"I have taken more out of alcohol than alcohol has taken out of me."
- Winston Churchill

I used to whine when Evan put me on hopeless cases and steel cage matches between thieves. But looking back, even losing with him was twice as much fun as winning with anybody else. Trial was only the beginning in the types of cases he had. A lot of people who win judgments in court think the loser's immediately obligated to pay them. That because they sued him and got a group of 12 mailmen, secretaries, teachers, file clerks and widows to buy their pitch, they'll receive what those people award them. The truth is, nobody has to pay any award a court issues against him unless the other side can find his money and get an order from the court forcing him to turn it over. And even when they find some of it, he still has a medicine bag of legal maneuvers which can stop a judgment holder from grabbing his cash. They call that phase of legal proceedings "collection" or "execution," names that would be a lot more accurate tagged with the qualifier "attempted" before them. That part of a case is pure bloodsport, and about the only honest portion of the litigation game.

Trials are B-Grade melodrama, each side offering an overwrought exaggerated view of the case to the Court. In the execution phase, there's no more faux moral outrage. The judge hears all the arguments, and he's not listening to any of "Lifetime Original Movie" schmaltz counsel fed to the jury. He sees the lawyers as the hired guns they are - one paid to get his client a bag of money and/or collect his contingency fee, the other to keep his client's money in his client's hands (or foreign bank accounts). This is where it's fun to be on the defense side. There's juice in ducking a judgment creditor. Some of them are cool. They know the game and treat it like business. But some... Well, some lose their minds, unable to wrap their heads around the idea that what a Court said really doesn't matter if a defendant has his money sheltered the right way... That without a deep pocket willing to satisfy to it or unable to escape it, a judgment's nothing but a piece of worthless paper. The more they threaten and fume and chase your client and still fail to get his money, the more amusing the process. One old pro at ducking judgment creditors described the process to me as "running the dog around the yard until he collapses." The judgment holder runs out of money to pay his lawyer. His moves get desperate, then comical, and then he disappears, another victim of the old saw - "He who goes to law takes a wolf by the ears."¹ I told people I hated those bare knuckle battles because I thought I'd sound nuts if I said I enjoyed them. Those steel cage matches were as close to interesting as the job ever got.

You could smell a problem case - a future judgment against your client - miles away, months or years before anybody even talked about putting it in front of a Court...

"So, what would you say on the stand if they asked whether you turned a blind eye to the sexual harassment against this woman?"

"We'll, I'd say... She was always wearing these belly shirts. And she was bending over in front of everyone all the time. She was a buxom and she knew it... You know what I mean?"

"What 'Buxom' means?"

"A lot of people don't. They don't use it a lot these days."

"I'm familiar with it."

"So I spanked her once or twice, as a goof. She joked like that. She never complained."

"OK. Well, uh... We'll need to meet for a while to go over your testimony before your deposition."

"Try to do it next month. I'm going to Bangkok with my cousin for three weeks."

The general consensus, after hearing that from a client, would be to urge him toward settlement discussions. I'd let the case rip forward for a while. Nothing's gained caving early, even with a Third World sex tourist for a client. And I had no business judging... People eat dogs in the Far East, and "underage" is such a subjective, cultural thing. So he'd blow up at his deposition, frothing out the "she was asking for it - her skirt was sooo tight" defense. None of that stripe of defendant ever wanted to settle anyway. We'd deal with the fallout when it came. It'd be amusing; the case would be a circus.

In a lot of arguments over the years I've said and written things entirely irrelevant and in some cases downright damaging to my position. Sometimes they were jokes, terrible stand-up I thought too clever to waste. Sometimes they were twisted spins on the law - turning it sideways, to stand for a proposition it never intended. I wouldn't try to shove a square peg in a round hole or argue something flagrantly senseless - just Bent, a little off kilter... launched from the corner of the court, tipping out of bounds, just a shade behind the backboard. The universe of what can be done in law is limited, narrowed by a book of rules and thousands of decisions that came before you, the sober application of which is never any fun. Whether the argument had no chance of success or was a dead lock winner, I was swinging for the fences. I went down, it'd be in a tornado whiff. If I made contact, it'd be a Reggie Jackson moon shot into the upper deck of Yankee Stadium. Law seemed the one desk job that might give you a chance to showboat (or as it often turned out, make a fool of yourself). As far as I was concerned, there was no "team" in I. Five years pass and you realize you're an overfed, overpaid semantic bean counter. Angling around on the fringe, a flawed phrase or comment from blowing it all in open court, knowing the sword could come down at any second, was the only thing that jacked the heart into those ultra-high RPMs you used to feel peeling off a girl's skirt in high school.

