The Art of Conflict: Tales from the Courtroom

The Art Of Conflict: Tales From The Courtroom

Copyright © 2018 by Michael A. Kahn and Alan C. Kohn

All rights reserved. This book or any portion thereof may not be reproduced or used in any manner whatsoever without the express written permission of the publisher except for the use of brief quotations in a book review.

ISBN (Print): 978-1-54395-062-5

ISBN (eBook): 978-1-54395-063-2

Contents

Introduction

Section 1. The Magical Powers of the Courtroom Clerks

a. Cook County RedemptionBy Michael A. Kahn

b. Supreme Court Law Clerk, 1957-58: A Reminiscence

By Alan C. Kohn

Section 2. The Ethical Litigator: An Oxymoron?

a. Strange Bedfellows By Michael A. Kahn

b. Opinion: Playing According to the Rules By Alan C. Kohn

Section 3. How to Win a Case—or Is There More than One Way to Skin a Cat?

a. The Bread of Affliction By Michael A. Kahn

b. It’s Time to Try Your Case By Alan C. Kohn

Section 4. The Art of Cross-Examination

a. Truth In a Plain Brown Wrapper By Michael A. Kahn

b. The Gentle Art of Cross Examination By Alan C. Kohn

Section 5. Judicial Activism: Mythical or Maniacal or Both?

a. Excerpt from THE FLINCH FACTOR

(Poisoned Pen Press 2013)

b. A Legal Essay: The Judicial Activism Myth By Alan C. Kohn

About The Authors

Introduction

I stopped by my secretary’s desk on my return from lunch.

You had a call, she told me. From a Mr. Alan Kohn.

Alan Kohn? I repeated, surprised. The lawyer?

I think so. She handed me the message slip. Here’s his number.

Did he say why he called?

Said he had an interesting proposition to discuss with you.

Did he say what kind of proposition?

No. She shrugged. Just that he wanted to discuss it with you.

I was, to say the least, intrigued.

Although we were both trial lawyers, we’d never encountered one another in a courtroom, either as adversaries or co-counsel. But that was beside the point. To describe Alan Kohn as a trial lawyer is as accurate as describing a star pitcher (such as Bob Gibson) as merely a pitcher. Accurate, yes, but misleadingly generic. Gibson has been inducted into the Baseball Hall of Fame, and Alan Kohn has earned the equivalent in the realm of trial lawyers. A former law clerk to Supreme Court Justice Charles E. Whittaker, Alan is a Fellow of the American College of Trial Lawyers, has been named St. Louis Trial Lawyer of the Year, has tried over 100 cases, and has represented a wide array of clients ranging from Fortune 500 companies to the Sierra Club and the ACLU.

And now he wanted to discuss an interesting proposition with me? Hmmm.

So I returned the call, and quickly confirmed that it was indeed an interesting proposition. Over the years, Alan had published five essays on the practice of law—everything from the experience of clerking for a Justice of the United States Supreme Court to tips on how to avoid the lethal hazards of cross-examination. Although his five essays had been published separately, they had never been collected into one publication, he explained. But he had an idea for a book. He thought it might be fun to pair each of his essays on the practice of law with a short story of mine on the same theme. In other words, a book that would combine legal realities and legal fictions.

I was intrigued but a little skeptical. My novels and short stories were works of fiction and never intended—at least knowingly—to offer any practical tips on lawyering. When Ernest Hemingway wrote Big Two-Hearted River, I doubt whether he envisioned his short story as an instructional manual on fly fishing. Same for Norman MacLean when he wrote A River Runs Through It. Thus the chances of pairing any of my fictional tales on lawyering with essays on actual lawyering seemed remote.

But he was, after all, Alan Kohn. I mean, if a Hall of Fame pitcher asked if he could throw you some batting practice, wouldn’t you say yes?

So I told Alan to send me his five essays. After all, even if his idea didn’t pan out, I’d at least get the benefit of reading some trial practice advice from one of the local legends of the bar. And in the process of reading them, I did indeed absorb lots of good trial practice tips. But even better, and to my surprise, each of Alan’s essays immediately connected with one of my works of fiction.

And thus this book.

As you will see, we have divided it into five parts, pairing one of his essays on lawyering with one of my works of fiction on the same topic. We leave it to you, the reader, to decide whether truth is stranger than fiction.

Enjoy!

— Michael A. Kahn

Section 1

The Magical Powers of the Courtroom Clerks

There is a crucial lesson never taught in law school that every trial lawyer learns early in his career, namely, the most important official in the courtroom is not always the judge. Indeed, is not often the judge.

Come with me into this courtroom. There, do you see that courtroom clerk seated below the judge’s bench? And the law clerk taking notes over there in the empty jury box while those two lawyers argue their motion? And the bailiff standing behind his podium, arms crossed over his chest, occasionally making eye contact with the judge?

Now we’re on the morning recess. Watch what happens during those minutes before the judge re-emerges from his chamber. See that gray-haired lawyer chatting with the courtroom clerk? And that other senior partner over there? The one joking with the bailiff? What about that younger female attorney talking with the male law clerk, the two looking about the same age, and, as you later learn, former law school classmates?

