Bar News - June 15, 2016
By: Philip Schreffler
The case was a loser from the start.
Opposing counsel would out-maneuver me easily. Contrary evidence was sturdy as wet tissue paper, and the client rarely provided documents in a timely fashion. Even worse, the client was arrogant and unsympathetic, sure to irritate any judge. He refused to settle, insisted on a hearing, and on testifying. Yes, he was entitled to a day in court, I was sure to tell him, but he was not entitled to win.
I had never appeared in court before. I was a solo, right out of law school. I stood outside the courtroom, ink still drying on my solo-practice malpractice insurance policy, about to meet my client for the first time. We had 30 minutes. I had never met him in person, despite multiple attempts to arrange a meeting. There was no senior attorney to guide me through the woods of court etiquette, no safety net, just sage advice ringing in my mind: “Make sure your client has every defense and appeal except ineffective assistance of counsel.”
The courtroom was small but built to impress, with varnished hardwood gently reflecting the harsh fluorescent lights above. I decided to mimic opposing counsel’s movements. If I didn’t know courtroom etiquette, maybe I could “fake it ‘til you make it” through this.
The judge entered. All rose. All sat down again. Game time. I stood to present my client’s case.
I took a moment to marshal my resolve. I bit back the tremble in my voice and swerved my thoughts away from any doubts. I knew how to do this. The sword was drawn, so to speak, and in the spirit of my Germanic ancestors, I charged forward into certain defeat.
Deep breaths. Notes shuffled in paper-cut hands. My voice, calm and steady. Argument. Testimony. Approach. Discussion. Rest.
It was a slaughter. Opposing counsel did exactly as predicted, undermining my precedent with better, more recent case law and outflanking my lack of corroborated evidence. He went for the throat with my client’s past bad faith actions. It was like watching an elephant walk through a picket fence.
It wasn’t a surprise, but it still stung. No one likes to lose.
Still, the judge was compassionate, and assured me that I had performed well under adverse circumstances. Opposing counsel actually apologized to me afterwards, and offered some practical advice. Everyone agreed, my client had “given me little choice.”
This graciousness in victory to a new attorney is valuable, collegial, and attractive, something all legal practitioners should consider doing, regardless of experience. Taking the sting out of defeat makes us all better at our jobs, and encourages reflection and improvement over bitterness and reproach.
After all, defeat teaches, while success only affirms.
Philip Schreffler is a freelance general practice and civil litigator with a focus in business and corporate law based in Manchester.