Sidebar. Keep Your Nose Clean

• Author: Kenneth P. Nolan
• Pages: 62-63

LITIGATION 62

Sidebar

KENNETH P. NOLAN

The author, a senior editor of Litigation and the author of A Streetwise Guide to Litigation (ABA 2013),

is counsel to Speiser Krause, Rye Brook, New York.

I thought I wasn’t, but I really was naive. I

believed the bunk about truth, justice, and

the American way. Sure, everyone told

a little white one on occasion, but the

courthouse was a sacred temple; judges

were paragons of integrity and impartial-

ity, and attorneys were defenders of fair-

ness and freedom.

I had been at the firm a few weeks

when I researched a potential action—ex-

tremely lucrative—to determine its viabil-

ity. Striving to impress, I spent nights in

the library, mastering the subject, learning

the precedent and law, writing a detailed

brief that concluded it was a slam-dunk

loser. After some spirited questioning,

the partners, although disappointed at

the loss of millions, accepted my recom-

mendation and advised co-counsel and his

client we could not assist them.

The next day, one of the bright, ag-

gressive young lawyers—later my men-

tor—called me into his office, closed the

door, and nearly shouted: “What are you,

#@% crazy? Of course, we take the case.

We’ll figure out some theory, convince the

judge it’s a question of fact, and the de-

fendant will settle. You never turn down

a case that’s worth millions because they’ll

always pay you thousands and lots of them.

What’s wrong with you? You better wise

up, or you’ll be back teaching.”

“But it would have been dismissed on

summary judgment,” I meekly responded.

“So what?” he roared. “But if it wasn’t,

then they’d pay.”

Humiliated, I slunk to my office, hid-

ing my ignorance and innocence behind a

tower of books. My first real assignment

and I screwed up. When I taught To Kill

a Mockingbird to resistant, bored teens, I

knew I was right and they were wrong.

Here, in the law biz, the boundaries were

not so clear.

It’s Not What You Know

About the same time, I joined the Bay

Ridge Lawyers, a neighborhood bar associ-

ation of primarily storefront practitioners

who specialized in house closings, estates,

and small business–related matters. At

their monthly meetings—always over a

bowl of linguine in the back room of a lo-

cal Italian restaurant—a speaker would

explain the latest developments in pro-

bating a will or drafting a contract. At one

of my first, a distinguished judge, from a

powerful Democratic club, held forth. I

only remember his conclusion: “And don’t

forget,” he insisted. “If I’m on the bench

and I don’t recognize you, kick me in the

shins and let me know you’re a Bay Ridge

lawyer. I’ll take good care of you.” Smiles

and applause all around.

It was a joke, I thought, until over

drinks at the bar, the older attorneys told

stories about how this judge and others

gave them adjournments whenever asked,

ruled for them on contentious issues, and

gave other favors, big and small, all be-

cause they were buddies. I was shocked.

Ah, the real world—a place where

friends meant more than the law, where

financial leverage was used to extract a

settlement, where judges were appointed

based on politics, not merit. I always knew

life was tough and cruel. Now I realized it

was also a touch crooked.

Gradually, I was adjusting. When a

judge inexplicably ruled against me, I ar-

gued strenuously but kept to law and facts.

I didn’t shout that the fix was in, that the

judge was favoring a political ally. “Don’t

worry, kid. I’ll make it up to you,” the

white-haired judge whispered. And hav-

ing spent all my life in Brooklyn, I, too,

was friendly with some court personnel.

Once I was number 37 on the discovery

calendar, hoping to be called by lunch.

Instead, I was called first. Approaching

the bench, I smiled at the court officer,

who quietly told the judge: “Kenny Nolan,

we went to Bishop Ford together. Good

guy.” Miraculously, the judge agreed with

my every request, ignoring my adversary’s

many objections.

In alien venues, I was slapped around;

where I had connections, I was reward-

ed. Most were minor matters without

KEEP YOUR NOSE CLEAN