BeldarBlog

Musings regarding affidavit drafting

Commenter martin asks another very good question about affidavit practice and ethics:

I wonder who actually drafted these affidavits. Elliott himself or is someone summarizing his testimony and sending him the afffidavit to be signed? And if so-what is being prompted/discouraged?

My response is sufficiently longwinded that I decided to make it here as a new post, rather than in the comments to my recent post about Captain Elliott's affidavits.

I'd guess that both affidavits were initially drafted by lawyers, with Captain Elliott's participation and cooperation, for him to then review and sign.  My further guess (for reasons I'll explain in a moment) is that the second one, but not the first one, might have been drafted by Mr. O'Neill or another experienced trial lawyer.  But those are just wild guesses.  The first one's a safer bet:  Unless they were JAG officers, I wouldn't expect many retired career Navy captains to know the "magic lingo" required to put the affidavit into admissible format, but both of Captain Elliott's have that language.

Most witnesses who are willing to give an affidavit in the first place are genuinely grateful for the drafting help.  Normal, ethical practice is for the lawyer who drafts the affidavit to do so only after he's first questioned the witness.  The lawyer then writes the affidavit in much the same way that the lawyer would elicit the same substance from the witness in live testimony on the witness stand.  Either way, the lawyer of course wants to exercise his professional skill to give clarity, structure, and coherence to the testimony.  There's nothing unusual or remotely unethical about doing this.

A major difference between affidavit testimony and live testimony, of course, is that affidavits don't contain surprises to the lawyer who's drafted them.  But either can be artfully constructed to dodge around certain issues. 

Artful dodging is usually a tactical mistake, however, if you expect that the witness is going to be interrogated about the affidavit or cross-examined after his direct examination testimony. It's standard cross-examination practice, when asking a witness about an affidavit or other written statement he's signed, to suggest that the lawyer who drafted it put words into the witness' mouth and that the affidavit was therefore unreliable — like a series of "leading questions" of a friendly witness, writ large and literally. 

On the witness stand, a lawyer's not allowed to lead a "friendly" witness (usually meaning a witness whom his own side has called) during "direct examination," at least on substantive matters.  "Leading" questions are those which suggest a particular answer; it's also sometimes called "coaching" the witness.  (Leading questions are not only okay to use when cross-examing the other side's witnesses, however, but in fact are highly recommended.)  When lawyers are restricted to asking open-ended, non-leading questions, they sometimes get answers they weren't expecting.  Avoiding just such surprises is a big part of proper "witness preparation" — which might more accurately be called "witness-lawyer preparation," but which trial lawyers colloquially call "woodshedding the witness" — before he gives oral testimony as a "live witness" at a trial, a hearing, or a deposition. 

Whether you're collecting the witness' version of events to put into affidavit form, or helping prepare him to give live testimony, it's unethical to suggest testimony for the witness to give.  In practice, this is a very tough tightrope to walk, however.  A perfectly legitimate part of witness preparation is to help the witness anticipate ways that the other side may try to distort or twist his testimony on cross examination:  "If you use the word 'zoom,' the other lawyer is going to try to make that into you saying that the car was traveling over the speed limit.  Do you mean to say that?  No?  Okay then, what other words could you use instead of 'zoom' that are accurate but not so likely to be twisted?"  That's okay.  "Dammit, don't say 'zoom,' I want you to stick with 'proceeded cautiously, driving within the speed limit,' when you're on the stand!"  That's not okay.

Experienced trial lawyers have seen and done so many cross-examinations themselves that they know the traps to avoid when drafting affidavits.  They recognize that by creating a written version of the witness' testimony, they're giving their opponents a static target to shoot at — one that can be studied ahead of time, one that a skillful cross-examiner can use to lay and then spring his traps.

Thus, to guard against predictable lines of impeachment, my own practice — and that of most experienced trial lawyers I know — is to spend some extra time with one's potential affiant, before he signs the affidavit, going over it with him in detail.  The witness should clearly understand that when he signs it, the testimony in it becomes his.  I warn affidavit witnesses that having to fall back on "I didn't mean to say that, the lawyer put that in there without my noticing it" will only make me and the witness look bad. 

One of the most common mistakes that inexperienced lawyers make when drafting affidavits is to use language that the witness himself wouldn't have used.  When I write affidavits from my notes of a witness interview, I try to use the same words he's used himself to the extent I can recall them or included them in my notes.  When I can't recall the exact language, or when I'm interpolating — writing transitional language, filling in the gaps, on nonsubstantive matters — I imagine that I'm writing a monologue in the witness' own voice.  Sometimes I'll have the witness read the affidavit I've drafted back to me, aloud, before he signs it — which really helps ensure that the witness has read it all carefully, and that the affidavit uses wording he understands and will be comfortable with if he's challenged on it.

Most experienced trial lawyers also pay particular attention to the "personal knowledge" allegations when drafting affidavits.  They're careful to avoid nudging their witnesses out onto limbs that can easily be sawn off.  It's far better to include a qualification like, "My understanding from reading the accident report is that the light was red for northbound traffic when Mr. Jones' car entered the intersection from the south" than it is to subject your affidavit-witness to brutal cross-examination along the lines of, "You swore here the light was red!  You swore that everything you were saying in the affidavit was within your 'personal knowledge'?  But you weren't there that night, were you?  So since your sworn written testimony in this affidavit was contradictory and untrue, why should the jury believe your sworn live testimony from the stand?"  (Actually, a good trial lawyer wouldn't ask that last question, because it's argumentative and it gives a smart witness a chance to explain away the problem; he'd save it instead for closing argument, when the witness can no longer smooth things over.)

The second affidavit signed by Captain Elliott does a better job of avoiding such pitfalls.  Of course, that could just be because Captain Elliott had already been sensitized to the problems with the first affidavit — for example, if he was "cross-examined" informally by the Boston Globe reporter about the state of his personal, eyewitness knowledge as to whether Kerry shot the fleeing Viet Cong soldier in the back or not.  That could certainly account for the Globe's "terrible mistake!" quote — that is, they got Captain Elliott feeling panicky in the interview because he thought they'd exposed a falsehood in the first affidavit.  Been there, seen that done many, many times, friends and neighbors, even with smart and honest witnesses — in fact, the more honest they are, the greater their degree of panic!

And if I'm going to continue speculating, my wild guess is that the original affidavit that Captain Elliott signed might have been drafted by a lawyer for the publishing company — which may, quite prudently, have been laying a foundation against possible defamation litigation — rather than by a seasoned trial lawyer.

That's probably more than you or anyone else ever wanted to hear from me on this topic, martin.  But that's why I have that big warning at the top of the blog — "longwinded" probably ought to come before "crusty," in fact.

Update re Kerry's Secret Service codename

In February, I posted "What Secret Service codename for Kerry?," in which I speculated on the moniker that our brave Secret Service agents who are protecting Candidate Kerry might assign to him for their radio communications.  Tradition requires that Democrats who are protectees be given codenames beginning with the letter "D," but neither I nor my commenters could come up with a genuinely memorable and apt D-word.

