The law is a nymphomaniac

Legal strategy
Legal strategy



My great friend and fantastic lawyer Jamey Holmes of Henderson, Texas, sent me a note yesterday about a Law Day speech by legendary Houston trial lawyer Joe Jamail that he heard earlier this week.

Jamail told some war stories, then concluded his twenty minute presentation with these remarks.

“They told me the law was a jealous mistress.  They didn’t tell me that she was a nymphomaniac.”

I think I understand what he meant.

Any case a lawyer handles has the ability to overwhelm him. He feels there is always another fact he doesn’t know, a witness he hasn’t interviewed, a strategy the other side has up its sleeve he hasn’t considered and that will kill him when it is sprung on him. Lawyers know that no amount of work is enough.  There is always something else that can be done, or should be done.

I read that Abe Lincoln, a lawyer himself, once said that when he prepared for a case, he spent one-third of his time thinking about what he was going to say at court and two-thirds of his time trying to figure out what his opponent was going to say.  That is a good approach to trying lawsuits, but it leaves the attorney with a nagging sense of doubt that he hasn’t covered all the bases.

I wrote in another blog about Jonathan Harr’s classic non-fiction legal book A CIVIL ACTION.  What gave that book such punch was Harr’s method.  He received permission from both sides to listen in on their private case strategy sessions as a fly on the wall. Of course, he had the understanding with all the parties that he wouldn’t divulge any of the things he heard until the case was over.

For a writer of legal fiction, this raises all sorts of possibilities.

One approach is to fictionalize Harr’s method and tell the story from the perspective of both sides of the controversy. The author can show the plans and the fears of each side, the soft underbelly of the case that each party hopes the other will not recognize in time.

The problem is how to write about the case like that without spilling the beans.  How to maintain the tension of suspense.

Another approach is to keep the hot issues, the dark secrets of the case, hidden until the last  minute and deliver them as a death blow at the crucial moment in a Perry Mason-style last minute confession from the witness stand or with a surprise witness who tells his story for the first time after the fat is in the fire.

One other approach is to have one side hang its hat on a particular trial strategy, a plan that blows up and works to the other side’s advantage in an unanticipated way.

I used this last approach in my book NEXT BEST HOPE. I wont spoil the story for you, but the thing was that the prosecution decided that it would put all its eggs in one basket. It knew that the defendant in a high profile criminal case would not be able to withstand the temptation to take the stand and use it as a bully pulpit.

Let’s just say that things didn’t work out that way.  That’s the problem with an all or nothing trial strategy.

It may end up as all or nothing.



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