I was in college when Prince’s song “1999” came out. At that point, the next millennium being seventeen years in the future, it was way too far away for my then nineteen year old brain to fathom. But those seventeen years went by really quickly. Before I knew it I was a thirty-six year old lawyer who was already two years into my Firehose. At that point, I was the new clown in the circus trying to figure things out. So, logically, I looked to the old clowns for a little guidance.
And usually what I’d get from them came in the form of stories. Which was odd, at least to me then. I mean, I would ask my boss how to do something specific and he would respond with a story that generally didn’t seem to have anything to do with what I was asking. The stories were interesting (usually) and I appreciated the old clowns telling them, but I would walk away no more informed (I thought) than I had been before I heard them. I learned later that I was wrong about. I learned a lot from the stories, but just not in the linear way in which I had been taught in school to learn.
I made a mistake a few years ago. I had tried a case with a younger lawyer who I left alone to cover us during jury deliberations. I gave the closing and was there when the jurors went out to deliberate, but I had a personal thing I wanted to do the next day so I left the young guy there. I was pretty sure we were going to win (and we did, ultimately) and didn’t foresee much of a problem that he couldn’t handle—although he was only halfway through his own Firehose.
The night before I left, my young associate asked me for specific instructions about what he should be doing during deliberations because he had never done it before. Instead of answering his question, I told him a story about a lawyer who had polled the jury after receiving an adverse verdict. Polling the jury means having the judge ask each juror if that was in fact his verdict. The idea is to discover whether any of the jurors has had his will overcome by the others. You don’t do it because you don’t like the verdict, you do it because a juror is making crazy faces at you while the verdict is being read.
The point of my story was that there were almost NO circumstances under which a lawyer should poll the jury. We finished our beers and I bid my young friend good luck, telling him to call me if he had any problems and I left town.
Of course, a trial being the circus it often is, the clowns got loose and the jury came back with a verdict that confused everybody. They had made a mistake that negated their intent to grant judgment to my client, but the mistake was not the result of anybody’s will being overcome. The judge, who happened to be brand new herself, suggested to my associate that he should poll the jury. Under the circumstances, that would have been the exact wrong thing to do but he didn’t know that. All he had to go on was my stupid clown story from the night before, which was just enough to keep him from polling the jury—which turned out to be right call.
I tell this story here to illustrate why old lawyers tell stories to young lawyers who are in their Firehose. We can’t anticipate every single thing that might happen so we give broad guidance through what are essentially parables of success or (more commonly) failure. The idea is to help the younger lawyer think for himself rather than give him specific checklists that could never be complete anyway. Lawyering just doesn’t work that way.
So that is, in part, my intent in writing this book. Just like those seventeen years between college and 1999, the last twenty years have gone by for me in the blink of an eye. During my Firehose I had very little to share because I was barely keeping my head above water. But after that I learned some things that I hope will be helpful to younger lawyers.
But I have to start with a caveat. Like Prince says in 1999, “I was dreaming when wrote this, so forgive me if goes astray”. In other words, while not quite a stream of consciousness, this book does not follow a perfectly straight course. It’s more like a meandering river that is flowing out to sea.