However, my quest — and perhaps the Secret Service's? — has been fulfilled.  Comes now The Sporting News columnist Dave Kindred:

Here in the Toy Department of life, where we play with sticks and balls and cars that go boom-on-fire, it's always entertaining to keep track of our political heroes' athletic achievements, such as George W. Bush falling off his bicycle onto his schnozz.

Imagine my delight, then, to see John F. Kerry throw out a ceremonial baseball at Fenway Park....

Though Kerry scored three goals to help Yale University's soccer team defeat Harvard in 1966, his Scottish soccer coach once told him not to "diddle with the ball," a scolding that led to the nickname "the Diddler." ...

As Kerry came out of the Red Sox dugout to do the first-pitch honors, he carried the ball in a way that foreshadowed the achievement to come. He carried it pressed against his palm with his fingers wrapped all the way around it.

A baseball is God's perfect invention. It fits precisely, cozily, wonderfully, in the space between one's thumb and index and middle fingers.

Perched there, it is supported by the side of the ring finger. Someone once said, and maybe it was Yogi Berra, "Anyone who carries a baseball stuffed against his palm and enclosed by all his fingers is a rink-turning kitesurfing diddler."

Kerry didn't go all the way out to the mound. Perhaps he took a touch of advice from aides who had seen him warm up. He stopped maybe 45 feet from home plate. From there he threw the first pitch.

I say "threw" in the kindest possible way. Here's what Kerry did: He raised his right arm to its full height. From up there, in an athletic movement seldom seen on a baseball field, he let the stiffened arm fall forward. At the same time, he splayed open his fingers in a way that allowed the ball to fall out. It bumped against the ground short of the catcher and in the right-hand batter's box.

Now, anyone working in life's Toy Department dare not suggest that a presidential vote be decided according to how a candidate throws.

Still.  President Bush threw a World Series strike from 60 feet 6 inches while wearing body armor the month after 9/11. And he threw another strike opening this season in St. Louis.

So if we need a fastball at Osama bin Laden's ear, I know which guy I want on the mound.

A-yup.  "Diddler."  Suh-weet!   (Hat-tip to the temporarily perma-linkless Hugh Hewitt.)

Traffic

I have no tip jar or advertising.  I write about what I want, and when I want, mostly to scratch a personal itch.  But I also enjoy arguing, obviously, and I enjoy feeling like my arguments are being heard. 

Therefore, like most bloggers, I'm always vaguely gratified to find that anyone is visiting my blog.  I took a lengthy break from blogging recently, which resulted in an expectable fall-off in my traffic.  But this, however, makes my jaw drop:

To all who've been kind enough to visit BeldarBlog, and especially to the bloggers who've recently linked me — thanks!

Captain George Elliott's "retraction" and his two affidavits regarding Kerry's Silver Star

The indefatigable Tom Maguire of Just One Minute continues to earn the most frequent comments I see about him from other bloggers — "read the whole thing" and "just keep scrolling." 

This post entitled "Kranish Is Cooked" — on the so-called "retraction" by SwiftVets' USN Captain (ret.) George Elliott as reported Friday by Boston Globe reporter Michael Kranish — does a splendid job of debunking the debunking.   Tom writes that his "first reaction [Update: and second, and third] is that Kranish wrote a wildly deceptive and misleading story," and adds:

Let's give Kranish a little credit here — Elliot does seem to be on both sides of the "did he shoot him in the back" question. But this early quote in the story — "Elliott said in an interview that he had made a 'terrible mistake' in signing an affidavit that suggests Kerry did not deserve the Silver Star" — seems to be an out of context interpretation of the full quote, which runs later — '''I still don't think he shot the guy in the back,' Elliott said. ''It was a terrible mistake probably for me to sign the affidavit with those words. I'm the one in trouble here.'"

One might plausibly argue, as Elliott now does, that the "terrible mistake" was to cite that somewhat immaterial detail, rather than to focus on the (subjective but irrefutable) war crimes accusations.

[Bracketed portion and italics by Mr. Maguire.]  My own hunch, however, is that the "terrible mistake" may instead have referred to the first affidavit's somewhat sloppy draftsmanship, and specifically to its susceptibility to being misinterpreted as an assertion by Captain Elliott that he had personal knowledge of Kerry's actions in the field (of which, more below).  Otherwise, I generally agree with Tom's analysis and have nothing of substance to add to it. 

(The Globe insists that it stands by its story; decide for yourself whether it's still spinning rather than reporting.)

Tom's post also links Human Events Online's post that includes scans of both Captain Elliott's July 21 and August 6 affidavits.  One of Tom's commenters has focused on the technical details of the two affidavits, with respect to which I'd offer these trivial bits of legal and evidentiary analysis (with a bit of idle musing thrown in at the end):

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First, Commenter "martin" writes [bracketed portion his]:

Incidentally, someone needs to follow up on Elliot's statement in the Globe that "In a hurry I signed it and faxed it [the affidavit] back."  This is quite common — unfortunately it's also fraud. I.e. you need an affidavit signed — you fax it to a witness — he signs it — faxes you the signature — drops the original signature in the mail — you notarize the fax — make a copy — it looks like an original. Later when the signed original shows up — you notarize it — and voila — there's your original. Except the Notary and the affiant were never in the same room. So the "before me personally appeared" part is perjury.

The Globe quote presumably refers to the July 21 affidavit, upon which the SwiftVets presumably relied in producing the video.  However, on its face, it was verified by a notary public whose stamp reads, "Notary Public — Delaware."  The August 6 affidavit was verified by a different notary, whose stamp doesn't mention her state of licensure, but it includes a handwritten notation of Captain Elliott's  Delaware drivers license number and expiration date.  The very strong inference, then, is that whoever prepared the affidavits in draft form for review and signature faxed them to Captain Elliott in Delaware, where he lives, and that he then signed and had both affidavits notarized during an in-person appearance before each of the respective notaries.  He probably then faxed a copy of the affidavits to someone working with the SwiftVets — but only after they'd been notarized.

If instead, as martin assumed, Captain Elliott had signed the affidavits in Delaware and then either faxed or mailed them elsewhere for notarization, martin would be correct — such a procedure would have been improper.  Calling them "fraud" or "perjury" is a bit too strong, since those crimes depend on both materiality of the incorrect statement and specific criminal intent for them to deceive, either of which seem improbable to me even if martin's assumption were correct.   The key requirement is that the notary confirm that the witness is who he's claiming to be (presentation of a drivers license being the normal way of doing so if the witness is not already personally known to the notary), and that the notary have authority to administer oaths in the jurisdiction where the verification is executed — and those requirements seem to have been satisfied here, at least on the face of both affidavits. 

(Of the two, the "faxed in a hurry" affidavit from July 21 is the one most clearly executed in person in Delaware.  And even the handwritten drivers license information on the August 6 affidavit looks more like the notary's writing than Captain Elliott's.  As to it, the more reasonable inference is that it was done by the notary based on an in-person presentation of the drivers license.  It strikes me as unlikely that Captain Elliott would have added that at his own initiative, or that a notary who's conscientious enough to insist that it be added would have then been sloppy enough to have relied on the info being relayed over the phone instead of an in-person presentation.  Unfortunately, I haven't been able to find an online directory of either Delaware or Texas notaries to look for these notaries' respective names.)