These trial lawyers have already learned that crucial lesson. You want to get that motion of yours heard this week instead of next month? Introduce yourself to the courtroom clerk. She controls the judge’s schedule, and if you’re polite and respectful, she just might move your hearing up to an earlier date. Witness timing issues? Introduce yourself to the bailiff. A difficult legal issue? Not a bad idea to let the law clerk figure out you aren’t a jerk. After all, it might help when she reads your brief if she found you to be a credible person. Maybe, maybe not. But it couldn’t hurt. Remember, as between the judge and the law clerk, the latter is far more likely to read your brief.

This section features two different behind-the-scenes tales of those vital courtroom personnel. In Cook County Redemption, the savviest person in the courtroom is most definitely not the judge and not the book-smart law clerk. And thank goodness for that one savvy courtroom employee, since the defendant in the fraud case is the one and only Lester Fleming, the powerful, sly, politically-connected personal injury lawyer.

We are treated to very different behind-the-scenes perspective in Alan Kohn’s Supreme Court Law Clerk, 1957-58: A Reminiscence, where he takes us backstage at the highest court in the land for some vivid memories during his two years as United States Supreme Court law clerk.

— Michael A. Kahn

Cook County Redemption

¹

By Michael A. Kahn

Here’s where we are:

High above Dearborn Street in Chicago’s Loop, inside the chambers of the Honorable Harry L. Stubbs. It is an imposing room, these chambers. Fit for a pharaoh, adequate for a federal judge. Tall ceilings, dark paneling, large picture window opening east upon a royal view of Lake Michigan. A massive walnut desk. Behind that desk a high-back leather chair that’s more throne than seat. And on that throne, U.S. District Judge Harry L. Stubbs, beads of sweat forming on his forehead.

His Honor leans to his right and releases another fart.

Fiber shock. Has to be. Christ Almight», I’m going into fiber shock.

In the middle of the room, dominating the foreground, is a burled walnut conference table encircled by eight leather chairs. On one wall are floor-to-ceiling bookcases filled with bound law books. On another are portraits of Abraham Lincoln, Ronald Reagan, and Henry Hyde, along with a framed DePaul Law School diploma and a plaque displaying a bronzed Illinois State Highway Patrol badge. On the desk, a standup family portrait of a plump blonde woman and three blonde daughters, all wearing glasses. Hanging from a brass coat rack in the corner: a black robe and a bright plaid sports jacket.

His Honor lifts his haunches and releases another fart.

Married to a fiber zealot, for God’s sake.

Yesterday morning Bernice had placed a homemade bran muffin next to his coffee mug. Had the heft of a waterlogged softball, the flavor of drywall. The Muffin from the Black Lagoon.

His Honor’s stomach rumbles. Gas pressure builds again in his colon.

This morning she’d kissed him on the forehead and placed a bowl before him. He’d stared down at what looked like a pile of hamster turds.

What in God’s name is this? he’d finally asked.

Bran buds, Father. Just packed with yummy fiber.

They’d tasted even worse than they looked—a moist blend of sawdust and industrial sand. His Honor had forced down half a bowl, all the while imagining what would happen if the president of Kellogg’s ever found himself in the courtroom of U.S. District Judge Harry L. Stubbs.

His Honor shakes his head. Who’d have thought that the cute blonde he’d pulled over for speeding thirty-one years ago out on I-55 would become, during the thirtieth year of their marriage, a born-again believer in the divine grace of an ample bowel movement? After twenty-nine years of Wonder Bread, Uncle Ben’s, and Rice Krispies. Go figure.

Another wince, another fart.

Then again, he concedes, he isn’t exactly the trim highway trooper anymore. When they were newlyweds she called him her John Wayne—although even then it was a reach for a guy five-foot-nine. It is far more of a reach now. Over the past thirty years he’s added ten inches to his waistline, lost: most of his hair, and padded those square jaws with a set of jowls. Last weekend at the True Value, while selecting a new belt for the sander, he thought he’d spotted former Cubs manager Don Zimmer across the aisle—only to realize with a start that he was looking at his own reflection.

His Honor pulls a handkerchief from his back pocket and wipes the sweat off his forehead.

Definitely fiber shock.

There is a rap at the door.

Christ, he mumbles, squeezing his butt cheeks together.

It’s open.

Into chambers lumbers His Honor’s enormous docket clerk, Rahsan Abdullah Ahmed (nee Lamar Williams). Six-feet-six-inches tall, 285 pounds, big as an ox, black as coal, and—on first impression—dumb as dirt. First impressions can be misleading.

Good morning, Rahsan.

Mornin’, Yo’ Honor.

Their first months together had been tough ones for Judge Stubbs. He enjoyed the pomp and circumstance of the district court, right down to the traditional Oyez, Oyez, Oyez to open court each morning. He used to cringe when Rahsan banged the gavel three times and announced to the crowded courtroom, with a hearty Oh-yeah, Oh-yeah, Oh-yeah, that the United States District Coat was now in session.

