I Need a Miracle (An Odyssey of Idiocy) - Part 3 - October 26, 2007

There are two methods to arguing in court. You can tell the judge what to think or you can wait for him to speak first and try to align your argument with his views. And if you haven't been in front of him before you don't know which to use until the moment he's sitting above you. Some like to take control and frame the issues, asking questions. Some don't read anything and want to be spoon fed all the facts and law. By formal training and native disposition, I'm defense oriented. Nothing makes me happier than hearing a judge say "I've read your arguments and have a few questions" at the outset of a hearing. It's easy to react to a judge's lead and give him what he wants to hear. "Teaching" an ignorant or lazy judge is pure pain. You know the issue at a depth far beyond any comprehension he'll glean in the limited medium of a half hour oral argument and "dumbing down" a presentation is demeaning to everyone in the room.

In Martin's hearing I was the ignorant party, or at least I hoped that was the case. The issue was simple and the judge had to have seen it before. My job was to draw him into a conversation and give him some reason to take mercy on Martin. No judge decides a certain type of claim exactly the same way every time. They always have some leeway, even with a mandatory sentence. I just had to get him into a sympathetic frame of mind...

"Sympathy, sympathy, sympathy... What would get sympathy in this case?" I was talking to myself, the way I always did before hearings, forgetting Martin was sitting in the truck next to me.

"Sympathy? What are you saying?"

"You might have to pretend you're an alcoholic, getting treatment."

"What?"

"Maybe just a really bad binge drinker."

"Why?"

"We need people to like you."

"How is that supposed to--"

"Wait. Hold that thought. I like this tune." I turned up an old Dead bootleg playing on the stereo. "This tune has always confused me. You think it's about the bible, you know? 'Greatest Story Ever Told?' But the chorus makes no sense."

"What the fuck are you talking about?" Martin stared at me.

"You know the chorus. Where Bobby sings, 'The one thing we need is a left handed monkey wrench'? What does that have to do with the rest of the song? What the hell is a left handed monkey wrench?"

"You just sang to me."

"I needed to give you the melody."

I had no doubt Martin was running over train schedules in his mind, contemplating how he'd commute to work after I made an ass out of both of us and the judge yanked his license. And possibly mine, on principle.

There was no explaining the mechanisms in my head... Our approach was scattershot on the surface and my mind was all over the place, but there was a design to all of it. Have you ever wished that every important test or interview could be held on the fly? That instead of having to prepare and think about the thing somebody would just grab you, throw you in a room and start the awful, formal Q&A process that seems to be a necessary step in every promotion in the professional life? Do sudden chaotic demands and having to think in the moment seem miles more comfortable than plotting and planning to execute as though you're working off a playbook? ...That it's all so much easier when you're off the cuff and loose?

I wanted to calm Martin but what would I say? Tell him I was juicing my brain with random stimulus to take my mind off the hearing? You have to understand, Martin, I'm incapable of running a Duke offense here. In court my mind's an asteroid field of disparate points and arguments that only come together when I'm forced to open my mouth... I prepare. I read the law and a facts and even make some notes, but that all flies out the window when you're standing there talking. In a case like yours where we're making up the argument as we go the less structure the better... Clear the mind of all 'scripting,' be open to saying anything and have faith that subconscious genie in your head will put the facts and law together into something persuasive or endearing...

Sometimes it all clicks and out of the haze you're suddenly on point with every word you say, one perfect segue to the next linking streams of complimentary logic. Other times its pure "run and gun" - taking shot after shot and hoping to nail enough deep three pointers before the buzzer... Meandering arguments searching for that one perfect hook that grabs the judge and forces him to your position... The semantic equivalent of a Dead show, where every now and again out of the muck of aimless guitar runs the band would ignite into flashes of searing fretwork that made you forget everything coming before. You can't reach either of those levels following a script. It happens in the moment or it doesn't.

I shut my mouth and listened to the music. No one wants to hear his lawyer say that. Not even a free one. They all want to think you're In Control, even if they know it's a lie.