The faxing itself is inconsequential.  The original document — bearing a pen-and-ink signature from both the witness and the notary who verified the witness' signature (and if the notary were truly following good procedure, administered an oath orally at the time of the signature) — is indeed the "best evidence" for the making of the affidavit.  But both state and federal courts routinely accept into evidence — almost always without a "best evidence rule" objection — faxed and/or photocopied versions of notarized documents.  (More recently, in my own practice, I've taken to using .pdf scanned versions rather than faxed ones whenever I can, simply because they're more legible and don't have the fax header/footer additions.)

Very, very rarely in my 24 years of practice, I've seen a desperate lawyer raise a "best evidence" objection on grounds that a proffered exhibit is a fax or a photocopy.  The universal response has been a frown from the judge, followed by, "Counsellor, do you have any specific reason to doubt that this faxed version differs from the original?"  If the objector persists, the typical response to that is, "I'm admitting this exhibit provisionally and subject to your opportunity to renew that objection when and if you can show a difference between it and the original."  Or at worst, the judge will provisionally admit the exhibit and direct the offering party to produce the original within a reasonable time, for cross-checking and, perhaps, substitution of the original into the record in lieu of the fax or photocopy.  Thus does legal procedure and evidentiary law accommodate our modern Information Age society; court proceedings would grind almost to a halt if we had to return to the days of wax seals, colored ribbons, and nothing-but-originals.

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Second, martin makes a another far more substantive point, which I've also seen argued on various blogs in which Captain Elliott's assertions are being debated:

This testimony is worthless anyway. You can only testify as to your personal knowledge. Elliot wasn't there. This second affidavit — quoting kranish quoting Kerry — is triple hearsay and actually embarrassing (as far as admissibility into court — politically — who knows/cares).

He's certainly right that the "court of public opinion" rarely distinguishes between hearsay and non-hearsay in the technical legal sense of those terms.  He's also correct that in general, to be competent, testimony needs to be based on personal knowledge.  Both affidavits contain a rote recitation of personal knowledge, but courts routinely hold that such recitations are not conclusive, and that affidavits, to be competent, must affirmatively show the specific factual basis for the witness' personal knowledge.   

Obviously, Captain Elliott has no personal knowledge as to whether John Kerry, in combat in a field operation that Captain Elliott didn't participate in, shot someone in the back.  Indeed, in the later, more carefully drafted affidavit from August 6, Captain Elliott specifically disclaims such personal knowledge.

Fairly read, however, both affidavits are reasonably clear that Captain Elliott was not attempting to give direct testimony from personal knowledge on that question.  Rather, what's important here is what information Captain Elliott was acting on when he approved Kerry's Silver Star nomination.  Information that routinely would be inadmissible second-hand "hearsay" if offered in court to prove the truth of the factual assertions in it may, nevertheless, have "independent legal significance" — and hence be treated by courts as non-hearsay and admissible — when offered for the different purpose of showing what information someone had available to him when he took a particular action or made a particular decision. 

In both affidavits — albeit with considerably more precision in the later one — Captain Elliott's testimony is being offered to prove a point on which he does have personal knowledge — specifically, what information was available to him when he recommended Kerry for a Silver Star.

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Finally, an additional and distinct technical evidentiary objection could still be asserted to the statement in the second affidavit that "Had I known the facts, I would not have recommended Kerry for the Silver Star for simply pursuing and dispatching a single wounded, fleeing Viet Cong."  Quite simply, Captain Elliott is speculating and offering a conclusion as to what he would have done, had some other set of information been before him at the time he recommended Kerry for the Silver Star.  It's certainly a well-informed guess.  But he's still saying, "If the (second-hand) information available to me back then when I made the Silver Star recommendation had included what I've later learned (by way of the admissions Kerry later made in his book, of which I still have no personal knowledge, but which I find credible because they're an ugly confession, and why would someone make such an admission against his own interest about something so ugly unless it were true?), I believe now that I'd have done then something different than that which I actually did then on the basis of the more limited (second-hand) information that was then available to me."

A good courtroom advocate, however, could probably get around the speculation problem by reformulating the question.  One way would be to lay out the facts, still treating Captain Elliott solely as a "fact witness," and then leave it to the fact-finder (court, jury, public opinion) to draw the conclusion as to whether he'd have acted differently:  "During your entire career, Captain Elliott, did you ever approve a Silver Star recommendation on the basis of a report that the nominee had shot a wounded, fleeing Viet Cong in the back?  As of the time you were in a position to make such recommendations, did you believe, in general, that such conduct could merit a Silver Star recommendation?" 

The second way would be to lay a predicate to qualify Captain Elliott as being knowledgeable in general about standards then applied by the Navy for the award of Silver Stars — in legal terms, to qualify him as an expert witness on such standards.  He could then render his opinions, including speculative and conclusory ones, as an "expert."  If this worked, the resulting testimony might be even more powerful in scope, to the effect that "Not only would I not have recommended Kerry for a Silver Star, but no rational officer in my same position would have either."  Like all expert opinions, this one would be subject to impeachment on cross-examination even after it had passed the threshold tests for admissibility.  ("Isn't it true that such awards are highly fact-specific?  Isn't it true that such decisions are highly subjective?  Isn't it true that presented with an equal number of nominations, no two officers in your position would likely have made exactly the same decisions as to which ones to forward on with approving recommendations?")

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In musing about the entire SwiftVets controversy and John O'Neill's upcoming book, it occurred to me that  John O'Neill would probably like nothing better than for John Kerry to sue him and the SwiftVets for defamation.  Such a lawsuit would give O'Neill the opportunity to put all of this history, from all of its various fact witnesses, under the microscope of a public trial with real evidentiary standards.  The proceedings would quickly come to look like the celebrated Westmoreland v. CBS defamation trial from some years ago, and undoubtedly would nearly rival that trial in its complexity and probably surpass it in terms of public interest. 

But that, of course, will never happen.  Kerry is the quintessential "public figure" who'd have to prove not only the untruth of O'Neill's and the SwiftVets' allegations, but also that those allegations were matters of fact rather than opinion, and that they were made with "actual malice" (defined as actual, subjective knowledge that they were untrue or reckless disregard for their truth).  Threat letters from the Kerry Campaign and the Democratic National Committee notwithstanding, I do not believe that that lawsuit will ever be filed — and not just because it would be a sure loser on its merits.  I sincerely doubt that Kerry is half the legal strategist or courtroom lawyer that John O'Neill is, but  he's shown himself throughout his career to be a canny and formidable politician — and as such, surely he can see a tar baby when it's thrown in front of him.

On the other hand, surely he could have seen how the Bush campaign would use the "I actually voted for the $87 billion, before I voted against it" line.  Perhaps Kerry will surprise me and give John O'Neill his wish.  Now that would be a trial I'd gladly stand in line for to get a seat in the peanut gallery!

From Remulak ... umm, Remulak, in France!

The fella who writes Bear Left on an Unnamed Road graciously linked my blog in his sidebar under the heading "Worth a Look: New Blog Discoveries," with this comment: 

Beldar Blog: He's an attorney... and he's from France. Well, maybe not.

