This is the third installment in my series of “Lawyer Firsts.” The first two have been overtly deprecating and, therefore (I hope), entertaining to anyone. (Not that I had to try too hard to make myself look foolish—I was just giving you a Joe-Friday-level recitation of the facts.)
With this post, there’s actually less to point a finger at and laugh, but please don’t think it boastful. I spoke in one post about the negotiation-litigation “spiral;” well, that’s not the only spiral. I have also found there to be a distinct confidence-insecurity spiral. As a new lawyer trying to figure things out (basically) on my own, I often find myself caught in the tension between success and failure, or confidence and insecurity.
So, when I talk about a good day, it’s only because I know what a bad day is. Likewise, it’s only because I’ve had bad days that I am hungry for better ones.
This was a (mostly) good day, but there have been many bad ones since. And that’s okay because success can’t be linear. As a new lawyer, I will simply have to fail to get better. The goal is to make the good and bad days more like a dance than a fight. When one (either bad or good) leads, the other has to follow and try to make something beautiful. Or at least something that makes sense.
The first day I felt like a lawyer was another full-day hearing in a rural court. I had bad (or at least less-than-compelling) facts and tried to jettison most of these facts, seize on the few details that were favorable to my client, and then make a somewhat novel legal argument based on these few facts.
That is, my pleadings were good—which is pretty rare in family law. Honestly, I still haven’t decided whether quality pleadings are an asset or liability in family law. Family law is so dang informal and, frankly, vacuous you don’t want to look too cute with fancy posturing. (What is a material change of circumstances, anyway?) But I had it on good information and belief that this particular judge would notice good work. And he or she did, in fact, notice.
I like to think that the written work I did before the hearing inclined the judge to be a little more patient with me. If I wasn’t (and I’m not) Daniel Webster in court, it wasn’t because I hadn’t put in some real time on the back-end. Inexperience is excusable at some level, but lack of preparation isn’t, so I tried hard to make my writing make up for my performance in court.
I noticed several times throughout the day that the judge was reading my briefs. This has to be a good thing.
My opposing counsel was courteous and competent. I have since found out that he’s actually something of a baller when it comes to insurance defense. Why in the world he spent an entire day on this thing is beyond me, but I was glad to have gotten the experience.
When they tell you in law school that evidence is the most important thing you have to know, I think they’re wrong. It’s most important to know civil procedure. But evidence is a close second, and unfortunately, you can’t look up the right answer when you don’t know.
This was the first day that I’ve done any of my own substantial objecting-to and received any substantial objecting-to by another lawyer. It is very fast and very demanding. (And it makes me a little more gracious with lawyers when I read a transcript from court. It is difficult to be articulate in the heat of battle.) It is also exhilarating.
Of particular note: Opposing counsel kept laughing at my client’s responses, to which I objected (Without any specific rule in mind, of course. It just seemed wrong.) The judge agreed and offered the following stinging legal erudition :“That is just about enough of that.” Well played, judge. Well played.
On another occasion I was eliciting testimony about how cooperative my client had been and about his numerous efforts to settle the issues with mediation. The other lawyer objected because we were putting in evidence about settlement offers, which is, in fact, objectionable. The funny thing is that it’s supposed to protect the person who made the settlement offers, not the person who rejected them.
That is, it should have been okay for my client to show the court how willing he has been to settle. It was his right to protect, but if he wanted to waive that right and make the court aware of his offers, that should have been fair game.
I point this out to stress the importance of anticipating objections beforehand. My defense of this testimony was a ridiculous string of half-thoughts and convoluted legal reasoning. By the time I finished, even I had changed my mind because my explanation was so confusing. Lost that one, dang it.
Here’s the first-time-as-a-lawyer part: Later I was able to exclude a particularly damaging witness simply because he or she had not been properly disclosed. This was very helpful to us, and it taught (or reaffirmed, I’m not sure) something that is important. It is no small thing to stand up, open your mouth, and tell a seasoned attorney that he or she can’t do something. And for someone who would always prefer that everyone simply got along, it’s always going to be uncomfortable.
So what? If I don’t stand up and say something, who will? This is really basic, I’ll admit, but it gripped me that day. And I think that’s why I remember feeling like it was the first time I really felt like a lawyer. Certain things about lawyering are intuitive to me: I like dressing up, I like writing, and I like meeting new people. I love helping people.
But I don’t like uncertainty, and I don’t like taking a risk in open court, and I don’t like going up against someone who was a lawyer before I was born. At that moment, however, (and thankfully), Stefan-as-Stefan faded away and Stefan-as-Advocate came through.
I had behaved like a lawyer deliberately, not naturally. For me, conflict-laden advocacy is a habit, not intuition—it has to be cultivated through discipline. At that moment, I saw something objectionable and said something despite an overwhelming desire to stay seated.
A modest victory from a legal standpoint, but it was incredibly helpful for me to see that lawyering isn’t about innate scrappiness. I don’t have to love the fight; instead, I just have to discipline myself to act a certain way when a fight is needed. And that will take me much further as a lawyer than natural scrappiness will. So that’s why I felt like it was my first day as a lawyer.