Lex Anteinternet: The glory of being a trial lawyer.

Lex Anteinternet: The glory of being a trial lawyer.: 

The glory of being a trial lawyer.

The dirty little secret. . . there isn't any.

One of the nice things about being in a farm community as a working travelers is that their Sunday morning Masses usually start really early, as in 7:00 a.m. in this case.

At least not like portrayed in the movies, and certainly not like the silly "whaling for justice" type of stuff that the plaintiff's bar likes to shovel out.

Recently I tried a case out of town. I've tried so many in the past three decades I no longer have any idea how many I've tried, and if I stopped to try to count them, I know that I'd be inaccurate.  When you apply for a judicial appointment, which I've done several times, unsuccessfully (obviously), you are required to count them up, and I'm sure my numbers weren't the same any time I did that, even though I made an effort to be correct.

I do know that the year COVID restrictions on the courts lifted, I tried three that year.  That may not sound like a lot, but for a civil litigator it is.  I know quite a few civil litigators who have tried less than that over decades' long careers.  One law school colleague of mine who does the same work, has never, in so far as I know, tried a case.  An ABA review I once read of lawyers who had long civil careers and then retired (which seems to be a rarity) remarked that one of the subjects was proud of her "six" trials.

Six.

Hah.

There are a lot of reason there are not very many civil trials and even fewer serious civil trials, but one reason is that trials are hard stressful work.

But I'll get to that.

This past year, dating back a year ago or so, has not been a good one for me on a personal level.  I had surgery in the fall and missed the hunting season.  It was colon surgery, and I've never completely recovered, which is to say that my digestive track has not returned to normal, and it isn't going to.  During that process, it was revealed by a scan that I had a major thyroid nodule.  Followup on that showed it to almost certainly be cancerous, so during the trial, was looking forward to a second surgery, a partial thyroidectomy, and if really lucky I won't have to take medicine for the rest of my life.  There is, however, a good chance that I will have to. 

Having  the trial to accomplish meant that I didn't have to think about it, however.

In terms of good news, it turned out to be benign. Strange, but benign.  It's basically a result of an old injury, one I don't ever recall sustaining.

Current wound status.

Hopefully the recovery time isn't really long, but it varies quite a bit for people.  

I ended up never taking a day off from the second surgery, not even the day of the surgery, which was a mistake, I'll note.

Anyhow, for about a year running now, my life has been nothing but work.  As noted, I missed the hunting season and what little I got in prior to surgery was marred by being incredibly tired.  I'm not sure what was up with that (perhaps the thyroid), but I was.  I couldn't go for big game after that least I rip my stitches out.  

I did get out for waterfowl quite a bit late in the season, mostly on Sunday's after Mass.  I'd work on Sundays but for the Commandment to keep the Sabbath holy, which I take seriously, although occasionally I find myself working on that day too.

That's mostly a reflection of my personality.

The trial in question had been from a pre COVID case and it finally rolled around to to.  Just before it did, my opponent let me know that his young female partner was leaving, and she did before the trial commenced.  I was stunned, really, as she was bailing out of a really good firm and she's a really good lawyer.  She was leaving private practice to go in house.  

No more trials for her.

Then my younger female partner let me know she was leaving. She stuck with me through the trial.

Finding a lawyer you can comfortably try cases with isn't easy.  Frankly, maybe one in ten lawyers who do trial work are really talented at it and of those, maybe only 10% anyone one person meshes with well enough to have that role.  But here she definitely did.  Her leaving is a big loss to me, just as my opponent's younger counsel leaving was a big loss to him.  I don't know, really, if I'll be able to replace her.

For some time I've frankly wondered how she does it, as she's married with young children.  When I was first practicing law, the female litigators I'd meet, and they were few, tended to be childless, often by choice.  Quite a few women started to come into the law about the time that I did, and by and large if they were married and started to have children, they dropped out of practice.  It was just too much of a burden.

This recalls the old phrase, supposedly written by Jean Little, a Canadian author:

A man can work from sun to sun, But a woman's work is never done.

There's a lot of truth to that, quite frankly.

For some reason, even in our "modern" age, the traditional division of labor in which women are burdened with raising children while they're young and keeping the household has never gone away, even when the woman of the house is a professional and its first breadwinner.  Perhaps its simply genetic, although we're not supposed to say that.  About the only relief I see them getting is from willing grandparents, really, and that too, oddly enough, is a very traditional role for grandparents.

Anyhow, juggling a household and having a professional job that requires long hours and travel. . . that's brutal.  I don't blame these women a bit for seeking something else out.

One more example of how our modern "you live to serve this ship" lifestyle makes no sense and makes nobody happy.

You always go to the location of the trial early.

On Sunday, I looked out of my hotel window and saw this:

Horses by an old homestead, still being farmed.

Sigh.

The only thing I got out to do was to go to Mass.

I like everyone to have their own vehicles at a trial.  It gives everyone some independence.  If I control things, and at my age I do, everyone drives themselves.  

This, I'll note, isn't the case with some lawyers, although it is with all the ones I know.  Those people must be the really extraverted ones who just think everyone needs lots of sharing time all the time, and therefore they make the whole team prisoners to their automobile.

Hotels have evolved quite a bit in the past thirty years.  Thirty years ago I'd look for a hotel with a restaurant and then catch breakfast.  Now, most hotels that I stay at are "business hotels" which means that they have a light kitchen with the bare minimum. As breakfast is an afterthought with me anyhow, I’m good to go with that.

