20 Questions with Florida Fellow Michael D. Ehrenstein
1. From your Miami base, you have tried a wide array of cases and represented various entities in international disputes. How does dealing with foreign clients and adversaries differ from those more familiar with the legal system of the United States?
Cultural differences can create different perspectives of our system. For example, I have dealt with clients from certain Latin American and Caribbean countries who mistakenly viewed our system as easily corruptible or toothless. I recall one very complex dispute involving arbitration in Miami, and related litigation in the Dominican Republic, Panama, the British Virgin Islands, Switzerland and Spain. My client had a difficult time understanding the need to abide by the arbitration award, confirmed by our courts, when he (and the other parties) cavalierly ignored orders and judgments from some of the foreign jurisdictions with impunity. Other clients recognize our system for what it is—a system with its own set of values and flaws. When representing clients in international disputes, a large part of my job is to educate and counsel foreign parties on the differences between our system and theirs, and help strategize how those differences can translate into tactics to advocate for their best interest.
2. I get the sense that you are somewhat of an adrenaline junky. How does swimming with sharks compare to being in trial?
The idea of fear naturally accompanies certain activities—like diving with sharks, or for some, trying a case. But the idea of fear and actual fear are not the same thing. The idea of fear is far more common, and far more paralyzing. In my experience, the idea of fear is almost always worse than the object of our fear. Actual real fear (being afraid in the moment when something bad is happening) in my life has been pretty rare. I have been in the water with sharks many times and have never been afraid. I have been genuinely scared only a few times in my life—and there weren’t any sharks (or trial lawyers) around in any of those instances. But I have been afraid to try things many times. The trick for me has been to summon the courage to try the things that scare me—including trials. Facing my fears in the water, in the courtroom, or anywhere else makes my blood pump and adrenaline flow. It is invigorating and fulfilling. Sometimes I succeed. And sometimes I fail—which has never been as awful as I feared. I try really hard not to allow fear to dictate my path.
3. In that same context, how should a lawyer face his or her fears?
I believe that everyone should try to do the things that they fear. Usually, they learn that there was nothing to be afraid of to begin with. Sometimes they will fail, but learn and grow in the process. Fear is a huge learning and growth inhibitor. Don’t be afraid. Try the case. Try new techniques. Try something different. See what happens, and learn from it (and then teach me).
4. A lot of lawyers have difficulty balancing their personal and professional lives. You and Theresa seem well-adjusted in that delicate balance. What advice would you give younger lawyers in this regard?
Thank you. No two lawyers have an identical set of values. And no two lawyers should have an identical work life balance. The balance between work and personal life Theresa and I have struck works for us—because it’s a reflection of our values, and how we prioritize between commitments to each other, family, friends, and clients. The only advice I can give younger lawyers in this regard is: know yourself and your values really well—and then make your work fit your values, rather than making your values fit your work.
5. At Middlebury College, you majored in philosophy. Has that training helped you in any way in practicing trial law? How so?
Philosophy at Middlebury introduced me to the discipline of thinking rigorously. Rigorous thinking helps in the detailed analysis of the law and facts necessary to advocate effectively. In addition, the study of philosophy introduced me to the art of persuasion.
6. What do you consider your greatest professional achievement?
It hasn’t happened yet. Past achievements are memories. Future achievements are aspirations.
7. How do you handle judges that have a predisposition opposite to your case? Or perhaps more simply, judges that simply tend to philosophically be favorable to your opponent?
In theory, no judge with a relevant predisposition should adjudicate. In reality, it happens all the time. LCA Fellow Sid Kanazawa once gave a memorable presentation in which he used psychological studies to teach us about selective attention and persuasion. Sid’s presentation included a video of an experiment in which viewers were told to count the number of times students in white shirts (as opposed to black shirts) passed a ball. You can watch the video HERE. When asked how many times the kids passed the ball, almost everyone in Sid’s audience got the right answer. But when asked about the guy in the gorilla suit who sauntered through the middle of the student’s game—more than half the audience (including me) completely missed it—likely because we were not told to look for the gorilla like we were told to pay attention to the number of times the ball was passed. Sid’s presentation reminded me that even if a judge is predisposed, an advocate’s job is to present facts and argument in a manner in which the listener can be persuaded. The judge can see the facts from my client’s perspective, if I’ve told him what to watch for (look out for the invisible gorilla!) as the story unfolds. And I can only persuade the judge to watch for if I can frame the issues in a manner that he will be receptive to understanding. The challenge of framing the issues for a judge with a contrary predisposition is difficult. But with a diverse group of lawyers and staff, presenting facts and legal argument in a manner to which the judge can relate is not insurmountable.
