Are “Aggressive” Litigators More Effective?

Are “Aggressive” Litigators More Effective?

Lawyers, especially litigators, apparently have anger issues. Read a dozen profiles of litigators on law firm websites, and you’re sure to see many describe themselves as “aggressive.”

Just once it would be refreshing for a litigator’s profile to say something like “Hailey’s clients appreciate her passive approach to litigation.”

But no, lawyers apparently believe that clients want litigators who are aggressive (whatever that means). I’ve always wondered about this, but it’s been on my mind more than usual because I recently got a good result for a client by taking a passive approach.

This raises an important question: are “aggressive” litigators actually better for clients? Do they get better results? After accumulating 20+ years of anecdotal evidence, I think I have some answers.

But first we must define what it means for a lawyer to be “aggressive.”

Aggressive lawyer personalities

It could just mean an aggressive personality. You know the type because you’ve seen it in TV shows and movies. Pounds the table. Raises his voice. Won’t back down from any confrontation. “We’ll see you in court!”

This type has become even more prominent because it’s the kind of lawyer favored by a certain very famous client. Lawyers Michael Cohen and Marc Kasowitz are two obvious examples.

Here’s Cohen talking to a journalist who was about to publish a story unfavorable to his client: “Tread very f***ing lightly because what I’m going to do to you is going to be f***ing disgusting. Do you understand me? Don’t think you can hide behind your pen because it’s not going to happen. I’m more than happy to discuss it with your attorney . . . because, mother***er, you’re going to need it.”

Kasowitz is also a tough talker. When a stranger sent him a critical email, Kasowitz responded with these choice words: “I’m on you now. You are f***ing with me now. Let’s see who you are. Watch your back, b**ch. . . . You are such a piece of s**t. Call me. Don’t be afraid, you piece of s**t. Stand up. If you don’t call, you’re just afraid.”

I’d say those two are pretty “aggressive” (at least by phone and email).

But when lawyers market themselves as “aggressive,” they’re not just saying “I know how to act like a jerk.” They’re also talking about tactics, especially when their targets are more genteel and “sophisticated” clients, like big companies that have their own in-house lawyers. These clients want—or think they want—a lawyer who will take an aggressive approach to a lawsuit.

Of course, an aggressive personality does not necessarily mean an aggressive approach. There are plenty of litigators who have aggressive personalities but demure when it comes to taking action.

For example, remember all those F-bombs Michael Cohen dropped to pressure a journalist not to publish a story? The story was published. There was no lawsuit. And when Kasowitz fired off a confrontational letter to the New York Times threatening a defamation lawsuit, I waited eagerly to see what the lawsuit would say. I’m still waiting.

No, an aggressive personality doesn’t necessarily mean aggressive tactics. And the converse is also true. A lawyer can have the personality of Mr. Rogers and pursue aggressive tactics, smiling politely the whole time.

I imagine the notoriously button-downed Bob Mueller is one of these types: a mild-mannered gentleman who will gut you like a fish in court. (Just ask Paul Manafort if he misses his Persian rugs sitting in a jail cell.)

On the other hand, there does seem to be some connection between an aggressive personality and an aggressive approach. For starters, people with more aggressive personalities are probably more likely to pick litigation as a practice area. And I would be willing to bet that all else being equal, a litigator with a more aggressive personality is a little more likely to favor aggressive tactics.

But here again, it depends on how we define aggressive. I say an “aggressive” approach to litigation essentially means two things: having courage and being proactive.

The aggressive approach to litigation

Courage in litigation translates to a willingness to assert “creative” factual or legal theories and a willingness to fight out disputes in court, even if there’s a decent chance you’re going to lose.

But does it really take courage to do these things? The lawyer is trying to make money, and if anything, taking these risks means more billable hours.

True, but if there’s one thing that motivates lawyers more than money, it’s fear. Specifically, it’s the fear of losing, fear of getting embarrassed in the courtroom, even the plain-old fear of looking like you don’t know what you’re doing. These fears are what will stop litigators from taking a stand for their clients.

The second part of an aggressive approach is being proactive. This is the opposite of being reactive. You won’t find the adjective “reactive” in any lawyer profiles, but the reactive approach to litigation is common. A reactive litigator just reacts to events in the lawsuit, particularly deadlines and actions taken by opposing counsel.

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Litigation requires courage

Unfortunately, you often see lawyers who combine a reactive approach with an aggressive personality. They lurch from one crisis to another. They may go weeks without devoting any attention to the case, and then when a deadline is a few days away, they suddenly go on the warpath.

Many litigators get by and make a good living with this approach, especially if they master the art of appearing “aggressive,” managing client expectations, and taking credit when good results happen.

But this “aggressive-reactive” combination is not optimal for getting good results.

Fewer litigators are genuinely proactive, because being proactive requires discipline, and discipline is well, you know, boring. Being proactive requires a plan, a methodology. “I love it when a plan comes together.” Otherwise you’re just bouncing from one crisis to another. “Putting out fires” is not being proactive.

In short, I define an aggressive approach to litigation as being courageous and proactive. But we still haven’t answered the question: is an aggressive litigator better for the client?

Pros and cons of the “aggressive” litigator

Here we must be careful to correct for our biases. Lawyers with aggressive personalities are likely to believe that having an aggressive personality makes a lawyer more effective, and vice-versa.

What type am I? A guy with a highly aggressive personality is not going to sit down and write an article over-analyzing the concept of aggressiveness, so you already know the answer. Don’t get me wrong, I like to duke it out in court. But that’s because I like competing and, honestly, “performing” for a crowd, not because I like personal confrontation.

So, I want to adjust for my own bias and give aggressive personalities their due. I’ll acknowledge three main advantages to an aggressive personality in litigation.

First is the simple fact that aggressive people often get their way—especially with little things—simply because dealing with them is a pain in the ass. If you know opposing counsel is a jerk, you’re more likely to say “ok, fine, we’ll do the deposition at your office.”

Second is the fact that appearance can be reality in litigation. The vast majority of cases settle, and settlement expectations can be shaped by personalities. A lawyer with a genuinely aggressive personality is probably better at putting on a show that conveys the appearance that “we’re not afraid to fight this out in court.”

