Washington Lawyer - March/April 2021 - 36

ON FURTHER RE VIEW

Relentless Lawyering
Demands Flexibility
By Lloyd Liu

s lead counsel in numerous
complex environmental
cases, Benjamin Wilson
has plenty of anecdotes
that demonstrate some keys
to successful litigation. Wilson,
who is chairman at Beveridge &
Diamond PC, relays one story that
speaks to the importance of not
being wedded to a particular
approach during a trial.
When Wilson lived in Tennessee, he'd watch
Avon Williams Jr., a civil rights lawyer who
fought for school desegregation, argue cases.
" There were times when he was confrontational with the judge, and he'd fight like heck.
And then after the exchange, he would apologize and things would work out, " Wilson says
of Williams, who was later elected as the state's
first African American senator.
Wilson took Williams's style to heart, but it
didn't have the intended effect. Appearing in
federal court in San Francisco, Wilson recalls
that the judge had instructed him not to ask
any questions of a particular witness. However,
Wilson had been assigned the case only a few
days in advance of the hearing, and he realized
that he had to question the witness to make
a strong case:
So I began asking questions of the witness,
and the judge said, " Mr. Wilson, you cannot
ask her any more questions. " I told the judge
that [he] had opened up the line of questioning and that I should be allowed to
[proceed]. The judge responded . . . that if
I continued, he'd hold me in contempt of

36 WASHINGTON LAWYER

MARCH/APRIL 2021

court. The fines began racking up - $50,
$100, $200, and I kept talking.
But then I realized I'm not in Nashville. I'm in
San Francisco. Heck, they could send me to
jail. And so, like Avon Williams, I came back
and told him I was sorry. At that point, the
judge said, " Don't let that happen again. "
Wilson's point with this anecdote is simple:
" Each case is different. There cannot be a
singular approach to each case. Sometimes
one must be bold. Sometimes one must be
patient. " His observations speak to the importance of being able to move on from an ineffective strategy.
He notes, " Whether it's bouncing back after
a bad line of questioning, a bad day in court,
or an unfavorable result, the ability to adjust,
adapt, and overcome adversity - resilience
- is the most important quality an attorney,
or any person for that matter, can possess. "
Wilson is also well known for speaking out
on diversity in the legal profession, perhaps
spurred by the challenge of having to prove
himself as a young attorney of color. " Probably
up to age 45, I would encounter this assumption about me by opposing counsel that
somehow I was less than, " he says. This kind
of adversity could be utterly demoralizing
and even crippling, but not for Wilson.
" In so many instances, I am oftentimes underestimated, or the other side feels they can take
advantage of the situation. That's when, quite
frankly, I have a different kind of determination,
a different kind of resolve, " he says.
" I've had other experiences where sometimes
a judge, or more often than not my opposing
counsel, will make certain assumptions, particularly early on in my life. Sometimes it's the older
counsel needling the younger counsel and has
nothing to do with race. It's just an initiation of
sorts. But sometimes there is race involved, and

what I've found in those instances is [that] I was
always prepared. There was a certain resolve,
so to speak, that overcame me, " he continues.
Wilson tells a short story in which he was so
underestimated. He had a case in New Haven,
Connecticut, in which opposing counsel was
attempting to depose the mayor. One day,
opposing counsel told him that the judge
wanted to see the attorneys the next day. It
had been Wilson's second day involved in the
case. Wilson did not suspect anything was
amiss. However, as it turned out, the judge
did not want to see the attorneys. Instead,
opposing counsel had sought the hearing in
an effort to catch Wilson off guard.
At the hearing, " [opposing counsel] was suggesting the mayor was not behaving on the up
and up. My opposing counsel thought that I'd
never been to New Haven. But I read my cases,
I knew the law. And I knew if you were a public
official, you did not really have to be deposed
unless you had some special knowledge that
was not attainable from other sources, " Wilson
recalls. " The judge ruled in my favor, and the
whole relationship with my opposing counsel
changed. "
" Sometimes, it's weary because you'd like to
think, 'Gee, do I have to prove myself every
time?' Yes. How much of that is race? How
much of that is just litigation? It's hard to put
your finger on it, but quite frankly, I think some
of it is race, " he adds. Through his experiences,
Wilson has been able to maintain a kind of
tenacity that is not so overwhelming as to
hinder changing one's tactics. His examples
demonstrate the relentlessness of trial lawyering, requiring agility to bob and weave
around obstacles.

Lloyd Liu is a partner at Bennett Doyle LLP, where
he focuses on white-collar defense, government
investigations, and complex civil litigation.

Washington Lawyer - March/April 2021

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