By Bob Green
Leydig, Voit & Mayer
In my younger years, I was drawn to a television series that began with an authoritative voice stating, "Democracy is a very bad form of government … but all the others are far worse."
The quote apparently was a somewhat embellished version of a statement once made by Winston Churchill to the House of Commons.
Some today would say that the same sentiment also applies to our legal system. After 37 of years of practice, I can attest to the fact that our legal system indeed has flaws. And the longer you practice law, the more cognizant you become of the depths of those flaws, but you also become more appreciative of the strengths of the system.
Considering that the bounds of our legal system are defined by a document that is more than 200 years old, one can look with amazement at the thought and forethought that went into drafting the U.S. Constitution. Fear not, this is not an article on constitution law. I would be woefully inadequate to render such an article and I definitely will not discuss the issues that I had with my Constitutional Law professor.
Instead, I prefer to reflect for a moment on how I learned to deal with the "flaws" in our legal system.
Years ago, a very astute attorney once told me, "Bob, do not ever get upset with any decision that you receive, because you are entitled to one thing, a decision."
Those words of wisdom have helped me through some tough times as a lawyer, although I admit that I have been upset with decisions from time to time. In one such instance, I needed to tell a client whom I admired very much, that his 26 semitrailer tractor trucks full of product that he personally helped to load, with the Toronto news cameras filming, were not going to roll across the border that night.
The 4th U.S. Circuit Court of Appeals issued a stay of judgment pending appeal for only the third time in the history of the court. It was one of the hardest business phone calls that I have ever made. I knew in my heart that the decision was wrong (and indeed over the years every relevant aspect of that decision was later questioned and not followed by other courts), but I still needed to pick up the phone and make that call.
I will always remember the response from the client, "I am sorry, Bob, you worked so hard and you must be greatly disappointed." Clients like that are hard to find.
I was deeply disappointed in the system, but I thought back to those earlier words of wisdom. We had gotten that to which we were entitled, an opinion. The fact that, at least in my view, the decision was wrong, was a feeling that every litigator has had, usually multiple times in his or her career. Sometimes that feeling is justified and sometimes not. But even when you "know" that the decision is wrong, you need to step back for a moment and take a deep breath.
Were there things that you could have done better? Absolutely, and that is the case in every litigation.
Another of my mentors once wisely said, "Practicing law is an art form, not a science" and just as in art, one can always say that the painting still could have used some final brushstrokes. Sure, it is always useful to think about and discuss what could have been done differently, but that is the case whether you won or lost. The only question really worth asking is whether you believe that you fought as hard as you reasonably could for your client, given the facts and the law as presented to you. And if you believe that to be the case, then think for a moment about the jury, panel or judge that issued that decision, to which you were "entitled."
We especially tend to forget that judges are people too, and they try to do the best they can, just as you do. They too wonder if they were right, but they are given the hardest job of all, to render that decision.
While we are on the topic of judges being people, may I suggest that the next time that you are in front of a judge, don't waste that opportunity to "talk" to the judge. I have always found it to be quite useful to take a moment in the beginning of each case to talk in straightforward terms to the judge about what I really think are the issues that need to be decided and why those issues matter, to me, my client or the population in general, without getting too bogged down in case law.
Case law is important, but even more important is talking to the judge about why you are even standing in the courtroom in the first place. Remember, new precedential case law happens every day and, by definition, it is because some person convinced the court that ruling in that fashion was the right thing to do, even if no court had gone there before. Case law does not make new precedent, you do, and that is one of the ways that you help in correcting those "flaws" in the system.
Remember our legal system is flawed, but thankfully, it is a much better system than all the others. If things do not go your way and you are sure that the system was wrong and a great injustice has been done, be depressed for a while, complain for a while and then put it behind you and go on doing what you were born to do — practice law.