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Ebby Nuke LaLoosh and Client Control in Family Law, Courtroom Drama

Ebby Nuke LaLoosh and Client Control

March 05, 2021 Michael J. Denning

Sometimes You Have to Let Them ‘Bring the Heat’

Kevin Costner has been in some fantastic baseball movies: Field of Dreams, For Love of the Game, A League of Their Own, and his most entertaining – Bull Durham.  In Bull Durham, he plays Crash Davis – “the player to be named later,” traded to the Bulls to bring along their new Major League pitching prospect, Ebby Calvin LaLoosh, AKA “Nuke.”  Crash’s job is to get Nuke ready for the Majors. Early in Nuke’s training as a pitcher during a game, he is shaking Crash off because he doesn’t like the called pitch. He wants to bring the “heat” repeatedly shaking Crash off, Crash trots out to the mound, and a brief discussion ensues:

Crash Davis – Why are you shaking me off?

Ebby Calvin LaLoosh – [Gets in Crash’s face] I want to give him the heat and announce my presence with authority!

Crash Davis – Announce your f*****g presence with authority? This guy is a first ball, fastball hitter![1]

Ebby Calvin LaLoosh – Well, he hasn’t seen my heat!

Crash Davis – [pauses] -All right meat, show him your heat.

[Walks back towards the batter’s box]

Crash Davis – [to the batter] -Fastball.

The batter promptly crushes the ball for a home run. On Crash’s return to the mound, a dismayed Nuke laments that the batter teed off on the pitch like he knew it was coming. Crash responds: “He did, I told him.” This was just one of many teachable and hilarious moments in Nuke’s development.

Theirs is a relationship not dissimilar to the lawyer/client relationship in family law.  Baseball lends itself well as a metaphor for the practice of law generally and the attorney-client relationship specifically. Especially in the pitcher/catcher relationship. Nuke’s development and the concept of “client management” have many parallels, and although there are many teachable moments, the key to success is about mastering the fundamentals.

New Clients – Perceptions vs. Reality

In Family Law, every time you get a new client, it is akin to getting a Nuke LaLoosh. For most of these clients, their involvement with an attorney and dissolution of their marriage is a first for both and the biggest crisis in their life to date.  This is complicated by their perceptions, both accurate and inaccurate, of what has brought them to this point. Some are more apt to listen to your counsel than others, and others, well they want to announce their presence with authority at the most inopportune moments. This ranges from insisting on entering certain evidence you know is not helpful (or appropriate) to petulant behavior in the courtroom and lack of control while testifying.  Many clients’ reactions spring entirely from the understandable emotional and adversarial situation they find themselves in. Fight or flight takes over, and they operate almost exclusively from their emotional/animal brain. A client’s emotional state does not always allow for a calm or rational course. Managing this can be tricky, and the tools available vary with the attorney’s skill and experience. Many clients are perpetually ‘spoiling for a fight’ – reflexively wanting to announce their presence with authority at every opportunity, and they do – absent any situational awareness or immediate appreciation for the consequences. A former mentor put it this way – “allowing a client to throw the number one indiscriminately inevitably results in a lot of number two.”  Heat is a great tool when used at the appropriate time, but like any good pitch, there needs to be a setup.

Timing of a Question or Evidence is Like Choosing the Right Pitch

As Solomon wrote in Ecclesiastes – “for everything there is a time… A time to tear and a time to mend.  A time to be silent and a time to speak.” (Ecclesiastes 3:1;7, NIV).  Like most good advice, especially when emotion is getting the better of them, clients generally have the insight to acknowledge the wisdom and usefulness of advice as it applies to other people. Still, they generally lack the self-restraint to apply it in their present circumstances. “That’s good for other people, but my situation is different; the Judge has never seen mistreatment, the likes of which has been visited on me!” If your judge is an experienced Judge, she has most certainly seen facts and mistreatment just as bad. Solomon was (and still is) right; there is a time for everything, especially a fastball, and in litigation, timing can be everything.

