Phillips Nizer LLP Articles
Ten Things I Learned From Louis Nizer
TEN THINGS I LEARNED FROM LOUIS NIZER
I was privileged to have been associated with Louis Nizer in the practice of law for 34 years. By the time I joined the firm in 1960, fresh from law school, he was already a courtroom legend and in my eyes very much larger than life. One of my earlier assignments was to proofread the manuscript of "My Life In Court", which was destined to become his first best-seller and spawn a Broadway play and a television film. Over the decades since that book was published, dozens of lawyers and judges have told me that it was responsible for their decision to become a lawyer. That book did for the public's perception of the legal profession what Leonard Bernstein did for the public's perception of classical music. Here are some life lessons I learned from him.
1. The Client Comes First. Louis Nizer was first and foremost a consummate advocate. He represented clients with a zeal that allowed no room for equivocation. "The client's interest" was the yardstick by which he measured every decision and the lawyer's convenience, private life or family had very little weight in the equation. When the first case I worked on was set for trial in early 1961, I reminded him that I would have to be away for the week prior to trial because I was getting married. He very matter of factly asked me to adjourn my wedding in the "client's interest", simply assuming that my fiancée and our families, would see things the same way he did. To be fair, he applied the same rules to himself, frequently cutting vacations short or absenting himself from his own anniversary parties. I was with him in Denver preparing for the argument of a critical appeal while friends and family celebrated his 45th wedding anniversary without him in New York. So the way he saw it, commitment to the client's cause required sacrifice of all self interest.
Blessed with good health and what appeared to be inexhaustible stamina, he was a prodigious worker and he expected all of us to match his efforts, because he taught that above all else we had to be completely prepared for any eventuality. Once in 1962, when we had been working for six straight months virtually around the clock preparing for and trying a jury case, I had passed out at my desk while writing some material we needed the next day. He let me finish my nap, and when I awoke embarrassed, but refreshed, he reminded me that we still needed the material. We all just worked later.
2. Be Courteous. In a courtroom, he was the consummate gentleman, giving due deference to the judge, jury, his adversary and the witnesses. It wasn't just good manners, it was good advocacy. By behaving in this way he enabled the judge and jury to concentrate on the issues, rather than on the lawyer's personality. If the trial was scheduled to start at 10:00, we had to be in our seats, completely set-up by 9:30. No judge ever waited for Louis Nizer.
3. Be Not Afraid. He also had incredible courage. He had the courage of taking on unpopular causes, combating wealthy institutions and even to clash with the powerful Chairman of the House Un-American Activities Committee when he saw that it was in the client's interest to do so.
As the years went by and Mr. Nizer's reputation spread, I began to notice a change in appellate courts' relationship to him. Instead of the badgering, almost hostile questioning we sometimes encounter during oral argument, the judges became deferential, gently questioning for guidance from this legal giant, not seeking to rebuke him for a strained argument. And when his eyesight began to fail and he could no longer read the brief's type, he would deliver those detailed legal arguments without a note before him. And something else happened that was almost magical, his appellate arguments became events for the bench and bar. All seats reserved for spectators were filled by other judges, the judge's law clerks and the leading attorneys in whatever city he appeared.
4. Write Clearly. But Mr. Nizer was not just a great oral advocate, he was a superb brief writer. And he taught each of us that the key to effective writing was clarity. Again, his rule of thumb was to judge the clarity of the argument in terms of an intelligent lay person, not a legal scholar. He would say to give it to your spouse to read. If you have to explain what you wrote, it wasn't any good. Many is the time I slaved over a brief until I thought I had achieved perfection, only to have Mr. Nizer hand it back to me saying that I have given him "raw meat" and to go back and cook it some more. And the awful part of it was, he was right.
5. Pick Your Shots. Although a great litigator, he frequently counseled against it. It is surprising how many famous people have really thin skins and react almost irrationally when they are criticized in newspapers or on television. I sat with Mr. Nizer when someone very famous was offering to pay large fees to have us bring a libel suit to vindicate his reputation, but who otherwise had not been financially damaged. Mr. Nizer told him to think of the insult as if he had mud splashed on his suit. If you try to clean it away while it is fresh, you will just streak your clothes and the stain will be with you forever. But if you do nothing and wait until the mud dries, you could flick it off and it would leave no mark.
