IF YOU TELL THEM,
THEY WILL NOT
BELIEVE YOU; IF YOU
SHOW THEM, THEY
HAVE NO CHOICE BUT
TO AGREE.
“That’s a long time,” I said.
“What’s in the lists?”
“The lists,” said Demetri, “contain the name of virtually every
winery in California—almost 2,800 of them.
“I can get those off the Internet,” I said.
“But the lists contained the name of the purchasing agent at
each winery.”
“What else?”
“And the agent’s phone numbers at work and at home.”
“Keep going.”
“And what kinds of wine each winery produced each year.”
“And?”
“And how many cases of bottles the winery had purchased
each year for the past 25 years.”
“Anything else?”
“What styles of bottles, what colors of bottles, how many the
winery bought in each style and each color.”
;en I asked him a question that confounded him:
“How tall was the pile?”
“Of what, the lists, the printout?”
I nodded.
“Almost 6 inches.”
“Why didn’t you put all of this in your brief?”
;at’s the question he couldn’t answer.
DEMETRI’S PLOT THICKENS
When I asked him what he meant by “trade secrets,” things got
really interesting. I started with a pointed question to goad him.
“What could possibly be secretive about glass bottles?”
“The bottles are special.”
“How so?”
“They’re made only in France.”
“So get them in France.”
“That’s what the competitors do.”
“So there’s really no secret.”
“Once you purchase them, you have to
get them back to the U.S.”
“Fly ’em,” I said.
“Too expensive. Way too expensive. You
have to send them by ship.”
“How do you get them to the ship?” “Exactly.” “That’s the secret?” “One of them.” I waited.
“There are only two ways to move the bottles to a port city
from the factory in France—train or truck. But empty wine
bottles shipped by train rotate in their packing crates, which
scratches the glass, making them less desirable, even useless.”
;en the light appeared in Demetri’s eyes, and he talked faster.
“But most of the roads are rough, and the bottles still spin,
just not as much. After years and years of experimenting, Aven-
nia’s founder devised a way to keep the bottles from rotating and
developed specific routes across smoother road surfaces leading
from the factory to the closest seaport. And all of the informa-
tion about the French trucking companies, shipping compa-
nies, methods of packing, special routing along back roads, was
contained in the very records my opponent wanted Marsha to
review.”
If Demetri “shows” the judge what he has just “shown” me,
the judge can “see” why these documents cannot be turned over
to a defendant already being sued for misappropriating trade se-
crets and con;dential business information. “Extremely unique
and valuable” doesn’t do it.
“Let me ask you again,” I said.
“Why didn’t you put this in your brief? It’s fascinating.”
;is time he had an answer.
THE WRAP
No one teaches us how to draw a judge or opposing counsel into
the place where our story comes alive, yet this is where understanding dwells. You cannot lure your readers there with strings
of abstractions and opinions; they won’t go. You must use words
they can see. English teachers call this preferring the concrete to
the abstract. Writers, at least the ones who eat, call it ;e Writer’s
Creed: Don’t tell me, show me. It is what focuses your readers
on your client’s unique situation, and when you take them there,
when they see the vivid pictures you have painted, sympathy and
empathy abound. ;en you get them to do what you want them
to do, which is your job. LP
Gary Kinder has taught more than 1,000 writing programs for the
ABA and to ;rms including Jones Day, WilmerHale and Sidley during
the past 25 years. He is also the author of the New York Times bestseller Ship of Gold in the Deep Blue Sea. In 2011 he founded the
software company WordRake, which last summer released the ;rst
editing software for lawyers.
garyk@wordrake.com
