Play the Player, Not Just the Game

The Boston Celtics in the 1980s Were Magic

For those of you who could give a rat’s arse about sports analogies, I apologize.

In the 1980s, I spent more time in after-school detention and playing basketball than I did doing homework. The popular refrain from my guidance counselor during that era was  “Graceffa, you’re a screw-up.”  It is true that I was interested in nothing more than mouthing off and playing basketball. What my Harvard-educated guidance counselor didn’t get about me was that I was doing homework, just not what he thought was important.

During that decade, I was obsessed with basketball and in particular, the Boston Celtics. I spent innumerable hours studying how the Celtics/Lakers rivalry played out, trying to decode how the lanky, slow and awkward Celtics could hang with (and often beat) the more hard-nosed, flashy, faster and certainly physically stronger Lakers. I lived close to Kevin McHale and was always hoping to catch a glance of him in town to see if his arms were actually as long as they appeared on TV.

In particular, I was spellbound by the fact Larry Bird could punish the Lakers time and again, based not on physicality, but what was between his ears. Bird was a gawky, thin, thinking man and also, tenacious as all hell – sadistic almost. He consistently hit three pointers from deep in the corner near the baseline in what at the time was considered no-man’s land. Just looking at him, it looked like he couldn’t hit the side of a barn in a field in Indiana.  It wasn’t until you studied him as a person did you get to know who and what he was all about. Bird grew up poor with an alcoholic father who eventually committed suicide. He had a very strong, blue-collar ethic and a chip on his shoulder, which I could personally relate to. Telling him he couldn’t do something was the wrong damn thing to say to that man.

Lawsuits are games. Every litigator knows, in theory, what the game is and how it works. However, how the game works is only a fraction the analysis. Savvy and effective litigators are well aware that people are the real wild card. You cannot approach everyone the same. Larry Bird played small forward. Years later, Michael Jordan played the same position. Would you defend Jordan the same way you would Bird? Hell no and if you tried, you were in for a world of hurt.

In every mediation, I tell the parties that I could drop the exact same case on a different set of parties and attorneys and the outcomes would be vastly different. Then, I start telling the stories:

• The “savvy investor” seller who refused to close the sale of a building was being called, literally, an idiot by the buyer. Was he really an idiot? He was actually extremely emotional about selling his grandfather’s building and just wanted to assurances it would not be turned into condos. Once he got the assurances and some empathy, he closed the deal immediately.

• The “cheap seller” who refused to pay $100K to maintain the easement on the dirt hillside near her house that would collapse during hard rains.  Cheap? She was actually very broke, living with no electricity and was paying her lawyer in the aluminum can money she made from picking recycling out of the trash. The neighbor who sued her over the easement learned about her finances during the mediation and he thereafter organized a bunch of his buddies to come shore up the hillside and agreed to maintain the easement with her.

• The “greedy fraudster” elderly couple who sold their house for a million over what they paid and failed to disclose an issue with the roof. Liars? The couple had in fact left a folder full of information about the roof on the counter for their realtor to put in the disclosure packet. The housecleaner had put the folder in a drawer never to be seen by the buyers or the sellers’ agent until after the close. Once the buyers learned that the greedy fraudsters had left the information out for their realtor, the buyers were actually very embarrassed and ashamed about the innumerable times they had referred to the couple as liars. The buyers softened their position and the case settled.

Please ask about the people. That includes the lawyers too. Yes, we lawyers are people as well and like Bird, we matter to the outcome of a case as well.

For those who got this far:

Please, don’t anyone email me telling me that the Lakers won 2 out of the 3 championships in that era. I know. I am still sore about these stats and no matter how long I have lived out here, I am still an East-Coaster at heart and from a blue-collar family as well. You’ve been warned.