The problem with the ODS case was I was the self-righteous plaintiff, righting a wrong, chasing a big bad corporation. I couldn't be reactive; I was bringing someone to "justice." There's a mindset to representing plaintiffs most people don't have. I've never had it, and of all the things I've worried about, that shortcoming's never kept me up at night.

Nobody likes a tattletale. Kids beat them purple on the playground, prisoners shank them and the business world blackballs them for a reason. Growing up, everyone hated the school bully. But you had to respect him. He could spray your teeth all over the lunchroom, which, though a rotten skill, was still a skill, and all his own. Nobody handicapped the fight for the bully's benefit. He took you out with the physical tools he woke up with every morning. And there was an elegance in his trade - in the physical dance of a fistfight, and how it simply, quickly and totally settled a dispute. Anyone who's been in one understands.

When you take a haymaker to the jaw, the first thing you feel is a sharp snap, as the Temporo-Mandibular Joint is jarred out of place. Your teeth slam together, the ridges ripping across one another, tearing off enamel, the blood vessels on the inside wall of your mouth popping as they're forced between clenched molars, as they would if you'd accidentally bit down on them with full force. No matter how much adrenaline you have coursing through your veins, the pain splinters out in all directions across the side of your head. There's no doubt when you feel that sting - the fight's over... "No Mas" time for you.

When you land a roundhouse, the time from the moment your fist first collides with the flesh below his eye until the point where it smears that skin against his skull and snaps his head backward - a millisecond at most - is all slow motion, in the highest definition your eyes can muster. You see every vivid image of the shot, like Ted William's famous recollection of seeing in perfect clarity the seams on a fastball just before he hit it. You feel the ridge of his cheekbone pushing your third knuckle back into the fist. A lightning shock passes through your wrist, racing up your arm and locking your elbow for a moment. You've Connected. The only question is how he drops.

In those instants there's no doubt about the balance of power... No distortions, no pretensions of either party as to who won the dispute. I've had my ticket punched a few times, and still have a click in my jaw from one sharp right. I didn't jump back into the fray and ask for more. The moment it hit me I realized: (a) I deserved it; (b) if I went back for more, things would only get worse, and; (c) I really deserved it. Throwing those punches felt a lot better than taking them, but both felt right. Somebody's mouth wrote a check he couldn't cover and he learned his lesson... at least until his next case of MD 20/20 muscles.

The problem with bringing plaintiff's cases, at least for me, is the "begging for fouls" element at the heart of the thing. It's a career of crying to the ref for a trip to the line and trying to win the game on free throws. We need a forum for people to file claims, but the annoying side of a system scholars call the "great equalizer" is the transfer of immense power to a group of career hall monitors whom, without their degree, would be on the business end of more right crosses than the average heavy bag. To sit across the table from the sort of person who aggressively sues people as his business - in all of his usual 5'8 heft, with his pushy bark and coarse sniping - and not dream of giving the little bugger a wedgie is impossible. If you're defending the case, the immediate tendency is to refuse to settle, merits be damned, simply because the idea of giving an upright walking "yip yip" dog a check seems offensive to natural law. Everyone ought to get punched in the face as a kid, to get an appreciation of his limits and the blowback from ill manners. Emily Post doesn't hold a candle to the persuasive value of a brain scrambling upper cut, and the average lawyer hasn't been beaten nearly enough in his overprotected youth. I blame the parents.

