Random thoughts while waiting for godot

Mark Levison, The Levison Group

As we all wait for Christmas, I’m waiting for a decision in a case tried to a judge during a recent intense three-week period. After the case was finished, each side was asked to submit proposed conclusions of law and a proposed order to the judge — then the wait.

Trials are hard work. The lawyers that work the hardest have the edge, but hard work alone doesn’t ensure victory. It would be nice if it did, but sometimes the other lawyers work hard too. Then there are those important intervening variables like the law, the facts, and those extraneous unknowns, that maybe shouldn’t matter, but usually do. Things like, did the jurors think the plaintiff’s dress was too short; did they think the expert was too smooth, or did they not like the occupation of defendant’s husband.

Fortunately, for me, awaiting a decision on a hard fought matter doesn’t put a damper on Christmas parties. At this time of year I often recall the first holiday party at the first law firm that hired me after graduation. It was a fancy place. All the associates received really nice presents, and I received a bonus much larger than I had dreamed of. Looking back, I guess I was naïve. There was no way to really know what practicing law was going to be like in those halcyon days of fancy law firms and good times. Cases were exciting and high profile. The competition was fun, and, better yet, as an associate I didn’t have to worry about getting business, paying my secretary, making the strategy decisions that could make or break a client, or even sending out bills.

Today, in a not yet recovered economy, the law practice doesn’t seem quite as carefree as it did then. Of course, this may have something to do with the fact that the buck now stops with me and it is now my responsibility to get the clients and cover the overhead. Responsibility for ultimate results, both for the client and for the firm, gives you a little different perspective. Being unaware and inexperienced had its upsides.
All in all, however, I’d trade the peace of youth for the stress of experience on most days. Experience comes with life lessons and professional lessons, and those are generally good things. Except for the fools among us, and I can personally attest that there are some, it’s impossible to practice law and not learn lesson after lesson through the years. Opponents are great teachers of lessons in how to try, or how not to try cases. Sometimes they don’t know they are teaching us lessons.

I’ve noticed during this year’s tour de parties that more and more I seem to be running into a lot of lawyers with whom I have tried cases. If there is one enduring lesson echoing through the courts of justice, and law firms all across this country, it is that getting along with your fellow lawyers, whether they are on your side, or the other side, is much better than not getting along. Fair play, and treating opponents with dignity, are characteristics more commonly present in advocates with a few years under their belts than evidenced in attorneys of a younger vintage. Some new lawyers lack this appreciation. I know, I was one.
There are some holiday parties that become traditions. Generally the same old crowd is there and the ambiance is similar year after year. I kind of like those parties. You know, not too many surprises. We have enough surprises from our witnesses. A little predictability, around Christmas, is welcomed.

Some people get tired of parties. I don’t. I’m perfectly good with eating mediocre food, seeing judges that I may be trying cases in front of — or at least arguing motions before, in the not too distant future — and seeing friends, some the same, at several parties in a row. I’ve been known to wear flashing lights at holiday parties. That’s because I’m not afraid to do things that are different. My wife thinks it’s because I crave attention. Well, maybe she’s right, but there’s nothing wrong with getting attention, on occasions, particularly in trial work. I’m not one of those sly fellows who strolls up to the bench during informal matters and whispers to the judge as if I was keeping secrets. I speak so everyone in the courtroom can hear me. I think it’s a sign that I have confidence and conviction in my position. Others think it’s because I’m a loud mouth.
After I gave my closing in the recently tried case, opposing counsel got up for his turn and told the judge he wasn’t going to yell and flail his arms around. That didn’t fool me, I knew who he was talking about. He then suggested my demeanor was that of a demagogue. I thought that was an overstatement, but I appreciated getting his attention. There’s something to be said for getting under the opponents skin — and I mean that only in the nicest way.

Today there are more law schools and they churn out larger graduating classes. This results in more lawyers, which results in less familiarity among the lawyers within a federal district, a state, a county or even a city bar, resulting in less collegiality, which results in — well let’s just say this has not been a positive phenomenon. Nevertheless, although our contact with the lawyers of the bar may be less personal than in days gone by, even in the wake of increased numbers, increased competition, and methods of selling our services which some of us do not approve, there is still great respect among the trial bar, for our system, our opponents and the judges that make our system work. So, while I’m waiting for the latest decision to be handed down through “the system,” I think I’ll just enjoy a few holiday parties and camaraderie with other members of the bar. It’s not a bad way to spend December.


Under Analysis is a nationally syndicated column. Mark Levison is a member of the law firm Lashly & Baer. You can reach the Levison Group in care of this paper or by e-mail at comments@levisongroup.com.
© 2012 Under Analysis L.L.C.