Now there's a guy who knows his old SNL skits from the late 1970s!

What the other Swifties say about Kerry; and another type of "war story" about Beldar's courtroom cross-examination of one of those Swifties

[ed: Newer, related posts re the so-called "Elliott retraction" are here, here, and here.]

Those favorably influenced by the glowing tributes to former Navy Lt. John F. Kerry at last week's Democratic National Convention may also wish to hear from some of the other veterans who served with him on the Swift Boats in Vietnam.  This video, which is drawing lots of notice in the blogosphere{note1}, is harsh stuff — but very, very simple, and very, very powerful.   So's the text of the Swift Boat Veterans for Truth  website.

On the subject of Sen. Kerry's military record, I've written on my own blog and elsewhere that I don't doubt Kerry's patriotism, and that I genuinely honor his service to his country.  I continue to do so.  I also think it would be a tactical mistake, politically, for President Bush's campaign to attack Sen. Kerry's military record directly. 

However, as I wrote recently in a comment on another blog, there is no logical inconsistency between the proposition that Kerry performed bravely in combat, and the proposition that at least some of his motivations for doing so were selfish, cynical, calculating, and craven.  Personally, everything I've read on the subject — which has been everything I could find on the internet, on both sides of both propositions, including both statements of objective fact and powerful but subjective statements of opinion — has left me inclined to accept both of these propositions.

So, yes, Sen. Kerry served in combat, and yes, he was brave.  But just how brave?  And how does the entire context of his military record, and his leadership as a war protester thereafter, reflect on his qualifications to be our country's Commander-in-Chief?

There's obviously a large chasm between the portrayals of Sen. Kerry at last week's Democratic National Convention and those on the Swift Boat Veterans for Truth website and in its video.  I don't have a military background myself.  I lack the bona fides to offer any unique evaluation, and I certainly don't have the first-hand experience that either the men who were onstage with Sen. Kerry or who are in the above-linked video clip are drawing on. 

So like most Americans, I'm left having to decide — Which among these knowledgeable sets of witnesses do I believe?

*******

As it happens, I am more than passingly familiar with one of the principle spokesmen for Swift Boat Veterans for Truth, Houston lawyer John E. O'Neill. 

Mr. O'Neill, a Naval Academy graduate, served in Coastal Division 11 in Vietnam and took command of PCF 94 — John Kerry's own Swift Boat — after Kerry's departure.  Mr. O'Neill famously debated Kerry on The Dick Cavett Show in 1971 — the era when Kerry was calling his brother veterans "war criminals" in sworn Congressional testimony.  (Mr. O'Neill, whose swift boat service began after Kerry had already left, is not one of the vets in the video — I presume because the SwiftVets wanted to highlight instead the statements from their members who did have first-hand exposure to Kerry.  He was one of the broad class of soldiers and sailors indicted by Kerry's accusations, however, and while he has long taken issue with Kerry's claims and been a spokesman for veterans who were profoundly offended by them, Mr. O'Neill has never pretended to have personal knowledge of Kerry's actions in combat.)

After his combat service in Vietnam, Mr. O'Neill went on to graduate with highest honors from my own alma mater, Texas Law School, where he'd served on the Texas Law Review and earned the highest grades in his class.  ("Grand Chancellor," that's called at UT; I was also on the TLR and was a "mere" Chancellor, but it was seven years later, so our law school tenures didn't overlap).  Mr. O'Neill was a law clerk to Justice William H. Rehnquist on the United States Supreme Court.  His legal career has been every bit as sterling as his military and academic records would have predicted, and he's now a name partner in one of Houston's best law firms.  By hard-earned and universal reputation in our local legal circles, John O'Neill is not only a damned fine trial lawyer{note2} but also as straight an arrow as you'll ever find.

In fact, I had the unenviable task of cross-examining John O'Neill in December 1992 when he was a witness — not in a political campaign, but from the witness stand of the 152nd District Court of Harris County, Texas, whence he gave expert testimony to support my opposing counsel's claim for "reasonable and necessary attorneys' fees" in a huge securities fraud jury trial.{note3}  I'd never met him before, and I don't think I've met him since, but I was certainly familiar with his background and reputation from many, many sources in the Houston legal community.

Although I could have taken Mr. O'Neill's deposition before the trial, I purposely declined to do so, for I was pretty confident I already knew what he'd say on the witness stand.  Indeed, at the trial, I was entirely unsurprised.  As I'd fully expected, Mr. O'Neill was an extremely credible and formidable witness before the jury.  His testimony — both on direct examination by my opponents and in response to my cross-examination — was absolutely truthful, candid, and fair.  Moreover, he unquestionably was well qualified to give expert opinion testimony regarding attorneys' fees in complex civil litigation.  (These were, of course, precisely the reasons my opposing counsel had asked Mr. O'Neill to be their expert witness on attorneys' fees.)

So it would have been foolish of me to attack his credibility, either directly or indirectly — and I didn't.  Indeed, at the end of my cross-examination, he readily agreed that I hadn't mistreated him.  I believe we shook hands as he stepped down from the witness stand. 

But this kind of witness also presents unique cross-examination opportunities.  Since this was a witness who would tell the truth as he saw it, regardless of where the chips flew, I had the opportunity to point out the chips that, so to speak, flew into my opponents' faces. 

Mr. O'Neill ungrudgingly conceded, for example, that the number of different timekeepers from my opposing counsel's very eminent law firm who'd billed time to this file — I don't recall the exact number, but it was over a dozen different lawyers, and with paralegals included the total was somewhere between twenty-five and thirty — certainly represented adequate, and perhaps even abundant, staffing.  He likewise conceded that although he'd been shown the many banks of file cabinets containing their collective pretrial work product, he'd made no effort to examine those files in detail, and that he wasn't attempting to vouch for the reasonableness or necessity of every task that had been done, every memo that had been written, or every rock that had been turned over and looked under.  After Mr. O'Neill had opined, again truthfully, that for a case of this nature it was not unusual to have — as my opponents did — three senior partners at one counsel table, backed up by a troop of associates, paralegals, and consultants, I asked him whether such a case could also be effectively tried by just one partner, one associate, and a paralegal.  He allowed that yes, he supposed it could — and smiled politely at me, my one young associate, and my one paralegal at our counsel table. 

And finally and most importantly, Mr. O'Neill readily agreed with me that from what he knew of the case, there were plenty of excellent firms in town, including his own, that were well capable of handling this sort of case, and who'd gladly have taken it for the plaintiffs on a pure contingent-fee basis — meaning their actual fee, if the case were ultimately lost, would turn out to be zero.  Because I was well satisfied with Mr. O'Neill's testimony, I chose not to call a controverting expert (i.e., another lawyer) to rebut it. 