Luckily, the ODS case never got far enough that I had to start acting "indecorous," as some describe the stereotypical Philadelphia plaintiff's lawyer in what might be mixed company. I tried to read the documents, craft some arguments... make the case look strong. It was painful and futile. I played on the internet and prayed for a miracle. My last ditch effort was filing a motion to get the case set for trial. My opponent - a decent guy from a large firm, asked for George's deposition. I refused, arguing they'd had more than enough opportunity to grill my client and blown their chance to do so. My motion pushed for a quick "Wild West" trial where he'd have no advance record of what George was going to say. A few days after it was filed, I got hitched and flew to an island on the other side of the world. I'd be out of my head for a couple weeks. When I got back we'd either be settling the case or I'd be fired. Sitting in an airliner over the Ocean on your third double Dewars, either's fine.

Gallons of rum, champagne and 10,000 miles of distance can't even cleave you from the job. After 11 drunken days and a Dennis Kozlowski bar tab, I had to call the office to find out how the motion went. They faxed me the other side's response. It was solid, reasonable and right on every point of law. There was no way the judge wouldn't let them depose George before trial. I threw the papers in the trash and headed for the pool bar.

A week later I was in the office, rummaging through documents, trying to figure a way to submit a report to the other side explaining how my client had suffered $3 million plus in damages as a result of GBC's conduct. It was a dog's breakfast of contrived numbers footnoted with assumptions and meandering incoherent formulas splayed across columns, all culminating in the only clear line item on the page - "Total - $3,000,000.00." I prayed the other side wouldn't demand the accounting documents supporting it. Amazingly, they didn't.

We conducted George's deposition a few weeks later, at GBC's lawyer's offices, in a huge conference room overlooking the city. The junior partner who'd been babysitting the case was replaced by a 55ish senior partner named Randall Mallon. Mallon was "Main Line" to his marrow. He'd been a lawyer at _____________ for 20 years and without exchange of a word between us, I knew he belonged to either Philadelphia Country Club or Merion, his kids went to Episcopal or Haverford and that his martinis were made with gin. Mallon was Marine fit, buttoned down and had a politeness about him so subtly condescending it couldn't have been consciously affected. I didn't know his background, but he'd clearly been floating in the orbit of the local landed gentry long enough that his mannerisms alone were passive-aggressive insults. There wasn't a whiff of deliberate snottiness about the man. He didn't need it - his very veneer made you feel dirty for suing anything such a piece of oak would represent.

Mallon admitted early on that he hadn't tried a case in some time, an odd admission I took as a soft settlement overture. I immediately figured him a rusty paper pusher, another big firm politician playing lawyer here and there. Which was ideal. We needed that. I'd given up even trying to prepare George for his deposition. His calculations made no sense, he couldn't stay on topic for more than 5 minutes and he refused to shut up. To George, this was his big moment, and was enjoying the process. If he weren't such a character, and so infectiously funny, I'd have thrown him out of the office. Try as I might, I could never dislike him. He'd spin stories and suddenly I'd realize we'd pissed away two hours and gotten nowhere with his preparation. Fuck it; that didn't matter... Mallon was a lightweight, more interested in looking proficient than actually winning the case. He'd waste an hour asking George where he went to school, how long he'd been married, every address he'd had for the past 10 years and the names of his kids. Then he'd ask some general questions about George's claims for a few hours and we'd be done.

George's deposition was on a Monday, and it started at 10:00 a.m., as they always do. The chairs in ___________'s conference room were plush and the coffee was bitter. They credenza to the side of the table held the usual complimentary bagels, mixed nuts and bottled water. The view was a panorama of Philadelphia's dank west side, but it was good enough to zone out to. I sank low in the leather chair, one hand on my coffee, the other propping my jaw. Time for an eyes-open "meeting nap." I figured I had two hours before Mallon started asking dangerous questions, if he asked any at all.

