SEX, DRUGS, AND ROCK 'N' ROLL: SOME OBSERVATIONS OF LIFE ON A TRIAL TEAM.

• Author: Heaton, J.B.

1. INTRODUCTION

   "Have a good time all the time, that's my philosophy. Marty!" (1)

   Most law professors have spent the vast part of their professional lives in the academy. As opposed to a professional field like medicine, there is very little "clinical" work in the job of most legal academics. While judicial clerkships abound, those who have worked in private practice often did so for a very short time in very junior roles. (2) Of that set. even fewer worked on litigation, and the percentage that worked on large, civil cases that went to trial is necessarily even smaller. (3) As a result, many legal academics, even those that teach procedure and evidence, may have little experience with the way trial teams operate "in the field."

   From 1999 to 2017, 1 had the good fortune to be a lawyer at one of the nation's top litigation "boutiques." Bartlit Beck Herman Palcnchar & Scott LLP. 1 joined immediately out of my law and graduate studies (including a finance Ph.D.). intending at that time only to work a few years and then find a job researching and teaching, probably at a law school. As such, and despite my long career there, I was always a bit of an outsider. The firm's focus was on trials, and I was no natural trial lawyer. Indeed, because our practice was national in scope, and because the cases we handled were so large and often complex, trials could be multiple-week out-of-town affairs with long absences from family and friends, little sleep, and a lot of stress. I am pretty much a home body who loves a solid 8+ hours every night. (4) But I was fortunate to go on a few trials during that time. I spent nearly two decades hearing the experiences of my colleagues, some of whom went on the same number of trials as I, some far more.

   In a recent essay, Richard Posner asserts that "[p]ractical experience is vital to understanding and improving law. and suggests a need for law professors who base research on practical experience rather than on the social or natural sciences." (5) Agreeing wholeheartedly with that proposition, I asked myself: what would law professors (and law students) be surprised to learn about what "real-world trial lawyers" do? In other words, what observations could I share that might be illuminating, and, at the same time, were such that I had some thoughts about them beyond the sharing of anecdotes and war stories? It took only a minute to come up with the answer: sex, drugs (well, mostly alcohol), and rock 'n' roll on a trial team. As occurs too often in real life, I start with alcohol, then sex, and then move to rock 'n' roll.

2. TRIALS AND BOOZE (ETC.)

   1. HAVE YOU BEEN DRINKIN'?

      Alcohol use is high among practicing lawyers:

      Recently, the Hazelden Betty Ford Foundation and the American Bar Association collaborated on a study of substance abuse, depression and anxiety among America's lawyers that is the most significant research of its kind. This landmark study gave us hard data that, in the end, support our many anecdotal accounts. The numbers tell us that lawyers drink. They drink a lot. (6) What surprises many young lawyers on their first trial is that many people drink while they work. Not during the time in court (that I know of), but lawyers would drink after court and in preparation for the trial days. I first encountered this before Bartlit Beck, and even before graduate and law school. My job between undergrad and grad/law school was with a litigation-support firm (many mergers later, its DNA resides somewhere inside Navigant Consulting. Inc.), where I worked for an expert witness on financial matters. My first experience in a trial "war room" was a fraudulent transfer case in Memphis. Tennessee, where Jenner & Block represented the litigation trustee (a Jenner & Block partner) against a bank that had lent money for a leveraged buyout of a firm that went bankrupt after the deal. I recall getting to the war room in mid-afternoon a couple days before the trial was to start. Those are days of hard work preparing for and conducting pretrial proceedings and getting ready for the opening of trial. To my considerable surprise, there were Budweiser cans in front of several of the attorneys, and we were offered a beer on our arrival. Drinking on the job! I thought this was pretty awesome (I was twenty-two after all), and it made trial seem more like a rock group's recording session than serious nerd work. The case settled. I went to Graceland the next day and then flew home.

      My first trial at Bart lit Beck was in 2003 in Des Moines. Iowa, and I was told it was pretty normal. I he trial team always had alcohol available. What was on hand on a given trial depended, of course, on the preferences of the attorneys and staff on the team. Some liked vodka. Some liked gin and wine. I and few others had jumped on the bourbon bandwagon. There were beer drinkers, of course. The drinking was always...