But that was then. Although Rahsan would never dub voice-overs for Darth Vader, it hasn’t taken Judge Stubbs long to recognize his docket clerk’s true value. He’s had law clerks, of course—those young kids with fancy degrees from snooty law schools. Even though they have all the street smarts of a Lake Forest dowager, those damn kids can research like there’s no tomorrow, and that is important to former Highway Trooper Harry L. Stubbs. He isn’t looking to blaze new paths in the law, especially after what the Seventh Circuit did to him last year in the Arnold Bros. appeal. Judge Easterbrook wrote the opinion for the panel. Made him sound like some yahoo who’d slipped his electronic cuffs, the pompous bastard. So these days, he turns to his law clerks for the law. But when His Honor needs something more important than legal research, he has Rahsan. His law clerks occasionally let him down; they can’t always find a precedent. But his docket clerk, God bless him, never lets him down.

What do we have this morning? Judge Stubbs asks.

Rahsan shakes his head with weary patience and tugs on the right side of his thick Fu Manchu mustache. Oh, jes’ the usual tattletales and crybabies.

He hands Judge Stubbs the stack of motions that have been set for hearing this morning. His Honor checks his wristwatch and sighs. He could close his eyes and picture them: grim squadrons of lawyers armed with briefcases emerging from skyscrapers along LaSalle Street and marching toward Dearborn, leaning forward with determination. Soon they’ll be converging on the elevators below for their ascent to the courtrooms of Judge Stubbs and his fellow judges of the Northern District of Illinois.

Morning motion call.

Judge Stubbs leafs through the all-too-familiar pile of papers, the distaste evident on his face. Motion to Compel Production of Documents. Motion for Extension of Time to File Reply Memorandum. Motion for Sanctions. Motion for Continuance. Motion to Compel Answers to Interrogatories. Motion for Sanctions. Motion for Leave to File Sur-Reply. Motion for Extension of Time to File Amended Complaint. Motion for Leave to File Brief in Excess of Twenty Pages. Motion for Continuance. Motion for Sanctions.

Same old crap.

Like most of his colleagues, Judge Stubbs detests the morning motion call. Sitting up there on the bench, listening to the parade of lawyers accusing each other of picayune violations of the rules, he feels like that old woman who lived in a shoe.

He looks up with a weary sigh. Anything else?

Got ourselves an emergency motion, Judge. They seeking a T.R.O.

Really? One of ours?

No, suh. Belong to Judge Weinstock.

One of Marvin’s cases? Why are they here?

He on vacation. This week and next.

New case?

No, suh. Complaint filed six weeks ago.

Six weeks? Why the sudden rush?

Rahsan shakes his head. Don’t know, Yo’ Honor. Parties want a hearing. Presiding judge sent ‘em down here.

Am I the emergency judge this week?

Yes, suh. This week and next.

Judge Stubbs opens his desk calendar and studies it. Well, looks like we can probably squeeze them in today. I have a pretrial conference at ten. Not much after that.

I already tole ‘em be here by eleven sharp.

Judge Stubbs looks up and smiles. You have their motion papers?

Yes, suh. Right here. Rahsan Ahmed hands Judge Stubbs the court papers and stands up. Motion call be startin’ in ten minutes, Judge. I’ll rap on the door when it’s time.

And here’s how we got there:

Five weeks back. Inside the men’s room at the Union League Club. Marble sinks, polished brass fixtures, neat stacks of crisp hand towels, a sumptuous row of porcelain urinals fit for the gods. It is an elegant room, exactly what one would expect to find in one of the most exclusive downtown men’s clubs in Chicago. And thus the last place in Chicago one would expect to find Jimmy Torrado. Jimmy combed his thick black hair in the large mirror over the marble sinks, trying to maintain his cool. He ran his finger under his collar and then straightened his tie, checking his reflection. He wasn’t used to wearing a coat and tie, but you do what you gotta do. Trailed the son of a bitch for a week, trying to figure out how to get close enough to do it, to get past his driver and his secretary and the rest of the damn entourage. And then it hit him, like one of those bulbs flashing on in a cartoon: serve the guy in the crapper. Grinning, Jimmy leaned forward and stared in the mirror. There was a little blackhead on the bridge of his nose. Yes, sir, he said to himself as he pinched out the blackhead between his thumbnail and fingernail, you got to get up pretty early in the A.M. to get the drop on Jimmy Torrado.

He heard a rustle of newspaper from one of the toilet stalls. Then the sound of toilet paper unrolling. Jimmy Torrado took the documents out of his blue plastic briefcase and waited. The toilet flushed, the stall door opened. A silver-haired guy stepped out with a Sun- Times folded under his arm, moved past Jimmy toward one of the sinks like he wasn’t even there.

Yep, that was him.

Jimmy waited until the guy started washing his hands. Big green gems on his cuff links, manicured fingernails, gold Rolex watch. Guy was loaded, no question.

You Lester Fleming?

The silver-haired guy turned his head toward him as he lathered his hands. Didn’t say a thing—just stared at Jimmy with