A strange procedural move is a hissing serpent, coiled
around the low-hanging limb of a tree. An odd phrase
in a contract is a black widow spider waiting to strike.
With dangers like those, you can see why anything
Mongo does not understand makes him angry and
suspicious.
To his credit, Mongo has probably saved your professional life a number of times. But he still is difficult
to work with. So Mongo gives the lawyer who has offended him as good as he got, and the other lawyer
responds—perhaps through his or her own Mongo.
This punch and counterpunch advances from angry
quibbling to major antagonism.
For Mongo, this is all very natural. As far as he’s concerned, the point of the lawsuit is not to get a favorable
verdict but to kill the other lawyer.
When Mongo acts this way, you need to have a talk
with him. He has to understand that, whether it is subconscious or deliberate, the other lawyer wants him to
be angry. Once he realizes that the trash coming from
the other side is designed to egg him on, Mongo won’t
give the other lawyer the satisfaction of reacting to his
or her game.
As Adam and Eve learned in the Garden of Eden,
there are things we want just because we’re not supposed to have them. Lawyers are no different. There
are lots of things we do, not because they will help our
case but because we are told not to do them.
If you listen closely when that happens, you can
usually hear Mongo mumbling, “Judge not let Mongo
have cookies. Mongo need cookies. Mongo want cook-
ies now.”
Take arguing during your opening statement. There
are some lawyers who will tell you to do as much as
you can. And there are some judges who will let you.
Neither is helping your case.
You know that opening statement is a special time.
It’s your opportunity to tell the winning story that shows
the injustice that has been—or is about to be—done to
your client. It’s the time when judges and juries tend
to take sides, to pull for one party or the other. It is also
the time when they pick one of the lawyers to be their
guide—someone they can follow throughout the case.
But start arguing the case before the judge and jury
even know what it is all about, and you are no longer
the guide but someone with something to sell.
Mongo doesn’t know that. Mongo is sure he can
smell the cookies because the judge said he can’t have
any. The temptation becomes overwhelming, and your
opening statement is filled with adjectives and adverbs
—purple prose that rings with synthetic sincerity.
When you explain to Mongo that arguing in your
opening statement is not actually the cookie he thinks
it is, you’ve got a much better chance at one of the
toughest jobs of self-control.
We have come to overvalue witness control on cross-
examination. To be sure, the technique of asking short,
leading questions is one of the essential tools of a good
cross-examiner. But there’s a lot more to it than that.
MONGO, CALM DOWN
IT’S TIME FOR ANOTHER TALK WITH MONGO, WHO MUST
understand that an unreasonable witness on the other
side is just what he needs to show the judge and jury
who the good guys are.
Rulings on evidence and procedure that don’t go
his way are difficult for Mongo to handle. Left to his
own devices, Mongo will snarl, make faces, shoot daggers with his eyes, make comments under his breath
about how the court of appeals will have to straighten
out what’s going on, slam books, crumple paper, break
his pencil, roll his eyes or look to heaven for help.
Mongo needs to realize that the judge’s ruling was
not an evaluation of your abilities or the level of your
professional work.
Most of all, Mongo needs to know that the judge
and jury do not add up all the debating points, the
clever buzzwords, the little digs and jabs to decide
who wins the case. Beating a point to death does not
make it true, and repeating an argument again and
again does not win it acceptance.
A lawsuit is neither a high school debate nor a boxing
match. You do not win a case because you are perceived
to be the superior advocate. On the contrary, if the jury
is too aware of your persuasive abilities, it can hurt your
case. You want the judge and jury to think your client
has the better facts, not the better lawyer.
If Mongo understands that, he’s getting pretty
sophisticated. ■
Jim McElhaney is the Baker and Hostetler Distinguished
Scholar in Trial Practice at Case Western Reserve University
School of Law in Cleveland and the Joseph C. Hutcheson
Distinguished Lecturer in Trial Advocacy at South Texas
College of Law in Houston.
