Thus:
You
run
a
pharmaceutical
company.
The
result
of
some
study
comes
in.
The
study
suggests
that
your
drug
could
cause
a
previously
unknown
side
effect.
You
immediately
ask
your
internal
scientists
to
validate
the
result
of
the
study,
so
that
you
don’t
act
too
quickly
(and
incorrectly)
based
on
information
that
later
proves
to
be
wrong.
You
confirm
with
the
FDA
that
it
has
no
objection
to
your
warning
about
the
new
side
effect.
You
change
the
label
on
your
product
to
warn
about
the
new
side
effect.
This
sounds
responsible,
right?
Not
to
the
plaintiffs
who
had
previously
suffered
the
side
effect
and
immediately
sue
you
for
not
having
warned
about
it.
Why
didn’t
you
warn
about
the
side
effect
earlier,
they
ask.
Because
the
study
hadn’t
been
done
earlier.
Why
didn’t
you
do
the
study
earlier?
No
one
was
focused
on
this
possible
side
effect.
It
came
out
of
the
blue.
Why
wasn’t
anyone
focused
on
this
side
effect?
You
run
a
billion-dollar
company,
for
heaven’s
sake.
It’s
your
drug.
Who
the
heck
was
supposed
to
focus
on
the
possible
side
effects
if
not
you?
Not
only
that:
Why
did
you
take
so
long
to
warn
about
the
side
effect
after
you
knew
the
result
of
the
study?
Because
we
had
to
validate
the
result
of
the
study.
And
that
took
you
two
months?
You
run
a
billion-dollar
company
filled
with
hot
and
cold
running
scientists.
You
couldn’t
have
assigned
a
few
more
scientists
to
the
project
and
validated
the
study
more
quickly?
How
irresponsible
of
you!
See?
It
doesn’t
matter
what
you
do;
you’re
always
wrong.
Here’s
another
example:
You
get
sued
for
a
billion
dollars
for
breach
of
contract.
Clause
1,
which
governs
this
dispute
and
which
the
plaintiff
focuses
on,
is
in
fact
a
little
ambiguous.
A
non-litigator
might
think:
“What
a
shame
that
someone
drafted
clause
1
that
way.
If
clause
1
had
only
been
drafted
differently,
there
would
be
no
lawsuit.”
But
every
litigator
knows
that’s
wrong.
Suppose
the
contract
had
been
drafted
differently.
You
still
would
have
been
sued.
With
a
billion
dollars
on
the
line,
the
lawyers
on
the
other
side
weren’t
going
to
give
up
just
because
clause
1
looked
okay.
They
were
instead
going
to
find
some
other
ambiguity
in
clause
1.
Or
maybe
they
wouldn’t
have
sued
you
over
clause
1;
they
would
have
sued
you
for
the
ambiguity
in
clause
2
instead.
Or
clause
3
or
4.
The
one
thing
that’s
inconceivable
is
that
the
other
side
would
say
you
did
a
fine
job
drafting
the
contract.
There
always
was
going
to
be
a
lawsuit;
no
matter
what
you
did,
you
always
did
something
wrong.
In
this
respect,
politics
is
precisely
the
same
as
high-stakes
litigation.
The
other
side
has
lots
of
money
and
lots
of
people
thinking
about
how
they
can
criticize
you,
and
those
people
are
motivated
entirely
by
finding
fault
with
what
you
did.
It
doesn’t
matter
what
you
do;
the
other
side
will
always
say
that
you
did
something
wrong.
Suppose
there’s
a
war
in
Ukraine.
You
fund
the
Ukrainian
defense.
Why
did
you
give
so
little
money
to
Ukraine?
Why
didn’t
you
give
better
weapons
more
quickly?
Why
didn’t
you
give
even
better
weapons
even
more
quickly
than
that?
In
the
end,
Ukraine
wins.
Look
at
the
turmoil
that
you
created
in
Russia!
By
supporting
Ukraine,
you’ve
created
the
possibility
of
civil
war
in
Russia,
which
means
that
nuclear
weapons
may
fall
into
the
hands
of
thugs.
Why
didn’t
you
anticipate
that
and
prevent
it?
Or
Ukraine
loses.
Look
at
all
the
money
and
weapons
you
wasted
in
Ukraine,
and
Ukraine
lost
anyway!
And
Ukraine
isn’t
vital
to
any
American
interest!
What
kind
of
idiot
are
you?
See?
It
doesn’t
matter.
You
were
always
wrong,
no
matter
what
you
did.
As
a
litigator,
you
develop
an
immunity
to
this.
Over
the
course
of
years,
you
stop
worrying
about
whether
you
(or
your
client)
could
have
avoided
a
problem,
and
you
focus
only
on
what
the
plaintiff’s
next
argument
will
be.
I
hope
you,
as
a
politician,
figure
out
what
you
believe
to
be
the
best
course
of
action,
and
you
act.
But
you
act
with
absolute
knowledge
that
you’ll
be
criticized
for
whatever
you
do.
It
makes
no
difference
what
you
do,
because
you
have
a
well-funded,
smart
opponent
who
is
highly
motivated
to
find
fault
in
your
conduct.
Don’t
be
surprised.
This
is
the
way
of
the
world.
But
maybe
only
litigators
and
politicians
realize
it.
Mark Herrmann spent
17
years
as
a
partner
at
a
leading
international
law
firm
and
is
now
deputy
general
counsel
at
a
large
international
company.
He
is
the
author
of
The
Curmudgeon’s
Guide
to
Practicing
Law and Drug
and
Device
Product
Liability
Litigation
Strategy (affiliate
links).
You
can
reach
him
by
email
at inhouse@abovethelaw.com.