When in court, you must understand there will be times that you are going down and there isn’t a single thing that you or anybody else can do about it. It is not uncommon for such phenomena to happen quickly, without warning, and leave you with the paradoxical sensation that you were never given a chance to win, and somehow you’ve royally screwed something up — a real advocate’s punch in the gut.
Rest assured if you are ever left doubled over on the courthouse steps after having been knocked on your keister by the bench in this fashion, your Death Star law firm probably sent you on a suicide mission.
Suicide missions may be any manner of court attendance. They are all fraught with danger and not for the faint of heart. Although there is virtually no chance of success on a suicide mission, this does not prevent clients from somehow developing the expectation of total, unfettered victory, gift-wrapped with costs against the enemy on a substantial-indemnity basis.
One of the trickiest characteristics of suicide missions is that they are almost always disguised, making it very difficult for associates to tell whether or not they are on one. A Death Star law firm will not tell you that you have been deployed to face certain defeat. Indeed, partners may actively fill their proteges with confidence that their case is impenetrable to even the most seasoned of adversaries or skeptical of judges. “The motion is a ‘slam dunk,’” they’ll say, or, if responding to an appeal, “The bench won’t even need to hear from you.” Hear these words and be warned.
While no doubt cruel, partners do not usually employ this strategy of deceit against their associates out of any genuine sense of malice. You see, partners have a detailed understanding of how to exploit the associate mind to generate the greatest of efforts and best possible results under the most extreme and difficult of circumstances.
Partners know that you will fight smarter and harder to secure victory, even as it slips from your grasp, if you believe that your case is one that should be won. This partner insight rests on the universal truth that all associates, if by nothing else, are motivated by fear — fear of having to take that long, cold walk on University Avenue back to the firm, stacked litigation cart in tow, with the albatross of bad news around your neck; fear of having to tell the supervising partner that you dropped the ball on what was presented to you as being a no-brainer court attendance; and, perhaps worst of all, fear of having to report to the client that they lost the fight against their long-time nemesis and that, by the way, the $150,000 account for your services will follow within two weeks.
Unfortunately for associates, it usually isn’t until they are in court that they realize something is terribly wrong. This realization may happen at any moment. It could happen when the enemy’s lawyer, recent recipient of the advocate of the year award and gowned in silks, elegantly crosses the gallery to introduce himself to you and inquire, “Are you arguing this matter alone?” It could happen as your friend is delivering her submissions and you catch yourself inadvertently nodding in recognition of their persuasiveness. It could happen just before the lunch break when, after being grilled by the bench for an hour through your submissions, the judge, with a wink, tells you half under her breath, “No one said this was going to be easy.” And, yes, it could happen after the master meets each of your three most powerful arguments (so you thought) with the devastating rhetorical retort, “So what!? So what!? So what!?”
Regardless, whenever the realization happens, it’s almost always too late. You are done like dinner, without having had a chance to make a single submission in the absence of being riddled with the bench’s barrage of questions to which no answer you provide satisfies.
Death Star law firms have nothing to lose and everything to gain by sending their associates in on these hopeless missions, pumped up with the confidence that their course is sure. If the associates win, they have pulled off a near miracle attributed to the brilliant strategy of the partners. If the associates lose, no worries — the case never had a chance anyway and the associates have had what partners call “a great experience” (a euphemism for getting walloped).
So to those associates still gasping for air on the courthouse steps, pick yourselves up and move on. No doubt your Death Star law firms already have.
Primo J. Mendes is a senior associate in a big Death Star law firm in Toronto. He will be your mentor, young associates. He can be reached at [email protected]
