Litigation Isolation

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Litigation Isolation

Closer Groban

Caruso, by Lucio Dalla, performed by Josh Groban (2003), encountered 2004

Buy it here | See it here | Sheet music here | Available on Spotify

For a couple of weeks in 2004, I was about as alone as I’ve ever been in my adult life, before or since.

Back to Back

The situation gradually morphed from a threat into a certainty. From 2003 going into 2004, I had two big cases going: cases which, if I wasn’t able to settle them, would end up in trials that could last a week each. One was in Philadelphia, the other in Annapolis. The trials had been scheduled a few weeks apart, so I figured, between the likelihood I could settle at least one and the fact that they were supposed to go down at different times, I could count on dealing with them separately and sanely.

But counting on the likelihoods turned out to be like the hope of everything working out okay in a Greek tragedy. The cases didn’t settle; though it seemed to me my clients had the stronger hand in each case, in neither could I get the other side to see it that way. And then a pregnant lawyer on the Annapolis matter, the one that had been set to go earlier, gave birth a little sooner than expected, delaying trial of that case to the Monday after the Philadelphia trial.

In consequence, I suddenly found myself looking at trying cases in two consecutive weeks of August. Out of town. (Annapolis is just far enough away from Baltimore that you don’t want to commute when you’re putting in the kind of effort that a full-on trial requires.) I asked the judges to accommodate me by moving the cases further apart again, but it was “no joy” on either of those requests.

Outside My Comfort Zone

There are lawyers who do over and over what I was doing then: handling cases that are geographically dispersed, with witnesses all over the country, putting forth on the fly the required intellectual effort and organizational skills and oratory and writing and witness preparation to the extent that for extended periods there is nothing else in their lives. Lawyers like that are called trial lawyers.

I, on the other hand, was what’s called a litigator, which counterintuitively meant that I seldom tried cases. So, while I was holding my own, barely, in the logistics of my struggles with these adversaries, all of whom had larger legal teams than I did, I found myself far outside my comfort zone in terms of impact on my life.

By now my older children were grown, but I had a teenager at home and a wife who was busy enough with her own career that my leaving so much of the day-to-day family business to her was causing friction.

Swordsman

But I had no choice. I felt like a swordsman in a fight for his life; you may want to attend to other things, but if you allow your attention to waver, you die. And so you focus on the one big thing to the exclusion of all the others, even the ones which are in the grand scheme far more important to you.

My posture, then, was simultaneously liberating and constricting. Good trial work requires great concentration; being both freed up and forced to narrow one’s attention in that fashion is in some ways a wonderful thing, an intellectual and indeed spiritual adventure of the first order. But there were reasons I was a litigator rather than a trial lawyer. I was a homebody by nature, a wool-gatherer, a nurturer, a man of many avocations. For a couple of weeks, I couldn’t do any of those things.

All I could do was keep putting one foot ahead of the other. I kept trying to assemble a calendar of all the tasks I had to complete in order to present or defend against two solid weeks of testimony, and no matter how I manipulated the agenda, I could never fit everything in and still leave time to sleep. So inevitably, like every other litigator in every other trial, I approximated the effort required for some tasks, and gave myself unstintingly to others. And yes, of course I slept. On a battlefield triage and occasional oblivion are both necessities.

A Shopping Expedition

As I have said, the Philadelphia trial that should have been second came first. For five days, almost without break, I shuttled between my hotel room in Center City (the Westin on 17th Street I think) and the courtroom a couple of blocks to the east in Philadelphia’s Beaux Arts City Hall. In my memory it was cloudy or rainy the whole time; this probably wasn’t quite true, but if not, it was nearly so.[1] Local counsel, a charming woman who lived in a restored downtown neighborhood, had me over to dinner one night, but apart from that one act of mercy, I was socially on my own.[2] I have no recollection of dining with anyone else, nor do my charge account records correct my recollection.

I have forgotten a great deal about the ordeal. But not all.

What I remember most is a brief shopping expedition I treated myself to as a break on the second day of the trial, and bought a CD at a nearby Borders. Yes, Borders, now a feature of America’s commercial past but at that moment a shining and wonderful distraction, one with which I had a small personal connection.

Readers of these pages know that I hail from Ann Arbor, and so did Borders, although by 2004 it was a huge international chain of book and music stores. In the previous couple of decades, my parents, both great bibliophiles, had become big fans, as the tiny store grew and came to purvey an astonishingly wide stock of books.[3] Philadelphia’s Center City branch of the store, was located in the space left by a defunct department store.[4] Borders had brought the space back to spacious and vivid life. I wanted to borrow some of that vividness for my mentally if not physically drab hotel room, and a new CD was the best way to import it.

Painfully Cries Out

The album I hit upon was Josh Groban’s Closer, which I bought largely on the strength of the jewel box cover art (pictured above), and the awareness that he had become a Big Thing while my back was turned.

After bringing the disc back to my room, to play as I continued to prepare for the trial, I soon realized that I had picked an exceedingly contrarian choice for my situation and my mood.