Letting your client’s emotion come out in Court for the first time can negatively alter the litigation’s trajectory and outcome. Few people are immune to anger; fewer still have the restraint to overlook the inevitable slings and arrows that will be hurled their way during litigation. Although it may feel good to throw a temper tantrum and may well be momentarily cathartic, the amount of damage it can cause can be enormous. As an attorney, you need to remain rational because you are the one calling the pitches. If your client must bring the heat or you must bring it for them by extension, set it up and time it to its greatest effect. The rhetorical fastball tends to be short on finesse and long on authority. Generally, fastballs should be thrown out of the view of the judge. Do it during a deposition or through the crafting and service of some very poignant interrogatories or production requests.[2]  Letting all of the eye-poking and gouging take place at the bottom of the proverbial pile (out of view of the Court) provides an effective emotional outlet for your client and time for them to get back into their rational form before they get to Court. If the heat is hot enough, the opposing party will not want to see it again, especially on the record at a hearing.  Used this way, it becomes an effective threat in anticipation of its use rather than its actual use.

Failing to manage a client’s emotion outside the Courtroom successfully can lead to disaster once inside. If you can’t limit the emoting (or poor behavior) to venues outside of the Courtroom, you’re left with mitigating them in the courtroom. This risks permanently setting the Judge’s perception, or even worse, misperception of your client, leaving you in a position of spending your trial time cleaning up a mess rather than building a case.

Managing (and Mitigating) Client Emotion

There will be times when the emotion and the mistreatment are so bad that there is no way to keep them from coming to the surface.  During one custody case, I heard Plaintiff’s attorney conducting a direct examination of her client who had been on the receiving end of marital misconduct in the form of infidelity involving the parties’ twenty-something nanny. Plaintiff’s anger though understandable, came across as entirely consuming to the exception of everything else involved in the litigation – including the custody and wellbeing of her children. After a particularly difficult direct examination (where Plaintiff responded to little or no direction) followed by a cross where she was equally angry and strident, the lawyer was left to clean it up as best she could during her closing. She did, reciting testimony with all the emotion of Ferris Bueller’s science teacher:

“Judge my client is understandably still a bit angry and emotional because of the way her marriage came apart.  Her marriage to the defendant was after all a twenty-year marriage and her soon to be ex-husband was “knocking boots with Pippy Long Stocking”[3] sitting back there in the Court room for the past two days in pig tails, a mini skirt, and go-go boots chewing gum like a possessed bovine.  That wound is still a bit raw and when the air hits it, it still stings especially since Pippy has since moved in with him.”

Although this is an accurate depiction, depending on the Judge and the temperature of the hearing, you might want to be a little more diplomatic in your description of the nanny. Some Judges have better poker faces (and higher tolerances than others for the recitation of a certain quality of testimony), and you can get this on the record with nary as much as a bat of an eyelash and possibly a barely perceptible nod of the head.  This brings up the question of how to recover from your client’s behavior when it’s neither easily explainable nor excusable. A preceptive Judge may let your client know exactly what the consequences or impact will be if the behavior continues during their testimony. A less perceptive or irritated judge might be disinclined to be so circumspect and may visit the consequences on your client after the close of the evidence when the order is entered.

There are ways for an attorney to discreetly let the Judge know that certain things are done at their client’s insistence without throwing the client under the bus on the record. Sometimes it’s obvious whose idea it was, and you can leave well enough alone. But there are some things that it is best to leave no doubt that you were simply an unwilling passenger brought along for the ride despite your best efforts. The better rule here is to explain but not to excuse (as in Pippi’s case). It allows you to address the issue without throwing your client under the bus and is an indication to the Judge that you’ve had “the talk” with your client, and perhaps a little “direction” from the Judge would be helpful. In the previous example, Plaintiff’s attorney did this in her closing. Many times, it is done unintentionally through non-verbal communication via body language such as facial expressions, posture, flush skin, and in some cases, tacit avoidance of certain evidence.

