Flyfishing and Trial Practice
By Jim Holland
“My father was very sure about certain matters pertaining to the universe. To him, all good things – trout as well as eternal salvation – came by grace; and grace comes by art; and art does not come easy.” – Norman Maclean, “A River Runs Through It”
Flyfishermen are different folk. They share a common, simple goal with all other types of fishermen: to bring fish to hand. It’s in pursuit of that goal that they see the world very differently. At the tackle store, the flyfisherman passes on rack upon rack of more effective tools. They pass on worms, eggs and marshmallows, laugh at spinners, spoons, lures, plugs and jigs, wouldn’t be caught dead with a trolling motor, fish finder or downrigger, and are literally sickened by the use of the word “pole”. The word is “rod”, by the way.
The flyfisherman ties a few chicken feathers to a microscopic hook, the finished product looking only remotely like a small floating insect (aka, a “fly”). He, or she, then sets out to fool a fish armed with thousands of years of evolutionary biology which taught it the difference between real and fake.
The bait fisherman, meanwhile, uses actual trout food; real, not impressionistic. And yet, in the right circumstances, the flyfisherman – armed with chicken feathers on a hook – will catch more fish than a bait fisherman using the trout’s real food. Why? And what in the hell does this have to do with trial practice?
Two reasons: impressions and presentation. The fly (chicken feathers on a hook) isn’t perfect. It is flawed. Even the best tied fly cannot compete with bait, which is perfect. But, the fly leaves an impression of food, and impressions are important.
Second, the flyfisherman can present the impressionistic fly to the fish subtly, in the manner the fish expects to see it. Presentation is also important. A fish will often overlook imperfection when it is presented properly.
I do not mean to imply that trial lawyers are purveyors of the fake. To the contrary, we tell real stories about real people in real pain, to a panel of 12 other real people. Throughout this process, we endeavor – or should endeavor – to show the jury that we too are real. In short, our cases, our clients and their counsel (us) are flawed. Every one of them. And here’s the salvation: It doesn’t matter. Jurors are flawed too, and quick to forgive imperfection, if we learn to fearlessly embrace it. The client’s story, flaws and all, when presented properly will impress upon 12 people the overwhelming idea that a full plaintiff’s verdict is required to restore balance and order. Malcolm Gladwell’s book “Blink” devotes 296 pages to the subject of impressions in decision-making.
Last month I tried an admitted liability pedestrian versus auto case in Snohomish County. It was a short trial; three days. My client was a 75 year-old woman with two prior hip replacements who was hit by a car in a crosswalk on her way to the public library. The driver was a nice woman on her way home from church. My client broke her pelvis in three places and broke her left knee (tibial plateau fracture). Both hips were unaffected. She spent four days in the hospital, and treated her tibial plateau fracture non-operatively. After a few months of PT, she had incurred $38,000 in medical bills, which were stipulated to as reasonable, necessary and related. No further medical care was necessary. Within 6 months she was walking two-miles per day without assistance or pain. She returned to volunteering, could still drive and garden, and had no orthopedic instability in her knee upon examination by either her treating physician or the defense CR 35 examiner.
But, after spending time with her, it was clear that this accident still affected her. She moved more slowly, and felt unstable when she walked. She also constantly looked at the ground when she walked, searching for terrain that was uneven or slippery. Stairs became a problem (she now required a handrail), as did ladders and uneven ground. She was often stiff and sore, and tired quickly from afternoons spent on her knees in the garden.
State Farm admitted liability and stipulated to all $38,000 in past medical bills. They offered $85,000 at mediation. We said no, and took the case to trial solely on the issue of noneconomic damages. After a day of deliberating, the jury returned a verdict of $179,000. What happened? Upon reflection, I think it came down to impressions and presentation.
I believe, perhaps naively so, that jurors are willing to forgive imperfection in our case, provided the presentation leaves the jury with a favorable impression of us, our client and our message. The best way I have found to ensure a favorable impression is to let go of my fear of bad facts. It is an art that I have nowhere near mastered, does not come easy, and is counterintuitive to us as advocates. But it is also counterintuitive to pick up a chicken feather, a bare hook and some thread instead of a worm; and intuition countered can sometimes be magic.
We begin by admitting in voir dire that as trial lawyers we have given the venire no reason to trust us, and that by the end of trial we hope to change that perception. We then earnestly search for 12 people who will give both our client and the defendant a fair trial and an even starting line. When a juror appears overly favorable to my client, I often challenge them for cause, arguing that it wouldn’t be fair to the defendant to have that juror sit. This does not come easy. But once we commit to closing our eyes, letting go and jumping, we become free.
We start talking like people, not lawyers. We ask the hard questions, even of our own witnesses. A renewed spirit of freedom permeates our case. We admit to our jury that this isn’t the worst injury in the world. We have our clients talk about all of the things they can still do, and all of the progress they’re making. Themes of courage, dignity and self-reliance begin to emerge, and stand in sharp contrast with the defense position.
Letting go of control is not easy. It is an art, which – once found – can lead to grace. I would like to believe that were Norman Maclean alive today, he would agree that “justice” belongs to the list of “trout”, “eternal salvation” and all other “good things” that are born from grace.
Jim with his fly rod, presenting an impressionistic fly to wary trout.
(photo by Sims Weymuller)