TO-WIT: GULP!

by S. Sponte, Esq.

Ever wonder when you open the mail and read the Motion to Dismiss that an opposing counsel has just filed in response to the complaint you spent a month researching and writing why it is you get that lump in your throat? And why it is that it happens whether you’ve been practicing thirty years or three? Well, lucky you, I know why and I’m in a mood to share.

In this morning’s mail I received two such letters from two defense counsel, each representing different defendants in the same case I had recently filed and each containing a motion to dismiss the complaint. After reading the two motions, I concluded that they must have discussed the matter between themselves before filing. Each had raised the same arguments, each had used pretty much the same verbiage and each had misspelled the same words.

And as if being gang motioned isn’t bad enough, they had both utilized the “plethora” defense, a strategy in which every conceivable defense to every conceivable cause of action is pled, fully independent of its merit or applicability to the case at hand. They had both, for instance, raised the statute of limitations defense, even though the conduct complained of had occurred only three months earlier. Now I’ve never been a fan of the “plethora” approach, preferring instead to think analytically about what I’m doing, but I do understand its popularity among those whose analytical skills have been tempered by the rival obligation to bill by the word.

All that notwithstanding, there were some allegations raised in the motions to dismiss that caught my eye, and when I read them I felt that old familiar lump in my throat. Could I have made a mistake? Could they be right? Should I now on account of some grievous neophyte error be heaved out of court eo instanter with all the ignominy of a bum’s rush? Oh, the horror!

An hour of computer research (five minutes to find the cases, fifty five to figure out how to print them) enabled me to conclude that their objections were not well founded. I was right, they were wrong, the proper and natural order between plaintiff and defendant remained intact.

Now there wasn’t anything about these motions that distinguished them from any other run of the mill adversarial pleadings I’ve received probably a gazillion times before. So why then a lump in my throat, why after almost forty years still this gulp?

It’s not so much a byproduct of the tension inherent in our adversarial system as it is, I think, the omnipresence of collective memories buried deep within our professional unconscious. At least as early as ninth century England any lawyer who lost a case suffered the same fate as the client. If a client was sentenced to death, so was the lawyer. If the client lost an offending extremity, such as a hand for stealing bread, so did the lawyer. If the client was put in the stock, well, you get the idea. This was also the prevailing practice in many other places such as France, Scotland, including both the Inner and Outer Hebrides, Pakistan, Westphalia, Mongolia, and certain parts of Miami Beach.

As a species, we lawyers are hard wired to recall, however dimly, such retributions as meted out to our ancient colleagues, and it is those memories that cause us to shiver, to quake, like jelly to shake, whenever we face the specter of defeat. After all, its tough enough losing to a colleague who proves to be smarter, wilier, better. Who among us would additionally welcome extermination or the nonconsensual removal of body parts? It is this, I think, that through the years accounts for the sparsity of lawyers willing to defend capital cases. Adultery cases too.

As an interesting aside, this practice of sharing punishment between client and lawyer alike is the precursor to the modern day contingency fee. That practice of sharing the negative, though widely popular with clientele, wasn’t such a big hit with the bar, and it remained for a clever and ambitious one armed fifteenth century barrister from Upper Bulgespread, England, Avaricious the Younger by name, to figure out and implement the glorious antipode upon which so much of our professional prosperity has been based.

So next time you get that old familiar lump in your throat, that gulp of anxiety, do as I do. Just take a deep breath and remember that in today’s world you are relatively safe. No one is going to jail you, execute you or remove a bodily part, regardless of how well warranted. Oh sure, you’ll still have to face defeat, humiliation, derision, the various calumnies of disgruntled clients and manifest public scorn, but other than that you’ve got nothing to fear. Of course there’s always the, gulp, Disciplinary Committee but compared to, say, the rack, heck, that’s gotta be a piece of cake,

Ó2008, S. Sponte, Esq.