Spencer Farris, The Levison Group
It has been a long three weeks, and I am feeling lost and a bit tired. Okay, a lot tired. I just tried two jury trials in two weeks - a first in my 24-year legal career. I followed that up with a bench trial. Two weeks ago, the world seemed a bit weird, but when I got back, Republicans were speaking at the Democratic National Convention, and Democrats were cheering at Ronald Reagan quotes. I fully expected to find cats and dogs living together. Yes, things got weirder while I was busy. But the tiredness is a factor as well.
Jury trials, at least for civil lawyers, are a rarity. The generation of plaintiff's trial lawyers before me would try thirty cases a year. My mentor once finished a trial and went to pick another jury before the previous one had returned a verdict. Now I am lucky to get two or three cases to trial in a year. My friends on the defense side of things aren't much different - the weekly battles they used to fight have dwindled down to three or so per year for them as well. You can see then, Gentle Reader, how three trials in three weeks was outside of anything normal.
I am in a daze around the office after a trial. Day to day things continue to stack up and need attention, and things I hadn't finished before trial usually ramp up in urgency. After a win I am useless for about two weeks, and after a loss, about three. Having no gap between trials means the fires on my desk are taller and I am trying to put them out while more foggy than I would like.
Trial lawyers like to use combat metaphors - we are gunslingers, fighter pilots, gladiators. These aren't just self-grandeur. Win or lose, no fighter goes unscathed after a battle. The time between trials is when we reflect, bandage the mental and emotional wounds, and get ready for the next one. I didn't realize how important the time between trials was until it wasn't there.
One might ask how I got into this predicament. The first casualty of being a trial lawyer is our schedule. We are not in control of them so we "pencil in" the dates, rather than use a permanent marker. It is rare for a week's plans to actually occur as expected. Cases settle. There are continuances. And so it goes. If a lawyer wants to stay busy, he must double or even triple book his schedule so that SOMETHING will happen. I enjoy the occasional "windfall" day when everything disappears, but it is impossible to make a living with a steady diet of windfalls.
I agreed to dates for these three trials months ago, when the possibility of one or all of them settling or otherwise getting moved was a possibility. After all, the first one had already been continued five times and the second one looked so strong that I was certain it would settle - more on that in a moment. The probability of any case getting to trial on the assigned date looked small. I am glad I didn't make a wager on that probability.
As it turned out, the first trial stopped in the middle and is not yet concluded. The second which I thought was very strong for my client resulted in a verdict for the other side. The only certainty in trial practice is uncertainty, it seems. The bench trial went my client's way. Evidently trying cases where the defendant does not appear is my forte. I am having my marketing experts look into that niche as we speak.
In 24 years as a trial lawyer, I don't remember feeling as tired as I do today. It isn't just that I have gotten older, either. Trial preparation takes less time and mental energy now than it did when I was younger because much of the uncertainty of what to do is long gone. I know how to pick a jury and how to deliver my opening statement so the fear of the unknown doesn't tax me. My office team has the pretrial rituals down to a science, alleviating the last minute frantic scrambles we used to do.
I came home and said those four little words that my wife has longed to hear: "I need a vacation." Vacation for a solo practitioner is similar to trial time in that the piles on my desk tend to grow. This time I don't care. I plan to have my toes in the sand next week and my mind on the waves. I am sure I will come back to new challenges and old ones that didn't get resolved, but I accept that. I need to recharge my batteries. I am tired of being.
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©2016 under analysis llc. under analysis is a nationally syndicated column. Spencer Farris is the founding partner of The S.E. Farris Law Firm in St Louis, Missouri. He promises not to whine in this space next month. Comments or criticisms about this column may be sent c/o this newspaper or directly to Under Analysis via email at farris@farrislaw.net.
Published: Fri, Aug 05, 2016
