By Spencer Farris
I left the Levison Towers in a bit of a funk today. I had suited up to go to court at 8:30 in the morning, and traffic, along with my poor planning doomed me to be late. To make matters worse, I was going to court for a discovery dispute.
I hate discovery disputes. Judges hate discovery disputes. There are legitimate items worth fighting over, where privacy or privilege should prevail, but most of discovery is a) a waste of time and 2) not worth fighting over anyway. I learned long ago that working out a dispute is typically preferable to a court appearance. One judge used to let lawyers with discovery disputes wait in the courtroom till the end of the docket call. Miracle of miracles, many of the disputes were worked out, especially on long docket days.
This particular discovery dispute was a silly one. I had submitted standard requests for photographs of the cars involved in a crash. The two young lawyers on the other side argued that, even though the cars had been repaired or scrapped, I could not show that I needed their photos, and they wouldn’t produce them willingly.
I arrived in court more than a little flustered at being late. My opponents were gracious about the tardiness, but wanted to “discuss” the photos.
“There is nothing to discuss,” I smugly told them. “Producing car photos is part of litigation, and I can’t believe you are wasting a judge’s time with this. I am not going to waste my time with lessons you should have gotten in law school, I will let the judge educate you.” I secretly hoped that the chewing they were about to get in the judge’s chambers would make them think twice before forcing me into a coat and tie on a Friday.
The judge asked what we were there for. I explained the dispute, and then my opponents launched into a monologue that began with the Ten Commandments and meandered through the history of the work product doctrine, eventually ending with a discussion of the photos and how I didn’t really need them.
The judge gave me a look as if to say “are these guys serious?”
“Here it comes,” I thought. The blast. The kind of buzz saw that sends a lawyer limping home with what is left of his tail between his legs.
Instead… Nothing. The judge sustained my motion without the slightest annoyance at the unabashed stonewalling and obstructionism displayed by my opponents. There was another lawyer in the courtroom who said, “Really, arguing about photographs?” But that was little salve to the loss of schadenfreude I had hoped to enjoy.
Back in the early days of my practice, I was a hammerhead, and I made a lot of mistakes. I learned quickly that there is a rhythm to the practice of law, and certain things are done without a second thought. Plaintiff typically gives his deposition first. Depositions happen after paper discovery is completed. Photographs are given up early and often in discovery.
Being a middle aged lawyer means benefitting from learning how the rhythm of the law flows and ebbs. I know where to park when the courthouse parking lots are full. I know which court houses have elevators that are aspirational rather than functional, and where the stairs are. And I used to know which judges do not suffer fools lightly. As a young hammerhead, I did not always learn these lessons by the Socratic method. The best remembered ones came after being dressed down, occasionally in open court, by a judge who didn’t appreciate my tactics, but wanted to make sure I appreciated that the court’s time was valuable. In retrospect, many of those judges were about the age I am now.
To say practice is relaxed in many courtrooms is an understatement. I saw a lawyer cross examining a witness last week while drinking coffee at the podium! When the lawyer couldn’t form a non-objectionable question, it appeared to me that the level of respect for the proceedings may be related to the skill of the practitioner.
It is the judge’s place to control the courtroom, and I understand that. But to lower the standard of decorum and remove solemnity and respect for the proceedings seems to precede accepting a lower level of skill in attorneys.
While I appreciate a kind judge and don’t begrudge charity to my opponents, there is something to be said for a stern black robed figure—one who makes sure that a lawyer’s mistake is not repeated, at least in that particular courtroom.
In reality, I reckon I am not really upset that my young opponents got off easily. Jealous perhaps. My only solace is that my next goof is just round the bend, and maybe some of that karmic kindness will come my way.
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Under Analysis is a nationally syndicated column of the Levison Group. Spencer Farris is the founding partner of The S.E. Farris Law Firm in St Louis, Missouri. He has lost patience, especially for his own mistakes. Comments or criticisms about this column may be sent c/o this newspaper or directly to the Levison Group via email at farris@farrislaw.net.
©2014 Under Analysis LLC
