Appeals To Things You Don't, Or Can't, Know
Don't assume that someone is right simply because the person is opining about something you don't know.
You ask to see the cross-examination outlines for witnesses in an upcoming international arbitration.
One of the outlines includes asking the adverse witness this question on cross: “Why not?”
You cringe. Any first-year law student would know not to ask that question on cross. If you ask open-ended questions on cross, you’ll probably get your ass handed to you: “You want to know why not? There are 42 reasons why not. Please take a seat while I explain to the judge or jury the 42 reasons why you’re wrong.”
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Not good.
You suggest to counsel that asking “why not” on cross is a bad idea.
“Oh,” you’re told, “Things are different in international arbitrations. You don’t get as much discovery, so you have to take some risks. This is a perfectly good question at an international arbitration.”
You ask to see the cross-examination outlines for witnesses in a Texas state court trial.
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One of the outlines includes asking the adverse witness this question: “Why not?”
You think this might be a bad question, and you raise the issue.
“Oh,” you’re told, “Things are like the wild west in Texas state court. People take more risks in Texas state court. This is a perfectly good question for this trial.”
You read an English translation of a draft brief that was written in Spanish. You say that you understand that it’s just a translation, but a few of the sentences are 20 or more lines long. It’s awfully hard for a reader to remember how the sentence started when the sentence meanders on for 20 lines. In English, you’d never let a sentence run on for more than three or four typed lines. Perhaps these sentences should be shorter?
“Oh,” you’re told, “Things are different in Spanish. It’s considered proper Spanish and quite persuasive to have sentences run on for 30 or 40 lines.”
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Maybe. Maybe not.
Outside counsel is appealing to things you don’t know: If you do few international arbitrations, maybe common sense doesn’t apply in international arbitrations. So, too, for Texas state court trials or documents written in Spanish.
It’s often hard to decide how to respond when people appeal to things that you don’t know.
But people often appeal to things that you do know, and those people are frequently wrong. Don’t assume that someone is right simply because the person is opining about something you don’t know.
Let common sense prevail. Recognize your weaknesses but push back when your innards are quivering, and you just know that outside counsel is wrong.
Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at inhouse@abovethelaw.com.