Third, there is some connection between anger and courage. Maybe anger is the wrong word. I’m thinking of what the Greeks called thumos, which might be translated as “spiritedness.” It’s the feeling that takes over when someone has physically threatened your loved ones or, in this case, financially threatened your client. Generally, a more spirited lawyer will be more willing to take a risk to defend a client.

Yes, in some ways an aggressive personality can make a litigator more effective, but overall, I think the benefits are minor. And there are drawbacks.

The biggest problem with lawyers who have “aggressive” personalities is that they’re not in control of their emotions. They let pride and anger cloud their judgment, and that causes mistakes. An angry lawyer can do OK if he’s just blocking and tackling. But do you want your quarterback to be angry? Or do you want a Joe Montana with ice in his veins?

On the whole, I think it’s a wash. An aggressive personality will be a benefit in some litigation situations and a hindrance in others. If anything, it’s a slight negative. In any case, I tend to favor lawyers just being themselves. If there’s one personality trait that will make you unpersuasive in litigation, it’s being a fake.

But what about aggressive litigation tactics? Regardless of personality, will a lawyer who takes an aggressive approach to litigation get better results?

If we stick with my definition of aggressive as being courageous and proactive, then I think the answer is a tentative yes. (How’s that for a non-aggressive answer?)

Litigation is not a tennis match (no offense to tennis). It’s more like tackle football. A lawyer who isn’t willing to get his nose bloodied is less likely to get good results. You need the courage to take the risk of losing. And proactive lawyers who push a lawsuit forward are usually going to get better results than those who just react to what others do.

Being aggressive in the right way at the right time

But what about the recent experience I mentioned? Does my successful experiment with  a “passive” approach call into question the aggressive approach to litigation?

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Litigation is not tennis

To some extent, yes. Here was the situation. My client was a business that got dragged into a lawsuit with multiple defendants. The plaintiff’s damage theory against my client was fundamentally flawed. We pointed that out early in the case, and the plaintiff indicated he might just voluntarily dismiss my client from the case.

So I waited. The last thing I wanted to do was bill my client a lot of money for taking discovery that could end up being unnecessary.

But you have to understand. This was hard for me. I wanted to do something.

Weeks went by with no activity. I couldn’t stand it. I suggested asking for the plaintiff’s deposition to try to prompt some action. But my client wanted to sit tight and wait. So I waited some more.

A couple weeks later the plaintiff dismissed my client from the case. It was over. Naturally, I took credit for our wise strategy of doing nothing.

But seriously, in hindsight my client made the right call. If I had been aggressive, it would have cost the client more money, and who knows, it might have irritated the plaintiff to the point of keeping my client in the lawsuit just to be difficult.

That got me thinking. Truth is, an effective litigator is aggressive about the right things, for the right reason, at the right time.

That reminded me of something I read in college. This is precisely what Aristotle said about the virtue of bravery.

You know Aristotle. He’s the guy who said: “We are what we repeatedly do. Excellence, then, is not an act, but a habit.”[1] This is the most popular philosophical quote in pop culture outside of Nietzche’s “that which does not kill me makes me stronger.”

But I digress. Aristotle had a lot to say about bravery in his Nichomachean Ethics, including this: “Whoever stands firm against the right things and fears the right things, for the right end, in the right way, at the right time, and is correspondingly confident, is the brave person; for the brave person’s actions and feelings reflect what something is worth and what reason [prescribes].”

This is a strikingly sober definition of a brave person. One might even object that this takes all the zing out of bravery. Imagine Mel Gibson in Braveheart exhorting his men to “stand firm for the right end, in the right way!” It doesn’t exactly get the blood boiling.

But Aristotle understood this. He did not want to reduce bravery to just another form of knowledge, as he said Socrates did. Instead he tried to strike a balance. He wanted to distinguish the virtue of bravery from raw emotion, but without denying the physical and emotional nature of bravery.

“Brave people act because of what is fine,” Aristotle said, “and their emotion cooperates with them.” In contrast, people who “fight because of their feelings, not because of what is fine or as reason [prescribes]” have “something similar” to bravery. This bravery caused by emotion is “the most natural sort,” but it is not true bravery until “decision and the goal have been added to it.”

In other words, the right kind of brave person doesn’t seek out danger just for the thrill of it, but when achieving the right goal requires bravery, the brave person’s emotions cooperate.

I think that’s a pretty good definition of the kind of “aggressive” litigator a client should want. If I have to take an aggressive position or take a risk in court to defend a client’s interests, I want my emotions to cooperate. But I want reason, not emotion, to drive the decision and the goal.

Because losing in court may not kill me, but it doesn’t make my client stronger.

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IMG_4571Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC. He uses *** for bad words because hey, this is a family blog.

These are his opinions, not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.

[1] This quote is actually misattributed to Aristotle, as explained here, but it’s close enough to the point Aristotle was making.

 

 

The Problem With the “Elevator Speech”

The Problem With the “Elevator Speech”

TexasBarToday_TopTen_Badge_VectorGraphicFlashback to when I had a solo law practice: A recruiter calls me looking for candidates to join a large law firm. I wasn’t really looking to make a move, but I asked about the position because I was curious. “How much portable business are they looking for?” I asked. “At least a million,” she said (meaning dollars per year).

It took some restraint not to bust out laughing. Or to respond with a sarcastic, “a million, is that all?”

And in all seriousness, I wanted to ask, “if I had a million dollars in portable business, why would I need to join another firm?” or “if I had that much business, would I select a firm based on some random cold call from a recruiter?”

But I’m too nice for any of that, so I just said thanks, not interested.[1]

Then I got to thinking, maybe I would have more business if I had a better elevator speech, or honestly, any elevator speech at all.

The Elevator Speech

An elevator speech is a short pre-set summary of what you do that you can share with new contacts you meet. The idea is to briefly promote your professional services in the time it takes for a typical elevator ride (around 30 seconds).

But some business development coaches will tell you it’s not enough to just describe your job. Ideally, you would identify the potential client’s need, explain how you address that need, and convey the value you would add to their business.

So instead of saying “I’m a lawyer, I do business litigation,” I’m supposed to say something like, “I help businesses resolve disputes efficiently and effectively.”

