McDermott On Demand: and In This Corner…


McDermott On Demand: AND IN THIS CORNER…

By Thomas J. McDermott, Jr.

Franklin D. Roosevelt once ran for president against Wendell Willkie who founded Willkie, Farr and Gallagher after he lost. But he didn’t lose at Franklin Elementary School, in Santa Monica, California in 1940. That was a draw. I was there.

For reasons still mysterious to me, at noon recess three weeks before the election on the large greensward of Franklin, two lines formed. To the West was Willkie, to the East, Roosevelt. Two hundred nine-, ten-, and eleven-year-olds faced each other relatively evenly matched. At some unidentifiable signal, those in the lines began to run at each other. The wave of Willkie crashed into the rock of Roosevelt, spraying every which way into vicious fist-fights — at least vicious for grammar school first-, second- and third-graders.

The recess teachers, musing at the neverseen-before formations, were so taken aback by the fighting they froze, but only for a minute. The ruckus was broken up and no one was punished. Who could you punish? There were two hundred children fighting for reasons unknown to the teachers and barely known to the participants.

But fighting it was.

Only children, drunks, and professional boxers actually fight for real. This is because, I believe, that children, mostly boys, realize during their first fight that they can be hurt, terribly hurt. For most boys other than natural bullies, their first fight is their last, at least until they slip back into immaturity.

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But fighting, as the Roosevelt vs. Willkie bout for nine-year-olds mentioned above, seems to be inherent in the DNA, called up when one’s status depends on having the right stuff. But doctors don’t fight, salesmen don’t fight, stock brokers don’t fight — but lawyers? Lawyers fight.

Our typical trial lawyer files a complaint, peaceful in its efforts to work out a troublesome malfunction of society. Then comes the first blow — a sucker-punch? — in the form of a demurrer or a 12(b)(6) motion to strike, depending on your ring. Is this necessary? Nineteen times out of twenty, no. There are few knockouts at this stage, but the DNA takes over. Throw a punch, show them how tough I am, and I get paid for doing it.

The battle is on. The plaintiff, having ducked beneath the demurrer, throws a right-cross with 635 special interrogatories accompanied by the dancing declaration necessary to throw such a punch. Now the defendant is on the ropes but soon emerges like a bull throwing 700 interrogatories in a flurry of jabs.

This is the only fight game where the spectators, the parties, have to pony up more cash for their cause after every blow is thrown. If the MGM Grand tried to mulch their spectators, who paid $1,500 for their seats, another $1,500 every three minutes, even professional boxing would be historical.

Blow follows blow. The deposition, the meet-and-confer, the motion to compel, the motion for summary judgment, each met with a counter-punch that triggers a counter-counter-punch.

By the time the boxers reach the real fight, the trial, they are bloodied, bruised and broke. So the matter is settled. Equivalent to a split-decision, it leaves the crowd angry.

Over the years, many critics have said that this bloodiness must stop! But no one does anything about it. Maybe that’s because it’s just another way of reverting back to our immaturity. Without drawing any real blood. And making money while we’re at it.

A longtime member of the California Litigation editorial board, Mr. McDermott is a sole practitioner in Palm Desert.

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