“Real courage is when you know you're licked before you begin, but you begin anyway and see it through no matter what.”
― Harper Lee, To Kill a Mockingbird
I knew we were in trouble when we started winning on all of the other side's objections.
"What do you think is going to happen" the client asked excitedly after the close of evidence, sensing that we were gaining the upper hand.
"I think we're going to lose." The excitement drained from her countenance.
You see, if a judge starts overruling objections to your evidence, and basically letting everything in, he's actually insulating the judgment he's already decided to enter from the possibility of a successful appeal. If he gave you everything you wanted and ruled against you in the end, what is there to appeal? I actually become more optimistic during a trial if we start losing all the little rulings that comprise the body of the case.
Folks who haven't been standing in a courtroom blathering for a quarter century, as have I, don't get that. Hence the confused client, there for her first trial.
This case had hair all over it from the beginning, a trust accounting dispute in which the one witness we really needed had died, leaving us with basically no testimony or records to prove what it was our burden to prove. We cobbled together the best case we could with what we had available, but in the end it just wasn't enough.
The actual judgment split the baby, gave the other side almost exactly half of what they were seeking, but it felt like a loss all the same. I have to get over that feeling of failure and disgust at the injustice of the outcome, and it was in fact an unjust outcome resting on a technicality. Following the law doesn't always lead one to a result clothed with equity and fairness. The bad guys winning isn't a fluke or an aberration--it's baked into the system.
So after following the angry, brooding client out of the courtroom, my shiny new associate and I loaded our stuff and the three of us into the car, and drove back to the office to debrief what just happened and our options going forward.
From there I observed that it was the loveliest of November afternoons, clear and 73 with a soft breeze off the bay, and we should continue our discussion over a drink on the deck at the yacht club.
That's the new associate Connor, now a veteran of his first trial only a few weeks after getting his bar card.
Well, one followed another followed another, blessedly punctuated with several glasses of water along the way, and soon the sun was setting and I was regaling the table with stories of trials past, of decapitated preschoolers and $19 million math errors discovered at the last minute and doctors who'd never gone to med school and witnesses who wanted to fight me during cross examination in front of a jury.
"In the end, this one was just about money," I reassured the client, a nice lady I've known for going on thirty years. "Be grateful we weren't sitting through testimony from parents about picking out caskets for their kids."
I also reminded her of the fact that whatever the court decided had been done wrong wasn't on her watch--she was a successor trustee who inherited this mess when the original trustee died. And it wasn't her money the court was effectively handing over to the not-very-nice person on the other side.
We tried a good case, a clean case, and everyone will get paid in the end. A spectator in the back whom I've known for years said my closing argument was one of the best she's ever seen. So there's that.
I even quoted Matthew's Gospel in the end, reminding the court that the plaintiff, a serial litigator whose business model involves taking people to court, was once again seeking to reap where she did not sow, and gather where she did not scatter. Of course, quoting from a parable about being a bad steward is a risky move in a breach of fiduciary duty case, but I figured the judge hadn't gone to seminary and wouldn't make the connection.
So there's no Monday morning quarterbacking or second-guessing how we did our jobs in the courtroom this week. Still, I just don't feel good about it, which is a sign of professional immaturity on my part. What were you expecting, Donk? For the good guys to win?
Hell, I know better than that. Or I should by now.
Back to the grind this morning, but I think I'll go back to New York tonight. I miss my Peg.
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