Try Me...

Trials are far more common on television than they are in real life. Most cases resolve. One side knows their case is utter crap and settle at the last minute. Trials suck up a lot of time and cost a good chunk of change, so there's motivation - on both sides - to avoid them.

But every so often, you have to take one all the way.

I had one of those cases last week. It became mine about two and a half weeks beforehand, so I had to become fully conversant in the facts, the law and get everything done in a very short amount of time. Almost too short.

Because I almost didn't have a witness...
Because I was late getting my trial brief in...
Because I absolutely could not wrap my head around why the hell this case was going to trial in the first place...

When I was in high school, I watched my dad argue a case before a judge in bankruptcy court. I remember - clearly - that the case drove him absolutely crazy. They were literally fighting over what "sale" meant. My dad, logically, was arguing that the moment of "sale" was when the sheriff banged the gavel at the conclusion of the sheriff's sale and said "sold to the highest bidder." His adversary was arguing that the sale didn't occur until the deed to the property changed hands from the sheriff to the bidder.

I watched the argument, unable to comprehend how someone could argue that sale meant anything other than the transaction where one person buys something from another. And I remember talking to him about it afterwards, having him tell me that this case reminded him what it was to be a lawyer - that sometimes we have to raise arguments like this in order to best help our client.

Every lawyer knows the saying: If the law isn't on your side, argue the facts. If the facts aren't on your side, argue the law. If neither are on your side, just argue like hell.

My trial was one of those cases, as well as being my own reminder of what it is to be a lawyer. My adversary took the truly bizarre position that a statute which only applied to residences should apply to a furniture store. She was taking one clause in the mortgage and turned that into the argument that this statute should apply to the property. And the worst part was that the judge actually was buying her argument when the trial started.

Immediately from the time I gave my appearance, he started in on me about it. "Your client wrote the mortgage. It says the Act applies. Isn't there an entire body of contract law that says I have to enforce the document as written?"

It was exactly what I didn't want him keyed into. Not like I wanted to admit it, but the client used the wrong form. If the judge believed the Act applied, I couldn't salvage the case. And I had clearly started off this trial from a losing position. But I got him to listen... "No judge. The form doesn't matter. You have to look at the intent behind the transaction."

He leaned back in his chair, smirking. It's a signal every lawyer knows and hates because it means you're about to be crucified. "And, of course, you have some legal authority for this position, right counsel?" he challenged, fully expecting me to say no. Except I did. Not only could I cite the case, I had a copy of it with me in court.

So I interested him enough that he let me call my witnesses. My client had never testified before in court. But she was excellent. I don't know if it was my prep session of her company's, but she handled the questions like a pro.

And the other side called their witnesses. I'm being kind by saying that they sucked. I had a very "My Cousin Vinny" moment on my cross of the defendant. You know the scene... The one where Joe Pesci says "I got no more use for this guy." It was pretty much like that.

During lunch, the judge went out and re-read the mortgage. He also read the case that I gave him, because when we got back after the recess, he lit into my adversary. "Even if I accept every single one of your arguments, don't you still lose based on this paragraph in the decision?"

YES! I was totally cheering in my head.

But I was also freaking out because this is a judge who likes to play devil's advocate and just because you think you're winning doesn't mean you actually are. So while my adversary was bumbling through her closing argument, I'm remembering every time my old boss would say to me, "My dad always said to stop running when I've caught the bus." And then I'm remembering all the times I heard him say that in court, before this judge, and the judge tells him "Have you heard me rule yet? I say a lot of things I don't mean during oral argument, counsel."

So in a last second decision, I decide I have to sum up. If I lose, I can't have the case go to the Appellate Division without my making a full record. And, after a couple minutes, the judge cuts me off. "Jaime, don't make it more complicated than it needs to be. Didn't I just go over this with defense counsel? You have anything else you want to add?"

Yeah... I should have stopped running when I caught the bus.

The judge didn't rule that day. He made me wait it out three days before we got the order telling me that I won.

But in the meantime, I impressed the attorneys who were watching me argue the case. One of them actually asked me to run a trial boot camp for the office, which floored me because this was only my SECOND trial.

I made the client really happy. She had no idea the hell I went through getting the case to trial, how pissed the judge had been at me or how close he was to dismissing our complaint. She didn't have a clue how nervous I was going into the courtroom that morning. Nor should she! She was nervous enough. So you have no idea how good it felt to hear her say that I could not have done a better job representing the company and she was really happy with the way things went.

But more importantly, it was my first trial for the office as one of its three trial attorneys... Not only did I get through the trial, I did it well. Really well.

So while I still think that none of these cases should ever have to go to trial, I'll be ready for the next one...