Most attorneys spend their careers making motions, appearing in court, examining witnesses and doing those other things that litigators do. There are, however, those of us lawyers who do exclusively transactional work and don’t even know the way to the courthouse.
I, for one, have been inside a courthouse exactly once in my life and that was for a small claims court action. I appeared there after filing a claim against a former secretary at The Firm who borrowed money from me and then failed to repay it. I knew I shouldn’t have lent the money but, she said she really needed it.
The point I want to make here is that transactional lawyers don’t know much about the procedures by which legal disputes are resolved. In law school, we learned the rules of evidence and civil procedure, for example, to the extent necessary to graduate and pass the bar examination. We then tossed them out when it came time to unclutter our minds.
I recently realized just how little I knew of such things after serving on an arbitration panel. Despite being an undefeated trial attorney, my lack of experience in this area made me reluctant to serve as an arbitrator. I nonetheless decided to do so because I thought it might be fun to play a new role as a lawyer.
Due to time constraints, I received no arbitration training before the date of the hearing. This concerned me. It later distressed me when the administrator from the arbitration association opened the hearing by introducing me as the chairman of the panel, then turned it all over to me and left the hearing room.
Being put on the spot, I fumbled through my papers and found a script that walks the chairman through the hearing process. Not knowing I would be the chairman, I had only glanced at this script prior to the hearing. Following the instructions, I completed the opening of the hearing, swore in the witnesses and marked the exhibits. These tasks completed, I began to feel more comfortable and actually felt quite good about the way things were going when one of the parties referred to me as “your honor.” Me!
After the examination of witnesses began, I was again unsure of what happened next. To find the answer I concentrated on the script and drew on my experience of observing judges over the years—on television and the movies.
My attention elsewhere, I failed to follow the line of questioning as closely as a good arbitrator should. As I was reading my script for the tenth time, I heard one lawyer shout, “Objection!” A few seconds later, I looked up from what I was reading to find all eyes on me. I said nothing.
Finally, after what seemed like a very long time, the lawyer for the other party asked: “Do you sustain the objection?” This is when it finally sunk in that I was the person in the room who was supposed to rule on the objection.
Knowing that you are the one supposed to make a ruling is only half the battle. You also need to know what the objection is and why it was made. I had no idea of either and I certainly didn’t want to embarrass myself by asking the lawyers to repeat the objection. After thinking about it for a few more seconds, I came to a decision. I decided to rule in favor of the claimant because she was the one who had referred to me earlier as “your honor.”
“Yeah,” I said in response to counsel’s question of whether I would sustain the objection. Not, “Objection sustained,” or even, “Yes.” I just said, “Yeah.” In hindsight, it may have been less embarrassing to ask that the objection is repeated.
As the proceedings continued, I became more comfortable in my role. I also became more assertive and started using the terms “sustained” and “overruled” in response to objections—just like they do on television and the in the movies! And I did all of this without having to wait for counsel to ask me how I was going to rule.
Things were moving fairly smoothly but I was still focusing on my script and my recollection of the rules of evidence was still hazy. Wanting to be fair to both sides when ruling on objections, I borrowed the “alternating possession” concept used by referees in basketball games. (I had concluded that taking out a coin and flipping it would have been inappropriate.) Sustained, overruled, sustained, overruled--what could be fairer?
I also took the opportunity to say to one of the lawyers: “Counsel, stop badgering the witness!” There was no real badgering going on but how many times in your life do you get the chance to say that?
Thankfully, the hearing finally came to an end. Following the script, I closed the hearing, deliberated with the other arbitrators and reached what I thought was a just decision. Best of all, none of the other arbitrators, lawyers or parties reported me to the arbitration association for being unqualified or incompetent.
Since the writing of this article is likely to jeopardize my appointment to the bench, I think I will stick to transactional work.
See the following articles for more information:
- How Much Does It Pay?
- Lawyers and Money
- Why Lawyers Should Always Start Out in General Counsel Positions
- How to Create a Five Year Career Plan
