23 February 2020
Sometimes and only sometimes, I think back on the times when I did work that required me to appear as an advocate in court. I did some trials but mostly I did motions. One of those sayings popular among attorneys when I was in practice was that if my client had to undertake a trial, I had failed my client as an attorney. Trials are rarely in the client’s best interest.
What they depict on TV about attorneys bringing a motion before a court really doesn’t capture the whole experience. What you see on TV begins with a couple of lawyers spit balling some ideas about how to approach a contentious legal issue. Usually two lawyers on the same side are seen framed in a library with lots of thick bound law books going back and forth on a very clear and clean legal issue a couple of times. Eventually, one of them either turns to a laptop or leans their head down and begins to scribble on a legal pad. Next you see them in a courtroom for about 1 ½ to 2 minutes of screen time maximum. Opposing counsel fire some pithy sharp barbs back and forth. Suddenly the hero attorney of the story is in the hallway talking to a client explaining what happened. Start to finish the TV process for a motion takes about four minutes. Blech, it isn’t like that at all.
In reality the process is much longer and much, much more stressful. Cigarette manufacturers, candy vendor and liquor stores would not fare well these days without the legal profession. Preparing for a motion or a trial requires booze, sugar, smokes and caffeine.
Let us say that you are engaged in a civil lawsuit. Key to civil litigation is discovery. In going through a file, you realize what process the opposing party undertook with regard to people with similar problems to your clients. Your client’s opponent’s acts in remediation appears to be key to resolving the case.
Having come to this conclusion you think about what kind of information will disclose this pattern. What did you really want and need; letters, e-mails, memos? You spend a couple hours trying to think of what you want from the opponent to develop this issue, and then you write up your request to produce.
Writing up a request to produce and its sibling document, the interrogatories, is complicated. If you have ever read a story about somebody dealing with a jinni you understand the precision of the words to be used in the exchange is critical. You ask for this but not that. You want items created between this day and that date. You want documents created specifically by certain persons. As you type this all up you are rocking back and forth in your chair. Every so often you flex the muscles in your calves and you squeeze and release your hands. After you are done you print up a copy and then you lay into it with whatever correction pen you prefer, blue, red or black. There are carats and arrows and indecipherable squiggled lines of text to be added.
Eventually you finish up your document and you send it off to a clerical staff member to format and get ready for service. Off it goes first class mail.
23 days later you get a response that refuses to provide anything. The response asserts everything you asked for is irrelevant or immaterial or doesn’t exist. You absolutely know some of this material exists because you client brought in affidavits and letters from the opponent to people who had been in the same situation as your client. Having been stonewalled it is now motion time.
In numbered paragraphs you detail your reasons why the judge sitting on the case should order the other side to give you the papers you want. In 20, 30 or maybe 50 paragraphs, you list what you want. Worked in among those paragraphs are some statutes and case law that you believe show why the refusal to produce the information is improper and unreasonable. This work goes on for hours or maybe a day. You do a brief in support.
The whole muscle flexing process continues. You go out to Westlaw on your computer or you pull down one of those books of case law and read. As you are researching the law you are angry at the bullshit the other side is pulling and the money they are wasting. Your anger sends your blood pumping. You drink coffee when you are slogging through the long dry passages of caselaw. You eat high sugared candy for bursts of calm and extra energy. Snickers has the highest quickest energy blast. The same editing process with pen and carats and circled text occurs again. Looking the opponent’s response again to see if you missed anything just pisses you off.
Eventually you finish up the motion and brief. Your clerical calls the court and gets a motion date. You have the clerical do you a notice of hearing. You review the whole packet one more time before it goes off in the mail.
Probably at 4:30 pm on the 3rd day before the scheduled hearing date, the opposition’s response comes hand delivered. You read it and your face gets red. You clench your fists. You make copies of the response and by 7 pm that night with more coffee and candy having been ingested, and you may have sucked down some gut bomb burgers, you have drenched a copy of response with circles and citations responding to their arguments and citations. Your body aches and you go home and have a drink. Because you are a lawyer you drink only one shot of scotch, okay well maybe two. Okay, three at the most.
The next day you pound out an outline with the key law highlighted and all the arguments of law and equity you can muster. You work through lunch. You take phone calls. You meet with a highly needy but not high value client on a different case.
If the door to one of you associate’s offices is open, you go in. You spend 15 minutes running through the key issues and both your position and the opposition’s. You re bouncing what you are facing off this person to try to get a gut feeling of whether you really have the law and facts on your side. You talk about the judge and the judge’s predilections. Yes, he really does have a pistol in an ankle holster when he is on the bench. You go back to your office and rework your outline; you eat some more candy or maybe some cold French fries somebody had left in the breakroom on the table.
