Advocacy is not what it should be

It's a courtroom, not a World Wrestling match

2019 July

Television and the movie industry have created this fiction that the legal profession is like the World Wrestling Federation, except the people wear business suits. The entertainment value from the fights, the sandbagging, surprise witnesses and exhibits has no place in the real world, and certainly, not in a real courtroom. The idea that “I don’t want to educate the other side about my case” is actually the worst perspective an attorney should have. As a judge, I believe it is my duty to be an advocate for the litigation process and there should be a particular approach to that process. Every litigant who appears before me will get the following lessons about advocacy:

“There are two maxims everyone should follow in order to be successful in Dept. 28. Maxim number 1: Litigation is not poker. Show your cards, right away, face up. The litigation process functions well when there is a transparent and ongoing dialogue about the facts of the case, and the law applied to those facts. When the parties really understand what the case is about by understanding the other side’s case, the case is more likely, and more rapidly going to resolve. The facts cannot be changed. The party who is holding a full house will beat the party with only two pairs every time. Therefore, the party with the two pairs needs to be realistic and try to reach a compromise.

Maxim number 2: Try the case you have, and not the case you wished you had. Many of the nonsensical discovery disputes originate from approaching the case with the fantastic idea that the case would be better if certain things could be established. However, by not focusing on the actual case, you undermine your genuine presentation and you lose credibility with the court and the jury. The jury can readily recognize when a litigant is insincere about her case. Trying your actual case will always present better than something you hope to develop.”

Finally, litigants need to engage in more East-West conversations. What do I mean by that statement? It is about good old-fashioned communication. When parties appear in front of me and they complain about what the other side is doing, or not doing, that conversation is North-South. In addressing the complaint, I will often ask the other side, “Were you aware of this problem?” and many more times than not, the other side had no idea. When the parties have the East-West conversation, they are speaking to one another. The meet and confer requirement does not mean that you exchange five page recitations of the CCP or Evidence Code without actually reading those long-winded letters. The best and most successful advocates will pick up the phone and talk to the other side about what needs to be resolved. When the East-West conversation takes place, everyone benefits.