Rather than adding, “a lot of my practice is non-compete and trade secret litigation,” I would say: “Do you worry about your employees running off to competitors with your trade secrets? Well, I help companies like yours protect their goodwill and confidential information.”

You see advice like this a lot. And it strikes me as wrong, for at least three reasons.

Abstract expressionism: good for French art, bad for an elevator speech

First, I’m not big on abstract descriptions of what you do that leave people guessing.

Have you noticed that companies today have a hard time telling people exactly what they do?

When someone contacts me about a dispute or lawsuit, I’ll Google the names of the companies involved and look at their websites. It’s amazing how often the homepage won’t tell me in simple, concrete terms what the business actually does. When I click on “About Us,” it will say something vague like “we provide our clients with cutting-edge solutions for their data management needs” or “we help your business grow and connect with customers.”

Ok, I think, so you’re a software company? Or you do management consulting?

They must teach this in marketing school. But why can’t companies just come right out and say what they do? “We’re a construction company. We build things at refineries and other industrial sites.” There, that wasn’t so hard.

I think the simple and direct approach is better for the elevator speech too. Don’t make the person you’re talking to work too hard to figure out what it is you do. That’s annoying.

But even when your elevator speech is clear and concrete, it’s still a speech. That leads me to the second problem with the elevator speech.

Rehearsal: good for bands, not so good for networking

The second problem with the elevator speech is that it sounds like a speech.

When you meet someone for the first time, do you want to hear a rehearsed presentation about what kind of work they do? Of course not. You want to know some basic things about them and have a conversation (unless you are a misanthrope, in which case you don’t want to talk to them at all).

That’s because effective networking is not about presenting, it’s about connecting.

Wow, that sounded like something from a cheesy motivational speaker. But it’s true. You want to connect with people in a genuine way, because that leads to real relationships. You don’t want to sound like you’re just giving a practiced sales pitch.

Which leads me to the third problem with the elevator speech.

Good pitching: effective for the world-champion Houston Astros, not so much for relationships

The third problem with your elevator speech is that it’s all about you. If you spend your time giving someone a sales pitch, I predict in the future they are more likely to avoid you than to seek you out.

Think about it. If you’re a lawyer, you probably get contacted by various vendors who provide services to lawyers. Do you love hearing their sales pitches?

When legal vendors want to connect with me, I try to accommodate them. I figure they’re people just like me, trying to make a living, and I might need their services sometime. So I will hear them out when I can. But if all they do is ask me to send them my business, it’s not very effective.

For one thing, I usually don’t have a project right that second that I need their help on. But if I actually get to know the person, that’s probably who I will think of later when I have a real need.

For example, I’ve got a friend who works with an e-discovery company. I don’t think he has ever asked me for business, but when my firm needed help managing thousands of documents in a big litigation matter, I thought of him first.

Surely, people who may need a lawyer–or any kind of professional–are no different.

An analogy fraught with peril

Let’s analogize to dating. You’re single and you meet someone you find attractive. Are you going to give that person a little rehearsed speech? Like, “you should know, the ladies [or gentlemen] find me very attractive, I’m smart, highly successful in my career, and people say I have a great sense of humor.”

That’s like what Donald Trump said to Stormy Daniels (allegedly), prompting her to say “does this usually work for you?”

I’m no dating expert (I’ve been happily married almost 20 years now), but I’m pretty sure that telling someone how great you are is not the optimal strategy.

Similarly, business development experts like Karen Kaplowitz will tell you “pitching” is not always the best approach (see her guest blog post here).

So instead of saying, “I’m a lawyer, I handle cases that . . . blah, blah, blah,” how about saying “I’m a lawyer, I do business litigation, what do you do?” And then listen. And then ask more questions.

You might even want to do some reading about “active listening.” See, for example, What Great Listeners Actually Do. I don’t think there is any better way to get to know a person than really listening.

On the other hand, I don’t have a million dollars in portable business, so what do I know?

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Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC.

After writing this post he realized it has way too many rhetorical questions, but hey, what are you gonna do?

[1] I’m not good, I’m just nice. See Stephen Sondheim, Into the Woods; Allan Bloom, The Closing of the American Mind, Part One, “Relationships.”

All the Legal News You Need

All the Legal News You Need

Wish you had more time to read the latest in the legal press? I have the solution. Read these five stories now, and they will cover 90% of the legal industry news that will come out the rest of the year.

What can I say, except “you’re welcome.”

1. Lateral Partner Moves

BigLaw Partner Frank Whitebread Leaves Smith, Jones & Davis to Join Jones & Smith

WorldLaw 100 firm Jones & Smith announced this week that Frank Whitebread is joining the firm as a shareholder. Whitebread, a well-known transactional lawyer who does M&A deals in the energy industry, was formerly the head of the Corporate section at the AmLaw 500 firm Smith, Jones & Davis.

Whitebread expressed enthusiasm for the new opportunity. “This move to Jones & Smith will give my team the platform to provide even better service to our multinational corporate clients everywhere they do business.” He noted that Jones & Smith has offices in 35 cities throughout the world. “Plus,” he said, “I’m going to make a shitload of money.”

Whitebread got the idea for the move after meeting Bruce Whiteshoe, the head of Jones & Smith’s local office, at their sons’ lacrosse game. That led to spending a week with their families together at Whiteshoe’s ski lodge in Vail, where Whitebread says he was impressed by Jones & Smith’s commitment to pro bono causes and diversity.

Two junior partners and three associates who work with Whitebread will make the move with him. One of those associates, Elizabeth Hailey, expressed excitement about the change. “Jones & Smith is known for matching Cravath’s associate bonus scale,” she said, “and their new quality of life initiative reduces their billables requirement to 2300 hours.”

Fred Rogers, managing partner at Whitebread’s current firm, Smith, Jones & Davis, says the parting will be amicable. “Honestly, I don’t know why Frank was hanging around here so long,” he said. “This place sucks.”

2. Law Firm Mergers

Jones & Smith Announces Merger with Smith, Jones & Davis

The international law firm Jones & Smith announced this week that it will merge with Smith, Jones & Davis, currently the third largest Texas-based firm.