And thus, as things turned out, when the jury came back with a defense verdict for my client, it was John O'Neill's own testimony that had formed the factual basis for the jury's answer to the attorneys' fee question submitted as part of that verdict — which was indeed zero, rather than the seven-figure fee award the plaintiffs' counsel had requested.{note4} 

*******

O'Neill and his fellow Swift Boat veterans insist that they're not shilling for Dubya, Rove & Co. — but rather that they're speaking out as veterans, some of them Democrats and some of them Republicans and some of them independents, who are offended by what they perceive as untruths and distortions from Candidate Kerry.  The Kerry campaign and its supporters are already desperately trying to spin the  SwiftVets' video as being partisan, unreliable, or otherwise incredible.{note5}    

But from my own first-hand experience cross-examining John O'Neill under oath, I can say that I fully believe that John O'Neill fully believes what he's saying — and that he's a damned credible witness in my opinion.

I've already ordered Mr. O'Neill's new book (co-written with Harvard PhD Jerome R. Corsi), "Unfit for Command:  Swift Boat Veterans Speak Out Against John Kerry" — which has zoomed to the No. 1 sales ranking on Amazon.com even though it's not yet been released! — and I look forward to reading it when it ships on or about August 15th.  (A free preview chapter is available by email here, although my spam blocker delayed my receiving it.)

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Update (Thurs Aug 5 @ 10:40am):  A blogger whose work I read on a daily basis, Dr. James Joyner of Outside the Beltway, writes (to my considerable surprise) that he thinks the SwiftVets "sound increasingly like lunatics."  I only have personal experience with John O'Neill to go on, having never met any other of the SwiftVets, but "lunatic" is about the least apt description I can imagine for him.  Dr. Joyner, and perhaps others, may be influenced by the fact that Matt Drudge "is continuing to flak" for the Swifties.  Well, whatever you think of Drudge, even a blind pig can sometimes find an acorn — and there was that matter a few years ago when Drudge was first with the story of the blue dress.

Other new links:  Rusty at mypetjawa; Backcountry Conservative; Wizbang; A Time for Choosing; and The Key Monk.  See also the Trackbacks to this post; I thank the bloggers who were kind enough to link to this one.

Update (Thurs Aug 5 @ 2:00pm):  In response to a comment I'd left on Dr. Joyner's blog, another commenter (quoting me only in part) had this to say:

I practice law in Houston, and graduated from the same law school as John ONeill albeit seven years later and without quite the same record he had.

Wow, sounds as if you’re about as qualified to comment on O’Neill as O’Neill is qualified to comment on Kerry.

I think the selective quote was intended to be snarky; at least it was taken that way by another commenter.  But as I tried to make very clear in my original post here, I'm not one of John O'Neill's close friends or partners; he doesn't refer business to me; I owe him no favors.  If we ever do meet again, it will almost certainly be as professional adversaries.  My post described O'Neill's reputation because it was very relevant to my one rather extended and unusual first-hand experience with him.  I would agree that report of my first-hand experience with him is more reliable and meaningful than my report on O'Neill's general reputation in the local trial bar; but both are entirely consistent. 

But it occurs to me that I may have failed to make something else clear in my original post.  Sometimes when people ask me what I do for a living, I only half-jokingly tell them, "I'm a corporate assassin."  On a daily basis, my trade requires me to discredit witnesses, to impeach their credibility, to make them into laughingstocks in front of a jury, if I can.  Unlike, say, Mr. Conason, I can only do so using sworn evidence; and I have to follow the canons of ethics, the rules of evidence, and the rules of procedure.

In the specific trial in which I cross-examined Mr. O'Neill, the parties who had designated him as an expert witness and called him to the witness stand were trying to win an eight-figure judgment against my client.  Mr. O'Neill's testimony in particular was what they hoped would be the basis for a seven-figure award of attorneys' fees.  Had they won the lawsuit, my client would have been bankrupted; it was a "bet the company" case.  Accordingly, on that day, John O'Neill was my professional enemy.  It was my professional responsibility to my client to do everything I could, as a zealous advocate acting within the bounds of the law and the canons of ethics, to discredit John O'Neill's testimony.  Failing that, my duty was to make the best of his testimony that I could.

One means of doing so would have been to attack his general credibility.  If he had been an ambulance chaser, a professional testifier, a scoundrel, then I would have brought evidence of that to the jury.  But he wasn't.  If he were a tax lawyer or a politico who'd never tried a complex civil lawsuit and couldn't speak knowledgeably about attorneys' fees involved in such lawsuits, I'd have brought evidence of that to the jury.  But he wasn't.  If he had gone to a third-rate law school and had flunked the bar twice, I'd have brought evidence of that to the jury.  But he didn't. 

I had first learned of O'Neill's reputation and background when I was at Texas Law School precisely because he had been a star there and had landed a Supreme Court clerkship.  I too had aspirations of clerking for a Supreme Court Justice, and made a point to find out who from my school had done so during the past several years.  (I have a nice collection of nine signatures on polite letters telling me "thanks but no thanks."  One of my fellow TLR editors from the class of 1980 did, however, also clerk for Rehnquist; funny how he's now a partner in a prominent Texas-based firm that's a major fundraiser for Kerry and other Democrats.  I'll have to get Joe Conason to explain that to me, I guess.)  I learned more of O'Neill when I began practicing civil trial work in Houston.  I saw his name on reports of verdicts; I tried cases against lawyers who are now his partners; I tried to find out who the movers and shakers in my town and my profession were so I could become one of them myself.  Again, although I've moved in the same professional circles, I can't claim to have had nearly the success that O'Neill has had; but I could not have helped but have heard about him and his, from people whose judgments I trust implicitly.

Another means of impeaching his testimony would have been to expose any exaggerations or lies that he might have told about the specifics of that particular case.  Here I had a considerable advantage over him, because I'd been working on the case for over four years before it went to trial, and I knew in considerable detail what work my opposing counsel had done.  I was prepared to pounce if O'Neill strayed from the paths of honesty and fairness; but he didn't.

The main point I was trying to make, however, was that I was able to use John O'Neill's credentials and his expertise and most of all, his honesty to score points for my client.  A morally squishy lawyer could easily have evaded my questions or quibbled with me.  A greedy or overambitious one would have seen a clear incentive to do just that — for the law firm who'd named him as their expert witness is among the largest and most powerful in Texas, and it hands out hundreds of thousands, perhaps millions, of dollars in referrals every year. 

But O'Neill played it straight, even though the end result allowed me, in effect, to turn him into an expert witness for my client. 

I had every incentive to discredit O'Neill, but I couldn't.  He had every incentive to fudge his testimony in order to sink my client, but he didn't. 

Does that clear it up?

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Update (Fri Aug 6 @ 4pm):  Kevin Drum posts "A Tale of Two Officers," in which he describes Mr. O'Neill as "the professional Kerry hater who has 'reluctantly' formed a generously-funded 527 accusing John Kerry of being a liar, a coward under fire, and a medal chaser."  In comments on that thread and an earlier one, I've invited Mr. Drum to deal with the facts of Mr. O'Neill's career before assessing his credibility.  I look forward to an answer.

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{note1}Among the bloggers I've noticed commenting on the SwiftVets' video so far, in no particular order, are Mark Levin on NRO's The Corner; Citizen Smash; Blackfive; SondraK; Ace of Spades; Say Anything; AllahPundit; Roger L. Simon; Spoons; PoliPundit; Power Line; Florida Cracker; Ryne McClaren; Little Green Footballs; InstaPundit; Sam Barnes at Redstate; Feddie at Southern Appeal; and Drudge Report.

