Infamy: The Opening That Changed World History

This is Part II in the series, The World on Trial: Lessons for Litigators From the Second World War. Read Part I, “Brevity: A Call for Clearer Thinking” here.

On December 7, 1941, at 1:40 p.m., President Franklin D. Roosevelt received a phone call that would change the course of his presidency. It was the Secretary of the Navy, Frank Knox, calling to inform him that Japan had attacked the U.S. naval fleet at Pearl Harbor. That afternoon, while the incoming reports became increasingly grave and those around him ricocheted between anger and panic, the President, according to Eleanor, projected a “deadly calm.” At 5:00 p.m., he summoned his secretary, Grace Tully, to his study and, with the day’s news spread before him, began to dictate a speech he was to give at noon the next day.

Even before the phone rang, 1941 was already a historic year. It began with Roosevelt’s unprecedented third inaugural, followed by passage of the Lend-Lease Act, which, his administration argued, would both help win the war and keep the U.S. out of it. Meanwhile, the Axis powers continued to steamroll. U-boats prowled the Atlantic unfettered, inflicting devastating losses on Allied merchant ships and the precious cargo Britain needed to feed its citizens and supply its factories. In late spring, the Wehrmacht invaded Yugoslavia and Greece, defeating both within days, while in North Africa, the “Desert Fox” Erwin Rommel nimbly drove the British out of Libya and back into Egypt. Then, Germany brashly invaded Russia, advancing in weeks to within 200 miles of Moscow.

Eastward, Japan continued its own expansion, invading southern French Indochina (now Vietnam, Cambodia, and Laos), and retraining its sites on the Dutch East Indies (now Indonesia). This put the U.S. in a perilous spot. Not only was Japan within reach of U.S. bases in the Philippines, but the U.S. was supplying Japan with the fuel for that threat – the one resource that no modern military could function without – oil. Roosevelt, hoping to check Japan’s aggression without military intervention, cut off that supply, which, while effective, made Japan even more belligerent. That October, Japan’s War Minister, Hideki Tojo, became its Prime Minister, and quickly imposed a November deadline for any remaining diplomacy.

At home, the populace was fiercely polarized. There were deep divisions over whether and how the U.S. should become involved in the war. Industry was caught between a renewed demand for domestic goods and the urgent need for military supplies. Labor disputes resulted in a near record number of strikes. Racial tensions flared as the burgeoning defense industry refused to employ black workers, with activists threatening new forms of mass demonstration that foretold the modern civil rights movement. It was a country maturing from a past both brilliant and flawed, trying to figure out who it was in an increasingly connected but deeply violent world. 

And Roosevelt was at the center of it all, “like a man staring into a fog.”

But in contrast to those around him, the attack on Pearl Harbor appears to have brought FDR’s thinking into focus. After dictating a draft that evening, Roosevelt made a few (although critical) handwritten edits the next morning, and that was it. Such apparent ease (this was not typical even for FDR, who often had his speechwriters write for him and poured over multiple drafts) seems even more remarkable considering that he had to achieve two somewhat competing purposes: both to calm a fearful and shocked public and to convince a skeptical Congress to throw the country headlong into a vicious war. And he had to make that case live, in a packed joint session of Congress, and on radio before tens of millions, with the eyes of history firmly on him.

How even to begin such a monumental task? Well, here is the actual edited version of that iconic first sentence:

Respectfully, as written, this is not a particularly good sentence. It’s wordy, a bit awkward, and in the passive voice. But as spoken, as we all well know, it has enduring power. It sticks like an earworm.

The question every lawyer should be asking is, why? In my mind, three things stand out:

The diction. The sentence could undeniably have been far more succinct (“Yesterday, the United States was…”). Everyone listening knew the previous day’s date and its significance. But by saying it out loud, FDR was telling his audience, forget all you know about 1941, we’ve pivoted to something completely new. Then, of course, there’s that famous appositive phrase ending in “infamy.” If there was ever a better case for thoughtful editing, I’d like to see it. “World history” made the point well enough, but “infamy” was unusual and emotive, and therefore resonated. With that single change — not just historic, but heinously so — Roosevelt, in a single word, defined the moment in a way that tapped into the spirit of a victimized nation.

