Confusion is a word we have invented for an order which is not understood.
- Henry Miller

If you saw the Grateful Dead chances are you ran into people wandering the parking lot before the concert yelling "I need a miracle." It's a lyric from the song of the same title, off the lamentable Shakedown Street album. In concert parlance the expression meant "I need a ticket." The Dead sold out all their shows, even at the tail end of their career, when Jerry would pass out and fall into the microphone during a ten minute "Stella Blue." Still, like a lot of the silly cliches used by the sorts who followed the band, the expression didn't make much sense. You can't say the approach was calculated or had a probability of success, but shoving yourself in the middle of a crush of 60,000 bodies piling into a stadium and finding one who'd give or sell you a ticket was hardly miraculous. All it took was a tolerance for the chaos of the scene and putting yourself in the right place to get the offer.

Litigation works the same way. Of course it's better to have a ticket than beg at the gate of a concert, and in law it's better to have a good argument and some strategy going into a case. Sometimes, however, it's just not there - the facts and the statutes are all stacked against you and there's no hope of winning any sober debate on the merits. Not even enough to bluff. But there's opportunity in chaos, and though it holds out the fiction of organization and clarity, court is a Chinese fire drill. And one truth is certain - no amount of fretting or strategizing in the office is going to make a hopeless claim any stronger. The only chance you have is to use the same strategy as those lost hippies at Dead concerts - go to the show, to court, and hope for a miracle.

"Do you really need that much coffee?" Martin was flipping through papers.

"I can't think properly without it."

"We've already stopped twice."

"I feel like ass. Those Yuenglings from last night are still with me."

"That's why I don't drink beer, particularly that sweet shit."

"Why is that you can drink three huge scotches and feel fine, but five beers wreck you?" I threw the car in park in front of the 7Eleven. "I'm just going to run in and get one more small coffee. This mini-mart stuff doesn't have any caffeine in it."

"Whatever it takes." Martin read the court papers in his lap.

I blamed the knots in my stomach on the beers but they were the least of the problem. I was nervous, more than I'd ever been before. Representing a buddy's a great deal for him. He gets free services and more personal attention to his case than he'd ever receive from the best hourly hack. For you, however, it's not so good. Losing's always annoying, but in the bigger picture, who really cared if some faceless "Inc." you represented at your job got whacked in court? The firm got its billable hours paid either way. And a corporation wouldn't be out with you for drinks every weekend, a constant reminder that when somebody needed you and for once the job actually mattered, you crapped out.

For reasons that now seem like doomed idiocy, at the time, I felt the only way to deal with nerves was by pouring accelerant into them. Speed brings clarity and if you hit that perfect zone where the tongue and the mind are cranking off each other and ratcheting to higher revolutions with each passing thought you can string together some amazing arguments. Run into court ripped on forty ounces of black coffee and rattle off at the judge like a Thompson gun... You didn't win every court appearance, but you got off every point you wanted to make.

And that day, Martin and I needed any help we could get. He had no defense under the law; all I could do was beg and hope there was some quirk in the statutes I'd missed in my research and that a benevolent judge would use it to our advantage.

Martin had gotten popped for a DUI on vacation in Arizona six months before. A total set-up - he'd hardly moved his rental car from the front of a bar when the cops nailed him. They'd been watching the place, probably chalking his tires to determine how many hours he'd been there. The police report was filled with the generic "probable cause" justifications for pulling him over - "Vehicle's tire crossed into yellow line"... "Driver observed veering from right to left prior to crossing line." Martin got a lawyer out there, took care of the hearing a few weeks later, paid a fine and promised the court he'd do an Alcoholics Anonymous program at home. Other than a spike in his future car insurance rates, he figured the whole thing was behind him.

Then Pennsylvania sent him papers saying it was moving to revoke his license for one year. "What the hell is this?" He called me upset one day. "I paid a lawyer. I paid my fine. What the fuck?"

"It's called the 'Interstate Driver's License Compact.' Almost all the states have reciprocity on these offenses. You get a DUI anywhere and that state reports it to your home state and your home state does what it would have done if you'd gotten busted there."

"What are the defenses?"

"I don't think there are any."

