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Learning how to practice law in front of one judge at a time

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The Messenger Shoots the Message Writer

As an associate, you are at the beck and call of the partners. This can mean getting the call at 9:25a.m. to show up for a 9:30a.m. court hearing knowing only the courtroom where you are supposed to be present in less than 300 seconds. If you’re lucky, you have good enough cerebral flexibility to (1) put on a tie, (2) while running to the courthouse and (3) formulating how you are not going to make an ass of yourself in front of a packed courtroom. If you’re not, well, these situations are probably not going to be your forte. The advantage to this 0-60 approach to litigation, is that you always have the out by blaming the partner who should have been there in the first place.

I mean, feigning ignorance of the situation.

The call came about 12 minutes before the court hearing. I hadn’t planned on being in the halls of justice today, so I was not appropriately groomed or attired when I picked up the phone. No matter, this was an ‘emergency’ and a ‘warm body’ was needed and not to worry, ‘nothing major was happening in the case so it will be rather simple.’ At the utterance of those words, I knew I was going to be in an uphill battle from the moment the judge asked that I come forward. Nonetheless, I went. And, predictably, it was boring. Not.

Counsel, I’d for you to explain to me why you think you can ignore a handful of prior orders and think I will do nothing. Tell me why I shouldn’t find you in contempt.

A couple of years ago, I would have likely stammered a little bit, had a blank stare and probably started responding with something eloquent like “Wha-ha-happened was…” but I am now a little more seasoned in dealing with adverse situations. Thus, a slight smile and conciliatory tone was needed:

Your Honor, I can understand your frustration with this case. As I said when I stepped up, I am standing in the stead of the attorney of record. I don’t even know if I am the Plaintiff or the Defendant. What I would suggest, and I believe that opposing counsel agrees with this, why don’t you give us a little more time. With a simple caveat, if your order is not complied with you can take lead counsel out and beat him with a stick. Knowing the lawyer as I do, he needs proper structure to ensure his compliance with simple, judicially required tasks…

After a little more banter, the Judge decided against corporal punishment as well issuing me a contempt citation. Turns out my approach to this mess allowed the partner and his client to survive for another day. For me, I consider this court hearing a victory as I got the judge and opposing counsel to laugh in open court.

That’s what matters right?

The peril of asking one question too many

I’ve got a few cases that are best described as hot garbage and that’s why they are mine. The partnership has deemed them to be lost causes that someone has to cut their teeth on to learn the dark arts of lawyerdom. The best part of cases like these is that I have absolutely nothing to lose and absolutely everything to gain. The same cannot be said for my adversaries in cases like these.

In the past, I’ve been handed a lost cause file such as this case and was able (1) to win at trial in one, (2) convince the other side to settle in another and my personal favorite (3) take one deposition that resulted in a settlement twenty times larger than was originally hoped for. That’s not to say I haven’t had an equal or greater number of these cases completely blow up to the point of being unsalvageable…but I’ll save those for another day.

But back to the case at hand…

This is a matter where the Plaintiff is an ideal human being. Truly. She’s a minister hell bent on saving the underprivileged with absolutely no skeletons hanging in her closet. If I could make a model client, it would be her. Unfortunately, her case is one where proving liability is a major problem. Defense counsel seemingly knows this but is hell bent on billing every hour imaginable before delivering the kill shot. Think of a bear toying with its dinner but instead of just a fur coat, the aggressor is wearing a Gucci suit, Louboutins and has the fur coat slung over an empty conference room chair.

Thankfully this scene is devoid of a tuna being tossed mercilessly in the air.

The deposition in this post arises from is of an independent expert who was not disclosed to opine on liability whatsoever. I have no idea why defense counsel decided to depose my expert and I didn’t really object to it as they were footing the bill. It went as expected: meaningless testimony after meaningless testimony. Then it was my turn to ask meaningless questions that attempted to find new ways to attach liability to the defendant but to avoid the underlying main liability argument (due my thinking that it is weak as hell). My questions were derived from the age old legal strategy “where there is smoke, there is fire, I hope.” In essence it was playing small ball in the hope that it would frighten Defense counsel into coughing up a little something for my trouble and this strategy didn’t expect to do much other than maintain the status quo. What I failed to account for was an overzealous defense attorney that asked one question too many. Without disclosing the subject being testified about, the question and answer went something like this:

“Mr. Expert, testimony has established that in this case the defendant was faced with a similar situation like we’ve talked about and he did X. In your expert opinion, so we’re clear, did the Defendant act properly?”

The defense counsel was going to try and spike the football with regard to their liability defense. There was no need for it and I didn’t expect it coming based on the testimonial evidence so far, but apparently this lawyer did not want to quit when she was several touchdowns ahead. But she asked the question anyway. I saw what was coming a few milliseconds before it was verbalized. The witness shifted in his chair ever so slightly, pursed his lips and proverbially punched the ever living shit out of a defense counsel leading with her chin:

“In my expert opinion you have to do X but you also have to do Y and Z, as well as A, B and C. And that’s not enough either, you have to do X over and over and over and over and over again. And then you have to make sure that X worked. Only then can you say what you did was proper.”

