This item appeared in the October 2006 issue of Barnett’s Notes on Commercial Litigation.

I don’t watch Curb Your Enthusiasm, but a recent incident prompted me to run an Internet search on it. And on that Googling hangs a story.

The American Lawyer published an article about the firm during my first year as an associate. It attributed a quote to Your Editor. I’d apparently babbled to the reporter that "at Susman Godfrey, you eat what you kill." Of that specific utterance I had no memory, but I did like the quote.

Recalling that long-ago philological glory led me, hopefully, to Google eat what you kill. The search returned a gratifying 35.6 million hits. But none of them credited or even mentioned Your Editor. Rats!

One result, on WordSpy, did give a good definition: "The business philosophy that a person who accomplishes something should get the full financial benefit that results from that accomplishment." But, to my dismay, WordSpy listed the "Earliest Citation" as a September 1987 article . Double rats!

A factotum (at length) tracked down a copy of the American Lawyer article. As you can see here, this gem of legal journalism bears a publication date of September 1986 — a full twelvemonth before WordSpy’s "Earliest Citation".

A skeptical client, overhearing my claim of eat what you kill coinage, related that a character in Curb Your Enthusiasm had similarly asserted provenance of a famous saying. I Googled curb your enthusiasm and found that, in the "The Nanny from Hell" episode, Richard Lewis had indeed tried to persuade the publisher of Bartlett’s Familiar Quotations to add "[blank] from hell" to Bartlett’s and to name Lewis as originator.

Aha! Your Editor’s thirst for fame as progenitor of eat what you kill soared. No longer did I want mere credit for a phrase that WordSpy says "is now quite common throughout the business world." No, Your Editor desired the prestige, the acclaim, the immortality that inclusion in Bartlett’s assures.

Good luck with that, I hear you saying, probably under your breath. But I defy you to find a pre-September 1986 printing of eat what you kill in its modern sense.

As I await your reply, let me offer some thoughts about what eat what you kill signifies in the context of practicing law, specifically commercial trial law. Several sources, including the book Eat What You Kill: The Fall of a Wall Street Lawyer (2004), emphasize the perils of linking compensation to business-getting. The real-life subject of the book allowed the rewards of making rain to blind him to his ethical lapses. Bad stuff ensued. Other commentators condemn the intra-firm competition, resentment, and selfishness that they imagine an eat what you kill philosophy breeds.

Sorry, but I don’t see it that way. I perceive no conflict between high ethical standards and high earnings. The one promotes the other. Lawyers and clients who think otherwise have misjudged reality.

Nor do I believe that eating what you kill corrodes a firm’s soul, certainly not at a commercial trial firm. Trial work in commercial cases, by its nature, requires collaboration. Its intensity and complexity demand collegial relationships and respect among professionals. And it rewards excellence and spreads success, especially in contingent fee cases.

Eat what you kill doesn’t provide long-term security. But business people want performance from their lawyers. If they think of their lawyers’ security at all, they want it to result from producing results for them.

Barry Barnett

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