{note2}As I explained at length in my very first blog post, I do not use the term "trial lawyer" to mean "plaintiffs' personal injury lawyer," but rather a lawyer who actually and regularly takes cases (of whatever sort, from either side) to trial, and then knows what to do there when he gets there.  (The apt if impolite contrasting term used by real trial lawyers is "candy-assed litigator," meaning someone who files or defends lawsuits (personal injury or otherwise), does pretrial discovery, files pretrial motions, postures appropriately — but then inevitably settles before picking a jury.)  Mr. O'Neill is a genuine trial lawyer, and his firm represents both plaintiffs and defendants in civil business litigation.

{note3}I've previously written about other aspects of that same trial here.  If you're insatiably curious for more details about the particular litigants and the issues, email me and I'll send you a link to more information; it's all part of the public record, but just as a matter of taste, I'd rather not put the spotlight on folks who haven't invited it.

{note4}There's some precedent, I acknowledge, to the effect that such an answer from the jury would have been unsustainable on appeal if the plaintiffs had won their underlying case based on the rest of the jury's verdict.  They hadn't, though.  The case was not appealed, and that particular answer ended up being nothing more than, perhaps, a mild rebuke to the esteemed law firm representing the plaintiffs (and a pat on the back for my team) from the jury.  The rebuke doubtless stung considerably less than it otherwise might have because, as I was given to understand, the plaintiffs' law firm had been unsuccessful before the trial in their efforts to convince their very wealthy clients to agree to a contingent fee arrangement — so the firm was paid in full at their regular hourly rates, even though they lost.

{note5}Per my screencap from Google News, the good grey New York Times initially described the video as the SwiftVets' "latest gambit" — but has already toned that down a bit on its website version of the story to read instead "latest tactic."  Heh.  What liberal media?  [ed: the print version, at least as distributed here in Houston, still read "gambit."]

Meantime, I note that someone who enters "swiftboatvets.com" or "swiftboatvets.net" or "swiftboatsvets.org" into his browser — instead of "swiftvets.com" (which is the correct URL) — will find himself redirected to this bit of heavy spin (subscription or annoying commercial req'd to view in full text) by Salon.com's Joe Conason from May 4, 2004.  Gee, now that's a coincidence.  I wonder who paid for those domain-name purchases and redirects.  Obviously someone of high moral integrity.  [ed: corrected URLs per Deb's useful comment below, thanks!]

Mr. Conason's fact-checking skills break down by his third paragraph in the teaser page, where he references "eternal Kerry antagonist and Dallas attorney John E. O'Neill."  Umm, yeah, except he lives in Houston, Joe.  And I think I'd probably be an eternal antagonist of someone who'd called me and the men who served with me in combat "war criminals," pretty much regardless of party affiliation.  If you wade through the advertisements and inuendos, you'll discover another link back to an April 23 article by Conason which manages to distinguish correctly between the state's two largest cities, and then discloses that — oh my God! — Nixon admired O'Neill's willingness to take Kerry on in debate and invited him to the White House!  And even worse, O'Neill has had law partners who are — gasp! — Republicans, and the firm has clients that are big corporations!  Rock solid proof of conspiracy — or could it be ... competency?  Nahhh.

"No doubt it was mere coincidence that O'Neill clerked with William Rehnquist, the controversial conservative who was Nixon's favorite justice and who went on to be appointed chief justice by President Reagan," writes Conason.  Umm, yeah again, Joe, that and maybe the fact that O'Neill was first in his class at Texas Law School (which a few years earlier had refused admittance to young George W. Bush; guess they didn't get the VRWC memo that week).  And you know, I hadn't realized until now that O'Neill's debate on the Cavett show got Rehnquist the CJ spot.   How'd I miss that?  Hey Joe, I think they've got a job waiting for you at the Times!  That should be your next gambit.

Arrival of Grace

Among my regular reads, for the perspective of a well-spoken recent veteran of our country's military services, is Blackfive.  Mr. & Mrs. Blackfive are proud to announce the arrival of their new daughter in a post (with picture, of course!) entitled The Grace of God, and I enthusiastically join many others in congratulating them.

"Grace" is the middle name of my own incredible youngest daughter, and the first name of one of my fabulous nieces and my late mother-in-law.  So in both a literal and figurative sense, I, too, have been blessed by Grace in my life.

McCoffee burns

I can't quite manage to stay out of a debate among a set of blawgers (legal bloggers), all of whom — as my blogroll implies — I regularly read, and considerably admire.

The debate involves products liability law and specifically Liebeck v. McDonald's Restaurants, P.T.S., Inc. (a.k.a The McDonald's Coffee Case), and the debaters are at Professor Bainbridge, Ted Frank at Overlawyered, and The Curmudgeonly Clerk.   Each makes excellent arguments; as I read each of their posts, I find myself nodding my head and saying, "Uh-huh, uh-huh ...."  To attempt to summarize each of their arguments here would blow my TypePad bandwidth for the month, I fear.  Suffice it to say, the Clerk defends the idea that McDonald's could appropriately be held liable by a court and jury on the facts of the McDonald's coffee case, while Mr. Frank and the good Professor think this verdict is an example of "trial lawyers" (by which they mean the plaintiffs' personal injury bar), and the juries and the trial and appellate courts who sometimes side with them, run amok.

It's been some years since I've tried a products liability case, and I can't claim that my knowledge of the state of the law — even in Texas, where I practice — is comprehensive and up-to-date.  I've certainly made no effort to read all of the cases and other sources cited by these debaters, much less to do any independent research.  As all of their posts make clear, however, the state of consumer knowledge and expectations becomes terribly important in this type of tort litigation, whether brought under old-fashioned negligence theories or comparatively new-fangled products liability theories. 

So reading their debate brought back to my recollection something I saw repeatedly some two decades ago when I had the privilege of helping represent the local electric utility (then known as Houston Lighting & Power Co.) in lawsuits brought by persons who'd been injured after coming into contact — either themselves, or through some conductive material like a stepladder or sailboat mast — with an energized overhead power line.  (I've written before at some length about a case I tried involving an injured HL&P employee that raised related but somewhat different issues.)

Typically in those cases, counsel for the injured plaintiffs would make use of a "shocking" (pun acknowledged but unavoidable and unintended) fact to grab the prospective jurors' attention and sympathies during jury selection.  It would go something like this: 

How many of you good folks have a set of power poles running down the back of your home's property line, with a power cable looping down to bring power into your house?  Ahhh, I see by your nods and your raised hands that almost all of you do!  Yep, they're everywhere, and we certainly take them for granted. 

But didja know, ladies and gentlemen, friends and neighbors, that the Power Company runs those cables to your houses, through your backyards — where your little boys and girls play and you barbecue and where you have to stand on a stepladder to clean the leaves out of your gutter — without putting any insulation on those cables? 

