Thursday, September 13, 2007

finish the fight

I saw something yesterday that absolutely astounded me.

First, let me back up a scoach. As a point of review, I am a litigator. Yes, this is going to be one of those law posts... sorry. But this time we will descend together deep into the underground chasms wherein the trial lawyer dwelleth. You will even get to learn some fun legal terms to impress your friends and co-workers!

A litigator is a dude or a chick who manages to eek out a living through civil lawsuits. Going to court, in the trenches, getting yelled at by judges, scrappin' and mixin' it up.

I once heard a statistic that only 5% of lawyers go into court more than once a year. I suppose the rest of them sit in cushy chairs, shifting papers to and fro under the banners of bankruptcy, transactional, security, estate planning, or some manner of corporate what-have-you.

So it would seem that I am in the minority. It does not seem this way to me because I deal almost exclusively with other litigators. The frenetic and nomadic Paladins of the legal universe; we are mercenary rogues. We are, as one of the partners is keen on saying, "real lawyers".

Yesterday, I'm in court for what we call "Law & Motion". This is the process whereby the judge hears all of the various pretrial motions - summary judgments, demurrers, continuances, discovery disputes, etc. There are usually a dozen or so other matters on calendar, so you give the clerk your business card, and then you take a seat to observe the proceedings until your case is called.

I see a lot of lawyers otherwise engaged during this time. They're punching away at Treos and Blackberries, jotting on legal pads, or rummaging through file folders. No no. Always watch Law and Motion. Intently. Always. You can consider it part of your post-JD education: What Not to Do 101. During my short time as a practicing attorney, I have learned volumes by watching all nature of screw-ups during Law & Motion. I have learned almost as much as I suspect other attorneys have learned from watching me get yelled at.

For example: Don't refer to the judge as "ma'am". I still wake up in cold sweats from the aftermath of that faux pas. Did you know that it's actually illegal to refer to the judge as anything other than "your honor"? Well, I sure didn't. It was so bad, I think the downtown L.A. courthouse should put up a memorial plaque for me. Because I died a little that day.

But I digress. Most judges issue tentative rulings; "tentatives" for short. So when you walk up to the counsel tables and stand in front of the judge, you already know how he or she is inclined to rule. Sometimes, it is not in your favor. If this particular judge has "published" his or her "tenative", this means that the judge has given you a piece of paper memorializing all the reasons why you are wrong. Stinging defeat.

But wait! There is still a chance! If the tentative is against you, the judge will ask you if you would like to "submit on the tentative" (accept it and go home) or "be heard" (argue your points directly to a judge who has already done the research and made a decision).

The answer is always, "I would like to be heard, Your Honor". Always. Never submit. Never, ever, ever submit on the tentative.

Needless to say, this is not an ideal position to be in. While it is often the case that judges are wrong, you're asking a judge to admit that he or she was wrong and change his or her mind. And a judge is more likely to ride into court on a magic rainbow and give you a pony.

But having to argue against a tentative is a thrilling position to be in. It is legal advocacy in its purest distilled form. Just you and the judge, face to face, brain to brain, arguing the cases and the legal analysis. After all, you have a legal obligation to zealously represent your client.

So yesterday. The judge calls a summary judgment. A summary judgment is one of many species of pre-trial motions that basically proposes: The other guy has no case, here's why, and therefore I should win before we even get to trial.

Two attorneys proceed to the counsel tables and stand before the judge. The judge says:

"Plaintiff's counsel - you've seen the tentative and you're aware that I'm inclined to grant Defendant's motion for summary judgment. Do you submit on the tentative or do you wish to be heard?"

And this guy, this guy, says:

"Well, that's a good case you've cited here, Your Honor. So I guess you've got me on that one. I guess we'll submit."

I was utterly aghast. Dumbfounded. Nonplussed. Not only did this gentleman submit on the tentative - he basically complimented the judge for throwing out his case. Hey there, Mr. Hangman - that's some mighty fine rope you're using. I reckon it won't even chafe my sensitive skin.

Now, in all fairness I should say that it is all but inconceivable that this particular judge would have reversed his tentative. The judge even shot me down, and I was bringing a joint motion. As in, all of the parties - plaintiffs and defendants - jointly agreed that we should make this motion and we signed off on the paperwork together. And we lost! How do you lose something like that?

So yeah, this guy was going down - no doubt about it. But to go out like that? I guess he's the only male left on the planet that hasn't seen 300. Or maybe he doesn't understand that failure is just success rounded down.

Perhaps there is a lesson here for us all. Don't submit on the tentative. And pack a toothbrush, just in case.