"This is bullshit. I need to use my car. I can't commute on the train. My lease still has half a year on it and I can't afford to move closer to the office and pay for my current place at the same time. What the hell do I do?"

"We start stalling."

I filed for as many continuances of his hearing as I could and tried to massage the prosecutor. "This guy's not a bad egg. He was letting off some steam on vacation. He's got no record. Nothing."

"My hands are tied. It's a mandatory penalty." The prosecutor was cool about the whole thing. "But so you know, I'm not going to press hard. I don't have to. Your guy pled 'no contest' in Arizona, so he automatically loses his license here. I don't have to say anything at the hearing except 'Your Honor, here's the law.'"

"Thanks. I appreciate that." I couldn't ask for more out of the prosecutor. We could have wound up with a Boy Scout - one who'd vow to throw the book at Martin and scold me about the "severity of the crime." Over the years I've worked with a handful of prosecutors. Some are pragmatic sorts, quick to offer a plea to avoid work. Others are hyper-competitive or politically ambitious. They'll play hard and scare you, but in the end they'll usually offer a plea to protect their win/loss record. And most are too drained by the bureaucracy of the public sphere to care much about a rinky dink hearing like ours. Every once in a while, however, you'd stumble into a zealot, the kind who could turn an easy little court appearance into the Scopes Monkey Trial. You could spot them quickly by looking for words like "deterrence" or "punishment" or "sending a message" in their papers or arguments. And Martin's hearing was a rabid rule custodian's wet dream - a mandatory penalty. A vigilante D.A. could call Martin shit with legs, damn him and hum the Battle Hymn of the Republic in his closing... grandstand like some cheap Jesus Huckster and still not lose. And a lot of Napoleons would have pressed from that angle, for the sheer glee of exercising a moral pedestal and hearing themselves roar. Thankfully we'd stumbled into a Regular Guy.

"I'm probably going to make up a lot of shit today. We're fishing. I have to see if the judge can do something for us that I don't know about." I was rambling, pouring the coffee down my throat. "Do you understand? Just follow my lead, OK?"

"That's the strategy? Sounds like a train wreck."

"Exactly. We'll slam a bunch of points into a judge's head and see what happens." Playing the "Miracle" angle is a little more complicated than that, but Martin's analogy was accurate...

So many partners analogize litigation to chess, stroking their comb-overs, wiping a blemish from their size nine shoes and talking of the "next move" as associates sit across the desk from them, nodding and pretending to take notes. Litigation's the sport of sneaks, and dodging your opponent's strongest claims rather than taking them on head first is almost always the best course. But there are many exceptions to that rule. And these grand masters of "the game" crash and burn when faced with an opposing position they can't angle around. I've seen it firsthand. They read the opponent's motion papers, realize they're screwed, throw a tantrum and demand associates research thousands of pages of dicta from old cases and furiously rework briefs to find some magical combination of words and cites to transform a dead lock losing argument into something credible. And all the while the solution's staring them right in the eye - going through the opponent. Or at least at him. That was all Martin and I could do... Drive our argument into a collision with the system and see if somewhere in the impact a Northwest Passage out of the mess would emerge.

Executing this plan is tricky. On one hand its Vaudeville, a sloppy shuck and jive act... Arguing your client's impossible position, charming the court and praying it proposes a compromise that exists in common practice but nowhere in the law books. On the other hand it's surgery, measuring the absurdity of your arguments to ensure you're showing just the right amount of passion to gin sympathy from the judge without insulting the process, then dancing through the shrapnel from the wreck of senseless debate you've created and grabbing the best offer when it comes. You'll never "win" with the strategy, at least as that word's understood in zero sum games like litigation. Success is minimizing the degree of loss; breaking even's a home run.

The hardest part is taking the chance of standing in court and spitting a futile argument at a merciless judge. It's one thing to submit hopeless papers. Lawyers do that every day. Presenting that slop in a room full of spectators is a different level of shame. The process is a lot like hitting on an attractive woman in a bar. Getting over that threshold fear of rejection that keeps so many of us standing in the corner, drinking and talking about how much we'd like to meet some cute girl ten feet away, but never mustering the guts to make a move on her.

To Be Continued...

Posted by PhilaLawyer at 11:33 AM

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