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Sometimes you just gotta go and act like a lawyer

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Courtroom-2

That’s good news, because that’s what I do for a living.  The more I do this work and the younger everyone else is around me (I swear I was in Court today with an assistant District Attorney who was no more than fourteen), I realize that the advice of my current employer is exactly right – “sometimes you gotta just go into court and act like a lawyer.”

When that particular direction was given, maybe only a few years ago at most, I wasn’t sure what to make of it.  You need to know all the rules. You need to know everything about your case.  You need to know everything about your opponent’s case.  You need to know every piece of law, every reported case, every statute, and every rule of Court that is pertinent to every part of your case.  And if you don’t, well you can just forget it, curl up in a ball of anxiety and shake with fear until your appearance is over.  You are either prepared or your are not.

Friends, I have some news.  Life in a small firm is not like that.  If I had a team of lackeys working around the clock on all 100+ of my cases, I could maybe achieve something close to that level of preparation.  But in my world (where it’s mostly just me), it is simply not possible.  Now, if there is a big civil trial that’s worth a lot of money, then you definitely crank it up a notch or two.  But there are times – lots of times in my practice – where there is a Court appearance that may have a big impact on my client’s life and I don’t have the best part of it.  No amount of preparation is going to change that.  This is especially true in a civil case where the client has waited too long to get an attorney, perhaps hoping that a problem will simply go away.  And when it doesn’t, I get called in to mop up.  I got no problem taking out the trash and mopping up, but sometimes, there is only so much you can do, despite the fact that I’m being paid, perhaps thousands of dollars.

That’s when you gotta take your best argument in front of the Judge, and, with absolute certainty and airtight conviction, make your case.  You may not have the best of it; you may hardly have anything to hang your hat on, but that’s not really for you to decide.  Let the Court take care of that.  Just make the case professionally and with as much logic and support as possible.  Make appeals to common sense and general principles of fairness.  Don’t get cute and don’t crusade.  Just lay it out so clear that a child could understand, with respect and deference to your adversary and (for the love of God) to the Court.

I had an opportunity to run this play last week and it went OK, especially considering I didn’t have a leg to stand on.  I was in Federal Court, where everything seems so much more important and serious (even though it isn’t), and I had a great Judge and a very young adversary – sometimes getting old is a good thing!  As right as he was, he was still nervous about his big appearance in that big room, and that really helped me.

I was clear enough about why my client had done the stupid things he did in this business dispute that the Judge had to think twice before nailing shut the coffin.  I had just enough chutzpah to live another day.  I was politely admonished, but at least given a chance to force my guy to do the right thing without having a judgment hung around him or his company.  The next thing that would happen is that the Sheriff would come to start selling stuff and we don’t want that.  I exploited some obvious irregularities on the other side and wove that into my thin argument to give it a bit more life.  In business, it is mostly the case that there’s a bit of wrongdoing on both sides when it gets bad enough to go to Court.

So that’s what I have to do sometimes.  It’s great exercise.  I imagine it’s a bit like acting.  I felt great after.  I felt like I had given my client substantial value and so far, he seems pleased.  It wasn’t my most lucrative day in Court, but it helped me learn a little more, even at this advance age of 37, about what I do for a living.

Feeding Frenzy

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shark-feeding

Justice will be served.  It will be rare.  It will be bloody.  But it will be served, and we will be privy to every gory detail.  This is what it means to choose a new Supreme Court Justice in this day and age.  Law and politics are not supposed to go together – that’s why this is painful.  And with the lifetime appointment, the chosen Judge will wield an enduring kind of power.  Just as with the run-up to the election in November of last year, there will be another (though different) crescendo that will be made all the louder by the echo chamber, but I’ll offer more on that another time.

I have added the Slate.com – Jurisprudence category to my links.  Emily Bazelon and Dahlia Lithwick are extremely sharp legal minds who who have the greatest jobs any lawyer could ever hope for.  (There are also other writers in that section of the Slate stable, but I don’t know anything about them, yet.)

But it’s all so left-wing.  I really need to break out of the echo chamber so I can, at least, understand the substance, scanty though it may prove to be, of the myriad smears that will undoubtedly follow Obama’s selection of the nominee.  There’s also the chance that I may not agree with every aspect of the candidate’s judicial philosophy.  Something tells me that National Review Online and Town Hall are not going to satisfy the need for a more scholarly critique.

This is, or will be, good theater.  The media (including ‘new’) relish the story, the controversy, the drama that just keeps on giving.  That’s how everyone was with the election, and I expect much of the same this summer.  Beware the pundits!  Don’t get sucked into the fake journalists who are really just talking heads starring in their own version of reality TV.  For those folks, the Court doesn’t matter.  Obama doesn’t matter.  All that matters is their brilliance and beauty as they, oh so humbly, bring you this pivotal moment in history.  Where would we be without them?!?

But I eat it up also.  It’s exciting and important.  The hearings might get rough, but there’s an excellent chance that no one will die.  All the latest technology will be employed by both those ‘for’ and those ‘against’, but in the end it will come down to the ancient process set forth in our Constitution.

And, at it’s best, the debate will be philosophical and complex.  If it is a current member of the bench, we will look at opinions and briefs and law reviews.  Hey!  That’s basically what I do for a living.  Cool!  Even if it’s not a current or former judge, we will still learn everything about this person.  Everything she did in her life up until this moment is fair game – everything she ever said.  And we will not be looking for those ‘gotcha!‘ moments.  Hopefully, the Obama people are smart enough not to select a child molester for the high bench.

No, instead, we will look at the niceties of language and thought.  At our best, we will want to learn how this person thinks and predict what this person will do within the highest ivory tower this country has.  Supreme Court Justices don’t make policy or write law.  I don’t care how far right or left anyone thinks a certain Judge may happen to be.  Whether you like them or not, their job is to decide cases.  The cases make the law, but the Judges can only decide cases.

So, in those realms where the debate is elveated above the feeding frenzy, we will learn about cases.  In other places, the only case anyone will discuss or remember will be Roe v. Wade, but that is to be expected from media that is more concerned with entertaining you than enlightening you.  But I will hear the names of vaguely remembered cases from law school, and I will run to look them up and I will discover, all over again, the wonder of our common law.  It is a living thing that changes and grows all the time.  That is not a partisan utterance, but rather a documented fact that I live with every day as a modest trial lawyer.  Customs become molded into law by case decisions over the years, and then the old rules change and new rules come along as human thought is not a static process.

Enjoy the show, but don’t forget to listen and watch carefully.  Everyone knows how important this is, but let us share a greater understanding of how it works – not just the selection process, but the actual job that must be done afterwards.