"Damnit." I hooked the truck sideways across a median.

"What are you doing?"

"That was the courthouse, behind us. I missed it."

"Have you been in this court before?"

"They're all the same. It'll be full of lots of wooden banisters and seats. You've seen To Kill a Mockingbird... It'll be like the courtroom in that movie."

"I'm not sure that's the best description."

"Well, there probably won't be any people in seersucker here."

"That would make me who, Boo Riley?"

"Radley. Boo Radley. And no. You'd be the sharecropper who gets acquitted. Can you hand me my cell?"

"Is it necessary for me to be in the room with you?"

"Hold this for a second." I handed him the coffee and flipped open my cell phone. "I can't steer with my knee... This suit's so slippery."

"I'd rather not talk when we're in there. Can you work that?"

"Of course. I'll do all the talk-- Hold on a second, Martin... Janet? Janet? Yeh, hi. You know I won't be in today, right? Good. Good. Just checking. Oh, thank you. I'll be fine. See you tomorrow."

"Who'll be fine?"

"I told my secretary I was getting a root canal." Technically, I wasn't supposed to practice any law outside what I was doing for the firm. Something about them being liable for any malpractice I committed. It was probably bullshit - a tactic to force associates to give the firm a cut of any clients they cultivated. "Where were we?"

"You were saying how I wouldn't have to answer questions."

"Well, the judge might ask you a question, but you won't have to testify."

"What's the difference?"

"The 'oath' thing. But you can't lie anyway. You already pled yourself into a hole. We're making an equity argument."

"Equity? I thought you said we didn't have an argument?"

"Equity's what you argue when you don't have anything else... Crying for mercy when the law says you're fucked." I noticed the courthouse passing on my left. "Shit, I missed the entrance again." We pulled a three point turn in a driveway and drove back up the street.

"Are you OK?" Martin turned down the stereo.

"I'm fine." The coffee was catching up with me and creating that horrible pressure anyone familiar with caffeine's effect on the intestines understands. "I just need a men's room, quickly."

"So equity can overrule the law?"

"If the judge and the opponents don't understand the issues, sometimes the court will rule totally contrary to the law. And if nobody appeals, no one ever knows."

"So the court could hook us up somehow? I just need a few months."

"Happens all the time. You just have to get lucky. You can get amazing results if you get a really dumb judge." I thought I was comforting him, but Martin was too smart for that. He understood 'Roulette Odds' and that in a forum where you could win with a doomed argument, there was just as much of a chance you could get slammed with a draconian penalty. But I didn't know any other way to explain the court process. You lose so many where you should win and win so many you had no business bringing. What was I supposed to say? "Some elected hack with a cheesecake job is going to hear your case and let's hope he's in a good mood... And understands the 'zest for living' that causes a nice Republican kid to point a rented Mustang convertible onto a main drag in Phoenix with a 2.1 blood alcohol level"?

"You'll be alright, dude." I slapped Martin on the shoulder, turned off the truck and darted across the lot for the courthouse. "But I really have to get inside. You know where to go, right? If you don't, just say the judge's name. Somebody will tell you." I sprinted through the security checkpoint, wincing 'hello' as people passed smiling. "Which way to Judge Beckett's courtroom?"

The hall was long and the run was agonizing, but I wanted to make sure I checked in early with the judge's clerk. I figured the court would be handling a bunch of arguments en masse on a first come, first serve basis. "Hello, I'm Mr. _________, here with Mr. Lennard. State v. Lennard?"

"Oh, great. You're here." A man in a grey suit to my left held out his hand. "James Clausen. From the District Attorney's office."

"Of course. How are you?" We shook hands. "Pleasure to meet you." By this time I was straining to keep composure. It was hot and humid, the suit was stifling and the pressure of the toxic sludge of last night's beers and quesadillas and the morning's coffees was spreading my colon tighter than a sausage wrapper in a microwave. "How long's the wait?"

"None." James smiled. "The judge is waiting for us."

To Be Continued...

Posted by PhilaLawyer at 1:45 PM

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