The new firm will be known as Jones Smith | Smith Jones. Attempts to brand the new global juggernaut as “Smith Jones Squared” failed when the Business Development director couldn’t get Microsoft Word to make that “squared” symbol that looks like a little 2.

Jones & Smith’s worldwide managing partner Nigel Kennsington-St. James praised the deal. “Joining forces with our American friends at Smith, Jones will create a synergy that will serve our international clients well,” he said. “I mean, I’m talking a lot of synergy, it’s going to be really synergistic, you’ve never seen so much synergy.”

Some of the partners at Smith, Jones & Davis will not be making the move. Jim Bob Bowie, head of the firm’s venerable Insurance Defense section, said the higher rates and overhead at the London-based Jones & Smith did not make sense for his group. Instead, he said they will spin off to form a small firm that will office “behind that dental practice by the IHOP near my house.”

The merger comes just six months after rainmaker Frank Whitebread jumped ship at Smith, Jones & Davis to move to Jones & Smith. Asked for his comment on the new mega-firm, Whitebread said “I’m looking forward to rejoining some old colleagues, like . . . oh, who was that balding guy on 47 who does estate planning . . . well actually, never mind.”

3. Appellate Rulings

Court of Appeals Reverses Questionable Jury Verdict Against Big Company

Today the Court of Appeals of a big city ruled in favor of a large corporation, reversing a small-town jury’s verdict awarding many millions of dollars in damages to the blue-collar family of a man who was killed in a really horrible industrial accident. The court based its ruling on a technical legal issue.

In a 2-1 decision, two justices from one political party voted to reverse the judgment, while the dissenting justice from the other political party voted to affirm it. The majority’s painstaking opinion cited at least eleven prior court cases, sometimes even citing to specific page numbers.

The dissent was scathing. “Today the majority picks one of two reasonable interpretations of the case law to reach the result the majority considers fair,” the dissenting justice wrote. “I dissent,” he concluded, pointedly leaving out “respectfully.”

The corporation’s lead lawyer was pleased with the decision. “We’re very pleased with the decision,” she said.

The plaintiff’s lawyer was not so happy. “We worked hard to get the jury to ignore the lack of evidence of causation, and to focus on sympathy for the victims,” he said. “We’re not giving up now.” He vowed to make campaign contributions to the Tea Party-backed candidates challenging the two majority justices in their upcoming primaries.

A professor at a local law school who followed the case said the result was not unexpected. “This continues a trend of the Court of Appeals reversing judgments that it finds are not supported by the evidence,” she said. “I expect we will see more cases like this,” she added. “More and more big companies are hiring expensive lawyers to try to overturn judgments that order them to pay large amounts of money.”

4. End of the Billable Hour

Speaker Touts Alternative Billing Arrangements at Legal Conference

While traditional lawyers took family vacations or worked quietly at their offices during Spring Break, the legal industry’s boldest and brightest flocked to Austin for the 7th annual Legal Disrupterz Conference, held in conjunction with SXSW. And RazorWire’s correspondent was there to witness the sparks flying.

Keynote speaker Dallas Houston kicked off the conference at the W Hotel with his provocative presentation “Shattering the Billable Hour Paradigm.” He advocated alternative billing arrangements such as “value-based billing.” And for the fourth year in a row, Houston predicted that billing by the hour would be obsolete by the time of next year’s conference.

RazorWire caught up with Houston as he got into his Tesla in the hip 2nd Street District. “I’m so turnt to be here again during South By,” he said. “Did you notice I called it South By, not South By Southwest?” he added. “That’s how you can tell I’ve been here a lot.”

Still, Houston said, his dad told him Austin just hasn’t been the same since the Armadillo closed.

Organizers said they were pleased to have the conference sponsored by e-™. That’s not a typo. The name of the company is “e-”.

VP of Business Development Austin Travis explained that “e- delivers cutting-edge deliverables for its stakeholders in the digital space.” Asked to explain what that means, Travis said “we host cloud-based solutions for law firms looking for best practices.” “So you’re an e-discovery vendor?” the reporter pressed. “Ok, yeah, we’re an e-discovery vendor,” Travis replied sheepishly.

He added that e- still bills by the hour.

5. Bar Association Charitable Events

Local Bar Association Raises Money for the Poor at Exclusive Country Club

Heard that joke about the greedy lawyer? Well raising money for a good cause is no joke for the Springfield Bar Association. Last month, the SBA’s Community Affairs, Youth, Mental Health, Elderly Support, and Antitrust Litigation Committee (CAYMHESALC) held its annual “Bakin’ and Eggs” breakfast and baked goods silent auction to raise money for a great cause: the Springfield Heights Association for Disadvantaged Youth.

The event was held at the prestigious Shady Oaks Country Club. Known for its progressive stance on social issues, the club sparked controversy when it opened its membership to women and minorities in 2009.

“We thought it was important to partner with a venue that shares our commitment to helping the disadvantaged,” committee co-chair Buffy Van Pelt said. “Also, they make the strongest mimosas you’ve ever had, so that’s a plus.”

At the breakfast, Van Pelt and the committee’s nine other co-chairs received the President’s Chalice for excellence in bar leadership. They welcomed County commissioner Rick Gordon as the featured speaker. “We had to do some negotiating with Commissioner Gordon’s office,” Van Pelt said, “but once we agreed that his name and photo would appear on the front and back cover of the program, he was behind us 100%.”

And the best part: it was all for a good cause. Sponsors chose from three different levels: Baconator ($100), Ham Hock ($500), and Whole Hog ($1,000). With so many local firms sponsoring tables, Van Pelt said the event brought in over $65,000. “After paying for valet parking, the rental fee, and $37 per plate for breakfast,” she added, “we netted $478, and 100% of that goes to charity!”

Keeping with tradition, the committee invited three disadvantaged youth from J. Danforth Quayle Middle School to attend the breakfast. “This place is sick,” 8th grader Bobby Garza said approvingly. “I mean, I can’t afford to play golf, and the guard wouldn’t let my mom through the gate in her beat-up Corolla, but once I got in, it was cool.” His favorite part? “Those mimosas!”

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IMG_4571 Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC.

