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Opinions—Essays on Lawyering, Litigation and Arbitration, the Placebo Effect, Chutzpah, and Related Matters--Book Review

by Sheldon Stark
September 2016 Sheldon Stark

“To be good is noble, but to teach others how
to be good is nobler—and less trouble.” Mark Twain (1906)

 

So begins this wonderful collection of essays by two of our funniest, most thoughtful, learned, and insightful colleagues, Stuart M. Israel and Barry Goldman. The collection is filled with cool information, powerful suggestions, cogent tips, and unembarrassed disclosure inside the minds of two great writers who happen to be lawyers, mediators, and arbitrators.

Israel and Goldman share their perspectives on lawyering, litigating, mediating, arbitrating, witnesses, and much else. On display throughout is their decency, commitment to civility and good practice, and class A humanity! The book includes the Good Housekeeping Seal of Approval for Labor Lawyers and Arbitrators: a foreword by Theodore J. St. Antoine, one of the most respected arbitrators and law professors in the country.

Israel has long been editor of Lawnotes, the Labor and Employment Law Section quarterly journal, and Goldman is a long time columnist. Many of their essays have appeared in Lawnotes and elsewhere. Their book is divided into 19 chapters and includes 124 individual essays coupled with an Israel/Goldman dialogue.

Filled with learned quotes, funny stories, practical guidance, pleas for civility, cogent advice, good and bad experience, plus reflections on life and practice, the collection is bound to make you laugh and reflect on how you can improve as an advocate—and as a human being! The essays are not just witty, they are wise. They reflect an optimism that we can be more collegial without sacrificing client interests.

In “‘Utter Nonsense’ Revisited: Invective In Legal Argument,” for example, Israel addresses Rambo-like brief writing. Yes, despite warnings from writing experts that these tactics don’t work, pit bull litigators continue to engage in invective because it sometimes does work. Judges may be unwilling to get into the fray; and some may actually be influenced by invective. But, when things are as they should be, not so much. After sharing real life examples—e.g. the other side’s arguments are “absurd,” “disingenuous and frivolous,” “beyond comprehension,” and “utter nonsense”—Israel writes:

Whatever is behind the use of legal invective, I say to you, oh lawyers, please cut it out. Be nice. Practicing law is hard enough. None of us needs unnecessary aggravation. Invective is “plainly, simply, and demonstrably wrong.” In the alternative, the same to you, and your momma.

In “The Other Cheek” Goldman quotes Matthew 5:38-39: “…but whosoever shall smite thee on thy right cheek, turn to him the other also.” He warns against unnecessary cross-examination. If the answer on direct didn’t hurt you, leave it alone: “I say unto you: If your opponent makes a meaningless point, let him make another also.”

One of my all-time favorite essays addresses preparing your witness to testify, with Israel’s “The 162 Essential Rules for Deponents.”  Yes, you read that right: 162 rules! You will laugh out loud at the contradictions, recognizing many of the rules you instruct your own witnesses to use: From “Don’t volunteer” to “When appropriate, volunteer.” From “Don’t bring anything,” to “Bring what you need: checklists, documents key to your testimony, notes, etc.” Number 162: “Don’t screw up.”

There are essays on whether advocates should ask their witness what happened versus what the witness remembers; on the (un)controlled use of “outrage” and theatrics; on being hoisted by one’s own petard; and on the muddle we’ve made of “truth” in the adversary system, especially where “puffing” and exaggeration are permissible in settlement negotiation and mediation, with a quote from Oscar Wilde: “The truth is rarely pure and never simple,” and a Yiddish proverb: “A half truth is a whole lie.”

Chapter 9, MEDIATION AND ARBITRATION, is of special interest to ADR providers. From “Counseling Clients to Consider Compromise: The Benefits of Mediation” to “Arm Twisting and Head Banging”; and from learning how to listen to the other side—“Audi Alterum Partem”—to understanding the psychology of how people make important decisions.

Chapter 12, LANGUAGE AND WRITING, contains a number of excellent essays, but my favorite is “Chutzpah And Other Legal Terms” by Israel, which includes definitions of chutzpah (unmitigated gall), farblondjet (off-the-track, mixed up, confused), kvetching (grousing), and kibitzing (second guessing from the sidelines).

In Chapter 16, THE ARBITRATION PROCESS, Goldman takes us into the arbitrator’s mind, with such topics as who should identify the issue for adjudication, managing party unhappiness with outcomes, and unusual (“off-label”) uses for arbitrators. In their dialogue, Israel, the advocate, pleads for an arbitrator to keep an open mind “until all the evidence is in.” Goldman replies, “I agree that it is important for an arbitrator to keep an open mind. But, as Arthur Hays Sulzberger said, ‘not so open that your brains fall out.’”

Throughout, Israel and Goldman let fly their views on the bar exam, lawyer resumes, legal education, arbitral remedies, advocacy and writing, right to work, government regulation, banks, the human condition, and much, much more. This collection is funny, poignant, instructive, and educational. Whether you read it from cover to cover or dip in as a topic becomes relevant to you, this collection should be on your shelf.

Opinions reminds us we are in a field where the best of us have principles and ideals. Wry wit and long experience are clearly on display. Opinions is masterful and uplifting without being the functional equivalent of a trip to the dentist. I am proud to call both authors my friends. Their book is a joy to read. Opinions is available at amazon.com. BUY THIS BOOK!

Biography


Sheldon J. Stark offers mediation and arbitration services. He is a member of the National Academy of Distinguished Neutrals and an Employment Law Panelist for the American Arbitration Association. He is a member of the council of the ADR Section of the State Bar and chairs the Skills Action Team.

Mr. Stark was a distinguished visiting professor at the University of Detroit Mercy School of Law from August 2010 through May 2012, when he stepped down to focus on his ADR practice. Previously, he was employed by ICLE. During that time, the courses department earned six of the Association for Continuing Legal Education's Best Awards for Programs. He remains one of three trainers in ICLE's award-winning 40-hour, hands-on civil mediation training.

Before joining ICLE, Mr. Stark was a partner in the law firm of Stark and Gordon from 1977 to 1999, specializing in employment discrimination, wrongful discharge, civil rights, business law, and personal injury work. He is a former chairperson of numerous organizations, including the Labor and Employment Law Section of the State Bar of Michigan, the Employment Law and Intentional Tort Subcommittee of the Michigan Supreme Court Model Civil Jury Instruction Committee, the Fund for Equal Justice, and the Employment Law Section of the Association of Trial Lawyers of America, now the American Association for Justice. He is also a former cochairperson of the Lawyers Committee of the American Civil Liberties Union of Michigan. In addition, Mr. Stark is chairperson of Attorney Discipline Panel #1 in Livingston County and a former hearing referee with the Michigan Department of Civil Rights.

He was a faculty member of the Trial Advocacy Skills Workshop at Harvard Law School from 1988 to 2010 and was listed in "The Best Lawyers in America" from 1987 until he left the practice of law in 2000. Mr. Stark received the ACLU's Bernard Gottfried Bill of Rights Day Award in 1999, the Distinguished Service Award from the Labor and Employment Law Section of the State Bar of Michigan in 2009, and the Michael Franck Award from the Representative Assembly of the State Bar of Michigan in 2010. He has also been listed in "dbusiness Magazine" as a Top Lawyer in ADR for 2012 and 2013.



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