"By Way of Enchantment"
Something different - A story of unexpected friendship and lessons learned
This is a bit different than my typical post that some readers have come to expect. But it is a story with several levels, of adversarial conflict, of highs and lows, victory and defeat, exhilaration and despair, with all followed by an unexpected friendship that grew out of a mutual, if grudging respect.
The lawsuit and trial. First impressions of opposing counsel.
I first met Breck Seiniger over thirty years ago. I had a client that manufactured white water kayaks. It had been sued in federal court in Boise, Idaho. The plaintiff was a kayak designer named Don McClaran. Don was represented by a Boise attorney, Breck Seiniger. The other corporate defendant was represented by an excellent Boise lawyer, Andy Chasen. I was living in Knoxville, Tennessee at the time.
We did the usual work-up to prepare the case for trial. Document requests, interrogatories, multiple depositions and several pre-trial hearings in Boise. Well before trial began, I knew that Breck was proving to be a formidable adversary and that the case was shaping up to be a very hard-fought battle. Little did I know.
The details of the trial are not particularly important today. What is important is that it was indeed a hard-fought war. It was the Iwo Jima of trials — a fight to the death (figuratively speaking, sort of). No settlement would be requested or given. To say that Breck and I clashed is to put it mildly. Did the Marines and the Japanese clash?
Breck pushed the envelope. In fact, he told the presiding judge that he would push things right up to the line and would stop only when he thought that he was about to create reversible error. So, he pushed. And pushed. And pushed some more. I got exasperated. At one point I asked the judge to sanction him. Motion denied. At another point I thought that his statements in front of the jury were so outrageous and over-the-line, that I moved for a mistrial. Motion denied.
One of our courtroom arguments became so heated that the judge sent the jury out of the room. After one some time, the bailiff came back in and handed the judge a note. The jury was reporting that despite the fact that the jury room was separated from the courtroom by several walls, they could still hear both lawyers yelling at each other. I think that was the same hearing during which Breck told the judge that he intended to take me outside and beat my a**. Caught up in things and losing sight of the fact that Breck had about 6-inch height advantage and maybe 80 pounds on me, I told him, “Any time.” The judge, unperturbed, just calmly told both of us to dial it back a bit. So, we did. A bit. For a while.
I thought that we had good defenses and a good shot at winning. But Andy Chasen and I recognized that we had a BIG problem to overcome — Plaintiff Don McClaran was one of the nicest guys you could ever meet. And we were in his hometown. The jury loved him. And I was an out-of-state lawyer representing an out-of-state corporation.
At the end of a two-week trial, the case was submitted to the jury on a Friday afternoon. They quickly reached a verdict — a judgment against my client for $1.4 million. When that case was tried back in 1993, that was real money! And it was especially galling to lose a jury trial to a blow-hard (or so I thought at the time) who had publicly threatened to kick my a**.
The evening after the verdict trial, the woebegone defense group went to dinner together. I remember trying to buck up the troops by telling them that the Chinese character for “crisis” was the same as that for “opportunity,” and that this defeat really was an opportunity because there was so much reversible error in the trial, we were sure to win on appeal. This valiant attempt to raise morale was met with groans except from a few who just remained silent.
So, Breck and the McClarans were riding high. They had won and Don was going to be a millionaire. At the same time, we were just hoping that maybe another shot of bourbon would help us forget the humiliation of the loss.
So, we appealed. The appeal went to the 9th Circuit Court of Appeals, which was known at the time as being notoriously liberal. The argument was held in Seattle. I got a lukewarm reception, at best, and a downright hostile one from one of the three judges. Breck, however, waxed poetic in his argument, even quoting Shakespear at one point. The judges loved him.
When the panel’s decision came out, we had won! In a 3-0 decision, the court not only reversed the damage award against my client, but instead of remanding for a new trial, rendered a final judgment in favor of my client. (The co-defendant was not so fortunate; the panel remanded the claims against it back to the trial court for a new trial). The court’s decision is reported as McClaran v. Plastic Industries, Inc., 97 F.3d (1996).
With that ruling, Breck and I swapped places. We were on a high and Breck and Don had crashed as their $1.4 million judgment was snatched away. The highs and lows in this case had been like a roller coaster ride.
