Authored by Ashby L. Jones, Esq.
Looking back over the last twenty-one years, I realize—there have been so many rules. We’ve learned about cases and statutes, procedures and expectations. We have learned the unspoken rules. Law school was all about teaching us how to understand the rules, speak about the rules, and write about the rules. We were supposed to learn to apply the facts of our cases to the rules. I suppose we learned how to do that. Mainly we learned that we will never, ever learn all of the rules. And if we ever came close to learning the rules, the rules would change.
Thankfully, during that first year of practice all of the rules were accessible to me. Not only did my first firm have the statutes, advance sheets, and a subscription to Westlaw, my senior partner subscribed to every law magazine available. He also purchased training videos, hornbooks, non-fiction lawyer books, fiction lawyer books and whatever was sold at continuing legal education courses. Though I was grateful I could view the rules at any time, I was terrified. I would never be able to learn all the rules.
Even scarier, I was expected to practice law that first year while I was learning all of the rules. I did not have enough time to absorb the rules, because I was meeting with clients and going to “roll call.” When I questioned how little I actually knew before I was sent to court appearances, my boss told me exactly what your first boss told you:
“Ashby, I am going to throw you in the water and see if you can swim.”
The Honorable Marc Westbrook conducted my first civil roster meeting. I put on my little black suit, combed my serious hair, and sat in the back of a courtroom full of too many lawyers. My boss had five or six “damages hearings” on the roster that week. Not only did I not know what a damages hearing was, I did not know what a roster meeting was.
I was submerged.
I needed to quickly learn Roster Meeting Rules. So, I observed each lawyer stand and answer a few of Judge Westbrook’s questions. I surmised that the Judge wanted to know how much court time would be required for each case. I listened to dozens of lawyers estimate the time required for their cases. I jotted down everything they said in the spiral notebook on my lap. I determined the average amount of time required was two days. So, when it came time for me to discuss my damages hearings, I indicated each hearing would take—two days. By the third case, Judge Westbrook stopped me. “Ms. Jones, I do not really want to listen to Billy Walker talk for two days just for a damages hearing, are you sure it will take that long?”
I was drowning.
Billy had told me about the Spiral Notebook Rule. If you want to be a good lawyer, you must always have a spiral notebook with you. You write down who called you, case to-do lists, and ideas. It is acceptable to use the spiral notebook to jot down grocery lists or to remind yourself to pick up the dry cleaning. When you have addressed an item on the spiral notebook page, you may scratch through that item. When every notation has been considered, you may turn to the next page. This will give you a sense of accomplishment. If you have not addressed each item, you may not turn the page. Oh, how I yearned that year for a fresh white page of lined spiral notebook paper. Rule Subpart (A): when you have filled the notebook front to back, you must flip through it and reminisce. Rule Subpart (B): you may have more than one spiral notebook.
I was treading water!
Pre-trial Conference Rules: I learned that pre-trial conferences are conducted in chambers. Chambers is an office where the judge takes off his robe and has a picture of his wife on his desk (taken back when she was young and pretty). The Pre-trial Conference is the place where the other lawyer will pretend to be nice to me in front of the judge, even though a few weeks ago he thought I was a secretary and asked me to get him some coffee. If the Pre-trial Conference is in Barnwell, the (now retired) judge will smoke cigarettes and eat Little Debbie chocolate cakes while picking on me about my pre-trial brief. Rule Subpart (A): Barnwell judge has a “special” pre-trial brief. Rule Subpart (B): Don’t bother researching the details of (A), you are supposed to just know this.
Deposition rules: I learned early that before you start to take a deposition, you draw a vertical line down the center of note paper. You make notes on the left side of that line while you are questioning the witness. You make notes on the right side of that line when others question the witness. When it is your turn again, you slowly flip through the notepad and stare at both columns quietly and methodically before saying, “That’s all I have.” This is called the Catharine Garbee Griffin rule.
If your own client is being deposed, no need to draw the vertical line or write down anything at all. Your client’s deposition is an excellent time to read the newspaper (this is the Billy Walker Rule).
Before the formal deposition rules changed (and the rules ALWAYS change), there was a fair amount of interrupting and yelling during a deposition. If the interrupting and yelling became too much, someone called the judge. If it was me that called the judge, I was so very brave and aggressive. In fact, once I knew the Charleston law clerk who answered the phone, which made me feel smug for a moment. But, when the actual judge got on the phone, I learned the judge attended law school with opposing counsel. They might have even identified one another by first name. Cravens Ravenel Rule: Calling the judge during the deposition might backfire.
I was swimming, but everyone could tell I needed to stay near the shore and take breaks to build sand castles.
Those first few years, I noticed a number of attorneys wanted to tell me how many years they had practiced law. I learned this information not because I asked specifically, but because the other attorney thought I needed to know. “Ms. Jones, in the twenty years I have practiced law, I have never seen anyone take such a position.” “Ms. Jones, I have only practiced law for nineteen years, but I do not think the jury is going to like your client’s case.”
Once, after a particularly uncomfortable mediation, I had learned that opposing counsel was incredibly smart and gifted, having practiced law for seventeen years, three months, four days and fifty-three minutes. I had learned my case was terrible, the jury would not like my client, the judge would not like me, and I was really not suited for law practice anyway. I should open a gift shop and sell Snowbabies or Precious Moments figurines. After I complained about this to a partner, he pointed to the framed Supreme Court of South Carolina certificate on my wall. “Ashby, do you see that? That piece of paper says you are a lawyer. It is the same piece of paper hanging in every other lawyer’s office in this state, and you are every bit as good as they are.” (This is the Ben McCoy rule, and it has helped me keep my head above water many times since).
Sometimes the waters get rough, our clients are unreasonable, other lawyers are arrogant, and the judges are high up there on the life guard stand, having forgotten what it is like to swim in the deep sea. We remember how we were told in law school to develop a “thick” skin as quickly as possible. Our skin must become so thick that we develop an invisible coating all over our bodies. The coating is meant to protect you from caring when opposing counsel is dishonest, when the judge rules against you, or when your client is unpleasant. The coating also keeps the inside parts of you from seeping out. That way, no one will know how you actually feel during litigation. This is called the Scuba Suit Rule.
The problem is, the scuba suit is uncomfortable and weighs me down. I find I focus so much on not letting the outside-get–inside-of-me and the inside-get-out-of-me, I forget how to swim. Oh, it is true the scuba mask provides clear shoreline visibility, but I have a hard time seeing anything else, like the colors of all the fish. I can’t detect the current of the sea. If I am wearing the scuba suit and I reach out for a starfish or to collect a shell, I can’t really feel its contours. Also, there are all these stories about scuba tragedies. These are the times when the scuba team is so focused on the finish line they do not notice one of their comrades has drifted away.
I suppose I’ve been swimming twenty-one years. My stroke is not always strong and I sometimes gasp for air, but I am swimming all the same. The roster meetings haven’t changed much. Next time you attend one, take a good look around. The same folks are bloodlessly circling the room. There are rows and rows of scuba suits. There is also a fellow wearing cartoon swim trunks and holding his kid’s boogie board. I see a woman in a dreary Land’s End tankini, and a nervous young lawyer in the back holding a spiral notebook.
No matter what type of swimwear you choose, which stroke you master, or how quickly you reach shore, try to remember we are all out at sea together. No one expects you to remember all of the rules all of the time. You can break a few of the rules if you need to. It is only important that when you return to the shore, you do not wait for someone to drop you in the water. Go ahead and execute that glorious imperfect swan dive of yours and get yourself back in the water.
Sometimes the best swimmers make the biggest waves.