“We May Be Adversaries…”

I am in Supreme Court, Queens County.  My assignment is to pick a jury on the first medical malpractice case of my career (my second trial).  The case involves a young man who had a pilonoidal cyst.  He was admitted to a hospital in Manhattan that has long since ceased to exist and surgery was performed to solve the problem.  Unfortunately, he developed an infection of the lining of his heart called the pericardium.

He was treated successfully for the infection at a second hospital.  We are claiming that the surgery was performed negligently and led to avoidable infection.

It is 1982 and I am 28 years old.  My adversary is a white haired gentleman who is the last named (of five partners)  in a law firm that defends a lot of cases in our office.  Up to this point, I have not met a partner in any defense law firm other than acting as an assistant to one of the trial lawyers in our firm. 

When I was still in law school, I accompanied our senior partner on a trial in Brooklyn.  We were assigned to a Judge with a lot of “personality”.  During the testimony of one of the defendants (being questioned by his own attorney) my boss asked me to go out of the courtroom to use the pay phone to call the office about something.

I was proudly wearing a brand new pair of Florsheim ox-blood wing tipped shoes which I had purchased at an exorbitant price in order to look more like the lawyer that I hoped at that point I would soon become.  Unfortunately, the shoes were a little stiff and made a kind of clacking sound on the tile floor when I walked.  As I rose from the counsel table and began to walk out of the courtroom to do as I had been told, my shoes began to make a racket.

The Judge, apparently insensitive to the fact that the jury was in the box listening to testimony, interrupted the proceedings to address my boss.  “Mr [Plaintiff’s lawyer], tell your associate to get rid of those clod-hoppers.”

Of course the comment was greeted with a fair amount of laughter.  Of course the most expensive shoes I had ever purchased or owned were never worn again. 

That experience, of “second-seating” a trial lawyer was effectively how young trial lawyers apprenticed in those days.  It was in that setting only that I had met a partner in a defense firm prior to trying my first medical malpractice case in Queens.

When the case was called, both my adversary and I answered ready and were told to go to the jury part and select a jury.  As we were leaving the courtroom together, this venerable gentleman introduced himself to me and said “We may be adversaries, but that doesn’t mean we can’t be friends.”

I have thought many times over the years how fortunate I was to have started out on my career by having tried a case with a man such as he.  It was a great lesson which I never forgot; that we are professionals; we do our best to represent our clients zealously in the courtroom, but it need not be personal.  We can and should conduct ourselves with dignity and integrity, and then there is nothing to prevent us from admiring or even liking and respecting one another when we leave the courtroom.

I analogized it once in a Chapter I wrote to an episode of the roadrunner cartoon.  The roadrunner and Wiley Coyote are walking together wearing hard hats and carrying lunch buckets.  They are having a friendly conversation.  They pass through a gate and go up to a shed and pass their time cards through a clock to “punch in”.  From that point on, it is a normal episode of the cartoon with the Coyote trying his utmost to kill or capture the roadrunner, who manages to outrun and outwit his adversary at every turn, even making him the victim of his own boobytraps.  Suddenly, a five o’clock whistle blows.  The two of them return to the shed, “punch out” and leave together talking to each other once again as friends.

As lawyers we learn to disagree without disliking or disrespecting each other.  If only that were true in all other aspects of life where people disagree with one another!