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Commentary: Today was not a good day

I thought today would be a good day. Then I saw a request for help in a hunting group to search for an elderly hunter who was lost. The elderly hunter is my age. I hope they find him, and I hope the person who asked for help steps on a rake. Then things turned nasty.

Everyone has been in a social setting with One Up guy — the man or woman who has a better story than the one they just heard. Usually, these braggarts are tough to tolerate. Today I was One Up guy but it wasn’t to brag. More of a whine.

Stuart Thomas related an experience years ago of a lawyer getting in the elevator with him looking crestfallen. When Stuart asked “Why the long face?”, the response was not what he expected.

“I think I just lost a suggestion of death.”

There are very few sure things in life and fewer in the law. Even so, a suggestion of death should qualify as a slam dunk. A two-foot putt. Tell the judge that a party to the suit is dead, ask for leave to substitute the dead party with someone a bit more alive and leave the courthouse.

I guess it is possible that the deceased party gets better, Monty Python style, and disputes his untimely demise but I wouldn’t bet on it. In my circles, a denied suggestion of death stands as the lowest point in a lawyer’s performance. (Big talk coming from an attorney who got directed out of a case where the defendant was making an illegal left turn, I know.) I should say stood rather than stands as I almost lost a motion to withdraw from a case today.

I haven’t voluntarily quit a case more than a handful of times in my career. For a plaintiff’s personal injury lawyer, withdrawing means writing off the time and money I have invested on my client’s behalf. It is almost worse than getting fired by a client because I am choosing my fate and accepting the consequences. I have to admit that I failed to evaluate the case correctly when the client first called, or that I wasn’t omniscient enough to predict it going south.

Hindsight being 20/20, I could see plenty of red flags from the end of the case that I couldn’t see at the beginning. Feelings of frustration compounded by feelings of failure make withdrawal a lousy end to a case. Nobody likes a breakup and professional breakups are no exception. It was better than getting dumped in a crowded restaurant in college but not by much. At least my client wasn’t seeing other lawyers behind my back.

To make matters worse, this was a federal case. Not in the metaphorical sense of a big deal lawsuit but one where I could only file in federal court. Federal court is not for sissies. The filing fee is three times more than in state court, as is the workload. State trial court judges’ decisions are subject to immediate appellate review. Get crosswise with an Article 3 judge and you can wind up in Guantanamo Bay — not the prison, the ocean.

If there is one thing that tests the patience of a federal judge more than an unprepared lawyer it has to be a pro se litigant. Either that person has no idea what is required of them under the federal rules or they file a lot of lawsuits in federal court and likely have nothing better to do. I don’t know of any judge that has been excited about having me in their courtroom but given the choice between me and a pro se litigant, I look pretty good.

Meanwhile, a federal judge has to manage an oversized docket with matters that have larger implications than just the parties before them. To make matters worse, litigants in federal court under its diversity jurisdiction need only show that $75,000 is at issue. This limit hasn’t moved in almost thirty years. $75,000 back then is worth about $40,000 today, or roughly the cost of an emergency room visit and a new quarter panel for an F150 pickup truck. Compared to mass tort litigation, some diversity cases are barely a blip on the damages scale.

On this day, I was asking to be released from a case and knew immediately that it would be unpleasant. In addition, I had to craft my request without harming the case or client by my disclosures. Ultimately, my motion was granted and the judge dismissed me from the case and courtroom. I left before he could change his mind.

My philosophy in life is not to do anything that isn’t going to be fun or at least a good story. Today was neither. To maintain my optimist badge though, I have to find something positive from the experience and it is this — I am not writing while treading water in the Caribbean and I didn’t have to test out my Spanish speaking skills in Cuba. My glass is half full. But for the fact that the day started with a morning hearing, it would have been completely full of whiskey.

©2022 With All Due Respect. Spencer Farris is the founding partner of The S.E. Farris Law Firm in St Louis, Missouri. It is NOT better to have filed and lost than to never have filed a lawsuit at all. Comments or criticisms about this column may be sent c/o this newspaper or directly to me via email at [email protected]