6. Be Open With Your Partners. As much as he loved the law, he loved his firm. He was its founder, its leader, its mentor and its navigator and we were the natural child he never had. He was a strong believer in democracy and partnership meetings were forums for the "body" as he called it, to debate the merits of particular issues and reach consensus. He was far from a neutral moderator and felt that he had the right and even the obligation to make sure that we all understood his position. Then, as if to give us a way out, he would graciously tell us that if we did not follow his counsel, "the sky would not fall". Once, after a particularly contentious meeting in which personalities had gotten into the debate, he remarked privately to me that he had 35 prima donnas, meaning our partners. And then he began to chuckle and said, "on the other hand, what other opera company in the world can boast of 35 prima donnas".
7. The Rule of Probability. "What was probable, probably happened." This was not so much a rule as a yardstick for testing the credibility of evidence. It calls upon the trial attorney to evaluate what his client is telling him had occurred and what his adversary presents as evidence against the attorney's own life experience and common sense. The "rule" also applies to documents presented as genuine contemporaneous documents. If the testimony or document is inconsistent with the other evidence in the case or runs counter to what people would probably have done, it is suspect and to be carefully scrutinized. In one bet-your-company case, our adversary presented a letter signed by the Minister of Petroleum Affairs of a foreign government, proving his client's claim to a finder's share of a huge oil strike. The letter was too perfect, in that it correctly recited facts that it was unlikely the writer knew at the time. Instead of settling the case, at Mr. Nizer's direction we launched an investigation of the document, only to find that it had been typed on an Olivetti typewriter which was not manufactured until two years after the date of the letter. That discovery caused us to dig deeper and eventually uncovered evidence that the letter had been "purchased". Now, instead of a killer document, the plaintiff was faced with evidence that it had manufactured evidence, which when presented to the trial court led directly to the dismissal of his case and a rapid affirmance on appeal.
8. Don't Destroy Any Documents. Every large organization has document retention (read "disposal") policies. When a claim is made, the attorney needs to direct that routine destruction be suspended for all relevant documents. Invariably, someone slips up and someone's file gets to the shredder or the landfill. Mr. Nizer taught that you can explain every document, except the one your client destroyed. That document will quickly take on the importance of Magna Carta in the hands of your adversary and so portrayed to the jury.
9. Never Put An Unqualified Admission In A Letter to Your Own Client. Attorney-client privilege has a way of getting waived by subsequent disclosures or careless safekeeping and what was intended as a candid appraisal of a claim or weakness to a client can sink the defense. Even if the Judge sustains the claim of privilege, he or she will have read it and retain the fact when it comes time to judge the causes or recommend a settlement figure. Always mindful of the client's best interests, Mr. Nizer cautioned that if you were required to write such a letter, be sure to surround it with self-serving disclaimers, so that the letter, if produced, will be virtually useless to the adversary.
10. Be A Complete Person. A great philosopher once said, "the life of the law is experience, not logic." Mr. Nizer believed that part of the training of a lawyer is to live life to its fullest, and to become knowledgeable in many disciplines and arts, to be able to sense which arguments will resonate with the courts and which will fail. He would turn to highly intelligent, scholarly attorneys to research and present the arguments, but only to the well-rounded experienced ones to choose which ones to present.
Our firm is concluding its 75th Anniversary Year, and this November marks ten years without its founder at the helm. Thus, it seems appropriate to recall a very personal piece he wrote called "A Lawyer's Prayer". The piece is really autobiographical in that Mr. Nizer was praying for the traits that he believed he possessed as a trial lawyer. It also illustrates the felicity of his writing skills:
Please, O God, give me good health with which to withstand the rigors
of a most arduous profession - the law.
Please grant me equanimity which calms everyone around me and enable
me to balance like a gyroscope in the storms of contest.
Touch my words with eloquence, not in the sense of harangue, but in the
true meaning of oratory -- a flashing eye under the philosopher's brow.
Diminish my worries, particularly those anticipated worries which are like
interest paid on a debt that never comes due.
Increase my capacity for work, so that I will not suffer the fatigue of thought
and will plow deep while sluggards sleep.
Above all, O Lord, do not diminish my intensity for a client's cause, for
from it spring the flames which leap over the jury box and set fire to the
convictions of the jurors.
I would pray that my efforts do not blind me to the uniqueness of love, the
comfort of friendship, and the joys of a cultivated mind.
We cannot control the length of our lives, but we can control the width
and depth of our lives. And I know that when you finally touch us with
your fingers to permanent sleep and examine us, you will look not for
medals or honorary degrees, but for scars suffered to make the world a
little better place to live in.
Every lawyer can learn from him still.
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