I have been a lawyer for a long time, but there are still some laws of which I have never heard. Because most of my cases involve injury victims or insurance companies, it is perfectly understandable that I don’t know the first thing about trademark litigation, for example. Or the second thing about it, whatever that is.
Even in my realm of “expertise,” I discover new (to me) laws more often than I am comfortable admitting, usually revealed to me by opposing counsel’s briefing. The most powerful law is one I rarely anticipate, and it has helped me as much as it has hurt over the years. No statute or case on the books fully defines this law and any reference to it is usually an after a defeat. I am talking about the Law of Unintended Consequences.
Take for example Joeday which I detailed last month, the slow or no work day in the middle of the week. Yes, it is easier to work when the next day off is two days away than when it is ten days off. The reality of Joeday is that Thursday is now Monday, the sequel. The non-Joeday world leaves a big pile of things for me on Sequel Monday, and the consequence of a free day is more work on the work days. Sequels bring us JarJar Binks way more often than “Die Harder” excitement. My Thursdays now feel a lot like Jaws:4- The Revenge. Very personal.
When the pandemic first hit, there was no phase-in or slow progression. One day I was juggling my schedule between court appearances, depositions, and running my law firm. The very next day I was staring out the window or googling Paul McCartney conspiracies to pass the time.
I’ve filled my time by learning Spanish and catching up on some projects at home. My degree of success in both is underwhelming. If you have a 5-year-old Spanish-speaking child nearby, I may be able to carry on a conversation. Briefly. As for the home projects, I expect a professional will retire after he or she cleans up my mistakes and cashes my checks.
I am sure the transition last year was more difficult for lawyers who loved working hard. If I knew such a lawyer, I would provide you some data, Gentle Reader. If only I was motivated enough to ask for it.
It has been a little more than a year since the pandemic changed life as we knew it. With the emergence of vaccines and more widespread adoption of preventive measures, life is beginning to return to something resembling its former self. I hesitate to call it normal, but the consequences are undeniable. My days of boredom and busy work are coming to an end. Unfortunately, my mind is not adapting to going back to full duty half as easily as it shut down.
Lawyers work best with deadlines and for better or worse, courts in my part of the world are trying cases again. The future trial date/somewhere in the distance deadline is now a very real few weeks away. Ready or not, the work faucet is being turned all the way on with the same warning it gave when it was cranked off.
One consequence of practicing law is that it gets easier over time, or so I am told. This is mistakenly referred to as muscle memory. It is more accurate to say that once you do a task enough times, you subconsciously progress through its steps. I don’t want muscle memory. My body’s muscles hurt more than they used to these days and I prefer to forget rather than remember the long hours of trial preparation every case requires, lest it dim the excitement of a trial.
At long last, I find myself preparing for a trial. I cross-examined an adverse expert last week for the first time in a really long time. The research such a deposition requires, anticipating and preparing the right questions and getting to the heart of the witness’ opinions, and the little victories from concessions the witness makes feel as good as they ever did. My only regret is that I didn’t limber up my brain with more stretching exercises before the mental gymnastics started.
Everything starts anew in the spring, so it is fitting that the world is hopeful for the return of the old normalcy, and perhaps it is just over the horizon. There is no denying that COVID has made changes and left scars that will remain. Several very good lawyers have passed away in the last few months, and rather than celebrating their lives and telling stories about them at their wakes, we learn of their deaths via email or an offhanded comment in a phone call.
Two of the lawyers my Bar lost recently were on the opposite sides of my cases. One was a true giant, the other a good deal younger. Both were wise enough to know when to fight and when to shake hands. I will miss them.
There is a theory among some lawyers that defines those who oppose us as “black hats” and evil. I don’t ascribe to that theory. After trying a case against another lawyer, I almost always feel a kinship if not a friendship. The recognition of someone who understands what I do and fights the same battles that I fight is reassuring. I have adjusted to a host of unintended consequences in the last year, yet the news of these deaths hit me in the gut. I can get used to working like I did before the pandemic, but I will never get used to the losses that slipped quietly under the darkness.
©2021 under analysis llc. under analysis is a nationally syndicated column. Spencer Farris is the founding partner of The S.E. Farris Law Firm in St Louis, Missouri. R.I.P. Bernie and Ralph. Comments or criticisms about this column may be sent directly to Under Analysis via email at farris@farrislaw.net.