- Jim Ferraro
Preparing for Trial Like a Gladiator
I WILL ENDURE TO BE BURNED, TO BE BOUND, TO BE BEATEN, AND TO BE KILLED BY THE SWORD.
—The gladiator’s oath, as cited by Petronius (Satyricon, 117).
As the Castillo-vs.-DuPont trial date drew closer, I began to feel very much like a gladiator preparing for combat.
By definition, a gladiator was an armed combatant who entertained audiences in the Roman Republic and Roman Empire through violent confrontations with other gladiators, wild animals, and condemned criminals. Some gladiators were volunteers who risked their lives and their legal and social standing by appearing in the arena. Most were despised as slaves, schooled under harsh conditions, socially marginalized, and segregated even in death. Irrespective of their origin, gladiators offered spectators an example of Rome’s martial ethics, and, in fighting or dying well, they could inspire admiration and rise to popular acclaim.
All gladiators trained like elite athletes, as though their lives depended on the outcome of their matches—because they did. They’d enter the arena or coliseum willing to die each time they faced a new opponent. If they survived, they were paid. If they lived three to five years doing battle, they were freed of their slave status.
When one of the opponents in a contest was wounded, the crowd would typically shout “habet, hoc habet,” meaning “He has had it.” An opponent who felt he was defeated would raise his left hand with his index finger extended in a request for mercy. It is not clear how the vote of life or death for the defeated opponent was decided, though it may have involved a gesture with the thumb by the game’s presiding emperor or senator, whose judgment was often swayed by the rousing emotion of the audience.
If the decision was for death, the defeated opponent would ceremoniously grasp the thigh of his conqueror, who would slay the loser by stabbing his sword into his neck. The dead body was then removed by costumed attendants, one dressed as the ferryman Charon, the other as Mercury. Charon struck the dead body with a hammer, and Mercury poked the body with a hot iron disguised as a wand to ensure that the loser was dead. The winner would receive a symbol of his victory, such as a golden bowl, crown, or coin, along with a palm leaf.
It was a gruesome, gory sport predicated on pure bravery and bravado. Perhaps that’s where the saying “No guts, no glory” stems from.
Only an arrogant or inexperienced fighter enters the ring without knowing his opponent—how he fights, his technique, his weaknesses and strengths.
This is true for any opponent in any sport. The noted general of ancient China, Sun Tzu, said, “If you know the enemy and know yourself, you need not fear the results of a hundred battles.”
While I had spent nearly three years in discovery, I’d had very little interaction with the lawyers I’d be facing in the courtroom. I knew DuPont was bringing in some big guns for this trial. In addition to their in-house counsel, it had hired Shook, Hardy & Bacon, a large international law firm with offices in Miami; Kirkland & Ellis to focus on appellate issues; and lead trial counsel from Glynn, Cella & Lange, a distinguished firm based in Walnut Creek, California, that specialized in these types of cases.
The attorney assigned to the case from the lattermost firm was a gentleman by the name of Clement “Clem” Glynn. Clem had represented clients in a wide variety of complex litigation matters, including product liability, toxic torts, business torts, employment, real estate, intellectual property, commercial disputes, oil and gas, eminent domain, and other areas, including appellate practice. Much of his practice was focused on the defense side, but he had also successfully represented plaintiffs on many occasions. DuPont brought in Clem because it thought he was the best trial lawyer in the nation for defending in a trial like this.
Pine Island Farms hired separate counsel, going with Gaebe, Murphy & Mullen, a local firm out of Coral Gables. Founding partner Greg Gaebe was the lead attorney, and David Kleinberg was his associate. At any given time during trial, the two defendants would have at least 10 attorneys in court against me and my appellate counsel.
The defendants broke the case down into two major areas: the exposure to the chemical and the science of the chemical.
Pine Island was responsible for defending the exposure to the chemical, and DuPont was responsible for defending the science of the chemical.
DuPont took on the science because they didn’t think anyone else was smart enough to answer the scientific queries. After all, that’s what DuPont does.
In taking this approach, they had Gaebe’s firm answer the requests for admissions, which, of course, gave us the answers we had been hoping for when we got to the courtroom.
I didn’t believe for a moment that DuPont’s lawyers had any idea what answers Gaebe had submitted to our requests for admissions before they were delivered.
In my next post, I explain my reason for my approach to the case, and why I wanted so many different experts to testify.
I’d love to hear from you about your own preparations for important meetings, or even for negotiations. How do you make sure you’re ready? Thank you for sharing.