Wednesday, June 1, 2011

Stolen Thunder or a Chewed Up Rear End?

Attorneys can deny it all day long, but it’s true:  Every last one of us relishes a slam-dunk soap box vindication.  We can all say that we know practicing law isn’t like Perry Mason who wins every case or Atticus Finch who valiantly stands up against the odds for what’s right and becomes the idealization of morality, but we all harbor the hope in a dark, secret little place in our hearts that we’ll get to do the Pacino “No, you’re out of order!” one day.  We can’t help it—we’re human and we dream big.

The real irony is that the more we get kicked around the courtroom like mongrel dogs and the more we slam our heads on our desks in frustration over our unmovable clients, the more we desperately cling to the little nugget of hope that we might carry the glorious and flashy banner of victory one day in spite of the fact that it appears less and less hopeful by the second. 

So, imagine when the potential for just such a moment in the sun practically offers itself up on a golden platter before you.  I know it’s hard, but try.  First, you are right to be suspicious:  Fact scenarios that stacked and perfect are just too good to be true, you have to be missing something.  After you triple, quadruple and quintuple check that you aren’t, in fact, missing the big issue that magically turns the case to the total crap that you’re used to, a little spark of hope starts to cast light upon the dark place in your heart.    

Of course, you’re so abused and downtrodden that you still don’t trust yourself, so you show the file to a couple other trusted attorneys in the hope that they will figure out the problem or—better yet—confirm that you’ve found the golden ticket.  When they agree with what you cautiously believe, you walk around on Cloud 9, daydreaming about the imminent court date where you will give an oration worthy of Olive Wendell Holmes himself and walk out...wait for it...a winner. 

You are so excited that the days to your certainly victorious court date that the days tick by as slow as though you are a child waiting for Christmas.  The day before the court date, you triple check the dotting of the “i’s” and the crossing of the “t’s.”  The morning of the court date, your quadruple check the dotting of the “i’s” and crossing of the “t’s” and you scour the data yet again because—in spite of all the second and third opinions and checking and re-checking—the slam dunk is still to prime.  It still looks good.

You grab your client and the two of you walk down to the courthouse while you assure your client in the most confident of tones that there’s no way on God’s green earth that the other party will prevail because you have the golden ticket.  Yes, the other party somehow managed to miss a key fact that, when faced with the North Carolina Rules of Civil Procedure or the North Carolina Rules of Evidence, their ship will sink to the bottom of the ocean with the speed of the Titanic. 

Ah, the time has come.  You arrive in the courtroom—positively jumpy with anticipation—and your case is called (notice how I said “your case” because that’s what it has started to feel like to you).  You and your client take a seat at your table and you look over at the opposition...wait...the table is empty.  Where in the hell is the other party?

The judge, in a rare show of benevolence, waits another five minutes and sends someone to call the party.  The party is not to be found.

What does that mean?  Well, it’s actually a good thing.  The complaining party’s failure to show on their own motion or suit means that their motion or suit is dismissed.  It’s all aces for your client.

So, why are you so bummed?  Well, all of that hopeful planning and daydreaming about your certain victory has now been summarily flushed down the potty.  Winning by default is like when the leader in the Coca-Cola 600 runs out of gas on the last lap (c’mon, Junior!) and allows the second place runner to cruise past him to victory.  There’s no satisfaction in it.  There’s no real moment in the sun. 

The wind has been sucked from your sails.

It hurts when it happens to you, but it almost hurts more when you see it happen to someone else—especially the fresh-faced young’uns who recently passed the Bar and are just starting to get the realization that the practice of law isn’t all Boston Legal and John Grisham.  Not even a month ago, I sat in Superior Court waiting for my motion to be called and witnessed a tragic sight.

I could tell when he walked in that he was high on vindication.  Even though he looked like he was about twelve years old, I’d seen the kid before, so I knew he was an attorney.  Yep, he bounced into court and his client walked considerably more sedately behind him.  Their case was called and they took their seats.  The vacant table on the other side of them practically screamed in its emptiness. 

This time, the judge wasn’t feeling quite as benevolent and immediately entered an order dismissing the case.  The client looked thrilled and the attorney looked like someone had kicked his dog. 

As the judge started to move on to the next case on the docket, the attorney stood up nervously and said, “Um, your Honor?”

The judge looked over his little half-moon reading glasses and said, “Yes, Counselor?”

He took a deep breath and charged into the abyss, “I would still like to make a motion to dismiss based on the Statute of Lim—“

“—Counselor, if I’m not mistaken, I just dismissed the case against your client.  You want to argue a motion asking me to do what I’ve already done?”

Oh, this wasn’t good. 

“Your Honor, we have reason to believe that the Plaintiff is being retaliatory and will likely bring another suit based on the same facts and circumstances—“

“—At which point you’ll be able to argue your Statute of Limitations issue and have an even stronger basis for a malicious prosecution claim without wasting any more of my time right now.”

Stop, stop, stop.  FortheloveofGodSTOP!

“But your Honor it’s a clear—“

“Son, the next time I have to ask you to stand down, it will be with the assistance of these burly and ill-tempered bailiffs over here and I will furthermore charge you and your employer a hefty sum to release you from the clink on the contempt charge that you are currently waltzing around like Fred Astaire.”

I don’t know if the guy ever really got the point because another attorney who was closer to the horror that was occurring stepped forward, grabbed the kid’s arm and whispered something urgently into his ear—something like, “Shut the hell up and head for the hills if you know what’s good for you, you rookie dumbass!”  Thankfully, Clarence Darrow, Jr. took the hint, thanked the Court and left like his pants were on fire. 

Yes, although it really stinks to have thunder stolen, it’s considerably worse having a strip torn out of your posterior.

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