The delivery. What he said was amplified by how he said it. He projected this first sentence with a tone of controlled anger that brought the diction to life. He sounded authentically mad, and he likely was, given that he had been Secretary of the Navy and revered its sailors and ships. But the real source of power in Roosevelt’s delivery is something far more subtle: its cadence. Few can imagine the pressure of coming to that podium — on that day — and the temptation to rush that first sentence just to break the tension. But FDR did the opposite. He slowed down and articulated each word so that it was fully present. Try saying it out loud as slowly as he said it. It’s not easy, but it works. Even more, the rhythm works. Try saying the sentence with “world history,” and you find yourself stumbling over an extra syllable. 

The framing. More than just the date, he explained what happened. Given the rapid spread of the news, everyone already knew the U.S. had been attacked, but by retelling it, and evoking and framing the images that were already on everyone’s mind — the U.S. was suddenly and deliberately attacked — FDR provided the narrative for his upcoming argument. Here again, the edits are important. In the original draft, “deliberately” worked because it established intent — the attack was premeditated. “[S]imultaneously,” on the other hand, added nothing but sesquipedalian fluff. The switch to “suddenly” added the new element that the attack was not just an act of war; it was an act of deceit — Japan had not even issued a war declaration. 

After that opening sentence, Roosevelt then proceeded to back up this framing with facts. He focused not on the broader history of Japanese expansion, or even on the alarming progress of Japan’s closest ally, Nazi Germany (probably the greater threat and never mentioned), but rather on the attack itself — how the U.S. was “at peace” and “in conversation” with Japan, still receiving messages during the attack with “no threat or hint” of war; how the distance between Japan and Hawaii showed that the attack was “deliberately planned” in advance; how Japan had caused “severe damage” to American naval forces and cost “[v]ery many American lives”; and how Japan had simultaneously initiated attacks across the Pacific region, including in the Philippines. 

It wasn’t just the fact of the attack. It was the “character” of the attack. This was personal. FDR was not just asking Congress to declare war. He was motivating the country to fight and win it. “[T]he American people will in their righteous might win through to absolute victory,” he exclaimed. This was about justice.

He then again referenced December 7 and asked that Congress declare that a state of war against Japan “has existed.” And that was it. The entire speech was a tidy 432 words over just two-and-a-half, widely spaced pages. (The gold standard for brevity is, of course, President Lincoln’s Gettysburg Address, which comprised only 271 words. It also began with unusual diction and a framing of an iconic moment in American history — the signing of the Declaration of Independence.) In the end, Congress erupted in applause and quickly passed a war declaration with only one dissenting vote. More than that, the division and confusion that had so gripped the country gave way to one much more united in a common cause.

In hindsight, it is tempting to view the speech as an opportunity that could not fail, as if Roosevelt could have read his horoscope and achieved the same result. But here it is worth considering the speech that wasn’t given that day. Concerned that Roosevelt’s version was too narrow and spare, Secretary of State Cordell Hull had his Assistant Secretary, Sumner Welles, who was one of Roosevelt’s closest foreign policy advisors, draft a second, more fulsome version. 

Had Roosevelt opened with its first sentence, I doubt many of us would be able to recite it today: 

Present developments in the Pacific can be best understood against the historical background of our relations in that area. 

In other words, settle in, I eventually plan to get to something important. The next sentence — where we hope to get a sense for what we’re all doing here — is an even greater catastrophe:

Throughout the entire period of our official relations with the Pacific area the people of the United States and their responsible officials have recognized that the best interests of the United States and the traditional respect of this country for freedom coincided with dealings looking toward respect for the sovereign rights of the countries of the Far East.

This fustian rhetoric goes on for another seventeen pages. 