I was right about Mallon's golf course and probably his drink of choice, but I was dead wrong on his skill. Mallon was no lightweight, and if he was rusty that day, I wouldn't want to face him on his A Game. Mallon tore into George like a quarry drill. He didn't attack our case from disparate angles with a pile of disconnected shotgun questions, get sidetracked into arguments with his witness or run down hopeless red herrings George hung in front of him as so many would. He ran the ball straight up the middle, asking George the basis for each claim he'd made against GBC, every four or five inquiries checking off an area of questioning listed on a legal pad in front of him. George fumbled, stammered and couldn't recall the reasons he'd made half the allegations he did. Mallon listened patiently and rolled ahead, one question to the next, relentless. If they had a Hall of Fame for bullshitters, George would be in it. He deflected, changed the subject and poured on piles of charm, jokes and asides - anything to dodge. Mallon would chuckle, grin or observe whatever social recognition George's comment seemed to dictate, sigh, look at his pad and resume where he'd left off. "Thank you, George. Now please answer my question."

We needed to get seven figures or George wouldn't settle. Evan knew the case was weak, but he didn't know what I knew, what I'd been hiding - that it was utterly untriable. When he learned how doomed the claims were he'd kill me. By lunch I was sweating. I'd expected to daydream through the morning, but instead been forced to throw frivolous objections at Mallon's questions to protect George. I ran a few blocks to a nearby hotel to have lunch with my mother.

"You look stressed."

"I can't take this shit anymore."

"You'll never be happy. You need to quit."

"And pay the bills how exactly?"

"You're always finding excuses not to do something. If you don't have any guts, just admit it. Shit or get off the pot, and stop whining."

"Yeh." I downed the end of an Amstel and stared over her head into traffic on the boulevard outside, reconciling my finances in my head. I'd burned through half the wedding money over the honeymoon and Lisa was in grad school for another year. "I gotta roll." I shoveled the last of a slab of poached salmon in my face, stuck my mother with the tab and ran back to the deposition.

George was waiting in the lobby when I got back upstairs. As usual, he had a million questions about non-issues. "Can the woman typing give me a draft to look at?" "Can I correct something I said about my education?" "When this is done, when do we get a trial?" "My damages aren't just three million." "Why did he ask me about what medication I'm on?" "Why can't I ask him questions? I can't answer these open ended questions. There's no context." "Why all those questions about my taxes?"

"Damages... damages... damages..." The word repeated in my head. The rest of his commentary was industrial hum. I'd learned to turn George off the way a mother tunes out an obnoxious child. His yammering fell into the background, like a jackhammer clawing into concrete ten stories below your office. But "damages" stuck out - it climbed out of his stream of non-sequiturs and hung in the air. George had demanded I amend his damages claim, from $3 to $8 million. I blew him off. It was reckless, foolish and all but conceded we viewed the process, or at least the process in this case, as nothing more than a high stakes game of chicken. I couldn't prove the numbers we were asking for already... I'd look like a clown or a pig tripling them.

But now, facing ruin... Why not? Maybe an obscene damages claim was what we needed, a napalm bombing to burn off all the ancillary arguments over whether we could actually prove GBC's wrongdoing and startle everyone into focusing sheerly on numbers. The case was theater of the absurd; why not the money we were seeking?

The Big Bluff goes up or down in extremes - terminal gravity without a parachute or spiraling euphoria, feeding on endorphin-drunk disbelief you hit a grand slam with no runners on base. The other side calls you or he doesn't, and if you get called, the pain's instant. You don't need to look far for an example of the bluff gone wrong. Saddam Hussein bluffed. It probably seemed the only sensible course to him at the time - that there was no way the world would stand by and let the crazy Bush kid attack him. Maybe he knew more than us - that Rumsfeld Cheney, Inc. would never let him fade away in exile, scotch addled, stubbing out Maduros on sex slaves in a compound outside Damascus. Nor could he run to a pension and gated villa in Saudi Arabia like Idi Amin. Perhaps Hussein realized he'd fucked over his patrons and knew too much, and the only option he had left was to call W's cards.

That's all for cynics, right? History will write Saddam a delusional fool, and one who bluffed terribly and Paid for it, his neck torn open like a freshly rendered side of tenderloin in a warehouse of Shiite zealots bleating awful religious gibberish. The self proclaimed Nebuchadnezzar of the New Millennium, whacked in a camera phone snuff film.

