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Ducks and drakes is an old name for a timeless game. Children pitch a stone by a river or lake, and flick it across the water’s surface, outdoing their playmates on as many bobs and skips as possible before gravity submarines. The stone’s bobbing motion resembles the action of a waterfowl’s head. The etymology of the name traces to the British Isles and, over the centuries, it has acquired a pejorative connotation, likely stemming from a grumpy adult’s view of the misusage of the skipped stone’s practical potential. Playing ducks and drakes came to mean throwing something away with a certain carelessness or irresponsibility. I last heard this saying used by Judge Stanley Marcus of the 11th U.S. Circuit Court of Appeals while I was observing his panel take oral argument on a federal civil appeal in my hometown. It is a wonderfully expressive, unflaggingly civil method of describing the waste of, or malfeasance against, scarce resources within litigation. And because civil methods of describing malfeasance are rare, it is a bon mot worth promulgating. Frustrations in court Waste, intentional delay and a disregard for the value of the time of others are not uncommon across our American trial and appellate courts. Their appearance is acutely frustrating, especially to the opposing lawyer. So frustrating, in fact, that the offended, nonoffending advocate often loses all powers of smooth persuasion when asked to comment on the transgression. At these times, courts see quite a bit of (in a thick, shaking voice) “Counsel has [grossly/audaciously/intentionally/inexplicably/unrepentantly/ carelessly/selfishly/purposefully/willfully] tried to gain advantage here and thereby [cheat/ prejudice/harm/trick/hurt/tread upon/ damage] my client.” This is anger talking, but invariably it also wrenches a sigh from the presiding judge because it is ultimately an uncivil, albeit ad lib, response to the original, offending, uncivil waste. In these situations, the better, spot-on, three-ring, bull’s-eye and unflappably civil response is, “Your honor, I think that counsel does play ducks and drakes with us all,” followed perhaps by a short, restrained reminder of all the time the hopscotching opponent has squandered. Lawyers (and judges, and even negotiators, for that matter) who alight upon this delightful saying at the opportune time are in good and reputable company. As a safeguard, they can retain this list of just a few of the dozens of preceding usages found in reported opinions in the event they are challenged by a skeptical listener: Waicker v. Banegura, 745 A.2d 419 (Md. 2000) (making ducks and drakes of the state’s real property recording system); Vaughn v. Philadelphia Transportation Co., 209 A.2d 279 (Pa. 1965) (ducks and drakes argument raises harmless errors in upset of a soundly concluded legal process); Baker v. Carr, 369 U.S. 186 (1962) (Justice Felix Frankfurter!); Reynolds Metal Co. v. Yturbide, 258 F.2d 321 (9th Cir. 1958) (at Oregon common law, thwarting ducks and drakes gambits is state policy); Walker v. Wabash Railroad Co., 92 S.W. 83 (Mo. 1906) (a court’s refusal to entertain a case it has jurisdiction over makes ducks and drakes of the plaintiff’s claim). Just the right turn of phrase There are too few sayings like “ducks and drakes” under steam in the channels of today’s advocacy. Those that do exist fade with time and generational memory. “Ducks and drakes” is a touch euphemistic, a morsel kind, but rich in evocation of the crux of the transgression � a skylarking, thought-free, cavalier, even mischievous disposal of a perfectly good and not cheerfully replaced something. I recall that when I watched Marcus use it from the bench within a question, it was as if an electric current ran through the gallery in that moment � and those of us who were slower of mind than he suddenly saw the defect in the, as it might have turned out, inequitable position one of the parties had staked out. And yet at the same time it was civil, a correcting lilt of the baton from a conductor hearing a wrong note � it embarrassed no one. It raised no hackles. Count anyone using “ducks and drakes” correctly and in lieu of cavitating emotion as a civil, inestimable lawyer, jurist, corporate officer, activist or statesman. Use it yourself, and people will count you likewise. Ducks and drakes is an old name for a timeless game, played by litigants and lawyers alike. Remembering the name exposes the game, with the sagacity that a still lake presents to a skipping stone � having seen its like before and knowing where it will sink. Michael Cavendish is a commercial litigation partner with Jacksonville, Fla.-based Boyd & Jenerette. He is a legal essayist and ethicist, and the current chair of the American Bar Association’s Ethics Subcommittee, Trial Evidence Committee, Section of Litigation.

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