Innovative thinking often comes from unlikely sources. With March Madness behind us and the excitement of the NBA playoffs hitting its peak, it is time to pay tribute to the ABA. The ABA was a freewheeling league that featured big afros, the infamous red-white-and-blue ball, and focused on a flashy, fast style of play. In a purely economic sense, the ABA was a failure. It hemorrhaged cash and was eventually absorbed by the NBA. For most of its existence it could not secure a television deal, so much of what we know about the ABA comes from word-of-mouth sources or online compilations like Remember the ABA. The ABA was beloved by fans (Jim, I'm sure you have heard more than your fill about the Kentucky Colonels). One of my favorites is Artis Gilmore, who stood 7'6'' if you counted the afro:
Underneath the party atmosphere, the ABA was a haven of innovative thinking that revolutionized the game of basketball. The ABA implemented the three-point shot, slam dunk, and the fast pace of the up-tempo modern game. Now the new wave of innovation is hitting basketball — the Moneyball approach. The Houston Rockets have hired Daryl Morey, the NBA's first Moneyball general manager. Aside from being tall, Morey does not look the part. He has not played basketball since high school, and he has never been a coach or scout. What Morey does have is a commitment to statistical analysis and an owner who has invested millions to help him pursue it. He made a series of crucial additions to the Rockets roster in a string of Billy Beane-like moves. Although the Rockets lost in the first round of the playoffs, they reeled off a 22-game winning streak during the regular season, the second longest in NBA history. Morey may not have the flare and style of the ABA, but he may be just as influential.
On to my MoneyLaw point. Last month's issue of the American Bar Association Journal features a segment called Making the Case for Change. The segment contains several short articles from lawyers and judges arguing for changes in litigation in federal courts. Two articles in particular state that clients are best served when you make efforts to get along with opposing counsel and when you behave in a professional, civil manner toward opposing counsel. The authors of these articles are somewhat unlikely sources: Stephen Susman (the G-Man) and Barry Barnett of Susman Godfrey, and Michael Keating of Foley Hoag. These are BigLaw partners, the ones we would expect to espouse the virtues of hardball tactics to incessantly fight over every inch in litigation.
Read the rest of this post . . .In particular, Susman and Barnett observe that communication with opposing counsel can eliminate needless discovery fights and motion practice, which culminates in benefits for both the client and the court. I could not agree more. What bothers me is that civility and professionalism are viewed as innovative thinking in the modern era of legal practice. the not so distant past, these were the hallmarks of our profession. As former California Bar Association president Sheldon Sloan put it discussing a task force on civility, "The civility that used to exist has dissipated. A lot of lawyers don't know how to behave."
I think a significant part of the problem is that a growing number of lawyers subscribe to the notion that you can intimidate the opposition into a favorable result for the client. They feel you can intimidate with tactics such as refusing to agree on scheduling or deadlines, berating opposing counsel at every opportunity, filing needless motions and being disrespectful to witnesses. California Court of Appeals Justice Richard D. Fybel put it best in this article: "Intimidation is overrated as a litigation tool. It does not work in the widest range of my experience--from business cases to criminal pleas and trials."
Even if you disagree with Justice Fybel and put stock in intimidation tactics, the added benfits better exceed the additional costs imposed on the client. Every intimidation tactic adds unnecessary billable hours which, when compounded over the hundreds (or thousands) of tasks involved in litigation, adds up to an extraordinary expense with no real rate of return. The only intimidation that works is thorough knowledge of the case and skillful courtroom presentation.