November 1999

The River Will Tell You All You Need to Know

 by Jeff Tolman, Guest Editor

I was watching the Show Cause calendar, waiting for my case to be called. The matters ahead of mine were the usual "she-is-rotten-he-is-worse" arguments. What struck me, though, was the young advocates’ lack of perspective about the bigger picture. The judge would smile at a silly argument, or the court reporter’s eyes would bug out as an advocate asked the Court for some relief that was not founded in law or fact. Despite these visible reactions to their presentations, the young attorneys proceeded in their oblivion, making their arguments per their notes.

Seeing the lawyers’ blinders reminded me of my flyfishing mentor, Bob Alford. When I was 30, Bob asked me to join him and some other guys (The Hell’s Anglers) in flyfishing. I knew nothing about the sport, but thought it would be a fun group to spend time with. Bob loaned me some gear, and off we journeyed to a beautiful stream. Sitting on the bank, I asked him how to know when the morning bite would begin, and where the bigger fish would be, plus many other questions.

He calmly replied, "If you watch and listen, the river will tell you everything you need to know."

Huh?! What does that mean, I wondered. Was that some kind of a "May the Force Be With You" cryptic lesson?

So I sat on the bank and watched and listened. Sure enough, there was much information gained by seeing the bigger picture: the water, calm until the bugs began to emerge; the bugs emerging from the water, their wings drying, then flying in the air; the birds excited as the water warms; and the bugs beginning to rise, then feeding on the emerging mayflies.

The river did tell me everything I needed to know.

The same thing is true in court: if you watch and listen, the courtroom will tell you everything you need to know. Every judge has tendencies. Some judges lean back in their chair when they have heard enough of your argument, or have made up their mind. Other judges can’t hide a hint of a smile or frown as they listen to your presentation. One local judge simply quits taking notes. Perceptive practitioners know that whomever is speaking when he puts his pen down will probably lose. Another local jurist takes notes on your closing argument if she is still up in the air about the result. If her mind is made up, she listens intently, pen and notepad unused. Learn a judge’s messages and react to them. Shut up when you are ahead. Change course in mid-argument if the judge begins laughing or yawning or giving you "you’re going to lose" indications.

Good lawyers are able to be empathetic from a distance. They understand and can express their client’s position, but at the same time can see how it sounds to a neutral fact-finder. The young lawyers I was watching could do the former, but not, apparently, the latter.

So how do you get the information that will help you? Go to others’ arguments and, as you listen to them, watch the judge and court staff. Learn the signs they give when they are listening, and when the decision has been made. What, in baseball, would be stealing the opposing coach’s signs is, in our business, good lawyering.

There is much to learn — if you watch and listen.

The worst example of a personal oblivion occurred in a criminal case a couple of years ago. A witness sympathetic to the defendant was sworn in and prepared for the prosecutor’s direct examination.

"Please state your name," the young prosecutor began, staring at his lengthy notes.

"He didn’t do it," the witness answered, looking directly at the jury.

"And where do you live?" the prosecutor continued, unfazed and unknowing.

"He didn’t do it," the witness answered again.

"Counsel," the judge finally said, "please join us. You’re missing some interesting testimony."

Some years ago, I represented a young man who was driving just under 100 miles per hour in a 25-mile per hour zone. He pleaded guilty to reckless driving. The only issue was the proper sentence. The state wanted jail time for the egregious driving. Having watched the judge for many years, I knew he was a bottom-line person who had lived a colorful life before donning the black robe. He liked real-life arguments. Mine was simple: the driver in the adjacent lane had shown my client how long his middle finger was. My client responded inappropriately by showing the other driver how heavy his right foot was. A driving class and community service would best resolve this weights-and-measures case, not jail time. The judge nodded. My client served no jail.

Years in his courtroom had taught me everything I needed to know. By simply watching and listening.

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