TO-WIT: SMITHEREENS
Do you ever walk into a courtroom absolutely confident you’re not only going to win but that you’re also going to smash the opposition into a gazillion smithereens? If you entertain that fantasy more than once in a forever, you’ve been practicing law less than five minutes.
The fantasy of a smithereens victory is a hard one to contain. Yet sometimes the law and the facts do stop squabbling with each other and instead reach out in a promise of transcendent love. Then everything you say and do, including some things that would never have otherwise occurred to you on your least obtuse day, joyfully coalesce to fix the opposition’s wagon beyond repair; and that’s when it hits you, as it almost never does in any other way, that, oh, oh, oh, don’t you just love being a lawyer.
But no matter how blissful that dangling promise of ecstasy may be, it remains an eternal truth that successful affairs of the law, like those of the heart, are never unilaterally fruitful. Were that not the case, we’d never have to leave the house. Instead, even a smithereens victory depends upon the assent of another, typically a member of the judiciary, through whose brain cells our efforts must first pass and then emerge with barnacles of felicitous inclinations attached. Achieving that kind of success does not require a genius on the bench, only someone who’s intellectual limitations do not exceed your own.
Appurtenant to all of this, I recently found myself presented with a genuine smithereens opportunity. My client was charged with violating a municipal ordinance, and while it was only a summary offense it did implicate the First Amendment, my favorite professional thingy. The facts were simple and the law fit like a tailored suit. All that was required was for the district justice to have either a rudimentary knowledge of the applicable law or a willingness to learn it. Unfortunately, she possessed neither, and as soon as I raised the issue it became clear that she was unlikely to acquire either attribute any time soon.
“The first what,” she said.
“The First Amendment, Your Honor,” I replied, “you know, the Bill of Rights, the Constitution.”
“You can’t raise that in my courtroom,” she said.
“And the reason for that would be…,” I queried.
“Because I said so,” she replied with a defensive sneer.
“Would Your Honor care to look at these cases I’ve brought,” I inquired, “they’re written in English.” Even as I said it, I knew that that bit of snappy banter had no chance to carry the day.
“Your client is guilty,” she bantered right back, “no matter what the facts or the law say.”
Now when it comes to the law it’s not hard to be wrong, but it is hard to be that wrong. Her profoundly unconsidered ruling gave the phrase “minor judiciary” an intellectual implication I had not been obliged to think of for quite a while.
So confident was she of her ruling that she felt no need to permit any defense testimony. Instead, she rose from the bench and hastened out of the courtroom with such vigor that her judicial robes swiped over the miniature scales of justice that had been perched askew on her desk, knocking them to the floor with a soulless clang.
My years at the bar have taught me never to expect a Brandeis, Frankfurter or Cardozo. However, this particular incident not only lowered my expectations to new heights, it also caused my hope for a smithereens victory to evaporate more suddenly and startlingly than the helium from a burst county fair balloon. I was the one in smithereens and so depressed that I felt the need for some professional counseling.
“Und vhy are you so troubled,” Dr. Schwarzkorn asked me.
“I was robbed of my smithereens victory,” I told him, “by a judge who neither knew nor cared about the law.”
“Und how long have you been practizing,” he asked rhetorically.
From this, two truths emerged. The first was something I have long known, that the number always determinative of a judicial election has never been the IQ of a candidate but rather the total votes of those mindless of it. The second was that therapists have a higher hourly rate than I do.
I stand reminded of an English barrister of the early twentieth century who, on the occasion of his retirement, summarized his career as follows: “Half the cases I won I should have lost, and half the cases I lost I should have won. So all in all, I guess justice was done.”
Though his view of things was detachedly global, it nonetheless offers some solace. Further, when the strictures of our profession smash us to smithereens, we always have our common prayers for relief to bind us one to the other, and there’s a bit of solace in that as well. So belly up to the bar, my colleagues, the next round is on me. The cost of therapy being what it is though, only ginger ale if you please.
© 2017, S. Sponte, Esq.