Vermont Bar Journal, Vol. 40, No. 2 Vermont Bar Journal, Spring 2017, Volume 43, No. 1 - Page 49

www.vtbar.org you are trying to elicit: “Would it refresh your recollection if I told you that yester- day you said the light was red?” (Be care- ful with this last, desperate technique. You may open the door to testimony you would rather keep out.) I can’t find my copy of Younger’s Hear- say: A Practical Guide Through the Thick- et, probably because I lent it out and the borrower liked it too much to bring it back. So, I bought The Irving Younger Collec- tion, having earlier given it as a graduation present to a young lawyer. In it you will find Younger on Discovery, Younger on Scien- tific Evidence, Younger on Expert Witness- es, Younger on Hearsay, Younger on Jury Selection, and Younger on Credibility and Cross-Examination—each worth the price of the book. As a bonus, you get material not other- wise available in print: Ulysses in Court, The Trial of Alger Hiss, and What Happened in Erie? The volume concludes with an essay In Praise of Simplicity. A word about “What Happened in Erie?” Every first-year student reads how the plaintiff’s $30,000 judgment was snatched from his hands by the Supreme Court when it overturned Swift v. Tyson in 1938. It’s the subject of extended discussion in Civil Pro- cedure and numerous law review articles. And, one hopes, most lawyers learn the corollary lesson: Don’t buy the boat until all avenues of appeal have been exhaust- ed. the judgment is final, and the defen- dant’s check has cleared the bank. caveat victor. But who was Tompkins? Who was his lawyer? Who represented the Erie Railroad and why did he file a petition for a writ of certiorari? Were there any settlement dis- cussions after the writ was granted? Surely, I’m not the only lawyer to have wondered about such things. The standard civil procedure casebook is silent on them all. THE VERMONT BAR JOURNAL • SPRING 2017 Younger must have been curious too; for he did the resea rch—meticulous re- search—to find the answers to these and other questions, even sharing what the fledgling trial judge wrote in the margin of the Supreme Court Reports after the case had made history. And Younger shares the fruits of that labor with an engaging style that would make any raconteur proud. By now you must be craving a sample of Younger from the book itself. Here it is: paused, went in, and discovered Younger teaching evidence from a television mon- itor to the audible delight of lawyers at- tending an ABA conference. I was captivat- ed and later watched many of the record- ings. (Alas, Younger came to Georgetown as an adjunct professor the year following my graduation.) If you are a lawyer or law student who even remotely thinks about one day work- ing in a courtroom, you must have this book. Not only that, but you must read it, soak it in, let its wisdom and wit course through your cranium until it becomes sec- ond nature and it rescues you when you’re immersed in that maelstrom of confusion called a court of law. What Younger left us will help you do one of the most challenging tasks known to hu- mankind: Try to persuade a jury (or judge, it’s much the same) to accept as true the story you tell using incomplete documents and the testimony of witnesses with imper- fect memories—all while someone smarter than you tells the jury that your case is bal- derdash and that they should believe her version instead. Few people can do that at all. Only a fraction of that group can do it well. And only a miniscule number, perhaps fewer than 100 at any given moment in time, can do it superbly well. Irving Younger belonged to that last se- lect club. Which is not to say that he did not lose cases. He did. But not for lack of knowing what to do on that most conse- quential of stages. He was a courtroom lawyer. He was a judge. He was a professor. But, most im- portantly and most influentially, he was and still is a teacher of thousands of experi- enced litigators. “‘Mr. Witness. [pause] Isn’t it true [pause] that every evening when you get home from work [pause], you commit sodomy with a parrot?’ [voice rising to a shout on the word “parrot;” pause] Now, after they peel the judge off the wall and the jury recovers from shock, the judge will ask whether you have an evidentiary basis for that question. [pause] And you’d better have one. [pause] You’d better have the parrot.” Such was the power of Younger’s imag- ery that no budding lawyer having heard that example will—can—forget the lesson on tying up evidence. Or what about present recollection re- freshed, something even highly intelli- gent and experienced advocates can get all thumbs about. The witness has just said she can’t remember the color of the light, a critical answer at the heart of your case. What can you do? Refresh her recollec- tion. Yes, but how? What can you use to re- fresh a witness’s recollection? Anything. A picture. A plate of fresh fettuccini. An um- brella. Even the content of the testimony If, at this moment, ladies and gentle- men, I had three wishes, I would use the first to acquire the gift of tongues so that I might better be able to ex- press the honor it is to have been asked to speak to you today. But, of course, with honor goes obligation. And my first obligation was to select a topic. Your president was no help. When I asked him for a suggestion, his response was, “Whatever you want.” And when I asked your program chair- man, she said, “Who listens?” And, so you see, it was left to me, alone and unaided, to find a subject. What top- ic is correct, I asked myself, for some 300 men and women, perhaps one- half of you judges or lawyers or law professors, the rest highly intelligent. (In Praise of Simplicity, 609.) Younger made the law a joy to learn. Of how many in history can that be truly said? ____________________ After over 30 years of litigation experi- ence, Michael  Palmer founded Win Before Trial, a legal risk management firm that helps business leaders and lawyers prevent and resolve legal disputes wisely and cost- effectively. The company has developed several software tools that help users es- timate the financial value and risk of a law- suit. Mike lives in Cornwall. 49