8. With which three people in history would you most like to have dinner and an evening of conversation, and why?
Donia Gracia Mendes Nassi—a courageous 16th century ancestor of mine who helped save many conversos from the inquisition. She remains admired for her courage. I would want to thank her, learn about her motivations and strategies, get some more detail on the family tree, and probe her thoughts on contemporary international relations.
Judah Maccabee, legendary warrior of Hanukkah fame who outwitted, outfought and prevailed over a stronger, more numerous and more well equipped army. I would want to thank him, and understand the values that motivated his bravery.
Myamoto Musashi, renowned swordsman, warrior, and philosopher from Japan. I would want to thank him and learn about his way of strategy.
9. What book should every trial lawyer read?
There are so many great novels from which to choose. And I have tried to avoid the hackneyed and obvious answer—but I can’t. In my mind, one book every trial lawyer should read is Harper Lee’s To Kill a Mockingbird (or watch the movie with Gregory Peck playing Atticus).
10. Who is your favorite fictional character, and why?
Dirk Pitt—he is James Bond, but in the water. And he has had so many adventures! I read so much for work that for relaxation I prefer a shallow, entertaining novel where the swashbuckling hero saves the world, predictably, every time.
11. Not that you would know, but how should a trial lawyer handle defeat?
I have lost cases. And it hurts. But losses are sometimes better teachers than victories. Losses force me to critically analyze my performance and isolate mistakes. I have a teacher who said “grace in winning and grace in losing are the marks of an honorable person.” I think that’s true.
12. To what destination do you go to find your own version of solace?
Any place with few people and no cell phones and lap tops. Clear, calm water or rugged terrain helps. I particularly love certain places in Colorado, the Caribbean, and the Red Sea.
13. What is your greatest extravagance?
Not sure I have any material thing that would qualify as a great extravagance. I have travelled and had some adventures which might fit the definition for some. But mostly I have a collection of relationships and experiences that in my mind combine to reflect a fulfilling if not extravagant life (so far).
14. What embarrassing trend did you follow when you were younger?
I had a “Mullet” haircut, and sadly must confess that I kept that coif long after it went out of fashion.
15. If you could change one law, what would it be?
I would abolish the death penalty-- not because no crime merits the ultimate punishment, but because I believe it’s impossible to fairly impose the penalty with 100% certainty that we are never taking an innocent life.
16. Diversity, along with excellence and integrity, is central to the LCA's mission and plays a fundamental role in our selection of Fellows, growth, and goals. We want to quote you on diversity on the Diversity Law Institute's website. In a word, sentence, or paragraph, what, in your opinion, is the significance or importance of furthering diversity within the profession of law and throughout our system of justice?
If we want excellent judges and attorneys working in a fair system of justice, we must have diversity. Diversity admits different perspectives, and allows us to advocate and adjudicate, fairly taking those perspectives into account. Remember the Invisible Gorilla. By the same token, I do not promote diversity in our firm. I try to promote excellence. As it turns out, the most excellent lawyers are in fact diverse.
17. I once practiced with a fantastic, though legendarily difficult trial lawyer named Olin Zeanah. One of my partners at that firm, beginning when we were associates, kept a list of "Zeanahisms." They were little gems of knowledge that Zeanah would occasionally impart. Did you have a trial icon or mentor in your early years of practice who shared with you the wisdom of years of practice? If so, please tell us about them.
I didn’t have a trial mentor who imparted wisdom like Zeanah. But I have a martial arts teacher, Master Joseph Kelljchian. He’s 74 years old. I have been training with him (and many others) for over 40 years. I still train with Master K at least once a week. He certainly isn’t “book smart.” In fact, he never finished eighth grade. But he is wise, and has taught me to understand certain virtues, not just in fighting, but in the courtroom and indeed, all aspects of life. Like Zeanah, he occasionally instructs through the turn of a phrase. Among my favorites:
• “Consistency beats talent—most of the time.”
• “Keep close the thing you fear.”
• “Fear can only be present through your acceptance of it.”
• “Be sorry for what you did, not what you didn’t do.”
• “I always let my opponent dictate the beating he deserves.”
18. What object in your office serves to re-energize you when your mood needs an adjustment?
I have a sketch of David holding Goliath’s head in his left hand, and Goliath’s sword in his right. My sister, Dorothy, gave me this sketch which she obtained from an artist colony in Safed, Israel, shortly after I passed the bar.
19. How would you like to be remembered?
Great father and husband, great lawyer and partner, quick to laugh, slow to anger, passionate and generous.
20. What is your motto?
Full belly less important than full head less important than full heart.
Interviewed by G. Steven Henry.
Michael D. Ehrenstein is a founding member of Ehrenstein, Charbonneau Calderin in Miami, Florida. His practice focuses on civil litigation of cross border disputes, business torts including fraud, professional malpractice and breaches of fiduciary duty, and complex damage cases.