Any opinions expressed are his own, not the opinions of his firm or clients. This is a work of fiction. Any resemblance to any actual person, living or dead, is purely coincidental.

 

Courtroom Lessons from the Marshall Movie

Courtroom Lessons from the Marshall Movie

Imagine this. It’s 1941, and the NAACP dispatches a young Thurgood Marshall to a picturesque Connecticut town to defend a black chauffer accused of repeatedly raping a prominent white socialite, binding and gagging her with strips of her own dress, and throwing her off a bridge into a lake.

The headlines are going crazy. A local white man writes a letter to the editor saying, “we should have hung all n*****s while we had the chance, and trust me it would make the world better.” Imagine what it was like trying to pick a jury in that environment.

Except that statement was not printed in a newspaper in 1941. It’s actually what a white high school student said to an African-American girl on Snapchat in 2017, in the affluent mostly-white suburb where I live and saw the movie Marshall with my wife this past weekend.

So, yeah, you could say the movie is still relevant 76 years later.

But don’t go see Marshall like it’s homework or some rite of atonement. What makes it a great movie is that it’s a classic Hollywood courtroom drama, spiced up with some odd-couple buddy-cop flavor. The fact that it also serves as a sort of origin story for the most successful civil rights lawyer of the 20th century is icing on the cake.

On the Five Minute Law Movie Scale, I give it 0.4 hours (that’s on a scale of 0.1 to 0.5 hours).

Granted, I’m a trial lawyer who loves stories from the civil rights movement, so they had me at the preview. Chadwick Boseman could have made any half-way-decent movie about the sensational Joseph Spell trial, and I would have been hooked.

But Marshall was even better than I expected, and one reason is that the courtroom scenes were relatively realistic (by Hollywood standards). In fact, I took away from it some practical lessons on how to be a better trial lawyer. Here are nine of them.

*SPOILER ALERT: These tips contain minor plot spoilers. But if you’re like my mom, who figures out every plot twist in the first 15 minutes of a movie, then I’m not really giving much away.

1. Clients don’t always tell you the whole story

I’m sure Thurgood Marshall  believed all defendants have a right to counsel, but a key part of the NAACP’s legal defense strategy was to focus on defendants they believed were actually innocent. This was important to the overall political strategy and to fundraising.

So, one of the first things Marshall (Boseman) does is interrogate his new client, Joseph Spell (Sterling K. Brown), to assure himself that the man is actually innocent. But would you believe that Spell doesn’t tell Marshall the whole story in that first interview?

More about that later.

2. Don’t rely too much on stereotypes for jury selection

On paper, she’s a terrible juror for the defense: a white woman who grew up in North Carolina and now rubs elbows with Connecticut high society. Local defense counsel Sam Friedman (Josh Gad) is ready to strike her, but Marshall says not so fast. She’s an educated woman with a mind of her own, her body language towards the “Yankee” prosecutor showed some hostility, and she likes you, Marshall tells Friedman. Plus, Marshall has a hunch this lady may know things about the victim, Eleanor Strubing (Kate Hudson).

The result: the white socialite gets on the jury. She even becomes the forewoman.

When you have no other information about a juror, you may have to fall back on demographic profiles, but jury consultants say that attitudes about case-specific issues are a better guide than stereotypes. And of course, it never hurts if a potential juror likes you.

3. Some things are better left unsaid

Mrs. Strubing strangely claims that after her chauffer threw her over a bridge into the water, he threw rocks at her. So, when Friedman cross-examines the local police captain who inspected the scene, he asks whether any rocks were found on the bridge. The captain can’t recall.

Friedman then dumps a pile of pebbles on the prosecutor’s table. Would you call these pebbles or rocks, Captain? The witness eventually admits they are pebbles, prompting chuckles from the jury.

The unsaid part: the fact that Marshall collected the pebbles at the scene. The defense never offers any witness to lay a predicate that the pebbles came from the bridge.

But they didn’t have to. In the words of Hall & Oates, Some Things Are Better Left Unsaid.

4. Save that killer impeachment point for closing argument

The examining physician testifies that skin was found under the victim’s fingernails, but there’s a problem: there’s nothing in his examination notes about that. When Friedman brings up this point on cross, the doctor is ready with an excuse. My wife took the notes, he says, and she neglected to include that fact. And then the doctor drops a bombshell. It was a black man’s skin under her fingernails.

On the next break, Marshall berates Friedman for falling into a trap.

Imagine if Friedman, instead of bringing up the point during cross examination, had waited until closing argument to point out to the jury that the doctor’s notes said nothing about skin under the victim’s fingernails. Then it would be too late for the doctor to try to explain away the glaring omission.

5. You can do it if they don’t object

In law school, I had a trial advocacy instructor (now a judge) who told a great story about defending a police officer accused of assault. He started slapping himself on the head with the alleged weapon in front of the jury, causing himself no injury. The students couldn’t believe that was allowed. The instructor’s point: it was allowed because no one objected.

The defense team in Marshall does a similar demonstration. Mrs. Strubing claims she never screamed, even when a police officer was only a few feet away, because she was gagged. In front of the jury, Marshall puts the gag in Friedman’s mouth and pulls it tight, asking Mrs. Strubing if he has it right. Friedman then belts out the loudest, longest scream you can imagine. Point made.

Can they do that? Well, no one objected.

6. Bring up your client’s baggage before the other side does

Mr. Spell is not the ideal defendant: he abandoned a wife and two kids in Louisiana, got dishonorably discharged from the Army, and got fired from his last job for stealing. So here’s what you’re going to do, Marshall says to Friedman, you bring up all those bad facts when you get Spell on the stand. Don’t give the prosecution the chance to do it first.

Friedman does exactly that, getting Spell to admit every check in his checkered history  before the prosecutor can ask a single question.

As I wrote here, if you know there are bad emails from your client, don’t try to hide or ignore them. Usually you’ll only make it worse. What was true in 1940 is true now: you look better if you freely admit your bad facts.

7. Be careful with open-ended questions on cross examination

When prosecutor Loren Willis (Dan Stevens) gets his crack at Spell on cross examination, he unloads on Spell’s history of lying. Then, after setting up Spell as a habitual liar, he goes for the jugular with his key question: if you’re innocent, then why did you lie to the police about what really happened?

