TO-WIT: DUBIOUS TO THE BONE
Damn! It’s up to me now, isn’t it? Judge is waiting, Opposing Counsel is waiting, the clients are waiting, and here I sit, indifferent to the smell of blood. Damn!
I know that I am expected by the dictates of my profession to stand up right this very instant and make a motion for a compulsory non-suit, the result of which will be to precipitously catapult my opponent out of court, client, briefcase and all. Oh, boy, huh?
I represent the defendant in this trial and, quite honestly, it’s a simple case. the facts and the law are simple. Unfortunately, Opposing Counsel is simple too, and he has just rested his case, forgetting to call the one witness who is essential to his client’s cause of action. The way the case now stands, he cannot possibly win it and, as a necessary and fundamental concomitant, I cannot possibly lose it.
Though young and inexperienced, my Opposing Counsel is a decent and likeable fellow, the sort who is probably still married to his first wife. He calls me “sir” and he brings to the courtroom a kind of tail-wagging earnestness that reminds me of my dog at feeding time. Despite my professional obligation to my client, I neither wish to embarrass him nor to take advantage of his youthful mistake.
What I do want to do is call a time out. What I do want to do is jump back from the line of scrimmage, form my hands into the shape of a “t” and consult the coach. I would do it too, if I was sure that His Honor wouldn’t mistake the gesture for yet another banal reference to the fact that he looks a lot like Bela Lugosi.
Time was I would have made this motion with zest. Time was I would have welcomed this opportunity the way a shark welcomes a feeding frenzy. I remember all too well the first time I moved for a compulsory non-suit. It was many years ago and I was brash and reckless then, full of the omnipotence of youth, and I did what I had to do without fear or hesitation. at the conclusion of plaintiff’s case, I stood up and made my motion. Since it was well-supported by both the law and the facts, I was only greatly amazed when His Honor actually granted it.
My behavior in that sudden death victory was less than commendable. I did nothing at all to allow my colleague to retain some semblance of his professional dignity. I felt so ashamed afterwards that I vowed then and there to always wait until my opponent left the courtroom before I gave my Tarzan scream and leaped for the chandelier.
After twenty years of practice though, the omnipotence of my youth has long since gone. I’m not as keen as I once was on goring other people’s oxen, especially while I seem to have so many of my own still grazing out there in the field.
I could, as an alternative, simply ignore his mistake and call my first witness, hoping to win this case strictly on the merits. There is a risk in that though, considering my previous trial record, but, hey, strange things have been known to happen.
Judge is till waiting and here I still sit, a paragon of indecision and awash in the memory of my first jury trial. As Plaintiff’s counsel in a routine auto accident case, I was taking the direct testimony of my doctor. (The use of “my” here is intended to indicate only that I had called this witness to testify, and is not intended to suggest any undue or unethical arrangement between attorney and expert witness, in case anyone out there was wondering.) He had no personal recollection of the case, but he had brought complete hospital records, and it was from those extensive documents that he was about to testify.
“I object,” my distinguished and experienced opponent said, as I began my questioning. “Counsel has failed to lay the proper foundation.”
“Sustained,” said His Honor, aroused from his state of somnolence by the smell of blood.
Ooh, I hated that objection. It was tedious, picayune and I had absolutely no idea what it meant. Only slightly daunted though, I rephrased my question.
“I object,” my opponent said again, “because counsel has stilled failed to lay the proper foundation.”
“Sustained,” said His Honor.
I wanted very much to plunge my ears into ice water, but instead I again rephrased the question. Once again my colleague interposed the same ruinous objection with the same ruinous result.
Judge was waiting, jury was waiting, and there I was, lost in a dance of disarray, not knowing what to say, other than a muted prayer for relief.
My opponent, however, sensing my predicament, continued. “I fully intend to object to this line of questioning until counsel lays the proper foundation by having the witness testify that these records were prepared under his supervision and control, that they were prepared simultaneously with the events they record and that they accurately set forth the facts.” Then, having told me how to overcome his objection, he sat down.
Now Judge is still waiting. I stand to speak. Before I can say anything however, Opposing Counsel asks if he can reopen his case to present some brief but extremely important evidence, and Judge, with out so much as a glance in my direction, assents, thereby relieving me of my paradox.
Was I ever really in doubt? Nah, not me. I knew the right thing to do all along. I might have even done it too.
© 1990, S. Sponte, Esq.