Didja know that those are deadly-powerful bare steel cables carrying enough electrical current to fry you and your entire family to a crisp, in an instant?  Enough power to leave a man like my poor client, Mr. Chapple over there in his wheelchair, with nothing but two stumps below his knees where his feet and lower legs used to be, with nothing but one mangled arm covered with horrible scar tissue, after only barely coming into contact with that naked, uninsulated steel power line cable for less than half a second?!? 

No?  You didn't know that?  The Power Company didn't tell you that in all those monthly bills they've been sending you?  They didn't put that in their TV commercials, to warn you that you have an uninsulated killer running through your backyard?

Of course, this line of argument can be fairly compelling — and one of the advantages that all plaintiffs' counsel have is getting to go first — which is to say, getting the first chance to frame the issues in the case in an emotional way that will resonate with the jury.  A plaintiffs' lawyer worth his salt can usually put his defense counterpart into a considerable hole with the prospective jurors before the defense lawyer ever gets to say a word.

So how did we respond, when it was our time to speak during jury selection?  Well, with something generally like this:

My opposing counsel, Ms. Purcell, asked you some questions about the electric lines that run from the backyard poles to your houses, and I saw on your faces that some of you were very surprised indeed to hear Ms. Purcell say that those lines are uninsulated, bare steel cables.  When Ms. Purcell said that, I'll bet you were thinking of the cord that runs from your wall socket to your desk lamp or your toaster or your washing machine, and how that cord is covered with a layer of rubber or plastic insulation, and you were wondering to yourselves, "Well, for pete's sake, why doesn't the Light Company use an insulated cable to bring the power into my house?"  Were you thinking that?  You were? 

Ladies and gentlemen of the panel, if you're selected to this jury, you'll hear testimony from people who will answer that question for you — to your complete satisfaction. 

They'll explain to you why it is impractical from a technical, engineering standpoint, to insulate those overhead lines with rubber or plastic in the same way the electric cords inside your house are insulated.  They'll explain to you that bare metal lines are not uninsulated — if they were truly uninsulated, the electric current would "go to ground" or "short out" instead of making it into your home to light your lamps and run your alarm clock.  Those lines are indeed insulated, by an excellent and inexpensive substance that's plenty nonconductive for real-world situations — the air that you and I are breathing right now, and the clearance space around those lines!  They'll explain to you why the flock of cowbirds that you cuss out when you have to wash their droppings off your back porch don't get electrocuted when they sit for hours on those overhead lines, squawking and courting and doing what cowbirds do, including — well, you know.  [Wait for chuckles to subside.] 

Those witnesses will also explain to you that bare metal overhead lines are absolutely standard and commonplace throughout the electrical utility industry — not just in Houston, or Texas, or the United States, but the whole world.  And they'll tell you about the National Electric Safety Code and the other regulations that careful, safety-conscious professionals have drawn up and revised over the years, to try to make sure that in ordinary everyday situations, those overhead lines are insulated by enough space and enough air to make sure that you and your kids — and they and their own kids! — can indeed play in the backyard and barbecue and yes, clean the leaves out of your rain gutters, and do so with a high degree of safety. 

And they'll explain to you what other alternatives there are — for instance, using buried, insulated cables underground — and they'll tell you how much it costs to do that, and how only businesses and exclusive new subdivisions of fancy houses typically choose to go that route, and why even those alternatives have their own risks and downsides, in terms not only of safety, but of inaccessibility, unreliability, and expense to maintain.

By this point I've been lecturing for a long time, and I can see Ms. Purcell getting set to stand up and object that I'm arguing rather than asking questions to qualify or disqualify prospective jurors.  Plus, to keep the panel's attention, I need to let them hear another voice or two speak, and I want to make them ask themselves the questions they're about to hear, which they'll do when they hear me ask something directly of one of their fellow panel members:

So my question to you now, ladies and gentlemen, is whether the surprise I saw on your faces when Ms. Purcell told you that the electric lines running overhead in your back yard are bare metal cables is something you can deal with and still be a fair juror to both sides in this case. 

Mr. Smith, there in the first row, let me ask you, sir, just at random — if you're chosen to this jury, if you take the juror's oath to render a fair decision based on the evidence from the witness chair, can you make yourself get over your surprise at learning something you didn't know before, and keep learning all the important facts, and only then come to the conclusions you'll need to make in order to answer the questions His Honor will ask you at the end of the case?  You can?  [Pause to look into Mr. Smith's eyes, then nod.]  Yessir, I believe you can follow that oath if you're chosen.

Now, so far, I've done some teaching and some explaining.  I've gotten Mr. Smith (and implicitly his fellow prospective jurors) committed to keep an open mind and to wait for the evidence. 

But I need more.  I need something that resonates with the jury on a deeper level, that will give them an assurance that my case is not going to be all fast talk and experts and excuses, but that I'm also going to be pointing out to them some things that they already knew — even if they forgot them for a moment while they were listening to my opponent.  So, continuing with my voir dire examination for the defense:

Ms. Jones, there on the right in the second row — let me ask you, ma'am, and I need you to tell me the whole truth to this question, because I saw your jaw drop when Ms. Purcell was talking about those so-called uninsulated cables.  Were you surprised to learn that those overhead lines aren't coated in plastic or rubber or something?  You were?  Then let me ask you this, ma'am.  Before you came in here today, did you think it was safe to get up on a ladder, a really tall one, and to reach up and touch one of those cables, on purpose, with your bare hand?  No?  Heh, you're laughing at me now, but I'm serious here.  How'd you know it's not safe to do that?  Did your mama teach you about that?  Did you hear it in one of those safety presentations we all had to go to in junior high, when someone from the local power company came and told us about where not to fly our kites?  You can't remember — but you did know that, didn't you, even before you came here today.

I'll bet you don't know the precise metallurgical formula for the metal those cables are made of, do you?  (Wanna know a secret?  I don't either!)  I'll bet you don't know how many milimeters thick they are, or how many strands of metal are braided together to make them, or where the factory was where the cables in your backyard were manufactured, do you?  The Light Company never ran a TV commercial to tell you that?  No?  Well, Ms. Jones, it says on your juror form that you have four children, and as young as you are, I'll bet they can't be very old.  If the Light Company had sent you one, would you have time in the evenings to sit the family down to listen to you read aloud from an insert in your electric bill to explain everything in the world about the engineering and materials of the overhead power lines in your backyard?

Okay, but then lemme ask you this, ma'am:  If they're old enough to understand it, have you made the time to teach your children not to stick a metal fork into the wall sockets in your house?  Do your children ever play with kites, ma'am?  Have you made sure to tell them where it's safe to fly kites, and where it's not?  Yes ma'am, I'll bet you surely have indeed.  You strike me as someone who has some common sense, ma'am, so let me ask you this — if you're selected to this jury, when you're weighing the evidence to decide whether my client or anyone else was at fault in any way in connection with Mr. Chapple's accident, will you use that common sense, ma'am?  Thank you, Ms. Jones!  I appreciate your honesty, and if you're on this jury I'll trust you to follow your oath.