But the question backfires. Marshall has prepared Spell to knock this one out of the park, and Spell does it. The prosecutor is so shaken, he does the only thing he can think to do and asks the judge to strike the answer. After a long pause, the judge gives his ruling.

Conventional wisdom says you only ask leading questions on cross. That advice is not always realistic; sometimes you just have to ask an open-ended question. But the prosecutor’s blunder in Marshall is a good reminder of why using open-ended questions on cross is dangerous.

8. Persuasion requires meeting the audience half way

When Spell answers the prosecutor’s key question, you sense that the tide is turning. But the defense still has to persuade the jury in closing argument. Over dinner, Marshall tells Friedman what to say in closing.

Throughout the movie, we’ve seen Marshall going on the offensive, so we’re bracing for an all-out assault on Mrs. Strubing’s credibility. But Marshall understands that Friedman is not going to persuade the all-white jury by portraying the white victim as a bad person. Instead, he crafts the argument to get the jury to feel sorry for her (with obvious echoes of To Kill a Mockingbird).

Sometimes persuasion requires accepting the biases of your audience and crafting an argument that appeals to their world view, not yours.

9. Get a non-lawyer’s opinion about the big picture

Boseman portrays Marshall as a supremely self-confident young lawyer who already knows what he’s doing (prompting friend Langston Hughes to quip, “I’d say you have enough confidence for all of us”).

But it’s a non-lawyer who helps Marshall discern the key to the case. Early on, the wife of the local NAACP leader asks Marshall if he really thinks Spell is innocent. “Why would a woman lie about something like that?” she asks.

It is only when Marshall reflects on that question that he realizes his client hasn’t told him the whole story. That’s when he really figures out how to defend the case effectively.

When I get a new case, I like to describe the big picture to my wife, daughter, or another family member. Hearing a non-lawyer’s take is a great way to gauge how a jury is likely to react. That’s just as true today as in 1941.

Some things haven’t changed.

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IMG_4571Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC.

These are his opinions, not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.

Top 5 Most Smug Areas of Law Practice

Top 5 Most Smug Areas of Law Practice

Ever notice how there are some areas of law practice you love to hate? If you’re honest with yourself, it’s just based on envy. But still, there’s something about the lawyers in that field that is just so . . . smug. Here are the top five offenders.

5. Bankruptcy

I have a little experience with litigation in bankruptcy court, “enough to be dangerous” as they say, and that’s enough to know that bankruptcy-world is its own universe. So, lawyers who know bankruptcy inside-out have a big advantage.

As if that wasn’t irritating enough, bankruptcy is the quintessential counter-cyclical practice area. When a recession hits and other billable work dries up, bankruptcy practice is booming. And the bankruptcy lawyers can barely conceal those smug little smiles.

4. High-Stakes Plaintiff’s Contingent-Fee Litigation

Not sure if this is really a “practice area,” but you know the kind of lawyer I’m talking about. Flies to depositions in a private jet. Wears cowboy boots made of some kind of exotic game. Probably owns a yacht and a Lamborghini. And if he’s really likeable, it’s that much worse.

3. Tax

In my 20 years doing a fairly broad business litigation practice, I’ve always been up for learning a new substantive area of law, but I draw the line at tax law. I’m not even going to touch it. And many of you are just like me. That means if a real tax issue comes up, we have to go to one of a handful of tax specialists for help. And they know it.

2. Appellate

No explanation required.

1. Patent Prosecution

Picking this over appellate was a close call. Yes, it’s easy to resent those appellate lawyers who were the smartest kids at their elite law schools, clerked for federal judges, and then had to agonize over which big-name law firm to join.

But think about how you feel when you see a lawyer profile like this: undergraduate degree in Engineering, Ph.D in Molecular Biology (is that a thing?), J.D. from a respected law school, handles patent prosecution for large high-tech companies. You know that lawyer is basically printing money.

Ok, yes, he probably had a lot of student loan debt, but it was paid off years ago. And while he used to work at a big firm with high overhead, now he’s a partner at a little boutique in the suburbs with cheap rent.

Smug as a bug in a rug.

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Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC.
These are his opinions, not the opinions of his firm or clients. 

He actually kind of likes appellate lawyers. But not tax lawyers. Nobody likes those guys.

Agree on These Litigation Rules to Level the Playing Field

Agree on These Litigation Rules to Level the Playing Field

TexasBarToday_TopTen_Badge_VectorGraphicThe “Fiver Rules” Recognize the Reality of Modern Litigation Practice

WARNING: Typically, I try to write posts that will interest lawyers and non-lawyers alike. But this post is for attorneys only, particularly Texas attorneys. If you don’t have a “JD” or an “Esq.” after your name, DO NOT READ THIS. It is “inside baseball” exclusively for us lawyers.

The high-powered litigation firm Susman Godfrey popularized the practice of “Trial by Agreement,” a process where lawyers on both sides of a lawsuit agree on certain procedures up front to minimize gamesmanship and unnecessary discovery disputes.

This was an admirable goal, but as a practicing Texas litigator, I find that the suggested stipulations on “Trial by Agreement” don’t always match the reality of modern litigation practice. Having closely observed the way Texas lawyers actually handle lawsuits, I propose that readers of Five Minute Law agree on the following “Fiver Rules” for Texas litigation.

