Mistakes are a fact of life. It is the response to the error that counts.

- Nikki Giovanni

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Sep
12

Book Review: Essays on Lawyering Litigation and Arbitration

“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.[1]

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 labor law professors in the country.[2]

Israel and Goldman share their perspectives on labor and employment law, lawyering, mediating and arbitrating, arbitral remedies, litigation, witnesses, the world in which we operate, and much else. On display throughout is their decency, commitment to civility and good practice, and class A humanity!

Stuart Israel has long been editor and a regular contributor to Lawnotes, the Labor and Employment Law Section quarterly journal, and Barry Goldman is a long time contributor and 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 in Chapter 16, THE ARBITRATION PROCESS.

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, shake your head ruefully, 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 the quality of practice can be improved, that we can be more collegial without sacrificing client interests, and that we can derive greater satisfaction from our work if we only spend time thinking and reflecting before launching into a no holds barred competition.

In “‘Utter Nonsense’ Revisited: Invective In Legal Argument” for example, Israel addresses abrasive, Rambo-like attacks in brief writing, a subject he addressed 13 years earlier. “Plus ça change,” he writes ruefully, “plus c’est la mēme chose.” (The more things change, the more they stay the same). Yes, despite warnings from writing experts that these tactics don’t work, pit bull litigators continue to engage in name-calling and invective because they sometimes do 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 very specific, overly aggressive real life examples,[3] 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.

Goldman addresses a similar topic in “What Do You Want From Us?” He assures litigators that invective and insults do not work with arbitrators. Most litigators, he believes, hope the arbitrator will write an opinion adopting lengthy segments of their brief. Accordingly, insult is counter-productive:

Thinking up clever insults is more fun than thinking up relevant arguments, and your opponent is an idiot or he would have accepted your settlement terms. So you ask yourself the question: If I insult my opponent, is that going to make it more likely or less likely that the arbitrator will adopt my brief as his award? The question answers itself.

Turning to a more positive topic, Chapter 5, POETRY, provides examples from our authors, including haiku from Israel:

Request To An Opponent For An Extension

I will need more time.

What goes around, comes around.

Will you stipulate?

A Cross-Examination Commandment

Don’t ask the witness,

if you don’t know the answer.

Unless you don’t care.

And an “Arbitrator’s Lament” about the challenges of his profession by Goldman, which ends:

I’m tired and bored and wired and sore

and angry and greasy and itchy

And queasy and hungry and grumpy and creepy

and sleepy and weary and twitchy

The gods are cruel and men are fools

and fate is unforgiving

But, though I curse, it could be worse:

I could have to work for a living.

One of my all-time favorite essays addresses preparing your witness to testify, with Israel’s “The 162 Essential Rules for Deponents.”[4] Yes, you read that right: 162 rules! You will laugh out loud at the contradictions and game playing, recognizing many of the rules you instruct your own witnesses to use: From “Don’t volunteer” to “When appropriate, volunteer.” From “Don’t think out loud” to “The cross-examiner is not your friend. Be civil but don’t chat, socialize, or explore common acquaintances. Business is business.” From “Don’t bring anything,” to “Bring what you need: checklists, documents key to your testimony, notes, etc.” “Relax, but keep that edge.” “You are on display. Act like it.” Number 162: “Don’t screw up.”

In “The Other Cheek” Goldman begins with a quote from Matthew 5:38-39: “…but whosoever shall smite thee on thy right cheek, turn to him the other also.” He warns against unnecessary, time-wasting, and repetitive cross-examination. Don’t ask a question, he warns, just because it’s on the list with which you came prepared. Rather, he advises if the answer on direct didn’t hurt you, leave it alone or risk driving the arbitrator to distraction! He concludes, “I say unto you: If your opponent makes a meaningless point, let him make another also.”

There are essays on why and when arbitrators should ask questions or object to questions if the other side does not; 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.”[5]

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”; from “Elegance” to “Drooling”;[6] and from learning how to listen to the other side—“Audi Alterum Partem[7]—to understanding the psychology of how people make important decisions.[8] The authors offer sage advice and a good mediator’s intervention: “A reasonable settlement is preferable to a good case, because one can always lose a good case!”