Beware! Your Judge is Very Aware

Whether it looks like it or not, Judges are generally aware of ALL of the communication going on in the Courtroom. Particularly the parties’ non-verbal responses (and the attorneys), the passing of notes, the client’s insistent pointing at the exhibit list, intense conversations that take place on the way out of the Courtroom when a break is called, and especially activity in the gallery. All of this tells the story. In the worst of circumstances, what the client, the lawyer, and the Judge view as important to the ultimate issue may point to three different things.  During one of the many custody trials I heard, one of the overriding issues (which at the present point in the trial had been well determined by both parties’ presentation of the evidence) was the Defendant’s degree of fitness to parent. As with many cases that end up going to trial, the facts and circumstances were unique in the most charitable sense of the word. Plaintiff was getting insistent, if not animated, with his attorney towards the end of the Defendant’s case in chief, and it was obvious there was a piece of evidence he wanted to be heard in rebuttal.  His attorney (who was an excellent attorney) clearly did not believe it would be as helpful as Plaintiff thought. The client was insistent, the attorney was right, and once she acceded to her client, the look on her face was one of just narrowly avoiding being thrown into eight lanes of traffic – providing a strong indication of what was coming. Her look of resignation read, “All right, meat, show him your heat.” He promptly delivered – testimony and a five-minute recording of three drunk people on the phone. The recording consisting of the Defendant and her girlfriend in a sex shop considering what to purchase – Plaintiff on the phone in another state providing color commentary on proper parameters of use of any purchase – and all of them using language (when it could be understood) that would make a drunken sailor blush (and gave a former Marine pause). There was no cross. The result was entirely predictable, especially to the attorneys.

Plaintiff’s attorney cleaned it up as best she could in her closing:

“He can be a bit overbearing Judge, but that’s with her, not with his children (this was actually true). The fact that he and Plaintiff had a relationship that some would consider to be generous with respect to certain moral values shouldn’t prevent you from entering a custody order that gives equally bad spouses equal time to parent.  After all, as poor as they are as spouses, they seem to be at least adequate parents.”[4]

While Plaintiff’s evidence did not achieve its intended purpose, it was very useful in ultimately determining (and confirming) what had been surfacing during the trial. That call, which neither attorney really wanted to see the light of day, provided the mortar that set my perception of the parties formed during the course of the trial in stone. It confirmed that Plaintiff was, in fact, a narcissist and a type-A control freak. It also affirmed that both parties were blithely unaware of the effects their poor decision-making and behavior had on their children.  Good judgment comes from experience. Experience, well, that comes from bad judgment. These parties had very little of the former and the latter in spades. This was very useful in fashioning the resulting custody order. In the end, it was much more directive than it otherwise would have been to encourage the parties to refrain from behaving in ways they might one day regret.

As an attorney, you are in the position of calling the game for your client, and inevitably there are many times when they are only going to want to throw one pitch or throw the wrong pitch. Sometimes you have to let them “show the heat,” the key is finding a way to successfully manage these moments so that, though you may give up the score, you preserve the game.

[1] Crash’s communication here is direct, to the point, and the appropriate vernacular for the situation. As attorneys, we are usually required to exercise a little more circumspection and speak a bit more diplomatically to keep our client engaged, listening, and hopefully compliant.

[2] The old proverb “sticks and stones may break my bones, but words will never hurt me” was coined well before the advent of the transcribed marital misconduct deposition.

[3] “knocking boots” was just one of the many unfiltered euphemisms that made it onto the record in this trial via Plaintiff’s testimony.  Accurately quoting and/or summarizing testimony with the clear, dispassionate interest of an accountant discussing the results of an audit can hardly be held against you and can be very effective.  It would be best if you were wary of over-salting the stew, though. Some testimony only needs to be heard once.

[4] This episode brings to light the dilemma of when your advocacy for your client’s position is clearly inapposite to the best interest standard, a topic for another day.

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