TO-WIT: PROMISES, PROMISES
Don’t ask me why I did it, because I don’t know. In twenty-seven years of practice I have never before promised a client a successful result, not once ever. I wouldn’t even do it for a guest passenger priest rear-ended by a Hell’s Angel while on his way to administer last rites to a puppy.
There are myriad reasons for not assuring a client of success, and I certainly need not waste my time and yours reciting them for you. It is of course a given that all litigation must perforce wend its horrifically convoluted way through the horrifically convoluted psyches of judges, jurors, arbitrators and others of that ilk. It is further a given that each one of them puts his or her own unfathomable spin on it, resulting in an end product as faithful to the original as a photocopy of the Mona Lisa. It is a crap game, this litigation biz, and assuring any client of any result can only have dire consequences.
So I ask again, why did I do it? Well, suppose I tell you what I did, and then maybe you can tell me why, huh?
It was a complex piece of litigation involving a former employee’s claim upon a promissory note against a corporate employer. In a nutshell, and that’s an apt turn of a phrase if ever I used one, the employee claimed that he was temporarily incompetent, and thus incapable of understanding the nature and quality of his act, when he executed an amendment to the employment contract with his employer that reduced his salary, changed his job status and canceled his promissory note from the company for several hundred thousand dollars of unpaid bonuses. As a result of his alleged temporary incompetence, the employee, now terminally ill, maintained that the new contract was invalid, the old contract remained in full force and effect, and he was thus still entitled to receive the funds due him on account of the promissory note.
It was abundantly clear that the employer had substantial cause to fire the employee on account of his performance. It was also obvious that the company was doing him a favor by giving him an amended employment contract rather than canning him on the spot. However the employee did have one thing going for him. He was now dying, the result of a terminal illness diagnosed six months after his eventual departure from the company. It was primarily on this account that I urged the client to agree to binding arbitration to resolve the dispute.
The “binding” effect of such a proceeding always makes me nervous, but given the statue of the employee’s health I really did not want this case to hinge on the vagarious benevolences of a jury. So binding arbitration it was.
“What do you think of our chances?” asked the president of the company.
Well, I had looked at the law and I had interviewed the witnesses, and I thought that there was not a snowball’s chance in hell that the employee could prevail. Accordingly my mind told my lips to say “not completely horrible.”
Why my lips did not adhere to their marching orders is still beyond me. “You cannot lose this case,” they instead responded, entirely of their own volition. And if that weren’t bad enough, the damn things actually promised a victory. I’d have ripped them out on the spot but for my aversion to cold teeth.
The case could not have been tried better. Every one of our witnesses testified exactly as expected. Yes, the employee appeared in good spirits when he signed the new contract, yes, he read and appeared to understand it, yes, he told everyone how glad he was he had worked things out in such a satisfactory way, yes, he was grateful to the company for the courtesies he received, “yes,” testified our medical expert, “nothing in his current medical condition would have prevented him from understanding the terms of the new contract.” We had all the bases covered, save one. I couldn’t decide the case myself.
When the arbitrator ruled against the employer on all points, I was stunned. I figured that he must have written the opinion at the speed of light, for in it all real matter had ceased to exist. As an example, “(E)mployer’s medical expert never saw the amended contract,” he wrote, “and therefore is not competent to testify as to whether or not the employee understood it.”
Well, if you think I was stunned, you can just imagine how the client responded.
“But you promised,” said the President. “You promised.” It was just like when I had to tell my kids that even if there were a Santa Claus, he wouldn’t stop at our house anyway.
As bad as it was for the client though, it was worse for me. I had promised, indeed I had, and even though I profess no understanding of why I did that, I really do know why.
Despite my experience, I still believe that favorable facts and favorable law equate to a favorable result, and so sure was I of the facts and the law in this case, I could see no other result possible. I guess that my promise was nothing more than a statement of my faith in the way the system works, a faith that after all this time still clings to me as tenaciously as barnacles to an old tanker.
Well, old tanker that I am, I’m a bit in need of dry dock at the moment, wanting oh so much to be scraped clean of all debris and made to look spiffy new again, unencrusted by the barnacles of faith. The thing about faith though is that if its real it always comes back, just like those damned ruinous barnacles. I have other cases on my desk now, needing my attention, and I am anxious to get to them. I may be feeling a bit too spiffy right now, but before too long I’ll be as good as old, I promise.
© 1997, S. Sponte, Esq.