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Washington Lawyer

Legal Spectator: Timing Is Everything

From Washington Lawyer, June 2001

By Jacob A. Stein

spectator

To every thing there is a season, and a time to every purpose under the heaven: / A time to be born, and a time to die; a time to plant, and a time to pluck up that which is planted; / A time to kill, and a time to heal; a time to break down, and a time to build up; / A time to weep, and a time to laugh; a time to mourn, and a time to dance; / A time to cast away stones, and a time to gather stones together; a time to embrace, and a time to refrain from embracing; / A time to get, and a time to lose; a time to keep, and a time to cast away; / A time to rend, and a time to sew; a time to keep silence, and a time to speak; / A time to love, and a time to hate; a time of war, and a time of peace.

-Ecclesiastes 3:1-8

There is a time to sue and there is a time to counterclaim. There is a time to add a defendant and there is a time to drop a defendant. There is a time to admit and there is a time to deny. There is a time to depose and there is a time to use interrogatories. There is a time to speak and there is a time to remain silent. There is a time to send a bill and there is a time to reduce a bill. There is a time to be bold and there is a time to be cautious. There is a time to cross-examine and there is a time to waive.

There is a time to stay and there is a time to leave. There is a time to form a partnership and there is a time to dissolve a partnership. There is a time to persist and there is a time to back off. There is a time to be reticent and there is a time to tell all. There is a time for great things and there is a time for small things.

There is a time to be prudent and there is a time to be reckless. There is a time to ask for a raise and there is a time not to ask for a raise. There is a time to sign a bank loan and there is a time to cut overhead. There is a time to move to recuse the judge and there is a time to flatter the judge. There is a time to go with a big law firm in order to pay the college loans and there is a time to go straight.

There are people who are out of time with the times. There are those who are prematurely wise and who only come into their own time as they grow older. And there are those who are in time when young and out of their time as they grow older. The right time for the right person at the right time.

And there are those who are persons for all seasons, such as Thomas More. And there are those who are in time no matter the time, such as Lord Rawlinson, a World War I general as described by Winston Churchill:

During these vicissitudes he was always the same. In the best of fortunes or the worst, in the most dangerous and hopeless position or on the crest of the wave, he was always the same tough, cheery gentleman and sportsman. He had always the same welcome for a friend, be he highly or lowly placed, and the same keen, practical, resolute outlook on facts however they might be marshalled.

     Timing is everything in the performing arts. A pause at just the right time says more than any words can say. Jack Benny, the gifted comedian, made use of the pregnant pause. Benny’s stage character was stingy. In one of his sketches a burglar holds a gun on Jack Benny and says, "Your money or your life." And then the long pause. And then Benny says indignantly, "I’m thinking, I’m thinking."

Timing may be everything in the practice of law. As a preliminary matter, in deciding what to do for the client, one must consider whether it is the time for action or whether it is the time to do nothing. To let things be. Let sleeping dogs lie. This brings in the Precautionary Principle. Obedience to the principle requires that we do nothing unless the proponent of doing something can demonstrate by clear and convincing evidence that doing something will not make things worse.

The Precautionary Principle carries with it the temptation to procrastinate. Lawyers are addicted to procrastination. How do you determine whether you are using good judgment in leaving things as they are rather than putting off any decision? If the factors are considered and a decision is made, then you may not be procrastinating. But in my own case I am never sure.

Timing is of critical importance where the sentencing guidelines connect with the future of your client. The guidelines give the prosecutor the option to reduce the sentence by his filing a sentencing statement with the court declaring that the defendant has cooperated. Therefore a defense lawyer must not waste time in telling his client that there is no time to waste in offering cooperation to the prosecutor. If the client delays, he will find that the prosecutor has all the cooperation he needs from those who got there just in time.

A judge recently made this observation: "Counsel’s ability to persuade the judge or jury is now far less important than his ability to persuade the prosecutor that the defendant should be allowed to cooperate with the government. . . ." It is a race to the swift.

In a negotiation one must determine when it is the time to hold and when it is the time to fold. There are those who are content to leave something on the table in order to get, with certainty, the benefits of a reasonable offer. Then there are those who are not content to fold unless the adversary’s blood is on the floor. Here again the Precautionary Principle comes into play. Will the rejection of the "best and last offer" end the negotiation and lead to a disastrous trial that exposes weaknesses in the case that have as yet not come to light? When to hold and when to fold.

There is also a time to open and a time to close. And this is the time to close. I opened with Ecclesiastes. I close with Shakespeare.

There is a tide in the affairs of men

Which, taken at the flood, leads on to fortune;

Omitted, all the voyage of their life

Is bound in shallows and in miseries.

-Julius Caesar 4.3.249-52

Jacob A. Stein may be reached by e-mail at jstein@steinmitchell.com.