Paul Luvera, The Daily Record Newswire
worse (duh-dum), the non-human creature most often associated with attorneys (duh-dum … duh-dum) is that decidedly menacing, vicious aquatic predator known as (duh-dum, duh-dum, duh-dum, DUH-DUM, DUH-DUM) — well, you know.
Voltaire Cousteau, apparently an ancestor of the better-known Jacques, wrote an article called “How to Swim with the Sharks: A Primer.” The author died in Paris in 1812. The piece was translated from French to English for publication and reprinted in a medical journal in 1973, and in 1981 it was re-published in the American Journal of Nursing.
I’ve kept Cousteau’s article in mind for many years, because it has always seemed to make for a wonderful set of instructions for plaintiffs’ lawyers dealing with the typical defense counsel.
The author begins by saying: “swimming with sharks is like any other skill: it cannot be learned from books alone; but novices must practice in order to develop the skill. The following rules simply set forth the fundamental principles which, if followed, will make it possible to survive while becoming expert through practice.”
Here’s is a summary of the rules.
1) Assume unidentified fish are sharks. Not all sharks look like sharks. The wily predator will reveal his ferocity only when necessary. Be prepared.
2) Do not bleed. If you are injured either by accident or by intent, you must not bleed. Experience shows that bleeding prompts an even more aggressive attack. Diligent practice will permit the experienced swimmer to sustain a serious laceration without bleeding or even exhibiting any loss of composure. The shark will be confused as to whether or not his attack has injured you, and confusion is to the swimmer’s advantage.
3) Counter any aggression promptly. Sharks rarely attack a swimmer without warning; usually there is some tentative exploratory action. The appropriate counter-move is a sharp rap on the nose: almost invariably, the blow will prevent a full-scale attack, for it makes it clear that you understand the shark’s intentions and are prepared to use whatever force is necessary to repel his aggressive actions.
Some swimmers mistakenly believe that an ingratiating attitude will dispel an attack under those circumstances. Not so. Such a response will likely provoke an attack, and those who react in such a manner can usually be identified by their missing limb.
I particularly like this rule. The perils of trying to defend against an attack through ingratiating behavior should be required reading for all plaintiff’s lawyers, in my view.
4) Get out if someone else is bleeding. If another swimmer has been injured and is bleeding, get out of the water promptly. No useful purpose is served in attempting to rescue the injured swimmer. He either will or will not survive the attack — your intervention cannot protect him.
5) Use anticipatory retaliation. A constant danger to the skilled swimmer is that the sharks will forget that he is skilled and may attack again. Some sharks have notoriously poor memories in this regard. That memory loss can be prevented by a program of anticipatory retaliation. The procedure may need to be repeated frequently with forgetful sharks and may be needed to be done only once for other sharks. The procedure is essentially the same as described for countering aggression — a sharp blow to the nose. Here, however, the blow is unexpected and serves to remind the shark that you are both alert and unafraid.
6) Disorganized and organized attacks. Usually sharks are sufficiently self-centered that they do not act in concert against a swimmer. However, upon occasion, sharks make a coordinated attack.
The proper response is diversion. Sharks can be diverted from their organized attack in one of two ways. First, sharks are usually prone to internal dissension. The experienced swimmer can divert an organized attack by introducing something, often something minor or trivial, that sets the sharks fighting among themselves.
A second mechanism is to introduce something that so enrages the members of the group that they begin to lash out in all directions, even attacking inanimate objects in their fury.
Now, I ask you, when reflecting on trials against defense attorneys, doesn’t each of these rules apply to situations we have all encountered? We can’t stop swimming, so we must be aware of the wily ways of the predators in our midst. They can be intimidating, even scary, but remember: You can outfox even the most vicious Great White through patience and preparation. You may just need a bigger boat.
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Paul N. Luvera is the founder of Luvera Law Firm in Seattle. The author of five books and numerous articles, Luvera has obtained record verdicts in Washington, Idaho and Oregon, and has given hundreds of lectures around the county. He was elected to the American Trial Lawyers Association Hall of Fame in 2010.
