Due to scheduling constraints, the fourth and final part of “The Line” will be posted on Thursday. In the interim, here are a few more book out-takes.

On Experts

Most cases are only as good as the experts supporting the claims or defenses being made. These experts come in all varieties, of course, offering opinions on every conceivable subject that winds up at issue in a courtroom. From the post traumatic stress disorder caused by a botched tattoo to the wanton negligence of a shopkeeper selling Pop Rocks in close proximity to Coca Cola, if you can claim it half sober, there’s a “whore” a phone call away who’ll slap a stack of supporting scholarly references and anecdotal inferences behind it in exchange for the right sized check. They even have their own broker services. In every large city there’s a company you can call and order experts exactly the same way you’d order “dancers” for a bachelor party:

Dancer:

“Yeah, I need a blonde and an Asian girl. Skinny, with tight asses. No cottage cheese. Girls who know the drill.”

Expert:

“I need an accident reconstructionist and an economist. With some experience in court. No prima donnas. Guys I can handle.”

“Expert” in the litigation game means “Lawyer’s Proxy.” At anywhere from a few to hundreds of thousands of dollars for testimony and reports, offering dressed up professional opinions is huge business. Doctors whine about medical malpractice lawsuits, but a load of them pay their kids’ tuitions offering expert evidence against their own fellow physicians. The big accounting firms have developed a cottage industry out of it, devoting whole departments to running stock analyses on financial books and pumping out form reports in economic fraud cases for six and seven figure retainers. Engineers and chemists and scientists offer books of graphs and charts no one understands propping up every variety of product liability action.

And they all do what we tell them to. We tell them what we’re claiming before we hire them, so they know what they’ll be expected to say. If they don’t want to say it after they see the evidence, we fire them and hire someone else. As they put together their reports for us, we call them and discuss their findings. But they never send us any drafts because under the court rules, if the opponent asked for copies of those drafts, we’d have to turn them over, allowing the other side to see what we removed from or modified in the final report. And when the expert’s findings aren’t strongly worded enough in our favor we hammer away at them, in meeting after meeting, pushing the language of the thing as far as their professional ethics will allow. In the end, we rarely get exactly what we want, but we get what we need. As partners have told me in the past when experts balked at directives, “You have to remind these people — they work for us.”

On Being a Professional Dilettante

A Juris Doctorate makes you so much more than a mere “doctor of laws.” A decent advocate gets to play doctor of engineering, aeronautics, economics, environmental planning, corporate governance, toxic waste handling and every type of medicine or manufacturing from which a person can routinely claim to have been injured and sue for damages. You won’t find “professional dilettante” next to “attorney” in any dictionary or thesaurus (probably due to fear of a responsive class action suit), but that’s basically the definition of “litigator.” We know just enough about what we’re arguing to look like authorities on the subject in front of a judge or jury of people who don’t know anything about it… Or at least convince an opponent we would.

There’s no special trick to it. We do the same thing your broker, insurance agent, consultant and every other category of middleman who sends you a bill or “takes a cut” does. A third of the skill is getting a license, a third is offering the service people pay you to provide and the last third – the most important one – is learning the industry lexicon. No professional talks in simple layman’s terms. They glorify and blur the simplicity of everything they’re doing by using a secondary language nobody outside the field would understand. That’s their barrier to entry, the thing that keeps the client in the black about what he’s paying them to do or wondering why, with the benefit of a short correspondence course, he couldn’t just do it himself.

Your insurance agent will talk about “comps” of homes nearby and the “replacement cost scoring” when he explains your rising home insurance premiums. A broker will throw words like “no load,” “blended” or “sleepers” at you, spaced just far apart enough in the conversation to avoid sounding like a used car salesman while at the same time demonstrating he knows a lot of important things you couldn’t easily find online. Consultants speak in terms of “synergies,” “redundancies,” and “reallocations.” They do all sorts of “modeling” to “optimize” and “capitalize,” for maximum “maximization.”

Still, they’re all second team, pikers compared to lawyers. Litigators don’t just dabble in “surface intellect.” It’s their native tongue, the fuel of their arguments – the only way they can manage all the calls from opponents, clients and co-workers on countless different issues in a dozen or more cases involving disparate subjects and fact patterns. When they’re good at it, litigators can shift seamlessly from a telephone call about an action involving derivatives contracts to one about a construction accident, all while proofreading a brief in a products liability case. Few have a broad knowledge of the fine points of any case they happen to be discussing, but they’re masters of language, able to confidently use industry terms moments after first hearing them.¹ And they know the same way you could skate through an essay test by referencing one or two obscure facts to give the impression of deeper knowledge you can convince any client or opponent you’re in control of the information by throwing out the occasional bit of industry jargon in a casual, understated fashion. For most of the people litigators need to deal with, at least up to trial, where they have to really understand the subject matter, that’s as good as actually knowing what they’re talking about.
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¹ Outside the hard sciences and finance, half of what seems to pass for ability or proficiency is facility with “insider” language – an odd measuring stick. Lock a man in solitary for ninety days with nothing but old Michelin guides and he’ll come out a passable restaurant critic, conversant in the phrasing and language of the trade. It’s hardly a novel observation, but “semantic knowledge” always struck me as something people demonstrate in the absence of productivity. Next time you’re in a long meeting with colleagues, make two columns on a piece of paper and rank each person in the room by: (A) effectiveness; and, (B) use of industry jargon. Place the highest ranking names at the top of the column and work down in the usual fashion. At the end of the meeting, draw lines connecting each person’s name in column “A” with its placement in “B.” See how many “X”s you get in the middle of the page.

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