Mark Levison, The Levison Group
Despite my general objection, I guess things change with time. This somewhat disconcerting reality was brought home to me by disparate examples last night and this morning.
In fact, as I was fading off to sleep, and simultaneously patting myself on the back for the brilliant way I had trapped an expert witness yesterday afternoon on the stand, Dave Letterman began a long and almost painful story about his preoccupation with a bird that may, or may not, have been a baby bald eagle. The ultimate conclusion of the bald eagle soliloquy, rather undramatically stated in Lettermanesque form, was that Dave was retiring at a date to be determined. The airwaves are now filled with shots of the young Letterman, kicking off his NBC late night show in an intentional effort to make me feel older.
Then, in the shower this morning I started thinking about an e-mail I recently received from a young lawyer. I had previously filed a suit against her client’s company, and was ready to file an additional action against her client in his individual capacity. She asked to see the lawsuit before I filed it with the hope that perhaps the conflict could be resolved. I agreed and sent it to her with a short deadline before filing. She e-mailed back that she needed more time to talk to her client, but that she presumed she ultimately would not have much to say, “other than the fact that there is no doubt to me that these are completely trumped up—much like the petition against the” company. I filed the lawsuit an hour or so after receiving her accolades.
While shampooing, I was imagining telling Kirsten, “[Y]ou know, you would have gotten a better result if you had told me you didn’t have time to analyze the petition, and that you would meet with your client and get back to me in a day or two—could I please hold off filing. After all, informing opposing counsel that his petition is ‘completely trumped up’—even if you believe it’s true—is unlikely to result in a favorable reaction.”
Then, still thinking to myself while staring into the shaving mirror, I became chagrined at the realization that I was now starting to think like an older lawyer. This is not necessarily the greatest of things. In some ways being naïve, enthusiastic and not having a clue has its pluses. Certainly, the legal lessons we gather as we go through this profession, which are often learned at great expense, are generally valuable. Sometimes, however, they just make us feel older. The substantive changes, those that come through years of trial and error, mistake and embarrassment, conceptually, give the more experienced lawyer the patina of wisdom—a finish impossible to display straight out of law school. Sometimes we get smarter; however, sometimes we don’t.
When I was a younger lawyer, if another lawyer told me my claims were “trumped up,” I would have immediately assumed the pose of Zeus the god of thunder, read him the riot act, and vociferously pointed out what a deadbeat crook his client was, and that he was lucky that was all we were suing for. Yet, when this young lady told me my petition wasn’t worth spit, I just thought to myself, “[H]mm, she may later wish she had never written that.”
Once I completed teaching this young lawyer lessons, and also finished brushing my teeth, I headed off to work. I had a settlement meeting on a pending case at the law office of a well-known lawyer who is an old friend. Lawyers on each of our teams have been battling for a long time over the pleadings, the documents, and the witnesses in the case. Sometimes in litigation, tempers get frayed; sometimes lawyers can lose perspective. Clients seldom lose perspective, mostly because they don’t have it to begin with. They see things their way from day one and, even if settling, rarely change their view. That is probably fine for the client, but not for their lawyer. The best of lawyers are those who can sit in the opposition’s chair and understand the opposing perspective of the case and the strategy that it germinates. It’s not that easy.
I began the conversation with Jim by saying, “[Y]ou know, you and I have been at this for a long time now. The law’s been good to both of us and it’s still being good to us.” He nodded his head and agreed. A certain amount of respect and ease comes when you’re dealing with an opposing lawyer who has fought the battles, won some and lost some, and doesn’t have to posture for effect. Maybe that is one thing about the law that will never change. I argued my case to Jimmy for an hour. Truthfully, I don’t know if I convinced my friend/opponent of the merits of my position—but I enjoyed trying. I was animated because that’s the way I am. He listened attentively and said he would check into the facts I told him he ought to look at and let me know if their position changed. That’s about all you can ask for.
Driving back to my office, I noticed the trees were flowering. Spring is finally rolling around after a long and unforgiving winter, and that makes me happy. Spring, after all, reminds me each year of how good a lawyer I can be on my good days by SUSTAINING my objection to change. Even though in this modern world we now e-file—we don’t go to court much, and communicate instantaneously anywhere in the world with a little machine in our hand—some things are still familiar and unchanged. Each year Spring arrives. Each year trees bloom. Each year baseball season begins. I’m pretty sure you can thank my objection for that.
––––––––––
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.
© 2014 Under Analysis L.L.C.
