BACKSEAT LAWYER

TO-WIT: BACKSEAT LAWYER

It was the best of times, it was the worst of times. Well actually, it was only the worst of times, there was nothing best about it.

There I was, the very me who goes for the rough and tumble of the courtroom the way a bulldog goes for hamburger, the selfsame me who chose “eviscerate” as my private, personal mantra, there I was, facing one of the most important personal injury cases of my career, and I was helpless.

It wasn’t by choice, I assure you. Rather it was by force majeur, and I couldn’t do a thing about it. The case in question was a medical malpractice case, a big one, and the trial date had been specially set. Unfortunately it had been set for a time when I had not sufficiently recovered from surgery to feel strong enough to endure the rigors of litigation.

It had already been continued once on that account, and I just didn’t think I would be doing the client any service by continuing it again. So instead I had asked a long time colleague and friend if he would try the case for me, and he agreed. I would take second chair and assist. Well, third chair really, my partner had prepared the case for trial and she knew it far better than I did.

For the first two days of trial or so, I did nothing. I just sat there. Oh, occasionally I would be consulted on a point or two, but basically I just sat. Fortunately there wasn’t much for me to do. The presentation of Plaintiff’s case went quite well. All the questions on direct examination were fair, appropriate and well reasoned, all objections were overruled, and Judge seemed to be smiling at us.

With little else to occupy my time, I devised an ingenious trial strategy. Every time opposing counsel stood up to object I whispered to him that he was a baboon and that he should shut up and sit down. Not very professional, yeah, I know, but he was getting irked and that’s all that mattered.

However when the defense started its case, the “troubles” started. Every question defense counsel asked I found objectionable, every piece of evidence irrelevant. I wanted to object, I really did, but I couldn’t, it wasn’t my place. Unable to respond, I soon began to shake, then sweat. Once or twice I actually started to rise to object, only to be yanked down by my partner. “You are not trying this case,” she said, “so just sit there and be quiet.”

But you might as well try to restrain a thoroughbred stallion (oooh, I like this analogy) at the starting gate when the bell sounds, you might as well try to shoo off a buzzard from carrion, you might as well try to keep me from drooling for Gwyneth Paltrow than to keep me quiescent in a courtroom.

A moment later, counsel asked a question of the primary defense expert witness that was irrelevant and without foundation. More importantly it was unquestionably intended to elicit testimony harmful to my case. I could no longer contain myself.

“I object,” I said, rising to my feet. Those were the first words I had spoken out loud since the case began, and they were greeted with a stunned silence. For a moment no one said a word. Even Judge, usually the model of composure, was taken aback.

It was a really good objection too, and it most certainly would have been sustained but for the fact that the question had been asked by my co-counsel.

“What the hell’s the matter with you,” my partner whispered tactfully in my ear, but it was too late.

“Do you want me to rule on the objection,” asked Judge, more amused than anything else.

“Uh, no,” I said somewhat sheepishly, “I’ll withdraw it.”

“Then I’ll make it,” said opposing counsel, “it’s a really good objection.”

“Objection overruled,” Judge quickly decided.

“May I ask why,” opposing counsel whined petulantly.

“Lack of originality,” Judge replied, and the trial went on to its ultimate conclusion without further input from me.

I have promised my partner I would do better. I apologized to my co-counsel profusely. In all respects I have been the very essence of contriteness about the whole thing. But still at night, when I turn out the lights, my thoughts turn to trials yet to come. My heart starts to beat a bit faster, I hear far off in the distance the howling of wolves and I fall asleep to the dream of a feeding frenzy of sharks. When I awake in the morning, I am rested and refreshed, ready to start another day.

©2005, S. Sponte, Esq.

THE BALANCE OF POWER

AT THE DANCE