Front MatterSource: Litigation, Vol. 22, No. 3, LOSERS (Spring 1996)Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/29759843 .

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Table of Contents Litigation Spring 1996 Volume 22 Number 3

Opening Statement: 1 Lawrence J. Fox

Why Do We Call It Discovery?

Trial Balloon: 3 Kenneth P. Nolan

Losing?Get Used to It

From the Bench: 5 Michael Daly Hawkins

Things That Can Go Bump on Appeal

LOSERS

Volley, Set, and Match: The Art of Not Losing 8 Nancy E. Rice

How Can You Lose with Truth? 14 Gary L. Stuart

Lost Evidence 20 Janet G. Abaray

Liars Don't Always Lose 24 Jacob Stein

How Not to Lose 27 Len Niehoff

Perry Mason and the Case of the Lost Respect 30 Elizabeth Lang-Miers

Appeals: Turning a Loss into a Win 35 Michael J. Wahoske

Cross-Examining a Rat 40 Benjamin Brafman

Disqualifying the Judge 44 William E. Wegner

Legal Lore: The Unusual Judah P. Benjamin 49 Robert Aitken

Trial Notebook: Purpose of Cross-Examination 53 James W. McElhaney

Reply Briefs 55

Advance Sheet 57 R. Bruce Beckner

Literary Trials: The Culprit 72 Anton Chekhov

The cover and interior illustrations for this issue is by W. B. Park.

His studio is Park-Art, 110 Park Avenue South, Winter Park, Florida 32789

Litigation (ISSN 0097-9813) is published quarterly by the Section of Litigation, American Bar Association, 750 N. Lake Shore Drive, Chicago, IL 60611. Second class postage paid at Chicago, IL and additional mailing offices. Subscription price for Section members is $10 (included in $35 membership dues). Institutions and individuals not eligible for Association membership may subscribe to Litigation for $40 a year ($45 for foreign countries). Per copy price to members and nonmembers is $12. Additional copies of issues published in the past two years may be purchased to the extent available from the Order Fulfillment Department, ABA; 312/988-5522. Issues published more than two years ago are sold by William S. Hein & Co., 1285 Main Street, Buffalo, NY 14209. Correspondence and manuscripts should be sent to the Managing Editor, Cie Brown Armstead. POSTMASTER: Send address changes to Litigation, American Bar Association, 750 N. Lake Shore Drive, Chicago, IL 60611. For permission to reprint, write to Copyright Dept., American Bar Association, 750 N. Lake Shore Drive, Chicago, IL 60611. Copyright ? 1996, American Bar Association. All rights reserved.

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Losers "The lawyer who claims he has never lost a case has never tried one," a wizened litigator once observed. Yet our pro? fession, aided by an avaricious media, lauds only the vic? tors and ignores the losers.

For every winner there must be a loser. We always read about the lawyer who won the multi-million dollar verdict or the criminal defense counsel who unbelievably obtained a not-guilty verdict. Rarely, if at all, do we hear about the

lawyer for the other side, the side that lost. Yet, just as there are hundreds of techniques to win a

case, there are an equal number of ways to lose. Some? times, a witness turns on you and fails to give the antici?

pated answer, or worse, gives the wrong answer. Other times, that smoking gun document can't be found.

As much as it pains lawyers to admit it, being merely armed with the "Truth" may not be enough. Even liars

sometimes win their cases. It is that uncertainty which makes trial so dangerous and risky.

In our efforts to promote ourselves, lawyers?both as individuals and as a profession?ignore the importance of

losing. The key to our profession is that we provide an

orderly way of resolving human disputes, without resort?

ing to bombs, pistols, or knives. And, in every dispute, there is a winner and a loser. Too often, we praise only the

winner and ignore the gallant efforts of the losing attorney, who gratefully slinks into quiet anonymity.

While we should and must strive to win our case for our

client, that win is not the real reason for being a lawyer. Rather, our true calling is to advocate each client's position before a tribunal in a zealous but ethical manner. If we do that, we are winners no matter what the judge or jury's decision may be.

Litigation Spring 1996 Volume 22 Number 3

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