The smile on my face grew with each word coming out of the witness’ mouth. The response seemed like it went on forever because it was burying the defense one syllable at a time. I don’t know what the end result of the case will be, but I can assure you that this one is no longer a sure fire loser.

How times have changed

When I was in law school I remember spending weeks preparing for mock oral arguments, whether they were for moot court or for some other class that required them. I had to make sure my various speaking tics were controlled, my pace had to be just right and I had to be able to deftly deal with interruptions. Memorization and practice were the names of the game. Lots of both and lots of stress tossed in for good measure. Then I became a practicing lawyer who did this stuff for real.

And things started to change.

My first year, I spent a week preparing for my first contested motion argument and countless hours at home inhaling the various factual & legal issues I was going to be grappling with in front of a judge. In my third year, I carved out an entire day to get ready for the impending verbal fisticuffs and I then spent the night drinking scotch while reviewing the arguments. I suppose that as I get more experienced, the matters I’m arguing come a little easier to me now than they used to and I know for a fact that the nervous energy is no longer what it once was. Now in my fifth year, I spent about 20 minutes reviewing the briefs. While on the phone, reviewing my fantasy football team and texting.

One thing that hasn’t changed? I absolutely love standing before a judge arguing my case.

How to Stall the Wheels of Justice

I’ve got a client who I’m doing my best to defend. It’s one of those tricky cases where the law, the facts and the world are all on the side of my opponent. She knows it, I know it and worst of all, the judge knows it.

It’s the legal equivalent to the Kobayashi Maru.

As it is a no-win situation, all I am left to do is buy as much time as possible. And I must do so without the judge getting wise to my plan which would result in the true death for the client. In the past, I’ve found that the best way to accomplish my “noble” goal is to stay away from the facts that do the most harm to my request (e.g. that I’ve delayed this matter over a year so far) and, well, also staying away from the facts all together (e.g. my client having no defense whatsoever). I shall also stay away from eye contact, respiration, questions, guttural noises and hanging prepositions. In my favor, I’ve got a judge with a jammed docket that has about 2.3 seconds to spend analyzing the history of this file, an opposing counsel that has agreed to “whatever the judge wants to do is fine by me” who then left the room and a early spot in a crowded court call line.

Now to put the plan into action: The case is called, I leap before the bench and tell the judge we have an agreed order. The judge responds with no delay, no questions, no curious look, no awkward pause, no semi-bluff to draw out my weak hand: “Come back in two months. Next case.”

The client lives to die another day.

And that’s what I call successful lawyering.

Other than that, I’ve got a surefire winner

Opposing counsel: How do you want to respond to my motion to dismiss?
Me: I don’t…
Opposing counsel: What do you mean?
Me: Between us girls, there is no way I win.
Opposing counsel: What?
Me: Off the record, the facts are not on my side. The law is not on my side. And frankly, I don’t want to waste my time, your time or anyone else’s time.
Opposing counsel: You could always dismiss your case. You’d have a year to refile it.
Me: All the time in the world won’t change this steaming pile into a diamond necklace.

Honestly is the best policy, as long as there is no court reporter.

Learning to swim

I watched one of my friends step before a judge for the first time today. I snuck into the Courtroom, sat near the newbie and promptly ignored what was going on. (I didn’t want to cause a scene or cause an even bigger case of nerves to prompt something bad happening.)

Figure I can save that for this lucky one’s second appearance…

This learned, suit-sporting soul stepped up, looked up at the judge and then survived a first case management conference. This 18-second affair took place under the watchful eye of a senior associate carefully making sure that nothing happened to permanently damage this young attorney. Obviously, on my anniversary of bar admission, watching someone go through this process has taken me back to my first time. None of the similarities to today’s viewing was like my own first foray before a judge. I had no supervision, was given no guidance on what was about to happen and I didn’t have a clue on how to complete an order.

To complicate matters further, the judge was in a foul mood that day.

I remember my hands being clammy and shaking (though that could have been the caffeine) all the while wondering if the flop sweat was going to be seen through my suit. I seem to remember the judge entering sanctions against at least three different lawyers that day…though this could be my imagination as I am also fairly certain that the judge breathed fire, had a pitchfork and actually was a member of Satan’s inner circle.

As countless new attorneys head off to court across the land for the first time, I’d like to wish you all the best of luck…unless I am your opposing counsel. You’ll be fine and it gets easier as you go, I promise. Just look at me: survived without permanent damage.

Except for the twitch whenever I see that first judge…

Three Ways to tell a Judge that I shouldn’t be held in contempt

I’ve got to go before a judge today and explain why I shouldn’t be held in contempt for breaking a rule regarding the filing of a motion. Let me be abundantly clear: This is dealing with a clerical issue only. I didn’t follow a rule that I didn’t know about…and that’s no excuse. (No matter how dumb the rule may be).

As I am staring this unfamiliar process in the face, I’ve come to realize that I can go about this one of three ways:

The Smart Way

“Your Honor, I made a mistake and I have no excuse. I should have known the rules before acting and I did not. I am at the mercy of the Court.”

