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Everyone loves a good war story, and lawyers are no exception. The New York Law Journal asked some of New York’s top lawyers to share their most embarrassing, absurd, poignant or simply memorable experiences of their many years of practice. As you read these tales, keep in mind that they were told by seven successful lawyers whose combined experience in the legal profession comes to 234 years. They include ridiculous mistakes of junior lawyers and courtroom surprises of seasoned lawyers. The attorneys profiled here survived. So will you. Bernard E. Clair (matrimonial law) Rosenman & Colin Years in practice: 24 “I was a first-year associate,” Clair said. “I had a tiny office, more of a closet really. It was just me and a bunch of file cabinets.” On a hot Friday in the middle of August, the only thing on Clair’s mind was getting out of that stifling cubicle and meeting his friends. At 5:30, just as he was getting ready to leave, one of the firm’s partners, Andrew Feinman, appeared. “‘Here is a two-page stipulation,’ he said to me, and handed me some documents,” recalled Clair. “Then he said, ‘I sent this out to opposing counsel and this is the stipulation they sent back to me. I want you to compare the two stipulations and make sure they are the same.’ “ Clair saw that the stipulation was two pages of single-spaced paragraphs. “How am I going to compare these two stips and still leave in time to meet my friends?” he wondered. It was 1977, and the paper was the thin kind used in those days for manual typewriters. Clair came up with a brilliant idea. One partner, who had left for the day, had an office with a large window facing west. The setting sun sent waves of bright yellow light streaming through it. Clair carefully removed the staple from one of the stipulations. He took the first page of the stipulations, held them up to the light and inspected how the printed material lined up. “OK, the word ‘stipulation’ is in exactly the same place,” he noted. “The paragraphs all begin and end in the same place. The paragraph numbers line up, too.” He was gleeful. This was going to be easy. He compared page two of the stip. It also lined up perfectly. Clair then carefully restapled the stipulation, and triumphantly wrote a note for Feinman: “The stipulations are exactly the same.” The following Monday, he returned to his file-cabinet office. An ominous note from Feinman lay on his desk. “As soon as possible, please see me.” Under the note was the opposing party’s stipulation, with “seven bright-red circles drawn around terms of significant magnitude,” said Clair. The other side had, for example, changed a provision for payment from “$10,000, to a mere $5,000.” Clair was petrified. “I hid in my tiny office all morning. I was afraid to leave even to go to the bathroom. And I couldn’t call for help, because there was no phone in there.” Finally, at 11 a.m., unable to stand another minute, he braced himself and went to Feinman’s office. “I figured you’d come in eventually,” he said. Clair shook with terror. “Sit down,” Feinman commanded. “So, you want to tell me about it?” “Maybe I could show you,” Clair said. “I don’t have the words.” He then demonstrated, holding the stipulations up to the light near the window. “Am I seeing what I think I’m seeing?” Feinman gasped. Suddenly his head rolled back, and he became convulsed with deep belly laughter that lasted for a good 10 minutes. During that time, Clair was running some quick figures through his head. “I guess they have to pay me for last week, and I have two days’ vacation pay … “ When Feinman was able to contain himself, he said, “Son, you’re going to be a good lawyer someday. You are honest and candid. But you’ve got to get rid of that stupid part of you!” Moral: If you want to know what something says, try reading it! Judith P. Vladeck (employment law) Vladeck, Waldman, Elias & Engelhard Years in practice: 40-plus Before her employment discrimination practice got started, Vladeck used to handle traditional labor law matters. Her firm represented a union of engineers in the aerospace industry. She had to handle a grievance arbitration on behalf of a senior scientist who was suspended for using profanity when a supervisor asked him to do something. There were few women handling such matters in those days. “I may have been the only one,” said Vladeck. “The day before the hearing, the attorney representing management — a leading lawyer in his day — called me up,” Vladeck recalled. “He wanted to know if I knew what the case involved. You see, in those days, we didn’t prepare much in advance for these sorts of grievance hearings. “I told him that I knew it was a suspension case,” she says. “But he continued. ‘You’re trying it?’ he asked me. ‘Isn’t Steve available?’ he asked. Steve was my husband. I practiced law with him. “I told him that Steve was not available and I would be trying the case. But still he pressed on, and asked me if another [male] lawyer in the firm was available. Again, I told him no. Finally he said, ‘Do you know that the case involves obscenities?’ “ “So?” Vladeck responded. On the day of the hearing, when the parties were assembled before the arbitrator, Vladeck took the floor. “Before we start,” she said, “I know that this case involves obscenities that people feel they can’t speak in my presence. So I want you to know that I know the following words.” Vladeck then stood before the assembled men and proceeded to say every disgusting, four-letter word she knew. They were stunned. The arbitrator stared straight ahead of him. “It took a minute for the group to regain their composure,” recalled Vladeck. “Then I tried the case.” Looking back on that moment, Vladeck said wistfully, “Of course, I know a lot more four-letter words now than I did then.” Moral No. 1: Always insist on being treated as an equal. Moral No. 2: An extensive vocabulary can be a lawyer’s best friend. Martin London (civil and criminal trials and appeals) Paul, Weiss, Rifkind, Wharton & Garrison Years in practice: 43 In the mid-1960s, London was a fledgling associate at Paul Weiss. Judge Simon Rifkind, who left the federal bench in 1951, practiced for many years at the firm. London was assigned to work with Judge Rifkind on an arbitration “that was to resolve the ambiguity in a contract,” said London. “Millions of dollars were at stake.” An important witness, A [a pseudonym], was in fact the lawyer who had drafted the ambiguous contract and had referred the matter to Paul Weiss. “A had a deadly combination of two attributes,” explained London. “First, he was an arrogant jackass, and second, he brought Rifkind a lot of business.” London, as the junior lawyer on the case, had to “interview A and prepare his direct examination for Judge Rifkind to conduct at trial.” But things did not go smoothly. “I had several months before trial — more than adequate time to get the job done,” recalled London. “But every time I telephoned A, he put me off. He always had an excuse for not meeting with me, and when he finally made an appointment, he summarily broke it.” London was “very young and very much intimidated” and “not wanting to be a whiner,” he did not complain to Judge Rifkind. He kept on pursuing the elusive A, who kept right on eluding him. “As the first day of trial approached, I was forced to focus on other matters. I consoled myself with the notion that we were defendants. Therefore, the plaintiff was going to have to put its case on first,” said London. “It would be a long trial and our case wouldn’t start for another four to five weeks. I would still have time to interview this guy, get the direct in shape, and leave Judge Rifkind time to prepare the witness.” On the first day of trial, just an hour and a half into the plaintiff’s testimony, the arbitrator stopped the proceeding. “He said to Judge Rifkind, ‘Judge, let’s not be so formal. Let’s cut to the chase. The issue here is the meaning of this contract. The contract was drawn by A, who is sitting right here. Why don’t you put him on the stand right now, out of turn, and let’s get to the bottom of this!’ ” recalled London. In telling this story, London observed that “ If I practice law another 43 years I will never forget my humiliation, my anxiety of that moment.” Judge Rifkind, an experienced lawyer, rose to the occasion. He put A on the witness stand and proceeded with direct examination. A floundered his way through, getting everything important wrong, and forgetting “the stuff that was vital to our case.” It was, recalled London, “a train wreck in slow motion.” After about an hour of this agony, Rifkind told the arbitrator he was tired and wanted to adjourn early. “The case was still salvageable, but I had no such hopes for my career at Paul Weiss,” said London. Rifkind waited until they were out of the elevator and walking across the lobby. London braced “for what I feared would be a fatal verbal caning.” And then Rifkind uttered the only words he would ever say to London on the subject of his performance that day. ” ‘Martin,’ he told me with a smile, ‘next time let’s prepare. It’s much more fun that way.’ “ Moral No. 1: Never let someone intimidate you and keep you from doing your job. Moral No. 2: Try to treat others with grace and civility, and you will earn their undying loyalty. Otto G. Obermaier Weil, Gotshal & Manges Years in practice: 40 In the early 1960s Obermaier was a law clerk to the late Judge Richard Levet in the U.S. District Court for the Southern District of New York. Freshly graduated from law school, “I didn’t know the difference between a bailiff and a prosecutor,” said Obermaier. “Judge Levet would always say, ‘Come down and watch the trial,’ ” Obermaier recalled. One day, Obermaier went to the courtroom to watch the end of a personal injury trial. The judge charged the jury and they retired to deliberate. It all seemed routine. Then the jury sent out a startling question: May we award the plaintiff more than he asked for in the complaint? “ Judge Levet sent back an instruction telling them, yes, they could do so, because that was the law in the federal circuit,” Obermaier said. “Well, you can imagine the reaction of the lawyers. The plaintiff’s counsel were elated, and the defendant’s counsel were destroyed.” The parties waited for what looked like a clear-cut plaintiff’s verdict. A short while later, the jury filed back into the room. To the shock of everyone, it returned a verdict for the defendant. The judge, like everyone else in the courtroom, was baffled. “Judge Levet rarely asked questions of the jury,” recalled Obermaier, “But this time, he asked the jury why they had sent out the note asking how much they could award the plaintiff.” Then came the response Obermaier will never forget: “A juror in the back said, ‘I just wanted to know the answer.’ “ Moral: You never — really, really never — know what a jury is going to do. Harvey Feuerstein (business-divorce specialist) Herrick, Feinstein Years in practice: 38 After decades of experience helping long-time business partners “divorce” each other, Harvey Feuerstein thought he had heard and seen it all. But he was taken aback by the ferocity of negative feelings between two identical twin brothers who were unhappily entwined in a family business. “One day my client, ‘L’ [a pseudonym], came to me and said, ‘Today, my twin brother came to work and told me he can’t stand looking at my face anymore.’ “ L was consumed with angst. Partnership with his twin had become intolerable. So Feuerstein set to work, coming up with creative strategies to help the twins separate their business interests. Such separations are not easy, explained Feuerstein. “Often the incipient reasons for the breakup — in this case the other twin didn’t want to hold a big sale — have nothing to do with the underlying motivation for a business divorce,” he said. “Often there is pent-up anger over slights that occurred long ago, in childhood. “The first question to address is who will get the business, and the second is how much is the business worth.” That first question, though, can be a killer. Feuerstein applied his knowledge of human psychology to the frustrated twins. “Weeks and weeks of negotiations took place,” recalled Feuerstein. The opposing twin rejected every novel solution Feuerstein offered. Just when Feuerstein began to despair of finding an amicable solution, L was served with a lawsuit by his brother. “The other twin alleged breach of fiduciary duty, corporate waste, all sorts of terrible allegations against L,” recalled Feuerstein. While that may have been cathartic for the other twin, it turned out, ironically, to be a lifesaver for L. In order to allege such wrongdoing, the other twin sued L under �1104-a of the New York Business Corporation Law (BCL). That section, however, triggered certain rights for L under yet another provision of the BCL. By suing L under �1104-a, L automatically gained the right to offer to buy out his brother. When the first court date rolled around, Feuerstein served papers on opposing counsel in court, exercising L’s right to buy the shares of the family business. “I thought the opposing counsel was going to have a coronary infarction,” said Feuerstein, who convinced the court that “the only issue that remained in the case was how much would be a fair price for the shares.” L ended up owning the business. Feuerstein recalled the admonition of his law-school teacher, Professor Irwin Griswold: “Before you do anything, read the statute!” Moral: Skillful negotiating is a valuable skill, but sometimes knowing your way around an arcane statute can be priceless. Thomas A. Moore (medical negligence) Kramer, Dillof, Livingston & Moore Years in practice: 28 As a trial lawyer, Moore is used to courtroom surprises. One of his most memorable occurred in 1989. He was trying a wrongful death case brought on behalf of a widow. Her husband had undergone brain surgery, which he did not survive. The plaintiff did not sue the surgeon, alleging the cause of death rested solely in the hands of the anesthesiologist and the hospital. At trial, the hospital’s strategy was to lay the blame on the surgeon. “Back in 1989 — even though that was only 12 years ago — the rules were not quite