OK, I lied. I started out thinking this was going to be a writeup about my single best day as a lawyer, but I found that I had a few. If you’ve got ADD, please move along. If not, here are my stories. They used to cost $500 an hour, but you can have them for the Christmas 2010 knock-down price of FREE.
1. It took me a while to think about this, and I had to go way, WAY back to remember it, but my first, best, moment took place in my first year out of law school. That would be 1993-94 or so. The case? A stupid little landlord-tenant action. The court? Prince William County. General District Court. That’s pretty far down the food chain, for those of you unfamiliar with Northern Virginia.
There wasn’t much money involved, but it was a pro bono matter (or in Hogan-speak, CSD, for Community Services Department). I had just started taking pro bono litigation matters because I had developed a taste for the courtroom, and wanted to stay there as much as I could. That’s tough for a first-year associate in the biggest law firm in DC.
But I had already gotten a fire-hose dose of litigation, in the form of a “bid protest” that a gay senior partner had specifically asked me to “help” him out with the first day I showed up at the firm. To be fair, he never put any moves on me. In fact, he was nothing but kind to me, and I still consider his house, his clothes, and his taste in everything, to be the pinnacle of gay taste. Which is to say the pinnacle of all taste. Sorry ladies.
His junior partner hounded me for years, but that’s a different story.
Anyway, I took this case, lame as it was, and we actually had a trial. It took maybe four hours, but I’ll never forget it. That’s in part because it was my first trial. It’s also in part because the Lorena Bobbitt trial was going on one floor up, and my opposing counsel, a woman, ruthlessly chided me about that case all the way through.
My first experience with asshole opposing counsel. And my first experience ignoring them.
2. Next best moment, in chronological terms. I’m a 2-3 year associate. I’m not being vague, but the case just hit on the cusp between the two years. The case? A personal injury action, believe it or not. Why was I involved in one of those, being in a high-priced, fancy suit law firm? Because my senior, senior partner – the one who would tell me later in one of the most important arguments of my life to “come back with my shield or on it” – was a courtroom brawler, pure and simple.
And I got to tag along.
Anyway, I had only one witness that was mine for this trial. A direct examination of an expert witness, traditionally the easiest witness there is. Why is that? Because unless you’re an egotistical moron, the only questions you have to ask are “Did you reach an opinion?” and “What was it?”
Oh, yeah. I was scheduled to do the cross-examination of one of the bad guy’s expert witnesses. Not important. A vocational expert, and we hadn’t even deposed her. So, of course, the assumption was that I wouldn’t ask any questions.
She testified on direct about how the plaintiff, our client, who had gotten his foot mangled in a Metro escalator, could lead a happy, healthy life, and how he could make lots of money, blah, blah, blah . . .
When opposing counsel sat down, I immediately stood up and practically rushed the podium. My junior and senior partners actually reached out to try to stop me.
But I only wanted to ask two very simple questions, and even though I had never deposed this witness, I already knew the answer to both of them. First, I wanted to make sure that the jury knew that this witness had never examined my client – had never even SEEN him – before today.
So I asked “You’ve never seen my client before today, have you?”
The next question, a little riskier, to be sure was to establish that she didn’t actually KNOW what his life was going to be like. Why riskier? Because my client was a big, fat pothead who was stoned when he got his foot mangled in the escalator. We’d kept that out of court, but a good expert would have figured out a way to get that in her answer to my rookie, open-ended question.
I got lucky.
So when I said “So you don’t really know what’s going to happen to my client five, ten, or twenty years down the road, do you?” she just sat there like a bump on a log.
I immediately said “I’ve got nothing more from this witness” and sat my ass down. My first lesson in less is more.
3. Next best moment, chronologically speaking? My first dispositive motion. For those of you not in the know, that means a motion to dismiss (or motion for summary judgment). A motion that ends a case.
I was a fourth-year associate, if I remember right. The case? A fight between two autism societies over royalties over the movie, Rain Man. No shit.
Like they don’t have anything better to do.
Anyway, my client was an individual who happened to be: (1) general counsel for one of our firm’s biggest clients, and a personal friend of the guy who would eventually lead the entire firm; and (2) the father of an autistic child. He had been dragged into the case as an individual defendant, and my job was to get him out.
The court? Rockville. I had to get my own client to move me in, because I wasn’t a Maryland bar member.
How did I get there? Took the Metro. At, like 5:00 in the morning. There was snow on the ground, and I remember spending hours walking around, practicing my arguments.
I wound up talking for, maybe, five minutes.
The judge sat us down, pointed to me, and asked me if I had anything to add to my briefs. Sensing that he may have already read what I wrote, I added the one point I’d held in reserve, and sat down.
He rewarded me by immediately granting my motion without even listening to opposing counsel. Her even thanked me for not wasting his time.
Lesson two in less is more.
4. My next best legal moment started in my fourth year, and ended in my seventh. This needs a little explanation. Somewhere in my fourth year I wound up working on a case involving a real estate deal. The bad guys – they’re always the bad guys – were stonewalling us on documents. The case involved a multi-million dollar deal, and they hadn’t given us jack in terms of closing documents.
So we called bullshit, and filed a motion to compel.
When we got to court that Friday – this was back in the day when the Eastern District magistrate’s office was in the bottom floor of a commercial building – we had to sit all morning long while the Court handled every other matter first. Then he got to us.
