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Washington Lawyer

Legal Spectator: La Donna Mobile

From Washington Lawyer, June 2008

By Jacob A. Stein

spectatorIn my walk up Connecticut Avenue I often meet a contemporary of mine who has retired. Here is the conversation. He asks, “Are you still practicing? Are you still going into the office?” I answer that I am. He then asks, “Is it still fun?”

I don’t know how to answer that question. I never thought of the law practice as fun. It is not one of the healing professions. We deal with people who are in all sorts of trouble. We may, or we may not, be able to help them.

In serving our clients, we must have on hand vats of righteous indignation. We must be contentious or we must be ingratiating, as needed. We must attract clients with the art of self-promotion without making fools of ourselves.

We know, as Cicero wrote, that men decide far more problems by hate, or love, or lust, or rage, or sorrow, or joy, or hope, or fear, or illusion, or some other inward emotion, than by reality, or authority, or any legal standard or judicial precedent, or statute.

Furthermore, we must keep in mind pages and pages of procedural rules. Federal Rules, local rules, special division rules, and each judge’s own rules. (Many cases are decided on a violation of one or more of these rules without the substantive issues ever being heard. Procedure wins; substance loses.) The more rules there are, the more there will be. There is no cap on the number of rules a court can create. There is no rule that says the Rules Committee is limited to no more than 25 double-spaced pages of rules.

The rule that requires counsel to discuss the motion before it is filed is the worst of all. It takes time and often leads to additional motions. The lawyer seeking delay (believe it or not, there are such lawyers) uses the rule for delaying purposes.

No, it is not fun that keeps me going. It is my relationship with a very interesting woman. (Long pause.) The woman is Fortuna, the beautiful Roman goddess of chance, of felicitous gifts, of unexpected friendships, and of strange coincidences. A true La Donna Mobile!

Let me give you an illustration. Three months ago I had a case set for trial. I was hoping it would settle, but there was no offer. I was left with nothing to do but actually read the file. In doing so, I saw the key witness in the case had not been subpoenaed. Getting up my courage, I called his home. I was told he was in Europe and would not be back for another several months. There I was, going to trial without the key witness.

Then the phone rings. It is the nasty lawyer for the defendant. He asks me if I am ready for trial. Of course, I say I am. Then he says, “Look, I have a personal problem, and I can’t make that trial date. I really need an extended continuance. Do you have any objection to a continuance?”

Well, I said, I am generous about such things. I said I would get my client to agree. He should draft the motion and he could sign my name. I also tell him that he ought to put $10,000 on the table. Of course, I would reject it. But it would give him something to put in the motion. He could say negotiations were underway. There it was. There was Fortuna, stepping in with the remedy at just the right time. These moments arrive as, and when, she chooses. Fortuna is La Donna Mobile, a fickle woman. She is not ruled by cause and effect. She is of the fourth dimension, where reside the mysteries of the miraculous.

Fortuna does not disperse lottery-type luck. She deals in the law of remedies. She protects me from the consequences of my own mistakes. She knows a mistake has a halfway moment, a split second when it can be recalled. When needed, she is there.

At this point, I wish to report a unique conversation (not entirely irrelevant to this discussion) I had with a judge many years ago. It represents a way of assisting Fortuna. Here is what he said to me:

When I was appointed, I had a conversation with myself. I knew there were others better qualified than I to be a judge. For me to have gotten the nomination—you know I shoot pool—someone had to give me a five-ball combination shot that put me where I didn’t have to worry about clients or sending out bills.

He then said:

After sitting on the bench for a year, it became clear to me that I, as a judge, can remedy injustices in a way no lawyer can. But a judge must disguise it with legal abracadabra. And he must not do it too frequently. Otherwise, he will arouse suspicions.

On two occasions, I myself was “drest in a little brief authority.” Both times I recalled what the judge said. On the first occasion, by the time I had put together a plan to help a person in need, my appointment had ended. On the second occasion, I acted with dispatch through others who were unaware of what I was up to. It takes skill to help someone and get away with it. Fortuna must have smiled as she saw her handiwork.

I hope my being out in the open with these disclosures will not end my longstanding relationship with the Roman goddess.

If it doesn’t, I assign a one-third share of my remaining and unused ration of felicitous gifts, in Fortuna’s control, to all in need of a continuance, a need to find the missing witness, a need for the case to be reassigned to another judge, a need for a rainmaking partner, a need that a motion for a new trial be granted, a need to get on the Compensation Committee.

If these things occur, give me a call. We shall form a secret society. An aristocracy of the sensitive and the considerate.

Reach Jacob A. Stein at [email protected]