The aftermath and Breck’s story
It took a while but after the trial Breck and I reconnected. I recall he had called me to ask for a recommendation for an expert witness in North Carolina or Tennessee. As we began to get to know each other in a non-adversarial context, we realized that we shared a lot of common interests and traits, including bicycling as well as white-water kayaking. We gradually began to become friends.
And lo and behold, Breck called one day to say that he had a trip planned to a nearby city and would it be ok if he stopped in to see my wife and me? Of course it was! He came and spent a night or two with us and our friendship cemented.
After that we had numerous contacts, even though we lived almost 2000 miles apart. In more recent years, Breck travelled to Virginia to join me for a “boys’ get-away” at my house in the Blue Ridge Mountains. More description is not necessary. Suffice it to say that we former legal adversaries, who at one time wanted to punch each other out, have become fast friends.
In recent years Breck has taken up writing poetry and songs. Many are semi-autobiographical, telling the story of ups and downs in his life. I should add here that as a very talented plaintiff’s lawyer, Breck has a bit of Don Quixote streak in him. And when he has a cause — such as a client who has been wronged and deserves recompense — he is a man on a mission. A knight.
So, without further ado, keep that in mind and allow me to share with you one of Breck’s recent works. (Note: Breck is the song writer, and the vocal is AI-generated.). Listen:
By Way of Enchantment
It all went by way of enchantment/ As I held my sword and shield high/ I poured out all my love and courage/ And kept my sight fixed on the Sky.
Every quest was noble/ As I soldiered along the way/ Troubled sleep attended nighttime/ And I risked defeat throughout the day.
The life of a knight isn’t easy/ One whose life is early sworn/ To fight whatever fight’s required/ To fill the role for which he’s born.
Those around without that calling/ Can’t see much beyond their eyes/ Or know the mountains and the canyons/ Plain to any man whose battles have left him wise.
Many people mistake for madness/ The passion of a knight forsworn/ From seeking warmth and comfort/ In a world so tossed and torn.
It’s a different state of being/ When a man takes up the task/ Spreading hope and love through the country/ Even when he’s not been asked.
John’s account of our vision courtroom battle is accurate but needs a little explanation. I was a solo practitioner and very intimidated byJohn, particularly by the fact that he was a Vietnam veteran and West Point graduate. At one point in our heated exchange before the judge I very theatrically observed that I thought we had a bit of a personality conflict and suggested that we go out into the parking lot to settle it. Thank judge didn’t let John take me up on it. John would’ve killed me in about 15 seconds. I knew that at the time of course, but I wasn’t going to back off an inch. John has become one of my best friends and my battle with him was one of the highlights of my four decade plus legal career. I didn’t agree with how John saw the matter and all, and I still don’t. (Hell, we hardly ever see anything the same way.) But what I did see in John was the most tenacious lawyer I’ve ever come up against (and I’ve been up against a lot of them) and someone in whom there was not a trace of cynicism. John is always sincere, that’s what I love about him. In many ways see the world very differently, particularly politically. But what we have in common is that we see a set of values in everything that is worth fighting for. In the end, values are the only thing worth fighting for. I have always loved Don Quixote and I have read it many times. In the literary figure, I could see an idealist who was comically, if not tragically, blind to his own blindness. He is ultimately cured of his illusions when he has to do battle with the “Knight of the Mirrors“. Recruited by his friends who wanted to cure him of madness by having to him do battle with a knight completely armored in mirrors in which Don Quixote would have to see his own weaknesses reflected. It worked. There is an extent of which having to do battle with John did that for me. Anyone who is not grateful for having to engage in such a battle has missed the most valuable reward to be gained, one gained whether or not one prevails in the battle itself. John inspires, and I’ll take that kind of person anytime whether or not we ever come to an agreement about much at all. I know that deep down we completely agree about the most fundamental values, and that’s what you want in a friend. Don Quixote was admirably, but fanatically committed to his values, and his fanaticism warped his vision and blinded him. Anyone who is passionate about something that’s a cause is subject to that. We all need a worthy adversary, who is equally committed, but who sometimes has a clear view of the polar opposite. That is the very person who can make it safe for us to follow our passion, because when we are wrong they let us know it, and that tempers us. Again, John helped do that for me. I’m grateful.
A great story with a great conclusion. I have to admit I wanted to alter the story: Blue takes Breck into the woods and beats him silly - and then they become close friends. Few gentle readers know Blue had only one fight in Plebe Boxing and then was exempt from all future fights when he was matched against the largest football player and proceeded to knock him out.