TO-WIT: I JUST DON’T KNOW
Like many propitious moments, it happened quickly and without fanfare, neither of consequence nor notice to the parties involved, hardly a ripple in the space-time-law continuum. Yet make no mistake, momentous it truly was.
I was in the middle of a pretrial settlement conference in federal court and the judge, opposing counsel and I were discussing some issues with respect to the upcoming trial. My adversary had just expounded at some length about the qualifications of his expert witness, opinion that he was indeed an expert in the field of the perverse and corrosive societal effects of adult businesses in general and my client’s nude bar in particular, and I had just responded that during those times when this particular expert was not volunteering to keep the world safe from marauding aureolae he was busy earning his livelihood as a newspaper delivery boy.
I am quite certain that His Honor was amused by my little zinger despite his total lack of any kind of reaction at all. In what must have been a Herculean effort to contain his mirth, he asked whether or not I wanted a “Daubert” hearing.
A Daubert hearing, huh? Gee, the though had never occurred to me, as well you might understand, for I had absolutely no idea what a Daubert hearing was.
I’m not familiar with that term,” I said, and he very courteously responded by explaining that it was a pre-trial hearing to test the qualifications of an expert witness.
“No,” I said, “I don’t think that will be necessary. I am perfectly willing to stipulate that he has expert qualifications,” and I waited until I saw my opponent’s eyes light up before I added “as a newspaper delivery boy.”
When I got back to the office, I discussed the conference with my young partner, and when I got to the part about the Daubert hearing, she shivered.
“Omigod,” she said, “I wouldn’t have known how to respond. I would be mortified. How did you do it? How could you admit to the judge that you didn’t know what he was talking about? That’s what I fear more than anything else in the whole wide world.”
“What, never heard of cancer?” I mused silently while I waited for the “Gee willikers” that I surely thought would follow. I told her I hadn’t a clue what she was talking about, and suggested that she go off and do something billable.
Ah, but I did have a clue. In fact, I had an entire plethora of them. Of course I knew what she meant. Like most young lawyers who care about what they do, she was terrified that she would some day face a similar situation in which she did not know something she should be expected to know and as, a concomitant result, she would be mortified. Believe me, I knew what she meant.
Interesting word, mortification. The root word is morte, meaning death, and an apt word it is too. I remember only too well that numbing, wish-I-were-dead kind of feeling that is born of the fear of ignorance, and I bet you remember it too, huh, and probably a lot better than I do.
For me it first occurred during my very first jury trial. Plaintiff’s counsel had rested and the judge asked me if I would like to make a motion. I hadn’t a clue what kind of motion he meant, so I meekly responded “No, Your Honor.” “Oh, but surely you want to make a motion at this time,” he replied, and that’s when my palms began to gush like the Ganges. I meekly shook my head and he recessed for lunch.
Back at the office, I discussed the conundrum with a senior partner. “He wanted you to move for a directed verdict,” he explained.
“But there was no reason for it,” I said.
“There was if he had a golf game” he explained.
Well, I’m now 30 years down the pike. I’ve since handled, I don’t know, maybe 2,000 cases. I’ve tried, I don’t know, maybe 50 jury cases. And I’ve been in meetings with judges and lawyers, I don’t know, maybe 1,000 times. What is clear to me is that I’m right – I don’t know.
I don’t know all I should; I will never know all I should; and, in fact, I probably know less now than when I first started out. Around every corner of my professional life, there is an “I don’t know.” It isn’t any better now than when I was a baby lawyer.
And for a goodly part of those 30 years, I was afraid of not knowing, just like my partner is now. I’m not exactly sure when that fear went away, but it is certainly clear to me that it has.
Maybe it first started to go away about 20 years ago. I had a case that I lost non-jury, and in an effort to take the appeal, I filed the wrong form. I can’t remember whether I was supposed to file a motion for reargument and instead filed a motion for a new trial, or whether I filed a motion for a new trial and should have requested argument before the court en banc – who the hell knows. In any event, opposing counsel jumped on the error and moved to dismiss whatever the hell I had filed.
Immediately recognizing that the error of my ways had just been shoved down my throat, I petitioned for something or other nunc pro tunc, and we had a meeting with the judge.
Oh, and was I nervous. Facing what I thought was nearly a malpractice claim, I briefed the issue to a fare-thee-well and came into the judge’s chambers ready for argument.
I never had a chance to say a word. Judge had familiarized himself with the problem and simply said, “Motion grant.” Then he went on, addressing opposing counsel. “How have you been prejudiced?” he asked. “Do you think I do justice by honoring form over substance?” And don’t forget, this was 20 years ago, when form was yet revered.
Since that day, I have come to realize that there is no way anyone can know it all, no way I can be prepared for every instance. There are too many laws, too many rules, too many forms, too many of everything to keep track of it all. There are also too many lawyers out there who know a whole hell of a lot more than I do, but none of it bothers me anymore. All of us chase after justice, some more daftly than others, but when it comes right down to it, it doesn’t matter all that much how good we look heading down the stretch, as long as we’re still moving at the finish.
The teaching of time, that quintessential gift from the gods of law to those of us who survive this life in the pits, is simple. Unless we miss a statute of limitations, there is almost nothing we can screw up that we can’t fix. Have faith in yourself, and failing that, have faith in the gods of law. They must hear us. I mean, I don’t know, but why else would we end our petitions with a prayer?
© 1999, S. Sponte, Esq.