as strict on discovery and surprise evidence,” said Moore. In the middle of the trial, the hospital suddenly produced a videotape that showed the actual surgery at issue in the case. Using this tape, the hospital argued that the surgeon had committed malpractice, figuring plaintiff’s counsel would be sent reeling from the surprise. A less seasoned trial lawyer might have given up then and there. But the sudden appearance of the videotape only got Moore’s ire inflamed. “They had to put someone on the stand to authenticate the video, to get it into evidence,” explained Moore. The witness was the records librarian of the hospital. “So I asked him, ‘Why is it this video was not available a few years ago, when all the other documents in this case were produced?’ He responded that the video wasn’t in the hospital, it was in the medical school. “‘Well, what was it doing in the medical school?’ I asked him,” said Moore. The mild-mannered librarian could not tell a lie. ” ‘It was used as a teaching tool for this type of surgery’ he admitted.” In his closing argument, Moore told the jury that if they were to believe the hospital’s story that the surgeon had committed malpractice, then “I guess they used the video to show the medical students what not to do!” The jury came in with a $10 million verdict for the plaintiff. Reflecting on the experience, Moore marveled that the hospital’s lawyers believed they could get away with such a thing. “Lawyers can have a kind of myopia in the courtroom. They get so carried away with their case, they don’t see the forest for the trees,” said Moore. Moral: When someone throws you a curve ball, step up to the plate and hit the ball out of the park. Judith A. Livingston (medical negligence) Kramer, Dillof, Livingston & Moore Years in practice: 21 Livingston (who is married to Thomas Moore) tries a lot of cases against doctors on the grounds of failure to diagnose breast cancer. About four years ago, a client came to her and told her “a very cogent, detailed story,” said Livingston. The client stated that she went to a doctor because she felt a lump in her breast. The doctor examined her and said the lump was nothing, just a fibrocystic mass and that he could tell by feeling it that it was not cancerous. The woman accepted this. Nine months later, the mass was still there, and she went to another doctor. He ordered further tests; the mass was indeed cancerous. Livingston of course requested the full medical records from the first doctor. Oddly, they told a different story. According to his records, there was no mass in her breast when the woman went to him. Livingston was concerned. The doctor was a distinguished physician, the head of his department at his hospital. He looked like the very picture of respectability, Livingston recalled. “He had silver hair. He looked just like Marcus Welby, the doctor on the old TV show,” she said. She asked her client once again what had happened, and once again, the woman told the same, detailed, cogent story. Could it be that the silver-haired gentleman was lying? It seemed incredible. Then Livingston was able to obtain the original records of her client’s visit to the defendant doctor. The woman had obtained them — years before the lawsuit — to bring with her when she went for a second opinion. Lo and behold, the original records reflected the story as the client had told it. The records produced by the defendant had been altered in several key places. “Where the original said ‘node’ the defendant’s copy said ‘no node,’ and also said ‘complains only of pain,’ ” Livingston recalled. The trial began. The doctor’s lawyer gave his opening statement to the jury, in which he spoke about the “great sanctity of office records” and their high reliability as evidence. “As I sat there listening to him,” Livingston said, “I thought that he could not have given a better opening for my purposes than if I had written it myself.” When the doctor took the stand, Livingston cross-examined him. First, she got him to agree about “the sanctity of offices records” and how “the records form a bond between the doctor and patient that can never be broken.” Then she pulled out the heavy ammunition, and confronted the silver-haired doctor with the original records. “He basically admitted having changed them, “she said. The case was settled the next day, before the trial ended. “Just because someone looks honest, it doesn’t mean that he is,” said Livingston. Moral: When something walks like a duck, talks like a duck, and acts like a duck … cross-examine it before you conclude that it is a duck! Carla T. Main, an associate editor/legal at The National Law Journal , writes frequently about the legal profession.

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