I’m not good to go with these monstrosities:

I hate Keurig machines and their stupid one cup at a time system.  I always have.  I never drink just one cup of coffee bu several, and I don't want to screw around making endless little cups. To make matters worse, it's invariably the case that the person who stocks the rooms leaves you hardly any real coffee, but lots of stuff like Ceylonese Green Herbal Tea or something. 

Blech.

We always go down and get a bunch of real coffee for the stupid Keurig machine.

One thing about trials is you get to wear your cool dress shoes that otherwise would look odd in our modern era.

These are saddle oxfords.  Saddle oxfords made from buffalo hide, I might add.  

I've never worn out, I might note, a pair of dress shoes.  I have my black low quarters from basic training still.  When I was first practicing, I bought a pair of wingtips made in Ireland, just like the dress shoes my father had when I was young. They've been resoled once, but they're still in good shape.

Indeed, I only have five pairs of dress shoes, one being the aforementioned Army low quarters I very rarely wear.  I'm never going to need to buy another pair.

I do need to shine them.

Parking lot view.

One thing about doing a trial in farm country is that it always causes me to think how lucky some people are that they get to farm as a career.

I don't think they appreciate that.

I never think that about trying a case in a big city.  I've tried cases twice in Denver and wasn't envious of a soul associated with Denver. The poor judge looked like he'd been rode hard and put away wet in the second one. Denver itself, out on the street, was like a Middle Easter Dysentery Ward in the 30s.  The jurors had jobs I wouldn't have wanted.  

Grim.

In farm country you see, however, people living the way that people are supposed to live.

Restaurant view.  The field below is one I've hunted geese in.

I constantly hear people in agriculture complain about it, and by that I don't mean the weather or something, but about being in agriculture itself.  Maybe complaining is just something people do.  Pascal noted:

If a soldier or labourer complain of the hardship of his lot, set him to do nothing.

I'm not sure what Pascal was aiming at there, but I think it might have been that people just complain.  I also think, however, that a lot of people who were born into agriculture have no idea what other work is like, including working as a professional.   

I turned 60 recently as well, which of course is a sort of milestone for many people, although I really didn't pay that much attention to it at the time.  It really started to set in, however, when I attended a mule action by video. Everything was too expensive, and I didn't buy anything, but leading up to it, I got a fair amount of opposition from my spouse.  Most of it was of the nature of "you don't have time".

I don't have time, which is because I work a work schedule at the office, in this civil litigator line of country, that's very heavy.  I work a schedule that's heavier than a lot of lawyers in their 20s and 30s.  I have nobody, I guess, but myself to blame for that, sort of.  Part of it too has to do with the circumstances during which I came up in the law, and part of it has to do with my own character.

When I was young, before I was a lawyer, I wanted to work outdoors.

It's never really stopped being in a least the back of my mind.  The net effect of that is that from the exterior I'm one of the rare trial lawyers who tries a lot of cases.  I'm cited to other lawyers that way, and because of the work that comes through my door, it's pretty obvious that my reputation as a trial lawyer is impossible to escape.  But part of the reason that I can't escape it is that those immediately around me, including those closest to me, see me that way and can't imagine a world in which I'm not yoked to the plow in this fashion.

Elijah set out, and came upon Elisha, son of Shaphat, as he was plowing with twelve yoke of oxen; he was following the twelfth. Elijah went over to him and threw his cloak on him.

Elisha left the oxen, ran after Elijah, and said, “Please, let me kiss my father and mother good-bye, and I will follow you.” Elijah answered, “Go back! What have I done to you?”

Elisha left him and, taking the yoke of oxen, slaughtered them; he used the plowing equipment for fuel to boil their flesh, and gave it to the people to eat. Then he left and followed Elijah to serve him.

1 Kings, Chapter 19.

I've always thought Elisha's actions baffling.  But they are not.  He was wanting to set out with Elijah, who had just anointed him his successor.  When he left the oxen and spoke to Elijah, Elijah seemed annoyed and told him to go back.

Yoke's were expensive, and so were oxen.  By burning his wooden yokes, there was no going back.

If this seems harsh, consider the similar lines from Luke in the New Testament:

As they were proceeding on their journey someone said to him, “I will follow you wherever you go.” Jesus answered him, “Foxes have dens and birds of the sky have nests, but the Son of Man has nowhere to rest his head.”

And to another he said, “Follow me.” But he replied, “[Lord,] let me go first and bury my father.” But he answered him, “Let the dead bury their dead.* But you, go and proclaim the kingdom of God.”

And another said, “I will follow you, Lord, but first let me say farewell to my family at home.”  Jesus said, “No one who sets a hand to the plow and looks to what was left behind is fit for the kingdom of God.” 

In modern American life we imagine we can always go back and most of us live our lives that way.  Had Elisha decided, well, I'll plow the field and bring in the crops and take up being a prophet later, he wouldn't have become a prophet.  Those setting a hand to the plow, and looking back, don't plow a straight row.

And so back to the main.

There's really no glory in trial work, in spite of what people like to imagine.  It's hard work.  If you win, your clients view the victory as theirs.  If you lose, it's your fault.  Everyone wins some and loses some, and moreover, wins some they should lose and lose some they should win.  It's so stressful that most civil litigators, truth be known, and this includes both plaintiffs and defendants lawyers, won't try a case.  Those who will tend to be a tiny minority, and we try lots of cases, because we will.  You get used to a lot of the things about it, but like the way Jock Lewes is portrayed in SAS, Rogue Heroes (stay tuned for a review shortly), some of that is suppression of anxiety rather than its elimination, although anxiety does indeed decrease with time.  People who run around claiming they love everything about a trial tend to be weirdos or liars, more often the latter than the former.

And, for what its worth, I've tried a minor case since this one.