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Washington Lawyer

Legal Spectator: Daumier in Motions Court

From Washington Lawyer, May/June 2000

By Jacob A. Stein

spectatorWhat you would see in a French court of law would bear a significant resemblance to what you would see in a court in London, New York, Berlin, or Hong Kong. You would see lawyers, litigants, witnesses, and clerks. In most courts the lawyers wear black robes and the litigants wear the look of apprehension. Nothing good is going to happen. In Honore Daumier’s drawings now on display at the Phillips Gallery the lawyers not only wear black robes, they wear black hats. The costume of the advocate inhibits the judge from falling into the habit of treating the wrongdoing of the client as the wrongdoing of the lawyer.
     Daumier demonstrates his comprehensive knowledge of the judicial process by the way he catches the posture typical of a lawyer telling a witness exactly what to say. And there are drawings depicting a lawyer telling the witness that what he has just said was fatal to his claim. The case is lost. All that preparation gone like a snowflake on the water.
     Daumier transmits the atmosphere of delay that hangs heavily over all judicial proceedings. Too many things must work in unison for a judicial proceeding to start on time. Going to court is a waiting game. It always has been and always will be from the beginning of time to the end of time.
     Daumier particularly must have enjoyed laying on the grease crayon showing the lawyer pleading the client’s cause, leaning forward with arms outstretched, engaged in a bathetic yearning for simple justice for his client who sits close by in awe of his lawyer’s performance. A moment ago the advocate was half asleep. Now the curtain is up and he is an operatic performer.
     In several of Daumier’s drawings I see what must have been a French motions court in the 1850s. All motions courts are alike. The motions clerk notifies the lawyers to appear at 10 o’clock for the motions calendar. Everybody responds and the vigil commences. The law of probabilities states that the lawyer attending a motions calendar at 10 will not be heard before 11:30. A few will even be told that their cases cannot be reached before the luncheon recess and they must return at 1:30. The judge may not take the bench until 11:30. He will apologize. He will say he had important matters in his chambers, important matters that must be attended to. The cynical lawyers have heard this before. They imagine the judge sitting back in his big chair dipping the tip of the Danish pastry in his caffe latte.
     Once the judge settles in the clerk asks for preliminary matters. Lawyers move forward to address the court. There will be a few announcements that the motion has been resolved. The judge compliments the lawyers on their maturity in reaching agreement.
     Next will be the requests for continuances of the hearing on the motion. Here the true resourcefulness of counsel is on display. The file was lost. He never got the notice until yesterday. Discovery is not complete. The motion was prepared and was to be argued by cocounsel who is engaged in a trial in another court. The judge is unsympathetic. He is a student of Williston on Continuances, the authoritative text. He insists that the motion be withdrawn without prejudice, otherwise he will dismiss it with prejudice. The judge always wins. And now the clerk’s first reading of this morning’s calendar. Please announce "Ready" when your motion is called.
     What should one do between 10 and the time one’s motion is to be heard? It is a time to read. The best reading matter for motions court consists of books that are soothing, passive, meditative, books that generally woo the imagination, sedative books, calming the mind and so composing the body and spirit that one can rise when his name is called, showing no irritation at having arrived at 10 to speak at 12.
     The books I have in mind are rambling and discursive, neither too boring nor too exciting-interesting on every page but dramatic nowhere, with a stream of events but no definite break-the kind that can be put down so that one can give attention to the embarrassment of a fellow lawyer, at the hands of a short-tempered judge, and picked up again after this pleasant interlude, without the feeling that one has lost the thread.
     It is also helpful if the book is elevated and urbane in tone so that one’s legal argument, when given, will benefit from recent exposure to elegant prose.
     Spirited literature is dangerous. If you were reading about the French Revolution, for instance, you might indulge a rebellious urge to say to the judge upon being told that your case will be carried over to 1:30, "Then why was I called here at 10 when a little foresight would have made it self-evident that six applications for temporary restraining orders, and four motions for summary judgment, could not all be disposed of at 10?"
     There is no end to the amount of information you can gather from books while awaiting contingencies like the motions calendar. Lord Chesterfield, in his letters to this son, mentions a man who was able to read the entire Greek Anthology and most of the Latin classics in the few minutes he took each day responding to the calls of nature.
     The sight of a courtroom filled with lawyers, all with books of a different size, shape, and color in front of them, could easily provoke a judge to enjoin the practice of reading in the courtroom.
     Perhaps this accounts for the publication many years ago of nonlegal books bound in sheepskin to look like law books. Now and then, these odd volumes are to be seen at auction sales. I have picked up a few. I have had the pleasure of sitting with such a book in the front row of motions court in sight of a judge who is a stickler for courtroom decorum. The back of the book gave the impression I was reading from an old United States report, when in fact I was enjoying Balzac’s Droll Stories, occasionally disturbed by the judge’s continued repetition of the words "Don’t you know I can’t grant a summary judgment if there is a question of fact?"
     If the judge could have seen through the cover of my book, he would have exclaimed:

Was ever book containing such vile matter
So fairly bound? O, that deceit should dwell
In such a gorgeous place!

Jacob A. Stein is a senior partner with Stein, Mitchell & Mezines LLP. He may be reached by e-mail at jstein@steinmitchell.com.