TO-WIT: ALL AROUND THE MULBERRY BUSH
"Yes, I know," I told my colleague on the phone, "and believe me, my clients want to move out just as much as your client wants them to move out. But they just can't fi n d another place to live that fast.
They'll need ninety days."
Now lest you think I do landlord-tenant cases for a living, let me assure you that this was pro bono. I had prevailed at the magistrate's hearing on a minor technicality only because the landlord was too cheap to hire a lawyer and too well off to get one for free.
Now however, wanting to appeal, landlord had engaged counsel and the first thing my colleague did - well, the first thing if you don't count cashing the retainer check - was to call me to work something out.
We both knew I couldn't win on the merits, but we also both knew the considerable time and expense involved for his client to take an appeal. That cumbersome and costly process was the only negotiating ploy I had. It was vaporous to be sure, but just noxious enough to get noticed.
"All right," he capitulated, "I'll recommend he give your clients ninety days to move, and I hope he'LL agree because I'm getting awful tired of telling him what a weasel you are."
It was intended as a witty remark and we both laughed. But who was it who said the sweeter the humor the more bitter the truth? I think i t was me. Yes, I was substituting the cost and maddeningly ponderous tempo of litigation for the spiffiness of a meritorious defense, but does that make me a weasel? 1
I didn't know the answer but I knew someone who would. Professor Armes Akimbo had taught me ethics in law school. Most noted as the author of the seminal "Iwo Points of View Regarding The Double Billing of Schizophrenics," he has always been to me the paragon of properness. I called him at once.
After exchanging the amenities ("Remember me, Professor?" "Nope, can't say as I do.") I posed the ethical question.
"Ah, yes," he replied, "the Mulberry Paradox. It’s a classic. Can you ethically use the cost and delay of litigation as a bargaining chip when you have no defense on the merits?"
He went on.
"If an adverse party unilaterally decides to compromise in order to avoid cost and delay, that's fine. But if counsel uses that as a strategy to extract concessions without an accompanying meritorious defense, that's a misuse of process and not fine. And if counsel is open and honest about his motives, he's admitting to sharp practices and that's not fi n e . But if counsel is not open and honest about it, he's not being candid with the tribunal and that's not fine. Shall I continue? There are seventeen more levels."
"Oh God, no," I begged him, "please don't. I'm quite dizzy as i t is."
I had just hung up and was sitting a t my desk pondering the imponderable when the phone rang. It was opposing counsel. "You're not going to believe this," he said, "but I just told my client again what a weasel you are and he fired me. Said he needs a bigger weasel than me to go up against the likes of you."
Well, ethical or not, my sashay through the Mulberry Paradox is over. It’s obvious that I won't ever have to assert such a dubious position again. I mean, what with my now clearly established reputation for being king weasel, I'll never have to say another word.
© 2009, S. Sponte, Esq.