Patience, manners and decorum often win the day over bickering

November 5, 2020

Chicago Daily Law Bulletin – November, 2020
by Jeffery J. Kroll
Jeffrey J. Kroll is a founding partner of Kaveny + Kroll LLC. He has achieved settlements and verdicts in a wide range of cases, from trucking accidents to medical malpractice to sports safety cases. He can be reached a jeffrey@kavenykroll.com.

It was in grammar school, and probably true to this day, I had an “issue” with speaking out as opposed to speaking up. Whenever I knew an answer or had a comment, I would blurt it out. The common refrain I would hear from teachers was “wait your turn!”

Even to this day, I repeatedly say to my now college-aged son and middle-school daughter, “Wait your turn.” The lessons of patience, manners and decorum are those that we begin to learn early in our lives as they follow us in every area of our lives — one would hope.

After watching the first presidential debate, those rules were broken in a grand and unpleasant way. All I kept thinking was “I wish a Cook County judge was the moderator.” There is no way that conduct would be allowed to continue. Many people who I spoke with in the days following the debate, regardless of which side of the aisle they occupied, spoke of the overall discomfort they felt in listening to a debate gone awry and a moderator unwilling, or unable, to reel it back in.

One of the most essential rules in the art of debate — and yes, it is an art, not a skill — is to debate the issue not the individual. We have seen in recent presidential and vice presidential debates that this concept did not work out so well. As I watched our current president trod upon the rules and his opponent, I was brought back to a comment I often heard made in the field of law and one that never ceases to amaze me: “So and so loves to argue; they would make a great attorney!”

Nothing can be further from the truth.

Making a case in a strategic and organized fashion has little to do with the concept of arguing. Rather, argument is a well thought out and detailed plan designed to reach a desired outcome. Ask any judge — a successful trial lawyer has the innate ability to remain quiet, take turns and demonstrate great restraint, despite what ridiculous comments opposing counsel throws out. The ability to effectively time comments, measure response and reaction is so important. Keep in mind that our ability, or lack thereof, to maintain control reflects poorly upon judge and jury, ultimately affecting our clients. Should we choose to do differently, recall the saying “When you play with a pig in the mud, you both get dirty!” This speaks to mud, pigs and never mirroring bad behavior.

Unfortunately, movies depict lawyers as flamboyant folk, mavericks and rabble-rousers. In real life, I have to believe judges do not like that type of persona. It is the judge’s courtroom. Not yours.

I remember my first case that I took to trial in 1990. The legendary Judge Irv Norman was the presiding judge. Not long before that, the “maverick” defense attorney Gerry Spence tried a case against McDonald’s and received a substantial verdict. But he didn’t do this by taking over Judge Norman’s courtroom. Actually, the first thing Spence did when he was assigned to Judge Norman was ask for a side bar. He told the esteemed judge that he appreciated the opportunity to try a case in front of his honor and would have the appropriate decorum during that trial. I am sure the media would have depicted this exchange differently; however, that is what wins over judges. Honesty, preparation and integrity versus theatrics, is, what I believe, judges want to see.

Preparedness, not shooting from the hip, gunslinger style, is also crucial. I was always taught and teach to my associates, law students and children (in one form or another) that there may be a lawyer in the courtroom who is more experienced than you, but there never has to be someone more prepared. Preparation is the one variable you can control!

The bottom line is interruptions and rudeness do not have a place in our courtroom — no more than they should in daily life. Each of us needs to look in the mirror and ask if we are doing the right thing at the end of the day. Truth be told, the individuals that can be the most formidable in the courtroom are often the nicest people in the world. It’s the bullies, the individuals that object all the time, the “mavericks” that I welcome the opportunity to try a case against. In the legal system nice “guys” do not finish last, they usually win.