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

In Chapter 16, THE ARBITRATION PROCESS, Goldman takes us behind the curtain and into the decision-making process of the arbitrator’s mind, with such topics as his attitude toward timeliness, who should identify the issue for adjudication, when and how, managing party unhappiness with outcomes, unusual (“off-label”) uses for arbitrators, “sacrificing” an arbitrator to give the parties cover, the use of logic, and whether to start offering “provisional awards.” In their dialogue, one of the topics addressed is predisposition. Israel, the advocate, pleads for an arbitrator to keep an open mind “until all the evidence is in, and let both sides have their ‘day in court.’” 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.’”

In Chapter 18, ARBITRAL REMEDIES, we learn a new Yiddish word, this time from Goldman in “Writ of Rachmones.” Rachmones means “compassion.” As an arbitrator and a decent human being, Goldman believes the contract should prevail over being compassionate—recognizing that the two do not always dictate the same result. “It’s a matter of respect,” he writes. “If the parties bargained for a harsh result, they are entitled to get one.” In “Remand on Remedy,” Goldman demonstrates his sensitivity to the fact that the union and management must live and work together, have the best understanding of the contract, and that an arbitrator’s remedy could be a bad thing. In his essay on “Provisional Awards” he suggests parties might want to negotiate the amount of back pay after the arbitrator awards reinstatement, to put the decision on dollars in the hands of the people with the greatest understanding of the situation. If they can’t resolve their differences, the arbitrator could select the last best offer of one side or the other. This “fits the forum to the fuss.” What a concept!

In their final chapter, THE WIDER WORLD, Israel and Goldman let fly their views on 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. It appeals to our better natures, assuming—as it does—that we have better natures. It goes down easy. Wry wit and long experience are clearly on display. It 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![9]

[1] 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 labor lawyers, mediators, and arbitrators. Until I read this book, for example, I would never have used a “serial comma.” See “In Defense of the Serial Comma” by Stuart Israel, in Chapter 12, LANGUAGE AND WRITING.

[2] Dean St. Antoine is past president of the National Academy of Arbitrators, recipient of the Labor and Employment Law Section Distinguished Service Award, and James E. & Sarah A. Degan Professor Emeritus of Law, University of Michigan.

[3] To quote only a few: the other side’s arguments are “absurd,” “def[y] common sense,” are “disingenuous and frivolous,” “beyond comprehension,” contain “utter nonsense” and are “‘distorted’ to a ‘staggering’ degree,” “outlandish,” and “grossly exaggerated.”

[4] The list excludes “231 important rules because they just did not make the ‘essential’ threshold.”

[5] In “The Lawyer’s Obligation To The Truth in Litigation, Negotiation, And Mediation,” tongue in cheek (or perhaps not), Israel also quotes University of Michigan law professor J.J. White, who taught that “misleading the other side is the essence of the lawyer’s task.”

[6] The title comes from a comparison Goldman makes between a joke about arbitrators to one about banjo players. “How can a bluegrass band tell if the stage is level? The banjo player is drooling out of both sides of his mouth.” To prove themselves, arbitrators must convey the impression they are so neutral—and “level”—that they could do harm to either side. “We [arbitrators—not unlike banjo players] have to drool out of both sides of our mouths.”

[7] Audi Alterum Partem translates as “listen to the other side.”

[8] See “What Negotiators Ought To Know About Why People Do What They Do—A Review of The Science of Settlement: Ideas for Negotiators,” Israel’s review of Goldman’s earlier book.

[9] In the interest of full disclosure, I have had the honor of mediating for Stuart Israel, contributing my own writing to Lawnotes, and—I am not afraid to admit—I rely on him to edit my stuff. He makes my prose almost readable! I have recruited Barry Goldman multiple times to speak both for ICLE, the Institute of Continuing Legal Education, and the ADR Section of the Michigan Bar. We meet periodically with several other mediators to discuss our craft over lunch. I hereby relinquish all rights to a cut of their profits.


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