  1. Every response to a written discovery request must begin with three pages of detailed “general” objections. If the responding law firm is from California or New York, the requirement is increased to five pages. These general objections must state that they apply to every request, but most of them must not actually apply to every request.
  1. In state court, the response to each request for production must include an objection that the documents are privileged. Texas Rule of Civil Procedure 193.2(f) says that the responding party should withhold privileged documents, not object to the request, but the parties will be required to ignore this rule.
  1. Contention interrogatories must ask for “all facts” supporting the responding party’s contentions. Texas Rule of Civil Procedure 197 is clear that phrasing a contention interrogatory this way is objectionable, but the requesting party must ignore this rule. Conversely, an interrogatory asking for the basic factual grounds for a claim in a party’s pleading must be met with the objection that it improperly requires “marshaling evidence.”
  1. The “conference” requirement for discovery disputes may be satisfied by stating to opposing counsel in writing that all of his objections are unfounded. The statement must be in the form of a letter attached to an email to emphasize its seriousness. Alternatively, the procedure for resolving discovery disputes will be a conference call with at least three participants on each side. The lead lawyers are expected to use the conference call to train their associates on how to show the lawyers on the other side how tough and smart they are.
  1. Motions for summary judgment will be decided based on which side brings a larger binder of documents for the judge. If the binders are the same size, the tie-breaker will be which side has more PowerPoint slides.
  1. Every document produced in discovery must be designated “Confidential – Attorneys’ Eyes Only,” regardless of actual confidentiality. This includes documents found on the internet and copies of pleadings from publicly available court files.
  1. No one is allowed to smirk or make a sarcastic comment when a lawyer interrupts a difficult deposition question to “confer on a privilege issue.” If there is no plausible reason the question would raise any privilege issue, the remedy for the questioning lawyer will be limited to resuming the deposition with a snarky comment like “now that you’ve had a chance to confer with your lawyer . . .”
  1. The parties stipulate that every witness met with his lawyer five times for a total of 20 hours to prepare for the deposition. How many hours of your life have you spent listening to detailed deposition questions about who the witness met with, where, and for how long to prepare for the deposition? How many times has this questioning resulted in discovering a fact that will make any difference whatsoever at trial? This stipulation will save time for everyone.
  1. Each side’s first request for production will include a request for every document generated by the other side’s expert witness. Never mind that the “new” Texas discovery rules (which are now almost 20 years old) provide for only two exclusive methods of obtaining discovery about testifying experts (read Rule 195.1 if you don’t believe me). Why waste those forms your firm has been saving since the Reagan administration?
  1. In federal court, the defendant must file a motion to dismiss raising every possible factual defense to the plaintiff’s claims. A lot of court opinions say the judge should decide a motion to dismiss based only on the facts alleged in the plaintiff’s complaint. Those courts obviously do not appreciate the number of billable hours that a thorough motion to dismiss can generate for the benefit of both sides.

Agreeing on these rules up front will level the playing field for everyone. Nerds who take the Rules of Civil Procedure seriously will no longer be at a disadvantage. If the judge reprimands a lawyer for following one of the Fiver Rules, it will be socially acceptable for that lawyer to point at opposing counsel and say “he started it!”

And if you are a non-lawyer who has gotten this far and is now saying, “I wish I had that five minutes of my life back,” all I can say is, “you were warned.”

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Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC.

These are his opinions, not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.

Election Edition: Political Correctness, Paleo Correctness, Trump, and What All This Has To Do With Lawyers

Election Edition: Political Correctness, Paleo Correctness, Trump, and What All This Has To Do With Lawyers

Political Correctness is a Real Problem, But Embracing Prejudice is Not the Solution

This presidential election year has brought us a lot of talk about political correctness or, to be more precise, the backlash against political correctness, which, as you may have noticed, has helped fuel the rise of a very unlikely major-party presidential candidate.

This is not a political blog, so I won’t bore you with my opinions on the presidential race, but I do want to clarify some things about political correctness and how it relates to lawyers.

Before I run the risk of “burying the lede,” here’s my thesis: political correctness is a real problem (contrary to some commentators on the left), but the antidote to political correctness is liberalism (properly understood), not prejudice (contrary to some commentators on the right), and lawyers have a special relationship to liberalism. More about the lawyer part later.

My conservative readers will bristle at the “liberalism” part of the thesis, but let me clarify. I’m talking liberalism in the broad historical sense, as in “liberal democracy,” rather than the narrower contemporary political sense, as in “Mike Dukakis was too liberal to get elected” (anyone remember him?)

This broader liberalism gave birth to the very concepts of individual liberty and tolerance—concepts alien to most of human history—that we now largely take for granted. The two kinds of liberalism are related, but they are not identical. To make matters even more confusing, contemporary American “conservatism,” at least the intellectual variety, is partly a branch of historical liberalism.

But “political correctness” must also be defined. Unfortunately, the term has become almost generic, now sometimes used to mean any belief system that is rigidly enforced in some group. Originally, political correctness had a more precise meaning. It essentially meant “dogmatic liberalism.” It was also associated with a hyper-sensitivity about any perceived slight based on race, gender, sexuality, etc.

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John Locke

“Dogmatic liberalism” is in some ways an oxymoron. Liberalism—the broad historical variety—could almost be defined as a rejection of dogmatism itself. John Locke championed the concept of tolerance, which was largely a rejection of enforcing dogmatism of the religious variety. Although tolerance is now sometimes associated with relativism, toleration originally was not based on the position that all moral viewpoints are equally valid, but the idea that you could tolerate even fundamentally wrong viewpoints for the sake of greater goods, i.e. freedom and social harmony.

It is no accident that Locke was also the philosophical godfather of the founding principle of America: “inalienable rights” to “life, liberty, and the pursuit of happiness.” (Jefferson substituted the “happiness” part for Locke’s “property”).

Later, John Stuart Mill became the foremost philosophical spokesman for liberty—an old fashioned word for freedom—especially liberty to express different viewpoints on fundamental issues. So Mill would be surprised to see his liberalism morph into a form of dogmatism.

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John Stuart Mill

The oxymoronic nature of “dogmatic liberalism” reveals its great danger. But to understand that, we first have to understand the opposite of political correctness. It has no equivalent label, so I will give it one: “paleo correctness.” Paleo correctness is as old as human civilization. Every society has its basic myths, its “traditional” values, its prejudices and sacred cows. Throughout most of human history these values have been vigorously enforced through social, religious, and political coercion. Racism is perhaps the oldest and most common feature of paleo correctness.

This is not to say that paleo correctness is all bad. Every clan or nation needs a certain amount of paleo correctness to survive, both to maintain internal cohesion and to repel foreign enemies. Moral skeptics are not likely to be first in line to plug the leaking levee with sandbags, or to volunteer for military service.

On the other hand, the danger of excessive paleo correctness is obvious. Paleo correctness can easily become dogmatism and a threat to freedom. This danger is no less present in democracies, as Alexis de Tocqueville recognized when he described the tyranny of the majority.

tocqueville
Alexis de Tocqueville

Political correctness is potentially more dangerous than paleo correctness for precisely this reason. You expect the defenders of paleo correctness to be dogmatic, intolerant, and opposed to free expression. They make no bones about it.

