When a scheduled event is cancelled and frees up my schedule, I call it a windfall. Some windfalls- conference calls with seven attendees for example- are more windfally than others, like a cancelled fishing trip. A cancelled dinner party may fall on either side of the line.
Whoever said that “change is the only constant” was likely referring to a trial lawyer’s calendar. Dates change so regularly that it doesn’t surprise me anymore. It is rumored that the next version of Microsoft Outlook and Google Calendar will have pencil settings for events that might change. I have no idea what those Apple weirdos do with their calendars.
Generally speaking, a windfall is a good thing. They have the same good feeling vibe that snow days did back when it still snowed and kids didn’t go to school remotely. Some lawyers use windfall time to catch up or more absurdly, get ahead of their work. In keeping with the spirit of snow days, I use windfall time to do as little work as possible. And like a grownup on a snow day, I don’t have to put my feet in bread sacks to do it.
When a case is specially set for trial on a date certain, we assume the traditional definition of “certain.” We rediscover that certainty in the law business is uncertain. I caught a windfall last week that didn’t thrill me. A week before a trial that had been set for months, the case got continued.
A lawyer can usually see a continuance coming a mile away. Key witnesses won’t give depositions or worse, they die. Certified documents don’t arrive on time. Experts flake out or someone gets sick. Tthis continuance caught me completely by surprise.
It likely caught my opponent by surprise as well, although he requested it. We had both been working on the case, doing the last minute stuff that inevitably comes up and annoys us. We spent long days doing pretrial work, and then it came to screeching halt. I screeched a little.
My firm doesn’t get paid until a case ends so the financial implications of a case that won’t end are obvious. I was annoyed. Not because of finances or anything underhanded by my opponent, but that most of the work I had done getting ready for trial would have to be repeated later.
Early in my career I tried a case against one of the giants of the local Bar. He didn’t know the case facts when we picked the jury but after studying the file over the first lunch hour he was up to speed. So much so that he kicked my young teeth in. His muscle memory, honed by hundreds of trials, was more than adequate for the task. As he would say to me later, “Different intersection, same crash as always.”
Certain parts of trying cases are now muscle memory to me. I can pick a jury with minimal notes, and opening statements no longer include vomiting in the parking lot. At least not for me, and not beforehand. Mileage may vary for jurors and others in the courtroom. Like firefighters (kind of), a trial lawyer’s life is days of drudgery punctuated by moments of excitement bordering on terror. The more muscle memory we develop for routine tasks, the more our senses hone in on the excitement of the unknown parts that make up less of the trial as we grow.
It is unusual for me not to embrace an open date on the schedule. I felt what I can only assume was malaise the entire week. I love being in trial, so maybe it was losing the anticipated adrenal rush that dragged me down.
If my hunting season had been less successful, I would have spent the windfall week in the deer woods. As another hunter- lawyer said to me, I tend to hate deer less after filling the freezer. I had cleared my desk before trial preparation started in earnest so I had no pressing work. I arguably could have caught up on work in other cases, but I didn’t feel like arguing with myself. I did catch up on my naps and some shopping. For the unwanted windfall, sleep and retail therapy were as good as anything.
©2023 With All Due Respect. Spencer Farris is the founding partner of The S.E. Farris Law Firm in St Louis, Missouri. Comments or criticisms about this column may be sent c/o this publication or directly to him via email at farris@farrislaw.net. He is mostly done complaining for this year. Mostly.