TO-WIT: YOU NEVER KNOW
"Are you certain of that," Judge inquired during my oral argument, peering directly down a t me over the silver reading glasses that sat precariously perched halfway down her hawk-talon nose. Having launched that query, she then cocked her head sideways and scrunched up her mouth, as if grappling with an unseen foe.
Some colleagues may have seen her body language as nothing more than just another of those thousands of vacuous motilities all of us do every day. Others, those desperate to wrench any information they can from the vast incertitude of oral argument, might have taken i t as a reproach, as if she had instead pointed her index finger at her temple and twirled it counter-clockwise. To me though, it just looked like she needed to get to a bathroom, and so I responded eo instanter. "Yes, Your Honor, I am certain of it," I lied, slowly taking off my own reading glasses and placing one of the temple pieces pensively into my mouth. That's my erudite motility. I learned i t from the doctor in that hemorrhoid television commercial, and its the one I always employ when I'm uncertain of my position. I use it quite a lot.
At argument's end, Judge announced she would take the matter under advisement, and my young associate and I left the courtroon. "How can you stand this , " she moaned, "how can you stand not knowing what Judge is thinking or what she's going to do or even when she's going to do it? It drives me friggin' crazy. Oh God, I want a sticky bun."
It wasn't that I didn't have a clue. Near the end of my presentation, Judge had said "I really hate your case and I'm not that fond of you either." I think that was a clue.
But my associate's angst reminded me once again what I've known and accepted for many years, that the practice of law is chock full of things we just never know. Every fact, every opinion, indeed every word, gets filtered through the neurons of other members of our professional populace, the judges, the juries, the opposing counsels, each one of them replete with their very own fiercely independent fantasy system, each one of them taking in the selfsame information, processing it to the tune of their own drum, and each one coming up with a result that on the very smartest day you ever had in your whole life you could never have ever predicted.
This is chaos, utter chaos, and as a concomitant consequence our profession is awash with doubt like a mangy dog is awash with fleas. No wonder so many members of both species itch like crazy so much of the time.
Its been a long while since I've had such an incessant rge to scratch, but once upon a time... "Tell me how can you do this," I implored Leonard as we left the courtroom to await the jury's decision following a week long personal injury trial some forty years ago. He was my first law boss and remains my iconic mentor long after his passing. "How can you just go back to the office and concentrate on something else while the jury is still making up its mind?"
"Discipline," he replied. "We can't do anything about the jury now, but what we can do is help our other clients. So I go back to work."
Of course I found out much later that Leonard didn't exactly go back and lock himself in his office to work. What he did was go back and lock himself in his office to devour sticky buns.
These days I don't spend a whole lot of time fretting about the vagaries of law. When I read opinions that decide the same set of facts in different ways, I accept it as an inevitable byproduct of human intercourse. When I can't get opposing counsel to agree with me in a dispute between our clients, I accept i t as a given that opposing counsel are frequently just not as smart as I am. And when, as in the case at hand, I know with certainty that I haven't convinced a judge of the correctness of my position and that I am going to lose, I just take it in as additional confirmation that not every judge advances to the bench on the strength of their intellectual acuity.
Yes, yes, it may be a wildly narcissistic defense mechanism but its surely better for my cholesterol than sticky buns. Today came Judge's opinion and order granting us summary judgment. "We won," my associate gurgled as she came charging into my office, the opinion clutched in her grateful and trembling hand. "I'm totally surprised."
"Me too," I replied, " i t was a good result." After she departed, I sat there quiet and alone, contemplating this unexpected outcome. "Well, well, well," I thought to myself, "you never know." And then, strangely, I started to itch all over.
©2011- by S. Sponte, Esq.