Vermont Bar Journal, Vol. 40, No. 2 Vermont Bar Journal, Spring 2017, Volume 43, No. 1 | Page 49

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you are trying to elicit: “Would it refresh
your recollection if I told you that yester-
day you said the light was red?” (Be care-
ful with this last, desperate technique. You
may open the door to testimony you would
rather keep out.)
I can’t find my copy of Younger’s Hear-
say: A Practical Guide Through the Thick-
et, probably because I lent it out and the
borrower liked it too much to bring it back.
So, I bought The Irving Younger Collec-
tion, having earlier given it as a graduation
present to a young lawyer. In it you will find
Younger on Discovery, Younger on Scien-
tific Evidence, Younger on Expert Witness-
es, Younger on Hearsay, Younger on Jury
Selection, and Younger on Credibility and
Cross-Examination—each worth the price
of the book.
As a bonus, you get material not other-
wise available in print: Ulysses in Court, The
Trial of Alger Hiss, and What Happened in
Erie? The volume concludes with an essay
In Praise of Simplicity.
A word about “What Happened in Erie?”
Every first-year student reads how the
plaintiff’s $30,000 judgment was snatched
from his hands by the Supreme Court when
it overturned Swift v. Tyson in 1938. It’s the
subject of extended discussion in Civil Pro-
cedure and numerous law review articles.
And, one hopes, most lawyers learn the
corollary lesson: Don’t buy the boat until
all avenues of appeal have been exhaust-
ed. the judgment is final, and the defen-
dant’s check has cleared the bank. caveat
victor.
But who was Tompkins? Who was his
lawyer? Who represented the Erie Railroad
and why did he file a petition for a writ of
certiorari? Were there any settlement dis-
cussions after the writ was granted?
Surely, I’m not the only lawyer to have
wondered about such things. The standard
civil procedure casebook is silent on them
all.
THE VERMONT BAR JOURNAL • SPRING 2017
Younger must have been curious too;
for he did the resea rch—meticulous re-
search—to find the answers to these and
other questions, even sharing what the
fledgling trial judge wrote in the margin of
the Supreme Court Reports after the case
had made history. And Younger shares the
fruits of that labor with an engaging style
that would make any raconteur proud.
By now you must be craving a sample of
Younger from the book itself. Here it is:
paused, went in, and discovered Younger
teaching evidence from a television mon-
itor to the audible delight of lawyers at-
tending an ABA conference. I was captivat-
ed and later watched many of the record-
ings. (Alas, Younger came to Georgetown
as an adjunct professor the year following
my graduation.)
If you are a lawyer or law student who
even remotely thinks about one day work-
ing in a courtroom, you must have this
book. Not only that, but you must read
it, soak it in, let its wisdom and wit course
through your cranium until it becomes sec-
ond nature and it rescues you when you’re
immersed in that maelstrom of confusion
called a court of law.
What Younger left us will help you do one
of the most challenging tasks known to hu-
mankind: Try to persuade a jury (or judge,
it’s much the same) to accept as true the
story you tell using incomplete documents
and the testimony of witnesses with imper-
fect memories—all while someone smarter
than you tells the jury that your case is bal-
derdash and that they should believe her
version instead.
Few people can do that at all. Only a
fraction of that group can do it well. And
only a miniscule number, perhaps fewer
than 100 at any given moment in time, can
do it superbly well.
Irving Younger belonged to that last se-
lect club. Which is not to say that he did
not lose cases. He did. But not for lack of
knowing what to do on that most conse-
quential of stages.
He was a courtroom lawyer. He was a
judge. He was a professor. But, most im-
portantly and most influentially, he was and
still is a teacher of thousands of experi-
enced litigators.
“‘Mr. Witness. [pause] Isn’t it true [pause]
that every evening when you get home
from work [pause], you commit sodomy
with a parrot?’ [voice rising to a shout on the
word “parrot;” pause] Now, after they peel
the judge off the wall and the jury recovers
from shock, the judge will ask whether you
have an evidentiary basis for that question.
[pause] And you’d better have one. [pause]
You’d better have the parrot.”
Such was the power of Younger’s imag-
ery that no budding lawyer having heard
that example will—can—forget the lesson
on tying up evidence.
Or what about present recollection re-
freshed, something even highly intelli-
gent and experienced advocates can get
all thumbs about. The witness has just said
she can’t remember the color of the light,
a critical answer at the heart of your case.
What can you do? Refresh her recollec-
tion. Yes, but how? What can you use to re-
fresh a witness’s recollection? Anything. A
picture. A plate of fresh fettuccini. An um-
brella. Even the content of the testimony
If, at this moment, ladies and gentle-
men, I had three wishes, I would use
the first to acquire the gift of tongues
so that I might better be able to ex-
press the honor it is to have been
asked to speak to you today. But, of
course, with honor goes obligation.
And my first obligation was to select
a topic. Your president was no help.
When I asked him for a suggestion, his
response was, “Whatever you want.”
And when I asked your program chair-
man, she said, “Who listens?” And, so
you see, it was left to me, alone and
unaided, to find a subject. What top-
ic is correct, I asked myself, for some
300 men and women, perhaps one-
half of you judges or lawyers or law
professors, the rest highly intelligent.
(In Praise of Simplicity, 609.)
Younger made the law a joy to learn. Of
how many in history can that be truly said?
____________________
After over 30 years of litigation experi-
ence, Michael  Palmer founded Win Before
Trial, a legal risk management firm that
helps business leaders and lawyers prevent
and resolve legal disputes wisely and cost-
effectively. The company has developed
several software tools that help users es-
timate the financial value and risk of a law-
suit. Mike lives in Cornwall.
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