I can certainly see how good lawyers could nevertheless have lost the McDonald's coffee case.  And I don't know as much about coffee as I do about power lines because I've never had a case about coffee.  But I'll bet I could rewrite this sort of voir dire examination to fit hot coffee or a thousand other products that, in some circumstances, have ended up in a chain of events in which someone's gotten badly injured.  With the tools the system provides me — the opportunities to educate jurors, to give context, to appeal to common sense — I've had pretty good fortune over the years.  When I was regularly on the defense side of the docket, in almost every case I tried and won, there was a sympathetic plaintiff who'd been badly hurt, and there were attractive arguments to be made that my client was at fault.  If you can't deal with that as a defense lawyer, you're in the wrong business.

So, frankly, I don't have the same reaction that Mr. Frank or Professor Bainbridge have to the McDonald's coffee verdict.  I tend to view it as an aberration, rather than as something indicative of a basic flaw in the law or the civil justice system.

Deal lawyers and trial lawyers, revisited

I'm a serial bandwidth abuser of a few other blogs that permit comments, but I'm trying to cut back on that and write more here.

It occurred to me recently, however, that some of the stuff I write in comments on other blogs, I ought to post here as well, if for no other reason that someone else might cancel his or her blog and — alas! — my work product (so to speak, such as it is) would be lost forever as a result. 

What follows is something I originally posted about here only briefly last March, with links to a couple of comments I'd left on two posts from Scheherazade's blog.  Sherry's original posts and many of the other comments were also very good — I continue to recommend them to anyone genuinely interested in the subjects of what trial lawyers and deal lawyers do, and do differently.  But for archival purposes, here again are my own long-winded takes on trial lawyers and deal lawyers:

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I'm not one, but nevertheless have worked with and around transactional attorneys — sometimes also known as "deal lawyers" — enough to have to enormous respect for what they do.

Sherry's post captures an important aspect of transactional practice and effectively illustrates that although not carried out in a courtroom, it is indeed an "adversary practice" that calls for zeal and loyalty on behalf of one's client to ensure that he isn't bested by the other side outright in the negotiation and documentation of a transaction, nor caught unprepared by an adverse and unexpected contingency.

Additionally, however, much transactional work is carried out in coordination with, or anticipation of the involvement of, folks whose interests to your client may be partly or largely aligned, and only potentially or hypothetically adverse. The transactional lawyer may, for example, be helping an employer draw up employment or benefit agreements for its employees; or drafting for an operator of an oilwell drilling project the agreement with its investors that creates the operator's privileges, responsibilities, and duties with respect to those investors; or drafting documents to be filed with the SEC or other regulatory agencies to ensure compliance with various laws and regulations. Negotiating with your mostly-allies (but potential adversaries) is a demanding art that calls for not only aggressiveness and imagination, but subtlety, good judgment, and compromise.

Imagination and creativity aren't only used to identify and ward off bad consequences, however. Good deal lawyers can have a remarkable ability to find synergies and opportunities that benefit not only their own clients, but everyone else involved. They're charged with knowing, choosing among, and refining the numberless structures within which deals are possible, and then negotiating and communicating and drafting precisely and clearly to confirm the particulars of their transactions as they evolve. But many times — especially as they gain, with experience, a deeper understanding of their clients' and the other parties' means and needs and goals — deal lawyers' imagination and ingenuity can keep a proposed deal from falling apart, or find a way to put it back together again, in ways that might well not have occurred to the principals had they not been so capably represented. Thus, it's far more common to see transactional lawyers than trial lawyers migrate to serve as "in-house counsel" for their clients, or to go the next further step to becoming business principals on their own behalves.

It's a serious mistake to assume that being a transactional lawyer necessarily means being a pencil-pushing, form-filling-out drone, or even just a well-trained scribe. Transactional work can be every bit as thrilling as arguing to a jury, and sometimes moreso. And as for the stakes involved: The verdicts and settlements that seem enormously significant to me in my regular trial practice are most often dwarfed — frequently by orders of magnitude — by the sums of money at issue in, and the probable economic impacts from, that which the deal lawyers regularly help create and shape.

During the go-go mergers & acquisitions days of the early 1980s, I frequently was part of a team of trial lawyers who worked as auxillaries to the deal lawyers who were running the show. They were the ones who were elbow to elbow with the clients and investment bankers; we were often camped off to the side waiting for something that might or might not ever happen. We "litigators" (ugh, I hate that term) were rarely more than a sideshow to the main events of those extremely exciting engagements: we sometimes could bring a deal to a halt, but we could almost never make one go. And while our part was itself exciting and challenging, those days certainly cured me of the excessive hubris that some trial lawyers hold.

That hubris is a misconception which, unfortunately, is sometimes promoted and aggravated by the fact that by the nature of our practices, we trial lawyers all too often are dealing with deals gone south, scenarios unplanned for, terms ambiguously drafted, or disputes unanticipated. But the happy fact for our common clients is that good transactional lawyering can make much of what I do for a living unnecessary. And while there are rivalries and occasional ignorant prejudices displayed by legal practitioners of both sorts, cooperation and respect among them can be as useful and beneficial to a client as his internist's and surgeon's cooperation and respect in maintaining his health.

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Some litigation is aptly characterized as "spilt milk" — just a cost of doing business, a distraction, a nuisance.

Some clients, though, are drowning in the spill.

I'll never forget an anguished two-hour phone call I had at dawn on Christmas morning one year from the CEO of a public company I was in the midst of representing in a six-week long "bet the company" lawsuit. Or a hospital bedside meeting I conducted with a personal injury client (and his family) whose career had just been catastrophically ended and whose economic future was being thrust into my hands. Or a lawsuit I tried in bankruptcy court that determined whether a company would emerge from bankruptcy reorganization largely intact, or instead be dismembered and partially liquidated — with literally thousands of working-class jobs at stake.

And sometimes my skillset as a trial lawyer becomes very useful to clients in planning for and structuring their ongoing businesses. For several years I represented a large homebuilder in its lawsuits with customers; over the course of that representation, I not only helped revise their standard deal documents, but gave "preventive medicine" seminars to their customer service staff to help train them how to resolve the vast majority of their complaints and disputes without my direct involvement. In every house they sold, some discrete portion of their real economic cost was attributable to litigation and litigation risk; by minimizing those costs, I felt like I was helping them sell more houses and helping more families qualify to own their own homes.

Negotiating and settling lawsuits can also call upon the skillsets more regularly honed by deal lawyers. Sometimes there are "win-win" resolutions to lawsuits, but if a trial lawyer's imagination is limited to "what assets can we seize to collect on our judgment?" he's not likely to imagine, much less realize upon, those results.

With due respect to Balasubramani, I think he's badly wrong. Half-assed is half-assed on either side of the professional fence. A busted deal closing can be just as definitive as an adverse jury verdict. The overwhelming majority of lawsuits end up being settled, not tried to a definitive conclusion; oftentimes what constitutes a "good settlement" is far more subjective and indistinct than what constitutes a "good deal"; and it's certainly as easy for sloppy trial law practice to be buried over and hidden in them as it is for sloppy transactional practice to be buried over and hidden in the deal world. And as I mentioned in my comment to Sherry's earlier post about transactional lawyers, the financial and economic stakes of their work often — but not always! — dwarfs the stakes we trial lawyers deal with.