Today is Ash Wednesday and begins the 40 days (not counting Sundays) of Lent. Lent comes from the Anglo Saxon word for Spring. For Christians, the 40 day period represents the time Jesus sojourned in the wilderness, resisting the temptation of Satan, and preparing his final ministry. Lent is a time for repentance, fasting, and preparing for the coming of Easter. Many Christians, even minimally-observant ones, follow the tradition of giving up something for Lent. In that spirit, we offer our list of what we will forego between now and April 21.
1. When the other side finishes deposing our company witness, no more will we smugly say “our questions are reserved for trial,” and pack up our things. It is smarter to do some sort of redirect exam. Yes, we hate to show the other side our hand, but what if our hand – the witness – disappears? Or he/she becomes hostile or evasive? We have geared up for trial too many times wishing we had a decent deposition direct exam of our witness because, for whatever reason, it had become impossible or inconvenient or imprudent to bring that witness to trial. Occasionally, we felt a bit steamed about prior counsel’s decisions not to do a redirect at the deposition. But see point 3 below.
2. From now on, or at least for the next six weeks, we will keep our smart phone and iPad more than six feet from the bed. Consulting the buzzing, too-well-lit device in the middle of the night ruins sleep and peace of mind. Whatever it is, it’ll keep.
3. However much we might disagree with former counsel’s decisions, we will not complain about them. We might try to alter or remedy them, but there is no sense in mere grousing. When a client invites you to parachute into a trial, it is an honor and a delight. You get all the good bits of doing a trial, but very little of the drudgery. Better just to take what was given to you, say thank you, and put on the best show at trial you can. By the way, it is possible that those decisions you now bemoan might have been perfectly justified under the circumstances at the time. We promise to shut up and do the work.
4. Adios, sports talk radio. We can probably slog through the early mud season sans this air-wave festival of carping by loud-mouth know-nothings. Who deserves blame for the Sixers’ latest loss after building a double-digit lead? Who will the Patriots face in the next Super Bowl? Who should bat after Bryce Harper? Who cares? The opinions shared by sports-talk blowhards would not pass the Daubert test in even the most lenient jurisdictions. Plus, the radio hosts recycle the same trio of topics every hour, so even a medium length car-ride of this nonsense will leave you bitter and lobotomized. Did we mention that we live in Philadelphia?
5. We will take a time-out on trying to discern or characterize the motives of our adversaries. It is fine to challenge the other side’s arguments, but imputing motives to one’s opponent is pointless, lacks foundation, and annoys the judge. Is there a more overused word in legal briefing than “disingenuous”? When lawyers deploy that word, they are essentially saying that the other side cannot sincerely believe what they are saying. But the court will not decide the issue based upon who is more sincere. If the argument is weak, show why it is weak. So much of law and life is brought to ruin by misunderstandings about the other side’s motives. There is a reason why philosophers have puzzled over the problem of other people’s minds. Even if Descartes proved that he exists and that God exists, he could not prove that other people’s minds are like ours. Other people could be robots. Or simpletons. Or predatory plaintiff lawyers. Or oafish writers. It doesn’t matter. It is not actionable. Moreover, since we actually do believe (on faith) that other people’s minds aren’t so different from our own, we see no reason to turn bad assumptions into nasty words and thereby hurt others’ feelings.
6. We will stop griping to our kids about how they never return our calls, emails, or texts. Obviously, they were raised badly and it is too late to do anything about it. (And yet, when money or free vacations are on offer, the Drug and Device Daughter and Son suddenly become robustly responsive.) Make no mistake, though; on April 22, our litany of recriminations on this subject shall recommence.
7. It will be hard, but we will halt, at least temporarily, our stereotyping of jurisdictions. Every once in a while, good opinions do emerge from California and Missouri. And, conversely, sometimes the Good Place turns out to be a Very Bad Place. Of course, Madison County is always a Very Bad Place … oops, there we go again.
8. We will give Amazon, EBay, and Costco a rest for a while. Our house is full of unnecessary purchases. We have enough batteries to power a 767. That three pound jar of salsa will go bad before it is even a quarter consumed. Sure, it’s nice to be greeted by one of those smiley boxes on the porch at the end of the day, but how many tactical flashlights do we need? (At least we’ve got the batteries.) EBay might be the worst. Someday, those not-responding heirs will have to throw out the Flintstones lunchbox, Gillette safety razor from the year we were born, and Oddjob action figure. Serves them right; they should have answered our texts
9. For at least the next 40 days, we will leave off certain arguments we keep trotting out and losing. Perhaps we need to make a record, but we are starting to worry about injury to our credibility. Will we tell you what those arguments are? No, we will not. Do you think we are crazy?
10. Bacon. No, wait a minute, speaking of crazy, that would be crazy torture. Desserts? But what about crème brulee? We really, really love crème brulee. Hmmm. This last one’s a toughie. Okay, got it: for Lent this year, we are giving up brussels sprouts. (Unless they are adorned with bacon.)