Political correctness, on the other hand, is closed-mindedness posing as open-mindedness, intolerance posing as tolerance, dogmatism posing as skepticism (I stole this last phrase from Prof. Arthur Melzer, who used it to describe moral relativism). Thus, there is a certain element of deception to political correctness. It punishes free expression while pretending to champion freedom.

Political correctness came on the scene in the wake of the social and political upheavals of the 1960s, as liberal baby boomers came to power and started to codify and enforce the new norms that had replaced the old. The foremost—and most controversial—description and critique of political correctness is still Allan Bloom’s The Closing of the American Mind.

What Makes Political Correctness Dangerous

The problem with political correctness was that it sought to impose a rigid liberal orthodoxy in place of the old orthodoxy. Its adherents sought to enforce it with an almost religious zeal. Anyone disagreeing with its tenets was treated as a heretic to be punished and ostracized. If you were against gay marriage, for example, you were not just wrong, you were a bigot expressing a view that was no longer permissible. You might as well be defending the institution of slavery.

Naturally, conservatives heartily rejected political correctness, and in some ways even benefitted from using it as a foil. But how did the left respond to the rise of political correctness? Some denied that political correctness was a real phenomenon, suspecting it was just a bogeyman invented by the right, but this view was not realistic. I was a student on a predominantly liberal northeastern college campus in the early 1990s, and I can attest that political correctness was real, as the rest of America would gradually learn.

Others on the left acknowledged the existence of political correctness but denied that it was a problem. They embraced the new dogmatism as a good thing. But these people were never really “liberals” in the true sense. These were post-modern types more likely to read Nietzsche and Foucault than Locke and Mill. (The story of how the left came to embrace Nietzsche, the most right-wing of the great philosophers, is told in Bloom’s book.)

So how did true freedom-loving liberals respond to political correctness? Some simply cowered. They knew deep down that political correctness ran contrary to liberal values, but they were too fearful of offending the new orthodoxy to speak out against it. But some took a stand against political correctness, recognizing that it was a dangerously illiberal doctrine. Within the universities, Prof. Harvey C. Mansfield, Jr. has been an especially compelling critic of political correctness.

Of course, as political correctness made its way out of universities into American culture at large, the backlash was inevitable. At the risk of pointing out the obvious, the reaction against political correctness reached its peak this year with the selection of Donald Trump as the Republican presidential candidate.

The Peak of the Backlash

Republican primary voters were fed up with political correctness. For them, it was not enough for a candidate to be conservative (could you get any more conservative than Ted Cruz?), or merely to criticize political correctness. They wanted someone who would give political correctness the middle finger.

Trump fit the bill perfectly, both in style and substance. His most enthusiastic supporters were not looking to replace political correctness with freedom and tolerance. They wanted to double down on paleo correctness. (The phrase “double down” has virtually become a cliché as applied to Trump, yet it fits his style perfectly and therefore must be used.) And Trump did not disappoint.

But the paleo correctness advanced by Trump is a new, meaner variety, untethered from the moderating forces of civility and chivalry previously associated with “traditional” community values. Men of my grandfather’s generation had their prejudices, but generally they behaved like gentlemen. Now, not only is it ok to embrace your prejudices, you don’t have to pretend to be civilized about it. You can stoke the fires of traditional prejudice while simultaneously telling crude sexual jokes with Howard Stern.

This reinvention of paleo correctness is of course the wrong answer to political correctness. The problem with political correctness is its rigid dogmatism. Just as the answer to the old dogmatism was not to replace it with a new dogmatism, the answer to political correctness is not to embrace an even more prejudiced version of paleo correctness. Freedom and tolerance, not threats to loosen the libel laws, are the right antidotes to political correctness. Similarly, the antidote to the hyper-sensitivity of political correctness is civil disagreement (and a healthy sense of humor), not hurling even cruder insults. In short, the answer to dogmatic liberalism is true liberalism.

This is not necessarily to say that liberalism is the highest philosophical expression of the truth about human nature and politics, but good luck trying to build popular support around say, Aristotelianism. Considering the modern dangers of totalitarianism and nuclear weapons, liberalism will have to do.

So What Does This Have to Do With Lawyers?

Lawyers in particular have a special role in defending individual liberties and tolerance. If Trump somehow succeeds in imposing a religious test for entry into the country, we know who will be the first to challenge it. Just ask the general counsel of the New York Times. He was the one who responded (here) to Trump’s threat to sue for reporting—reporting!—that two women made some very specific allegations of sexual assault. Ultimately, rights like free speech and religious freedom—and yes, even the right to bear arms—mean little if they are not legally enforceable rights, and enforcing legal rights requires lawyers.

But what kind of lawyers will defend the unpopular or persecuted? The legal profession is unique in having a very specific ideal that is embodied in a single fictional character. His name is Atticus Finch. He is the personification of defending individual rights and the rule of law against the forces of prejudice, bigotry, and lawlessness. Liberalism is uneasy with the ancient notion of virtue, but Atticus Finch’s liberalism is his chief virtue.

Part of what makes Atticus Finch a compelling ideal is that he is essentially apolitical, and therefore he can appeal to lawyers across the political spectrum. He is not an outside agitator, nor is he a community activist. He has no apparent political agenda. He makes no claim to be a Thurgood Marshall taking on a test case as part of a larger movement. He is simply a small town lawyer who does his job by standing up for what is right and defending the rights of a man who is the victim of community prejudice, i.e. paleo correctness. Politically, Atticus could be liberal or conservative or anything in between; we never find out because it is irrelevant to the story. (Yes, we do learn he’s an excellent shot, but in the 1930s even Democrats still shot guns in the South, so that doesn’t really tell us anything.)

Whatever happens in the presidential election tomorrow, political correctness will still be a problem, and the backlash to political correctness will still be a problem. America will still need liberalism, properly understood, we will still need lawyers, and we will still need Atticus Finch.

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Zach Wolfe is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC. 

These are solely his own opinions, not the opinions of his firm or clients.