Michael P. Maslanka

It's not what we don't know that hurts us but rather what we think is so that isn't. Here are seven litigation myths that too often hold us hostage because they sound so reasonable, so intuitive and, well, so safe.

Myth No. 1: 'But the Judge will get mad!'

In class I draw a square, write inside it a fictional caption and case number, and sketch a seal. I ask: What is this? The answer: The Record the Alpha and the Omega of a trial lawyer. It must be protected. Yes, a Judge might get irritated if we request a ruling or seek mandamus.  But a Judge out of sorts because we are honoring our oath is a judge predisposed to be upset over anything. Soldier on!

Myth No. 2: 'We need an ideal juror profile'

The key to jury selection is to root out and strike your enemies, not to identify and bond with your friends. Voir dire only allows time for a quick take on the first, not unlike speed dating. (Not that I know anything about that!) By the way, your enemies will self-identify. Is the potential juror a little too anxious to serve? Mouthing all the right words, yet slouching in their chair? Also follow the advice of a friend in Austin: Always strike a potential juror that sounds like a "leader". You never really know the direction in which the juror will lead until the verdict is returned. Juror selection requires a sickle, not a scalpel.

Myth No. 3: 'Birds of a feather always flock together.'

This barroom generality is wrong. Hypo 1: Black plaintiff claims race discrimination in his termination; liability facts are strong; punitive damages a real possibility. You are the defense lawyer. You are down to your last strike. Do you strike a white juror, early 40s, laid off several times from corporate America or a black juror, mid 60s, working the same job the past 24 years? The first because work place trauma makes awarding significant punishment more likely. Displaced anger is all too real. Hypo 2: Key witness is a professional, whether human resources or law enforcement or mid-level manager. Think seriously about striking the juror professional who may be hyper critical of the witness professional ("Well, I wouldn't have handled it that way!") Hypo 3: Female litigant and female juror. Female juror presumptively favors a female? Think again. Evolutionary biology trumps a #MeToo culture, at least I believe in the view of the authors of "In the Company of Women: Indirect Aggression Among Women: Why We Hurt Each Other and How to Stop." Their Big Idea: Women hammer other women they consider to have a bee in their bonnet (i.e., act superior). Swim against the tide.

Myth No. 4: Settlement Good; Litigation Bad

The "Me Tarzan/You Jane" starkness is apt given the pernicious notion that lawyers, to be professionals, must be peacemakers and not warriors. Just as no two people are ever equally in love, so too no two litigants are ever evenly matched. One side inevitably is dealt better facts,   stronger narratives, deeper resources. These litigants should get the deal they desire. This timeless truth is now being derailed by the clueless but well-meaning (books like "Getting To Yes"); the cautious but well-motivated (their memoir would be "Forty Years a Conference Call Lawyer"); the well-"schooled" but poorly "educated" (Gen Z lawyers). Learn instead the joys of saying "no". Watch the scene in The Godfather Part II in which a United States Senator tries to shake down Michael Corleone, giving him 24 hours to accept a bad deal.  Corleone quietly remarks: "You can have my answer now Senator. My answer is no." Classic. Or read "Start With No" by Jim Camp and learn that saying "no" is ethical because then everyone knows where they stand. Clarity good; confusion bad.

Myth No. 5: Humanize Yourself to the Jury

In trial, we are conduits, not ringmasters. Here is an "Assorted Sampler of Misplaced Egos" (Free Shipping) from 38 years of practice: Voir dire in central Texas "when I am not dressed up in a suit I am wearing blue jeans, driving my tractor and plowing my fields"; closing argument in Dallas, "Because this morning is the first day of school, I walked my daughter to her school. Priorities are important." Direct examination in Harris County," ever since I became a mother last year, I have (blah, blah, blah) "which was then followed by a question Jurors do not care. They know: (a) you want their vote and (b) you two will not be lunching at the club next weekend. Focus on their humanity and that of your client. Forget yourself.

Myth No. 6: The Fifth Circuit Will Fix It

Here is the dream: Lawyers for plaintiffs and defendants each embrace the myth that "justice" not meted out in the trial court will be done if they draw an ideologically favorable panel. Here is the reality: An appeals court is not a vending machine—tap in N5 and out comes a reversed and rendered, or A7 and out slides an affirmance of damages. Differences are seldom ideological but rather more often nuanced, such as the proper application of precedent. As I tell students, standards of review operate as legal speed bumps to stop judges from honoring their personal preferences over their solemn oaths. Don't be like the pick -up artist who uses the same bad line that worked once hoping for the same result. Lightening never strikes twice.

Myth No. 7: Be Perfect

Ditch perfection. It ain't happening. Instead seek a goal that is achievable, doable, and real; namely, being solid. (Read about this insight "10½ Things No Commencement Speaker Has Ever Said" by Charles Wheelan.) Know why the Japanese lost at Midway? Because two of their carriers were not in perfect shape, they were left in anchorage. So, instead of six enemy carriers versus our three, there were four versus three. That difference made all the difference. A lesson when next racing to obtain a TRO.

We cling to our myths do we not? I do. Auden understood: "We would rather be ruined than changed … and let our illusions die." Always reject what is not working in favor of what will. Adapt.

Michael P. Maslanka is an assistant professor of law at UNT Dallas College of Law.