Appendix I cogency

• Author: Stewart Edelstein
• Pages: 307-323

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APPENDIX I

COGENCY: MOLLY

COGENT DEBATING

AND MENTORING

1. BOMBAST V. COGENT

Moderator: This debate goes to t he heart of how we conduct litigation

today. The participants are Molly Cogent, author of Less Is More: The

Simplification Strategy and head of the litigation department at Cogent

and Sage, and Ulysses S. Bombast, senior partner at Bombast, Bun-

kum, Bluderbuss, Billi ngsgate and Blarney. He is the author of the t wo-

volume treat ise Rambo Litigation: Maximizing Body Count by Papering the

Enemy to Death. They see things d ifferently.

Ms. Cogent, what is “simplification strategy”?

Cogent: The strategy is based on a notion of simplicity best

described by Oliver Wendell Holmes when he said that “the only sim-

plicity for which I would give a straw is that which is on the other side

of the complex—not that which has never divined it.” Thus, th is strat-

egy is based on master y of complex ity and then distillation, reduction

to essence. It is not a simplistic approach. It is a strategy that applies

to everyth ing litigators do, from the first client interview to appellate

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court argument. Simplicity works in many other pursuits, and it does in

litigation as well.

Think of the powerf ul simplicity of the Great Pyramid at Giza, the

Acropolis, or, for a modern example, the Guggenheim Museum in New

York City. Examples from music are the four-note theme in Beethoven’s

Fifth Symphony, Harry Chapin’s “Cat’s in the Cradle,” Bobby McFer-

rin’s “Don’t Worry Be Happy,” and even John Coltrane’s “My Favorite

Things,” in which he does incredible jazz riffs without losing the essen-

tial simplicity of t he musical theme.

Some years ago, Irving Younger wrote: “It has long been obser ved

by practitioners of disciplines other than the law that simplicity marks

the master. Simplicity walks hand in hand with high seriousness, not as

a child better left behind, but as the very herald of large intention and

great accomplishment.”

Moderator: Mr. Bombast?

Bombast: If what litigators do were so simple, we wouldn’t have to

go to law school. The litigator is in a position very dif ferent from that

of the artist or composer. Perhaps simplicity can be ach ieved when you

select the notes or invent the characters. But the litigator is not, as it

were, present from the creation. You typically come to a case after all

the facts are in a nd must work with these facts in putting toget her a

claim or defense. To be a good litigator, you’ve got to bring out all the

complexities of your case. Don’t leave any stone unturned, paper the hell

out of the opposition, attack on all f ronts; the more you say and write,

the more likely that somethi ng will stick. Use the shotgun approach; an

AK-47 is even better.

Moderator: Ms. Cogent, how does your simplification strategy

affect the way you develop a case?

Cogent: No matter how complex a case you have, you can state its

essential facts simply, laying out the central theme of your case. You

must think about themes from the first client interview and not wait

until the eve of trial. The themes of your case may evolve over time,

as with your fact ual and legal investigation, but everything you do in

working up a case has to be evaluated in light of how it ties i n with

your themes.

I disagree with Mr. Bombast when he suggests that the complexity

of the cases we handle makes reduc tion to essence impossible. I see truth

in the words of the Indian poet Rabindranath Tagore: “[L]ife is simple,

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