Finally, comes the day of the hearing of the Motion. You show up early because this is a cattle call, first come first served. So, by 8:15 on a Wednesday morning you are hanging out making small talk with the judge’s clerk and other counsel as they check in. These conversations are important because they tell you who has cancer, who has had a heart attack, who has died, who is fucking their secretary and who has gone off the wagon and is back in the crosshairs of the attorney grievance commission. Given the fishbowl you work in, you need to know this stuff.
And then you sit in the courtroom and wait and wait and get pissed off at wasted time. Papers get pulled out of your briefcase and you look at other files. When the judge takes the bench, you listen for your client’s name to be called. Yes, you scan those other files, but you are half listening to the other hearings. You want to hear the ebb and flow of those proceedings and the tones of the voices involved. This moment is when you can gage what mood the judge is going to be in when you get up to speak. And every muscle in your body is tense. You want to win. Your heart keeps pumping at maximum.
The culmination of all this comes when your case gets called. You stand up at the podium and your hearts is pounding even louder now. Palms sweat. Take in a deep breath and let the outflow of air slowly escape over your lips. The outline of your argument sits on the podium. Your hands grasp both sides of the podium’s top. Words begin to flow from your mouth and you try to hit all the salient point. Still you mind and body are on full alert for you are waiting for objections from opposing counsel, or you are waiting for the judge to pose a question. Muscles tense and stay tense and your heart continues to pound away. Take another slow breath and end your argument on a well-articulated, relatively loud, short clean syllogism.
As you take your seat opposing counsel begins to speak. No matter what his words actually are he is essentially restating Joe Pesci’s comment in My Cousin Vinny, “Everything the proponent’s attorney said is bullshit.” You listen to see if he uses the tired argument he raised in his response. You jot notes down and put exclamation marks beside things you want to say in a quick response, if the judge lets you give it. Your BS meter has to be on high, because you might have to jump and assert opposing counsel is mischaracterizing the law. And then it is done. The judge states his finding orally. You won.
You walk up to the bench and hand the judge the proposed order compelling the production of the material you requested. In a minute three copies are signed and trued and handed back to you. You hand a copy to opposing counsel and head out to your car. While you were at the bench the judge put his hand over the microphone recording the proceeding and asked it you saw the goal in the last two minute of the hockey game the night before. You and the judge have had some beers together at games past. As soon as you got up this morning sucking down coffee and eating dry toast, you had made sure to be familiar with the game’s highlights before you came in today, you knew the question would be coming.
At the point you sit in your car with a sour gut. Nexium just doesn’t cut it anymore. You are agitated because you didn’t sleep well the night before because your mind was running down every possible turn in the hearing it could imagine. Every muscle in your body is aching. The whole time in the court room, without your constant awareness, your muscles were stretching and contracting. Just 10:30 am and you so want to take something and drift off to sleep. But the phone rings and answering it and you know you are heading back to the office to put some fire out on one file or another out. Tonight, the scotch level will move to three or four shots. And maybe you wash that down with a dose melatonin or maybe Xanax.
This cycle repeats again and again. Years turn into decades. The hours at the office grow, and when you do a trial the stress on your body burns off 5, or maybe 8 pounds over a short three-day affair. You shit razor blades.
A human body was not designed to eat stress at the level an average attorney’s life requires. The diseases that arise are not a surprise, cardiac, vascular and maybe mental. Poor diet, rotten exercise patterns, alcohol abuse and just downright burned out hours lay waste to the body’s defenses. As a result, cancer is always waiting in the wings. Unless you were raised in a family of lawyers, you don’t know any of this going in. By the time you figure it out, the hour is far too late to stop you from joining the circus.
Don’t get me wrong I love the fact that I was a lawyer, and then an administrative law judge. It was great stuff. I have learned things about things I didn’t not existed. I have knowledge of things from impellers on water cooling systems for manufacturing plants to what the term plain vanilla box means in the construction trade. But the toll it has taken I do not know. I have had diseases and health issues that maybe I wouldn’t have encountered if I had gotten a job in my preferred profession, i.e., as a librarian. Every career has it burdens, roofers shoulders and knees get destroyed, OTC drivers go deaf in their left ear, pipefitters get irradiated at nuclear plants, and field workers get a buildup of pesticides in their livers. But the stress level of being an attorney really takes its toll.
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