10.         Appearances Can Be Deceiving

As you bring in the garbage cans early one morning, you see your neighbor, Bernie the Attorney, racing to his car.  “What’s up, Bernie?,” you ask with neighborly friendliness.  “Can’t talk now,” he responds self-importantly, “Gotta get to court.”

Or you’re waiting in line at Dunkin’ Donuts Saturday morning when the woman behind you says to her friend, “What a week. Court appearances every day!”

Sounds pretty interesting, doesn’t it?  Fighting the good fight daily. Battling for truth, justice and the American way.  How noble and romantic, right?  Wrong!  To put things in perspective, you need to understand the nature of most pre-trial court appearances.

Lawyers typically appear in court for one of three reasons – to file papers with the clerk, to argue motions or to handle routine, regularly scheduled status conferences. 

The routine filing of papers often is anything but routine.  Each court (and, just maybe, each clerk in each court) has its own arcane, bizarre and sometimes downright Kafkaesque technical rules.  These rules don’t appear to be written anywhere, and they seem to be ever changing.  I’m convinced that the clerks – modestly paid civil servants – make them up as they go along just to screw with the lawyers.  You know:  “So, Mr. Hotshot Lawyer.  You think you’re so smart.  Well, I’m rejecting these papers because the page numbers should be on the top right, not the bottom center.”

Court clerks also have this charming habit of telling you only about one defect at a time.  So, when you return to court the next day triumphantly carrying your correctly paginated papers, the same clerk will throw them back at you for using the wrong font.  The following day, the papers are rejected for exceeding some page limit, then for using the wrong exhibit tabs, then for submitting the case to the wrong judge (the judge was changed last year, but the court gave you no notice).  And so on, ad nauseum (that’s legal Latin for “until you throw up”).

Being able to shmooze (that’s legal Yiddish for charm the pants off) a court’s clerical staff is one of the most important skills a lawyer can have. And it’s not taught in law school. 

Trying to file by mail is no easier.  Invariably, your papers are sent back to you with an “idiot sheet” – a form letter listing a million defects with one box checked off.  Each time you correct the mistake and re-mail the papers, they’re returned with a different box on the idiot sheet checked off.  God forbid they tell you all the defects at one time!

I’m exaggerating, of course, but just a little.  The fact is that lawyering isn’t nearly as glamorous as they made it seem on Perry Mason.     

Appearances for motions are only slightly more satisfying than filing appearances.  In some New York State courts, some judges could have motions in 50-100 different cases scheduled for the same day.  As the calendar is called, some motions may be withdrawn, some adjourned to a later date, some settled.  If either side isn’t present at the calendar call, that case is postponed to the “second call” later in the morning.  Generally, there are only a handful of cases where both sides appear and are ready to argue their motions.

By the time your case is called for “argument,” the lawyers have been sitting around waiting for two or three hours.  The judge hasn’t read any of the affidavits and briefs, and isn’t in a position to rule on the matter.  So he hears a few minutes of argument from each side and then says he’ll have to reserve decision.  He may not actually render a decision for weeks or months (hopefully after at least reading the papers).

If you think that’s bad, listen to this:  I’ve appeared before one judge who –despite not having read the papers – rules from the bench on every motion after hearing two or three minutes of argument from each side.  He then directs the lawyers to hand-write a one paragraph “decision” summarizing his ruling, which he signs as the official court order.  So after the lawyers spend hours and hours preparing motion papers and then wait around the courtroom all morning, the judge devotes all of five minutes to their case.

 Only on rare occasions do lawyers get the opportunity to have lively, substantive oral argument before an informed judge who actually has read the motion papers and is familiar with the issues.

Appearances for status conferences can be even less productive than appearances for motions.  Again, lawyers can be seen pacing around waiting for their cases to be called.  Sometimes, the conferences aren’t even conducted by the judge; a law clerk handles them.  And the conferences may last only for a few minutes.  The lawyers summarize the procedural status of the case (e.g., what discovery has been completed and what remains to be done) and the clerk gives them a new date for the next conference, when the procedure simply will repeat itself.  These court appearances are as meaningful and exciting as a trip to the Motor Vehicle Department to renew your driver’s license.

The supreme courts in the five counties comprising New York City each have numerous judges.  And each of them presides over his own courtroom (known as a part). Conference and motion calendars in each part typically are called at 9:30 a.m..  It is common for law firms with many cases in a county to designate one of their lawyers to appear for all of the cases on a given day.  So lawyers can be seen running from part to part within the courthouse, trying to answer calendars in five different cases in five different courtrooms, all at the same time.  Reminds me of the circus performer on the old Ed Sullivan Show who was running around the stage trying to keep plates spinning on sticks, while the Hungarian Sabre Dance played in the background.

Think of that poor plate spinner next time you see Bernie racing to court.  Not so noble and romantic after all, is it?