Editorial

A long time ago, on the only day I didn’t feel good enough to go into the office, I watched Oprah Winfrey’s show for the first and last time.

She was interviewing Deepak Chopra, who had just written his first book, “Ageless Body, Timeless Mind: The Quantum Alternative to Growing Old.”

Since I was against “growing old,” (and have not changed my position since) I paid attention. Unfortunately, I couldn’t order his book on Amazon – there was no such thing – and the only person then reading text on a Kindle-like handheld digital screen was Captain Kirk.

So the next day, I drove to the corner bookstore and purchased a copy. The corner bookstore is gone now. The prevailing lesson I took from Deepak Chopra was that people don’t observe the forces going on around them, and as a result, miss many of the lessons life offers. Being an analytical lawyer, I have tried to apply the guru’s personal growth lesson to my practice of the law.

For the last month and a half, it has been impossible for me to avoid getting sucked into the mystery and speculation concerning the whereabouts of Malaysia Airlines Flight 370. This is particularly so since CNN has been broadcasting non-stop “breaking news” about the flight’s disappearance, even when the breaking “news” is only that a plane just took off to look for evidence of news in regard to Flight 370!

The following are the results of my Chopra-inspired legal quest to garner lessons from what is happening around me.

Legal Lesson No. 1

from Flight 370

No matter how hard a trial lawyer works to prepare his or her case, things may happen for which we are not prepared. When it comes to winning at trial, Thomas Jefferson had it right when he said “I’m a great believer in luck, and I find the harder I work, the more of it I have.” Nothing replaces hard work and preparation.

I have no doubt that hard work went into planning, building, and maintaining the Boeing 777 to get the 600,000 pound aluminum alloy tube to lift into the air, and that the plane had many warning indicators and redundant systems in case of problems. That’s what I try to do at trial. If their witness says “X,” I have a witness ready to say “Y.” It’s like putting the flaps down. If their witness offers unanticipated testimony, my team has to “think on our feet” and counter. It’s similar to climbing quickly to get out of the way of a helicopter that’s not supposed to be there. Having to “think on their feet” might have been what happened when Flight 370 took an unanticipated hard left. We can’t be sure. It has certainly happened to me when examining experts.

Legal Lesson No. 2

from Flight 370

Sometimes, those you trust the most surprise you. When we get on a plane, we are required to have total trust in the pilot and co-pilot. We may never know what happened in the cockpit of Flight 370, but we are suspicious that the passengers’ trust was violated. In trial, we rely on our witnesses. Like the flight attendants, they are very helpful, but we can get where we are going without one or two of them. The person we rely on most is our client. When the client is hiding something from us, it usually means a disaster is imminent. That happened to me in a case I tried last year. If the pilot goes off the reservation, a plane may end up in the drink. If the client keeps secrets, which then get uncovered at trial, the case may end up in the same place.

Legal Lesson No. 3

from Flight 370

When you are thrown a curve ball, you may have to hit it to the opposite field. At this point, there seems little doubt that something went terribly wrong in the air over the South China Sea. We may never know what counter measures or adjustments were taken, or by whom, to remedy the crisis. We only know they didn’t work. (That is unless the plane landed somewhere on a South Pacific island and all the passengers are drinking Pina Coladas on the beach. A possibility that while argued earlier by some commentators has now been abandoned by everyone other than diehard conspiracy theorists and some of those unfortunates that had loved ones on the plane.)

If there’s anything that can be counted upon at trial, it’s that something that was planned to happen one way will take a different turn – we just don’t know what that turn will be. It may be an unanticipated witness answer, a new piece of evidence, or a “bad” ruling from the judge. The pilot of the litigation needs to take evasive action and counter measures. Panic probably results in disaster.

Legal Lesson No. 4

from Flight 370

There will never be a shortage of experts to offer almost any theory under the sun, and their demeanor is critical. Events surrounding the flight have brought out experts in areas where most of us didn’t even know there were areas. The experts that are most measured in their assertions, base their opinions on what seem to be irrefutable facts, and explain their theory in clear and simple terms are more credible. Looking like an expert should look in the particular field, and being likeable, helps, too. A welcoming personality and staring straight into the eyes of the jurors, or television cameras, are keys to believability.

Legal Lesson No. 5

from Flight 370

Being flexible and exploring many paths early on is good, but if you don’t settle on one story line, it’s eventually bad. From the moment Flight 370 went off the radar (or didn’t go off the radar, depending on which expert you’re listening to), many theories were being explored as to what happened, including the route of the plane, whether it gained or lost altitude, what took place in the cockpit, and/or what happened in the lithium battery-ladened cargo hold. In most lawsuits, if we are not flexible enough to determine various interpretations of the events, if we immediately seize on only one version (perhaps initially given to us by our client) and don’t keep our eyes open to other possibilities as discovery unfolds, our case will likely take a turn for the worse. By the same token, at some point it’s best to determine what we believe happened, gather the supporting evidence, and confidently tell that story to the jury. In the case of Flight 370, the commentators are still floundering and the jury of public opinion is increasingly skeptical. If that’s the way the jury looks at the trial lawyer, he or she is in trouble.

Legal Lesson No. 6

learned from Flight 370

Sometimes there is nothing we can do. Perhaps one of the flight crew had an evil motive. Maybe Malaysia Airlines did something wrong, but I’m not sure about the prospects of collecting on a judgment debt in Malaysia. Perhaps Boeing was to blame, but without a black box, that determination is more speculative than ever. Just maybe, despite tragedy, injury and pain, there are no grounds for a lawsuit. The lesson might be that sometimes in life, no matter how hard we work, no matter how prepared we are, no matter the effort we make and the advanced planning we do, on occasion, in trial, and even before trial, things that we can’t control just happen. This might be the most important lesson from Flight 370.

© 2014 Under Analysis, LLC. Under Analysis is a nationally syndicated column of the Levison Group. Mark Levison is a member of the law firm of Lashly & Baer. Contact Under Analysis by e-mail at comments@levisongroup.com.   v