June 2026 eBulletin Now Available

Dear Fellows:

On May 17, 2026, Joy and I joined the Indiana Fellows at the Indianapolis Motor Speedway for the qualifying rounds. The Fellows rented a suite in Gasoline Alley, which gave us access to the pits and to great bleacher seats positioned just below the finish line. What we observed brought to mind our work as trial lawyers.

The Opening Round of the qualifying for the Indy 500 works like this: The drivers race the clock, one vehicle at a time. Average speeds are calculated over a continuous four-lap run.  The fastest car gets the tentative pole position, which is the spot closest to the inside lane in the three-car wide row during the race that will be held on Sunday the 24th. The slowest car is stuck with spot 33 – 11th row, outside position.

The drivers take a break and then the top 12 race again in the “Top 12” round, once again for four laps against only the clock and each juggling for a higher position in the top 12. The number 12 finisher from the Opening Round goes first, while the number 1 finisher goes last so they can gauge how aggressively they need to compete to finish higher in the pack.

After the Top 12 round and a break, the qualifying concludes with the Firestone Fast Six.  The top 6 cars go at it one more time, once again for four laps in reverse order, each trying to secure a more favorable spot in the first two rows for the May 24 race.

That Sunday’s winner was Alex Palou, the Spaniard who won the Indy 500 last year. His average speed in the Fast Six was 232.248 miles per hour, hitting almost 240 on the back straightaway. Paulo made it around the 2.5-mile track at an average time of 38.752 seconds. The second place finisher, Alexander Rossi, clocked in at 231.990, with an average lap time of 38.794 seconds. Finisher number 6 was 230.442; his average lap time was 39.055.

In other words, the time gap between pole position and the sixth position was .303 seconds. The difference between first and second place was .042 seconds – 42 milliseconds. To put that in perspective, a human eye blink lasts between 0.1 and 0.4 seconds.

At 232 miles per hour, a car is traveling 340.631 feet per second. Per second! In just .042 seconds, that car covers 14.307 feet.

So, the difference between the two leading positions was the length of a surfboard. Or a canoe. Over the distance traveled of 2.5 miles per lap, or 13,200 feet.

What difference did .042 seconds make? Exactly what is the significance of the pole position? Besides the historic recognition, the team receives a $100,000 bonus, and it qualifies for an additional cut from the $20,000,000 + purse.

Second, the team gets one championship point toward the NTT INDYCAR SERIES (where Palou is in the lead for this season).

Third, the pole driver gets the clearest view heading into the first corner, avoiding the turbulence and chaotic pack dynamics of the mid-field. This helps reduce the risk of crashing early – 88.8% of drivers who earn the pole actually finish the race. (For all drivers, there is a 60% chance of finishing the race.)

The pole sitter also gets the first choice of a pit stall, which can decrease pit time and reduce the risk of pit-related crashes.

But most importantly, the person who gets the pole position is most likely to win the race. Out of 109 Indy races to date, the pole sitter has won 21, more than any other starting spot. In fact, if you are lucky enough to be in the top 6, history tells us that your odds of winning are far higher than remaining 27 drivers – someone in the top 6 has won more than 70 times in 109 races.

Now, I know these are statistics and that they don’t necessarily mean anything on any given Memorial Day race. And you will hear all sorts of talk during race week about how the drivers have a strategy to come from the back or the middle of the pack to take the checkered flag.

But every single one of them wanted the pole position. Or at least to be part of the six-pack.

So, why am I writing about this in a publication for the nation’s best trial lawyers?

Each of these drivers is extremely competent and competitive. They are the best of best.  Indeed, each member of each team is competitive. I was in a pit crew for a dirt track car in high school. We cared. We would have fistfights in the pits when one driver cut off another or gave a love tap slashing another driver’s tire. These people take this stuff seriously – it is about a lot more than money.

So, you know that these drivers, indeed the entire team, play the “What if” game after the time trials. What if we reduced the inflation level in one tire given the high track heat? What if we got a little closer to the wall coming into the turns? We risk a crash, but we gain speed.  What if I went into the curve with a little higher speed? What if we used a different carburetor? What if? What if? What if? How could we have made up that blink of an eye?

In other words, they play the same game we do after every deposition, every significant motion hearing, and every day of trial. What if I had…? What if I had not…?

Shel Silverstein, the gifted poet and songwriter who died way, way too young, taught us about Whatifs in his 1981 children’s book, A Light in the Attic.

Last night, while I lay thinking here,
Some Whatifs crawled inside my ear
And pranced and partied all night long
And sang their same old Whatif song:

Whatif I’m dumb in school?
Whatif they’ve closed the swimming pool?
Whatif I get beat up?
Whatif there’s poison in my cup?

Whatif I start to cry?
Whatif I get sick and die?
Whatif I flunk that test?
Whatif green hair grows on my chest?

Whatif nobody likes me?
Whatif a bolt of lightning strikes me?
Whatif I don’t grow taller?
Whatif my head starts getting smaller?

Whatif the fish won’t bite?
Whatif the wind tears up my kite?
Whatif they start a war?
Whatif my parents get divorced?
Whatif the bus is late?
Whatif my teeth don’t grow in straight?
Whatif I tear my pants?
Whatif I never learn to dance?

Everything seems swell, and then
The nighttime Whatifs strike again!

As Fellows in the College, we continually challenge ourselves to do better over the decades of our work life. We might be loath to say it out loud, but we play the Whatif game. It is what wakes us at 1:33 a.m.

What if I had not called that witness? What if I had not asked that question. What if I had added a theory? What if I had dropped a theory? Did that defense alienate the jury? What if I had used a preemptory on that juror? And on. And on. And on.

The Whatifs were relatively rare when we were new lawyers – we did not know what we did not know. Then, as we began to understand how seemingly minor decisions can make a world of difference, the Whatifs hit us like a ton of bricks. And the more we learned our craft and saw outcomes change based on judgment calls, the more our Whatif visits increased.

Our rational mind knows causation would be impossible to establish for most of these matters. But in the middle of the night reasonable minds cannot differ: the Whatif straw breaks the trial’s back.

It never goes away. Not if you truly care. And we all do.

May your Whatifs be few. May you manage them as best you can. And may they never completely disappear.

Postscript

The above was written before race day, May 25, 2026.

Felix Rosenqvist, who started in the second row right behind the pole won the 110th Indianapolis 500 in the closest finish in the race’s century-plus history. In a final-lap shootout, he surged from third place, rode the high line out of Turn 4, and edged David Malukas — who led coming off the final turn — by .0233 seconds and roughly seven feet. Two beats of a hummingbird’s wings. The slimmest margin in Indy 500 history.

That .0233-second difference earned Rosenqvist’s team $4.34 million — $2.65 million more than Malukas received — along with championship points and a fortune in sponsorship value.

And the polesitter, Palou? He finished seventh. After the race, he was sanctioned for an unintentional assembly error on his front wing. The penalty: a $10,000 fine and a five-point deduction in the championship standings.

What if? What if? What if?

John A. Day
President

To read the full eBulletin, click here