The Wrong Way

“Your Honor, the rule that you have sought to sanction me for is asinine at best. The fact that you’ve wasted my time to chastise me for this questionable mistake leads me to believe that you are not a jurist, but a kindergarten teacher that happens to wear a robe. You’re lucky I actually showed up to this hearing.”

The Fun Way

“Contempt? You have to be F***ing kidding me. What the f*** am I doing here? One other thing, you’re a joke. And so is your toupee. I think I should hold your baldness in contempt. Lord knows all of us do. “

[Five minutes later] “Uhh…Deputy, I want my phone call.”

If you don’t here from me again, you can guess I went with “The fun way”

UPDATE: I was not held in contempt. I live to violate a longstanding court rule another day!

It’s not that I threw him under the bus, it was more of a subtle push

I was venturing round the boonies when I got a call from my office: “I might have entered the wrong order on that case I was covering for you…”

When I got back to the office, I grabbed the incorrect order and headed for the judge’s chambers. praying that I could undo this before any serious complications cropped up.

Me: Your Honor, I was in a different county this morning. I had another attorney from my office cover this and well, he entered the wrong order.
Judge: That happens. I’m sure that the associate is mortified right now. Tell him not to worry about it, we’ve had that happen a few times this week already.
Me: It…uhh…wasn’t an associate.
Judge: What? Oh… Ohhhhhhh.
Me: Yeah.

Should I tell my partner that my name is now Judas?

There was some sweating, some heavy breathing, and I was not wearing all my clothes

I woke up early today and was filled with a desire to be productive. I caught an earlier train and got to the office early to attack the ever increasing mountain of work applying for permanent residency on my desk. It was going to be a no-client, no-court day, thus casual all work Wednesday. Hoo-rah.

Then at 9:28 the phone rang:

Opposing Counsel: Hey there, I was just wondering if your Supervising Partner was going to be in court today for the case that we have up.
Me: What time is the hearing?
Opposing Counsel: 9:30.
Me: I see. [Oh fuck]

Now, I know my boss’s schedule for the day and I know that he is not planning to be in court today. I know this because he dressed much like I am, only more Tiger Woods-esque. I run to his office and explain the situation. His response is quite simple: “Oh fuck” (We are pretty sure we just didn’t get the notice of the court date). In my unshaven, no-tie, no hair product casual day, I saw fit to wear a sport coat (or as I framed it to one of my co-workers, ‘It’s like a purse only for a man’).

In the words of my boss after we got done unsuccessfully searching a few offices for a spare tie, I was dressed for court.

Federal Court.

So yes, 9:33am. Sport coat on. Heading quickly towards the elevator with my boss giving me the quick and dirty on what to do. 9:34am in the lobby and I run the two blocks from my office to the Dirksen Federal Building.

9:39am: I am outside the court room and I foresee a few problems:

  • I don’t know a thing about the case.
  • I have no idea who the opposing counsel might be.
  • I’m not sure if I’m there for the Plaintiff or for the Defendant.
  • I’ve never done anything in Federal Court.
  • I’m dressed like a bum.
  • I’m sweating.

About 30 minutes pass and I’m up. Turns out that I was there for the Plaintiff (I figured this one out on my own) and there were a fleet of sharply dressed defense attorneys that surrounded me at the podium. But then it happened for the first time ever on the federal record:

Good Morning Your Honor, I’m Namby Pamby on Behalf of the Plaintiff…

The good news was that the Defense lawyers were bickering about some procedural issues between the various defendants. The judge asked them about the facts of the case. All I had to do was say, “That sounds about right to me” after a long winded factual discussion about my firm’s client. The judge wasn’t too pleased with the defense lawyers, told them they had to get their act together, and that was that.

So that was my first foray into the land of the Federales. Totally unplanned. Totally off the cuff. Totally awesome. I love my job.

Staring into the abyss, the advice from my boss saves my ass

So there I am sitting in court awaiting my call. The Judge enters. And the day begins.

This isn’t the judge that reminds some of Judge Judy. This judge isn’t the one that I wanted to call Judge Jabba. This is the judge that scares me.

The first up of the morning got the judge in the mood: “COUNSEL, PLEASE TELL YOUR BOSS THAT NEXT TIME TO SEND SOMEONE THAT KNOWS SOMETHING…ANYTHING…ABOUT THE CASE AND KNOWS HOW TO DO THEIR JOB!!!!” It was fantastic for me in that his request was going to be the exact same as mine. Chills were going through my spine.

The second call of the morning wasn’t much better: “I cannot practice law for you lawyers. DO YOUR JOBS. This is insulting to the court!! Get it done!!!” Again, their request was the same thing that I was about to approach the bench to ask for.

Then it was my turn and needless to say, I was worried. All I could do was lead with the advice my boss game me. And it was like the waters parted, the clouds lifted, and I got everything I was asking for and then some.

I needed two weeks. I got 45 days. And a smile. From the judge that eats small children in chambers.

My Past Ramblings

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