To be fair, Welles’ speech does make a much more comprehensive — no doubt to many lawyers, better — case for declaring war. It details the history of Japanese-U.S. relations back into the late 19th century, up through Japan’s invasion of China in 1937, and across several months of attempted diplomacy in 1941. And the basic concept described above — support for sovereign rights — is certainly worthy. But what was on everyone’s mind — the surprise attack, or “present developments” — aren’t addressed until the last page, and only there with the single bland statement: “Japanese armed forces have now attacked us.” It’s as if any discussion of the attack — the impetus for the speech itself — is deliberately suppressed.

Think about that. Two versions of the same speech, written at the same time by the same administration, and the approaches could not have been more different. (Apparently Roosevelt politely accepted the second version and promptly ignored it.)

This gets us to the final question: why should lawyers care?

Granted, it is highly unlikely that any of us will ever face the daunting task of having to step before Congress to seek a war declaration. But lawyers do face times where we need to step in front of a crowd, present a predicament, and ask for a decision. Take the opening statement. We all know the elements of a good opening: explain the evidence, tell a story, introduce the characters, don’t argue, and don’t overpromise. But those guardrails don’t tell us the route we should take. As a result, many of us give in to the temptation to leave nothing out — to present the broad version of a case that Welles favored, as opposed to the narrow one that Roosevelt used. 

In February 2013, I attended a trial in New Orleans for the Deepwater Horizon disaster, which three years earlier had caused the deaths of 11 rig workers, the release of over 200 million gallons of oil, and the devastation of fragile marine environments and local fishing economies across the Gulf of Mexico (we represented more than a thousand commercial fishermen and related businesses). The trial was divided into three phases, with this first phase to determine the degree and allocation of fault among several defendants — mainly, British Petroleum (the drilling rig operator), Transocean (the rig owner), Halliburton (the cement contractor), Cameron (the BOP manufacturer), and M-I (the drilling fluids contractor).

The trial was unusual for several reasons, but what made it truly unique was the sheer number of parties and interests in play: private plaintiffs numbering in the tens of thousands, federal and state governments, and multiple international corporations, all with their own agendas and arguments, there either to assign blame or deflect it. Even more, the key fact issue — what went wrong drilling a well in a fragile geologic formation 18,000 feet below sea level — was exceedingly complex and required fluency in technical language involving riser unloading events, blind shear rams, and so on. There were arguably dozens of failures in both management and equipment that were possible links in the causal chain, some dating back several years.

The first morning, the courtroom was a mosh pit of trial lawyers. After introductions, U.S. District Court Judge Carl J. Barbier quickly moved to opening statements. There were nine in all, and what I am going to do here is present just the beginning of each opening. And because I plan to offer some criticism, let’s just first acknowledge that it is neither my aim, nor is it fair, to judge a trial performance by the first sentences of an opening statement, and that there might be sound strategic reasons behind a number of these. Let’s also acknowledge that this was a bench trial, not a jury trial, so that the trier was a trained legal expert already well familiar with the parties and evidence.

With that out of the way, here they are in the order given. See if you notice the one that most closely adopts the Roosevelt approach:

1. Why did this terrible tragedy happen? That’s why we’re gathered. Let’s begin with Transocean, the owner and the operator of the Deepwater Horizon. They seek limitation of their liability.
2. [Picture.] This was the Deepwater Horizon on April 22, two days after the Macondo well blew out. The job of the parties in this courtroom today, myself, my colleagues from both the plaintiff and defense side, is to try to give the evidence to the Court so you can decide how this tragedy happened, why it happened, and who caused it to happen. 
3. In due course, Your Honor, I’ll have the opportunity to detail the lingering economic and environmental devastation the defendants inflicted on Alabama. I’ll have a great deal to say about those damages at the appropriate time, for they are indeed great. 
4. And we’re here to do justice. 
   Trials are important. This court has stated for the benefit of the press and those who are watching that we’re having a trial and it’s important for the general public to understand what we’re doing.
5. At 8:52 p.m. on April 20, 2010, a conversation took place on the Deepwater Horizon that explains virtually everything you need to know about what happened on the rig that night.
6. Your Honor, this case is about a loss of well control and BP’s attempts to blame Halliburton and others for BP’s misconduct. [The United States’ lawyer] said it very succinctly when he said, “BP blaming Halliburton is disingenuous.” You’ve heard other lawyers say, including the Transocean lawyer[,]…said that BP is attempting to blame others for its misconduct. 
7. There have been a good number of statements made today that BP has been pointing fingers at its contractors. I hope that Your Honor will see what we have to present today as pointing out facts that will be helpful to the Court and not pointing fingers. That’s certainly our intention in terms of our presentation and in terms of what we intend to present at trial.
8. In 2001, more than 11 years ago, Cameron manufactured and sold the blowout preventer for use on the Deepwater Horizon. During the course of this evidence, Your Honor, you’re going to learn, among other things, that Cameron was in fact the inventor of the blowout preventer back in the 1920s.
9. M-I SWACO, which I will refer to you in my opening statement today, was the drilling fluids contractor that worked on the Macondo well, the Deepwater Horizon rig. Now, in the world of oil and gas exploration, drilling fluids are often referred to as drilling mud. Therefore, during the course of this litigation, you’ll probably come to know my client, M-I, not as the drilling fluids contractor, but as the mud company.

Some of these are indefensible — as, for example, the one that uses the most precious time by telling a federal judge and roomful of trial attorneys that “trials are important” (this was also after a lengthy introduction thanking various participants, including the lawyer’s own staff). Others are understandable, at least beyond the point of second-guessing. But one, and only one, opens with specific, vivid evidence on which the lawyer wants his audience to focus: a gut-wrenching conversation that pinned the blame squarely on another party by illustrating an alarming callousness to blatant warning signs of extreme danger — the point at which any reasonable person would have said, stop!

As with most aspects of litigation, it is impossible to know whether or to what extent this actually worked. The conversation did feature highly in the court’s findings of fact, although other parties, including the federal government, mentioned it as well. But to dwell on that is to miss the point: these precious opening sentences provide an opportunity to set a theme and tone that is hard to forget. Take that opportunity. If a case makes it to trial, it presents a broad and complex landscape of facts and issues. Try setting aside your wide-angle lens and using one with a narrower field of view. Identify a key moment — a turn of the tide or fork in the road — and craft a couple of sentences around it, placing it in an effective and appropriate frame. Read it out loud, slowing down and sharpening the language until it takes on a natural, lasting quality. Then build the context around it. Chances are this will help to bring your entire case into focus, and consequently, to life. 

Above all, do not mistake being comprehensive for being effective. Your team of advisors will naturally lean towards the former. Listen to them, but in the end, it is up to you to pick and choose that advice and to use your own words. You are there to persuade the trier, not impress your team, and that ultimately benefits your client. Even seasoned litigators need reminding to trust the instincts and training that got them to where they are. Roosevelt himself was a trained lawyer who, during the non-public parts of his career, practiced law. I like to think that this experience came in handy during the 23 hours between the attack on Pearl Harbor and FDR’s historic speech, when the ability to remain calm and think clearly mattered most. 

1942 would begin with more devastating setbacks, including Allied defeats at Singapore and Bataan. But the fortunes of Japan would irreversibly change when, on June 4 at 10:22 a.m., a lookout on the Kaga, one of four Japanese fleet carriers just northwest of Midway Atoll — the same carriers that had been at Pearl Harbor — spotted squadrons of American Dauntless aircraft headed their way. “Kyukoka!” he shouted. Dive-bombers.

The rest is world history. 

References:

• Doris Kearns Goodwin, No Ordinary Time. Franklin & Eleanor Roosevelt: The Home Front in World War II (Simon & Schuster).
• Speech by President Franklin D. Roosevelt before Congress, December 8, 1941.
  
  • Read it here.
    
  • Listen here. 
    
• The speech FDR didn’t give: Assistant Secretary Sumner Welles’ draft.