TO-WIT: REFLECTIONS ON A BLIND PIG

by S. Sponte, Esq.

How can this be, how can this possibly be? How can a clown of a lawyer without any grasp of the Rules of Civil Procedure, without a clue as to when something needs to be filed on a case and where, prevail over a competent, experienced practitioner? And if you think that upsets me, just imagine how upset I’d be if I weren’t the clown in question.

It has taken me a long while to grasp the complex implications at issue here, and like a bad meal I’m not sure when I’ll be done digesting it. The intellect/digestion analogy is apt, for its become apparent, as the years have mercilessly marched on, that both those similar functions can no longer keep pace and have dropped back into the company of another notable bodily laggard hanging around at the rear.

It all started when I appealed from the decision of a local magistrate because my client had been awarded less money than she wanted. Defendant responded with a counterclaim, the same claim he had lost at the magistrate’s hearing but had not appealed.

With that a distant bell went off in the dimming recesses of my memory and a quick look at the magistrate’s rules of civil procedure – and by “quick” I mean five minutes to read them following an hour’s search to find them - convinced me I was on to something. The denial of the counterclaim had to be appealed to be preserved.

Preliminary objections to the counterclaim were in order, and since I haven’t done this kind of work for a while I should have renewed my acquaintance with the procedural rules appurtenant thereto. I should have, but I didn’t.

As it turns out I had forgotten something and what I had forgotten was how the passage of time cruelly conspires with the arrogance of experience to make baboons of us all. Rather than check the rules I used to know so well, I headed down a path I prefer to think of now as “Experimental Civil Procedure.” Instead of putting the preliminary objections on some future argument list as required, I incorrectly scheduled it for motions court some four days hence.

I kind of picked up on my mistake as soon as I walked into court that morning and opposing counsel called me a baboon. We stepped out into the hallway where he then launched into a litany of my other mistakes. Although my notice of appeal had been timely filed, the complaint had not. And to my further embarrassment, I had not timely served him with the notice of appeal, if you can call the complete absence of any notice at all a timeliness issue.

But he conceded I was right on the preliminary objections and asked me how much more money my client needed to go away. I told him, he said “done” and was thereafter gone in a huff. Well, half a huff, but who’s counting.

Now I know what you’re thinking. You’re thinking that despite my procedural gaffs I was right on the law and isn’t that what really counts.

Ah, but here’s the worst rub of all - I wasn’t right about the law either. It was a clever argument to be sure, but the case I relied on had been recently reversed by an appellate court.

So there it is. I am heartbroken to think that the profession that has defined me for so many years and to which I have devoted so much energy and passion could be so mercurial as to let the likes of me win anything at all. But despite my bitter disappointment, I have to admit there is at least one positive thing to emerge from this morass. Anyone care for a truffle?