Dennis Marek: I wish I had thought of that – Kankakee Daily Journal

Posted: February 9, 2021 at 6:56 am

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I spent a great percentage of my working life inside of a courtroom trying cases from dog bites to murder. Medical malpractice to child custody. Land disputes to will contests. I was not the usual lawyer of the times who did corporate work, drew wills, closed real estate transactions, and went home. While I did practice in some of these areas, trying cases in front of learned judges or not-so-learned juries was a totally different life experience.

When you are in the middle of a trial, you dont quit at 5 p.m. You work late into the evening preparing for the next day. Trials start at 10 a.m. and run to 4:30 in many cases. You have no time during the day to prepare. You are battling a competent opponent the entire time. You have to think on your feet. Even though much is now available to both sides through pretrial discovery, there is always a change in the presentation. A witness changes his or her testimony a bit from what was expected. Motions that were not really expected are made from the opponent. Rulings by the judge may also change your immediate direction.

In other words, you have to be alert, creative, and flexible. None of these creates calmness. And these trial days may go on for a while. My longest was 18 days from start to finish with only Saturdays and Sundays off. You go to bed each night and rethink the events of the day. Too often you curse yourself for a reaction or the lack of a reaction to something that was said or introduced. It is a constant rethink.

Second-guessing is not uncommon in many peoples lives. What should I have said? Or why didnt I think of that then? We trial lawyers do this rethink to ourselves all the time. I am sure some of the professional witnesses do the same. I am sure police officers testifying in a trial go home that night kicking themselves that they could have responded better. In criticizing an opponents argument, one might use one of the following to illustrate its inapplicability or a wrong conclusion.

It is a capital mistake to theorize before one has data. Insensibly, one begins to twist facts to suit theories, instead of theories to suit facts. This from Sherlock Holmes in A Scandal in Bohemia by Sir Arthur Conan Doyle.

To fend off an attack on your argument, perhaps a form of comparison to this:

A common mistake that people make when trying to design something completely foolproof is to underestimate the ingenuity of a complete fool.

Doug Adams in The Hitchhikers Guide to the Galaxy.

But when all the commotion is over, one might remember this:

Do as adversaries do in law, strive mightily, but eat and drink as friends.

William Shakespeare in The Taming of the Shrew.

Those are my favorite quotes from the practice of law. Certainly they need to be reworded to meet a situation, but they have a core value. Over the years, harsh words have been exchanged between counsels, but there are limits that should be observed.

Years ago, I was trying a very cantankerous trial against the late Lennie Sacks, a most worthy advocate and opponent. All of a sudden, he tried to introduce something that was totally inadmissible. I objected but was also incensed. With that, Lennie came over to my table and asked if I would stipulate to an exhibit. I responded F- You, Lenny. He never said another word, finished with his witness, and the day was over. On the way out of court he looked at me and said, Denny, we are friends. You should not say f- you to a friend. You could say up your ss, or stick it where the sun dont shine, but not the f word. We are friends.

I was duly embarrassed, but had to laugh at the humor of his alternative suggestions. So I said to him, OK, up yours, and can I buy you a drink? We had that drink, and I had something to think about. That word disappeared from my vocabulary when used in any aggressive way. I had just used it against an attorney that I truly liked and respected. I wish I had said something instead, like after that cheap trick you just pulled, would anyone but an idiot agree to stipulate to anything?

But I didnt. So I decided that I would work on some retorts that could sting but not damage. Maybe I could have used Yogi Berras phrase, It aint over til its over, Lennie. So we should work on a list of comebacks that are firm but gentle and yet accomplish the purpose.

I must confess that a couple of weeks ago, I submitted an article in which I had famous retorts, one in particular about George Bernard Shaw. Shaw had an intense dislike of Winston Churchill and proved it by sending him a note. I have enclosed two tickets to the first night of my new play. Bring a friend, if you have one.

One of my readers later responded with an email about my article disclosing various classic putdowns and informed me that there was a second part to the Shaw/Churchill note. Apparently Mr. Churchill responded to Mr. Shaw, I cant make it for the opening night, but could come the second night if the play is still running. Not too bad, Mr. Churchill.

As I contemplate my retirement, especially in these times of the pandemic, I sometimes think that I miss those days of mental combat. I know I sleep better now, and I have more time to do things that I had thought about, but there is a gap some days for mental gymnastics and butting heads with very bright lawyers.

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Dennis Marek: I wish I had thought of that - Kankakee Daily Journal

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February 9th, 2021 at 6:56 am

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