You might call Groban’s genre “popera.” The young man had an operatically-trained voice applied in an operatic way to pop material. Even the cheerfuller songs came across as dramatically gloomy, the way opera tends to be. Don’t take my word for it; here is part of Aaron Latham’s review on Allmusic:

The best tunes bookend the disc as the atmospheric opener, Oceano, sets an ominous tone while the mysterious Never Let Go is a welcome collaboration with Deep Forest that allows Groban to successfully move away from the saccharine ballads and grow as a vocalist. However, there is still plenty of romance included for the PBS crowd as When You Say You Love Me painfully cries out like a rejected Celine Dion cut and the Celtic-infused bombast of Secret Garden’s You Raise Me Up plays like the sequel to his debut’s most famous song, To Where You Are.

“Painfully cries out” – yeah, that’s about right. Somehow, even when it was happy, it was sad.

The song that spoke most to me in my isolation was Caruso, Lucio Dalla’s song. I couldn’t translate Italian to any great extent, but I got the gist: the opera singer, alone beside the water, with his regrets.[5] I didn’t have that many regrets at that point; the loss of a marriage, and of a father and stepfather (all written about in these pages) were about the worst, and far fewer and less painful than some of my contemporaries were racking up. Still, in my isolation and subject to the incessant responsibilities of the trial, the gloomy melodrama of that song and indeed the whole album, were just the thing.[6]

Ineluctable Cocoon

My efforts bore fruit. I had been right about having the stronger case in both matters, though I’ll take some credit for steering them in the right direction so that the juries in both cases saw things as they should have. We ran over on the first trial, and I had to go back to Philadelphia on the Monday that I should have been in Annapolis picking a jury. The Philadelphia judge got on the phone and made my excuses to the Annapolis one, and in consequence I gave my closing argument to the Philadelphia jury, warning them with regret, that I would not be there to hear their verdict, but that local counsel would have to take over for me. I told them truly that I had enjoyed their company. (When you’re effectively by yourself for so many days, the silent interchange of looks with a jury passes for companionship.) And then I got in my Hyundai and headed south on I-95.

I got the phone call with the good news on my cell before I was out of Delaware; it had taken the jury less than an hour to reach its verdict. But there was no time to rejoice, no time to process it at all. My partner was in Annapolis picking the jury for me, and the judge wanted me there as soon as humanly possible either to start the trial or at least go through pretrial motions. And I was encountering serious traffic congestion and worrying about making a bad impression on both the judge and the jury by getting there late and inconveniencing everyone.

In short, I never left the litigation cocoon. En route from one trial to the other, I drove within a mile my home in Baltimore and never veered off course, just kept on going.

Grateful for It

There are far worse forms of isolation. To go from the Center City Westin to the Annapolis Loew’s, from one courtroom where you are first chair to another courtroom where you are first chair, is in many ways a not inconsiderable pleasure, especially when you are winning, and sense it, in both proceedings. And yet it was lonely, and that loneliness cannot be gainsaid either.

As I write these words, in the twilight of my litigating career, I am very grateful for those two weeks, which certainly were its pinnacle. Yet I am even more grateful that my life did not repeatedly thrust me into situations like that, as it might have done had I been a more celebrated lawyer.

Still, play that music for me, and I am thrust back instantly into the complex feelings I had when, for two weeks, my mind had room for the thrust and parry of two trials, and very little else.

__________________

[1] I still have the umbrella I bought the Saturday before the trial, and remember taking it with me every single day to the trial.

[2] She had a husband who, like me, was a Penn alum. (I think he actually had graduated in my class, though I hadn’t known him in college.) Looking back, it’s strange that of my college friends, the few I’ve had contact with in later years that is, all left Philadelphia, even the one who came from Philly originally.

[3] The end came in 2011. In 2004, however, I would have thought the chain too big to fail, even though I think I was aware of its acquisition by K-Mart, and K-Mart’s subsequent bankruptcy.

[4] It was in what had been known as the PNC Building, which, in earlier years had been the home of an annex of the Wanamaker’s department store. The Wanamaker’s occupancy had been in the years even before I became a student in Philadelphia. (When I was a student, Wanamaker’s was in a nearby building, at this writing the home of the Macy’s that had absorbed Wanamaker’s.) But in 2004 the air of department store still clung to the Borders space. To children raised in my era, there is something magical about old urban department stores, some amalgam of Santa Clauses and decorated store windows and smart fashions and electric trains – not to be confused with the sterile mall-based stores which are their successors.

[5] The Italian lyrics are here. An English translation is here.

[6] My charge records reveal that I bought another CD at the same time, which would have prompted a different kind of gloomy satisfaction, Beyond Brooklyn, a collaboration of flautist Herbie Mann and reedman Phil Woods. Herbie Mann may not have been the most profound musician every to play jazz, but, as readers of these pages know, he had meant a lot to me. This album, recorded when Mann knew he was in the final extremities of the cancer that killed him in 2003, contained his very last cut, Time After Time, reportedly made for his wife. It is the best rendering of that song I know.

Copyright (c) Jack L. B. Gohn, except for cover art

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