Mark Levison, The Levison Group
Recently, after a morning of swimming with piranhas and crocodiles, I left the courtroom and went home to pack for that evening’s flight to the Amazon. In fact, most lawyers know how to behave, but sometimes they forget. Unlike certain swamp creatures, predatory conduct is not necessarily hard-wired into a lawyer’s DNA.
It is true, that a couple of months ago I really did swim in piranha and crocodile-ladened Amazonian waters. I, a fellow attorney, and our wives, caught and ate piranha, and we saw a crocodile about twenty feet from where I entered the water. Lest you think I was being foolhardy when I dove in anyway, the crocodile wasn’t very big, and I asked my fellow barrister to stand lookout for larger cruising crocodiles. Besides, when I inquired at the lodge about the advisability of swimming in the river I was assured that it was “mostly safe.” In any case, I didn’t stray far from the shore, and compared to some of the cases I’ve had to argue lately, “mostly safe” felt like a reasonably secure position. It also wasn’t my first encounter with animals in the wild. Previously my wife Cheryl and I walked with lions in Zimbabwe. The disclaimer we had to sign that time didn’t sound at all like the walk was “mostly safe,” but it ended up being the most exhilarating experience of my life. It’s hard to put into words either the thrill or the terror I felt walking amid almost fully grown lions. It caused a fast heartbeat and considerable breathing trouble. Of course, in life, just like in trials, it’s hard to plan, and most of the stuff we worry about doesn’t happen. Needless to say, we seldom see the actual danger lurking, no matter how hard we stare into the water, or how many times we rehearse testimony with our witnesses. So why not swim in the Amazon, crocodiles or not?
Sometimes I wonder if suggesting that our true dangers are the ones that we don’t anticipate puts the wrong message into the cosmos. We returned from the Amazon unscathed, and after a period of bloody encounters back in American courtyards, last week I found myself in Hawaii. I wasn’t planning any dangerous steps when I carefully slid down algae-coated lava boulders to snorkel in a Pacific Ocean bay. I also thought nothing of it when my left foot came to rest on an underwater rock, and I lifted up my right foot to stand on the rock, while waiting for Cheryl to enter the water. I next realized that the incoming tide was moving the rather large rock, which didn’t make any sense. I put my masked-covered head into the water to find that I had slid into the bay in between giant sea turtles – one of which I had been standing on. I didn’t know turtles got so big! My guess is they measured over six feet from their unbelievably large, non-retractable sea turtle beaks, to their massive tails. (Google says these turtles can weigh over 2,000 pounds.) I was surrounded, and they seemed to be intently looking at me, and I was certainly intently looking at them.
These ancient and odd creatures have been around for 110 million years. In those days dinosaurs walked the Earth and swam right alongside them. 110 million years later, it was me swimming with the sea turtles, and it felt like I had entered Jurassic Park – but this wasn’t a movie. The incoming tide was tossing us against the rocks and occasionally against each other. As I stared at them from a few inches to a few feet away, I didn’t know if they could change the expression on their reptilian faces, or read the expression on mine, but I was quite sure that they could bite off my arm. This is not to say they were aggressive; they weren’t. They reminded me of my walk with lions. The difference was I knew I was going to walk with lions, and I didn’t know I was going to swim with sea turtles, but that’s how life goes.
In fact, I argued a motion yesterday regarding the consolidation of two cases. I represented a plaintiff hospital that had sued a contractor and a subcontractor. We were seeking to recover the large insurance deductible payment the hospital had been forced to pay as a result of a construction problem, which it felt the defendants caused. In the other case, the hospital’s subrogated insurance company was suing the same defendants over the same mishap. All three of the other parties wished to consolidate the cases for discovery and trial, but, at this point, I only wanted to consolidate the cases for discovery. I made the argument that since both cases happened to be assigned to the same judge, and since a charitable hospital would just as soon not be paired with an insurance company, we should do joint discovery, but wait to see how the theories of the cases developed before considering consolidation for trial. To my surprise, one of the defendants’ lawyers said, “You know Judge, what Mark just said makes sense.” Sometimes the piranhas we are swimming with are just part of the school.
The truth is, no matter how hard we fight for our clients, it serves no one to be unreasonable: not the lawyers, the clients, not the judges. Judges prefer lawyers who try their cases and don’t make the conflicts personal. The system works better when we keep that in mind. It takes a while for lawyers to learn this and some never do. In the end, we need to perform our jobs well, and be as professional and courteous as possible. Sometimes in our profession we will choose to walk with lions, and we shouldn’t be afraid to swim with piranha once in a while. They have very small mouths and we only need to make sure we have a good escape route when necessary. And naturally, we should always keep in mind that when we least expect it, we may be surrounded by turtles.
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© 2016 Under Analysis, LLC. Under Analysis is a nationally syndicated column of the Levison Group. Mark Levison is a member of the law firm of Lashly & Baer. Contact Under Analysis by e-mail at comments@levisongroup.com.