But there's a silver lining, even on the business end of a hemp knot... The mess left in the vacuum of Hussein will haunt the Bush Family like a hundred Chappaqquidicks and Watergates. In a very real sense, they fell through the trap with Saddam, spoiled for generations as rotten examples of the inherent flaw in royalism, and the folly in thinking a dry drunk can run anything beyond a pro shop or taco stand.

As soon as I could, I prepared a new damages claim, listing George's "losses" at $6 million - double the previous estimate. I stared at the thing in my hand. It may as well have been an article from The Onion. If you glanced at the graphics and didn't read the text (or have any facility with math), you'd think it was real. A pure lunatic play... Which was probably the best move at that moment. Any lawyer will tell you a smart, shrewd opponent's easier to handle than a random run-and-gunner. And "lunacy" is a matter of perception... Law school whips you mercilessly on the need to ferret out every fact of a case. This analysis gives you a conservative view of what you can demand from the other side, which tends to jive with a natural need most of us have to be or at least seem reasonable. We think within a box of what's accurate, sensible and supportable. In practice, "reasonable" is closer to its meaning when you're drunk.

Sober you'd never ask for anal sex on a first date. Seven Red Bull and vodkas paint her pliability in whole different light. Every lawyer making a claim fluffs his damages but none would ever admit puffing them through the ceiling for the sake of riding a naked bluff to a payout. No law professor would ever tell you to run with "Drunk Logic." But then consider how many successful drunks there are in the field...

A tort reformer would assume every lawyer used Drunk Logic. He'd say it's a variety of the "make every claim in the book and see what sticks" approach. He'd be wrong. In nine out of ten cases, Drunk Logic would tell you to do nothing, which is what Bush would have done in Iraq if he'd stuck with the Jack Daniels and avoided the Jesus. I didn't have the luxury of doing nothing. My Drunk Logic was an epiphany born in desperation - a screaming rope thrown into end zone triple coverage with no time on the clock. A diligent lawyer would never need it. A dim one would use it over and over, thinking a seven figure demand on every case somehow gave him instant leverage. For a decent person, bending the sober mind to Drunk Logic's near impossible. You've got the Drunk You, who zipped three centimeters of his penis into his pants in a Tequila stupor at a happy hour, and the Sober You, who sits up straight, takes notes and Executes. Overriding the Sober You's judgment in favor of the Drunk's seems at best an anathema to everything you've been taught and at worst an admission of a serious booze problem.

It's neither. You wouldn't club hop with a teetotaler or hire a drunk to write a sermon. In a case like the ODS matter - a mess caused by sloth and disorganization - using Sober Logic is malpractice. The drunk's world is a maze of mistakes, excuses and last minutes saves. The sober mind vets a million outcomes. It plots, plans, configures and connives itself into circles. Drunk Logic gives things a once over and if it has to do something, it pulls the trigger - smooth and focused, with no nerves... free of the active brain that overthinks. On a lot more occasions than most people would admit, it only makes sense to do what you would if you were loaded (assuming you're unable to get drunk at the time you have to make the decision).

I laughed to myself as I faxed the new damages claim to Mallon's associate. A message hit my answering machine a short time later. "We're going to demand the Court to let us take another deposition of your client regarding these new damages." I didn't respond.

Weeks later, we had a settlement conference before a retired judge sitting as a "mediator" (a middleman hired to settle cases by telling both parties privately how bad they'd do if they went to trial). On the way to the courthouse, Evan asked me about the stratospheric damages claim. I put it all on George, assuring him our client had given me all the evidence we needed to prove it.

The mediator took us into a back room one party at a time. We plead our cases to him in private - first us, then them. He nodded, made some notes and grinned at my damages claim. The process repeated a few times.

The third or fourth time, the mediator stared at George, then Evan, then me. "They'll put $_,000,000.00 on the case. You need to take that." My jaw went slack.

It was a sunny day in early winter. I walked outside and stood on the front steps of the courthouse, wondering what a person had to do to get fired in this business.

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¹ Robert Burton (1577-1640)

Posted by PhilaLawyer at 11:35 AM

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