I, like thousands of young attorneys before and after me, went into the law because I believe that our system of justice is the best in the world. I clawed and fought my way through law school, final exams, internships, clerkships and, finally, the bar exam. A newly minted lawyer, I eagerly awaited the day I would get to walk into a courtroom and advocate for my client. I had delusions of grandeur; of that crystalized moment where I would stand before a jury and convince them to exonerate the innocent, to punish the guilty, and to free us all from the shackles of injustice.
My actual experience was a little different.
Shortly after starting my practice at a mid-sized law firm, I was summoned to the lead partner’s office.
“Josh,” he said, “we need you to cover a trial call on Monday. The case will not go forward, but we need you to go in and tell them that we are ready to proceed.”
As most of you know, there are typically many more cases than there are judges available to try them. So the procedure has devolved into what’s commonly known as a ‘cattle call.’ At a cattle call, the court requires both plaintiff and defense counsel for dozens of different cases to appear in court. The clerk then reads out the names of the cases, and the attorneys stand and indicate whether they are ready, or if there is a problem. Since the likelihood of a judge actually being available is slim, the strategy is often to go in and state that you are ready, primarily to placate the court, and to intimidate your opposing counsel into thinking that you are loaded for bear, and that they better come up with some money to settle your claim. Then you are told that there is no judge available and you are relisted and sent packing to fight another day. Cases are routinely relisted several times before they are sent out to be tried. Such is the way of today’s overwrought legal system.
And so, on a chilly Monday morning, I headed to court in my only suit, shoes freshly polished, ready to bluff my way to glory. The cattle call that morning was especially busy, with nearly a hundred lawyers milling about the courtroom, drinking coffee and sharing war stories. I took my cue from the mood, which was relaxed and quasi indifferent as the bailiff called us to our feet and the scowling judge took the bench.
True to form, the judge began calling out case names, and attorneys from both sides indicated that they were ready, or, more often, that there was some problem. “My expert is unavailable today Your Honor,” “I have a conflict this week,” or “Can we conference this judge?” were familiar refrains, and drew varying levels of scowl and ire from the bench. I took great comfort in knowing that I would not suffer any such wrath, as I was, “ready,” with a case that had been previously listed only once, and so was too premature to ever get sent out to be tried. Finally, I was reached:
“Smith v. Conover?”
“Plaintiff is ready Judge!!!” I screamed, with entirely too much enthusiasm.
“Defense ready,” said the defense attorney. Shocked, I turned to look at him, my eye starting to twitch, cold fear unwinding in my gut.
“Great,” said the judge. “Proceed to courtroom 108, we are bringing in your jury pool.”
As lawyers, we work with words; they are the tools of our craft. Yet as I sit here, I cannot find any which adequately describe the sheer naked terror that enveloped me at that moment. As a new lawyer, you are plagued with insecurity. You’ve heard the war stories about two-month trials, bitter cross exams, triumphant victories and ugly defeats, and you wonder if you can do it, if you can play with the big boys. I had been a lawyer for a grand total of three weeks; I had never even seen a trial. Not to mention that I didn’t have the file, the client, or a clue what to do next.
What I did have was my cellphone.
Panicked, and trying not to soil my new suit in front of my peers, I raced out of the courtroom. I thought about calling my mom and having her pick me up, but opted instead to call the partner at my firm.
“Steve!!! They called me into trial! They have a judge!!” I wailed, “And they have a jury coming in and I don’t have a file or client, and I don’t know what to do! Help!!!” I was tugging at my tie, gasping for breath and sweating profusely.
“Relax,” Steve said, his calm words washing over me like a salve, “it’s no problem. Here is what I want you to do…”
Thank God, I thought, he has the answer. I can always rely on him to mentor me, to provide the guidance and counsel I need to become a top-notch litigator. We’ll ask for an emergency proof hearing, or demand an in limine motion conference or something. I’m going to do it, because I AM A TRIAL LAWYER.
“Hide.”
“What?!?” I shrieked, my man parts climbing into my abdomen.
“Just hide. Lay low, and don’t let them find you.”
I ended the call and stood there, dumbfounded, and pondered my options. Fiji? Carpentry? I could open a bakery and sell cupcakes…none of these ideas seemed to solve the instant problem.
So, I did the only thing I could do.
I hid.
I ran to the law library and scurried to the back. Minutes felt like hours. Then the PA system began blaring:
“Joshua Kincannon, please report to courtroom 108, Joshua Kincannon to courtroom 108, immediately.”
No way, lady. You may eventually reveal my gross incompetence to the legal world, but you have to catch me first. Then I saw defense counsel, he’d come into the library and was looking for me. I leapt behind a row of books, my back pressed against the shelves. As he moved down the rows, I sprinted from one bookcase to the next, staying one row ahead of him. When I ran out of rows, I dashed out a side door and into a nearby men’s room. I locked myself in a stall with my legs in the air to avoid detection.
And there I remained, surrounded by the stench of poop, failure, and the indignity of my predicament, while fear sweat trickled down my back. Finally, after what felt like an eternity, my cellphone rang.
“Where are you?” my office manager asked, condescendingly.
“Where am I? I’m in the @#$%ing bathroom hiding! What the hell is going on?!?”
“Steve spoke to the defense attorney, they’ve agreed to arbitration. Now stop wasting time and get out of there and tell the judge.” She hung up.
And that was it. I lowered my legs from the birthing position and stepped out of the stall. I washed my shaking hands, fixed my tie, smoothed my crazed hair, and strode confidently into the courtroom.
“Plaintiff has reluctantly agreed to arbitrate this case, Your Honor.”
Now I had a war story too.
Josh Kincannon practices with Lomurro Law in Freehold.
This article was first published in the NJSBA Product Liability and Mass Tort Section Newsletter Vol. 15, No. 1 - July 2016