My junior partner got up and started arguing. She didn’t get but maybe one minute in before the judge started ripping her a new one. “If they say there are no documents, what exactly is it you want me to do?” But she kept fighting. She didn’t back down. Ever.
We lost that motion, but the judge knew that the bad guys were playing hide-the-ball. We won that case.
And my junior partner never backed down, never gave up.
And she didn’t cry. Not until everyone but me had left the courtroom.
I never forgot that.
Fast forward a few years. I can’t even remember what the case was about, but I will never forget the name of the judge. He was visiting from Richmond. Judge Payne.
I stood up, and he immediately started crucifying me at the podium. No matter what I said, he pounded me. But I remembered my partner – her name was Emily, by the way – and how she had stood her ground no matter what. So I did too.
Just so happens Emily had finished her own motion in a different courtroom and was sitting in the audience watching me being grilled.
When I finished, I sat down, sure my legal career was over.
Then my opposing counsel got up, a stupid little smirk on his face. Judge Payne looked at him and said “Counsel, everything he meaning me said was right. What do you have to say about that?”
Stunned silence. Enough said.
This is the single best moment of my legal career, the one that made me think about writing this piece in the first place. It was a very strange moment for me, the first-day Monday of the biggest trial of my life. I was sure that Sunday that I was going to fall apart in the courtroom. And we would eventually lose at trial (but win on appeal). But on that Monday – I think I was a first or second-year partner at that point – I was the best I would ever be as a lawyer.
And I knew it the moment it happened.
The case? We were a small college loan company suing Sallie Mae for doing bad things. The court? The Eastern District, as always.
The “rocket docket” famous for chewing up and spitting out the unwary.
I had already begun my own personal freefall, but it turns out I had just enough left inside of me to handle this one last case.
My co-counsel was responsible for the opening statement and the first witness, the company founder and president. That was supposed to get us through 3:00 or so, and I had the next witness who was supposed to last an hour.
To explain this to people who may not know, in the Eastern District, as with all hardball courts, you have to have enough witnesses to take up the time for the day. If you end at 3:00, say, and have another witness you were planning on putting on tomorrow, the Court will tell you that’s just too bad, and close your case.
We didn’t have any witnesses ready except for the two I just mentioned.
So when I got the call around noon that the company president was done and my witness was going on after the lunch break, I kind of freaked out. Not so’s my witness could see it of course, but on the inside I was shaking like a leaf.
We grabbed a cab from our hotel across the street from the Court – for big cases you always get a suite of rooms as your staging area – and wandered in about 1:00. I remember Emily had shown up, but was on her way out when I walked in the door. Not her case, and she didn’t want to be around for the train wreck.
And that’s what it felt like, walking into that courtroom. Standing in front of a moving train. I was reminded at that moment of something I’d read once, about how the loneliest walk in the world is the walk to the pitcher’s mound in the 9th inning of a close game.
If walking to the lawyer’s podium in a desperate, do-or-die scenario isn’t as bad, it is very nearly so.
The other thing it made me think of was this one weird episode of Grey’s Anatomy. I used to watch that show regularly, and there was one season cliffhanger when someone showed up in the ER with an unexploded bomb in them. The EMT (Christina Ricci) was holding onto the bomb, keeping it from going off, but freaked out at the end of the show. Ricci runs, and Ellen Pompeo winds up sticking her hand in the guy to keep the bomb from going off.
That’s what it felt like.
Thank God I knew my witness well. I had defended him in his deposition, and had prepared him to testify multiple times.
So winging it was an option.
We started out with the planned testimony. Call me anal, but I actually wrote a script out for every single witness I ever put on the stand. Questions, answers, follow-up questions. My script for the testimony that day was probably about 40 pages or so.
Not enough to get me to the end of the day, but it was a good start.
I started off by talking slow. Just because I talk slow don’t mean I’m stupid.
Then I began, tentatively at first, by asking every question as many times as I possibly could. Ask a question. Listen to the answer. Then ask “So when you say X, do you mean . . . ?”
This is, of course, objectionable, both because it’s repetitive and because it’s leading. But I was desperate, and I was willing to explore just how far my opposing counsel would let me go.
He didn’t have much in the way of courtroom chops. I guess he didn’t do much pro bono trial work when he was younger.
So I got to ask my questions two, three, sometimes four times at a shot. In basically as many different ways as I could think of. This was good not only because it took up time, but also because it let the jury hear my witness say the same thing over and over again.
And he was a good witness.
But eventually I ran out of prepared things to ask. I even ran out of the “in-between” questions I was using to take up even more time. And it was only 4:30.
So I pulled out some documents my witness and I hadn’t looked at. Ever. And I started asking him questions about them.
He knew we were venturing into uncharted territory, I didn’t need to tell him. But he handled it like a pro. So we played this little game, right in front of the jury. Like walking on a tightrope without a net.
I was so focused on my witness, what he was saying, how he was doing, I never even noticed the time. Until Judge Cacheris stopped me in mid-question and told me it was 6:30, and time to break.
I reached out for the podium with both hands, and felt my knees buckle. Nobody saw it. I didn’t want the jury to know just how close our $200 million case had come to self-destruction.
But I knew – KNEW – that I had just experienced the high point of my legal career. I don’t know how I knew it, how I knew that was as high as the water was ever going to get. But I just did.
What did Jack say? “What if this is as good as it gets?”
I have nothing better. I may be avle to get 1 or 2 more writeups before she shuts me down. No time for links. If you want . . .
that was michael, btw . . .