effectively and how you can avoid its being neutralized. The witness is not going to take the document lying down, as it were. He will have some kind of story, some avenues of attempted escape, to try to diminish or eliminate the document’s significance. Think about what those avenues are. Don’t ask him about the document itself. Ask him about those avenues of escape instead.
So here’s an example: A witness gives an oral account of a matter. The document gainsays that account. If you show him the document, he will explain it away somehow. Instead, why not ask him about the significance of documents generally. If he wrote the document, ask him if it is his habit to lie in documents. Of course, he’ll say no. Ask him if he would agree that a written account of events, particularly one that he authored, would be the best evidence of what occurred. If he thinks of the document you have in your hand, he may try to wiggle out of it, but at least you’ll hear what story he intends to tell about the document. You can then work on the sense and factual consistency of that. But if he doesn’t think of the document, perhaps he’ll tell you that writings contemporaneous with events are the most reliable evidence of all. Bingo!! You now have something you can use in your case to bolster the document when he later tries to dispose of it.
In effect, you need to think of your case backwards. What do I want the trier of fact to understand by the facts? Move backwards to the documents. How do these documents figure in that account? Then, what can I do to enhance their value in the presentation of the proof? Ask those questions in a deposition, rather than just willy-nilly asking the witness about the document itself.
Nothing in all of this is really new. What is new is that you can now focus your attention on these kinds of questions alone. When you know the facts, you can focus on the rhetorical issues, the persuasiveness of your case, rather than on the drudgery that fact-finding entails. Litigation, you see, has now become a matter of persuasion simply, not finding the facts or (heaven forfend!!) “fiddling” with them. And in that respect, it really has become the best of all possible litigation worlds.