Staying up late sucks.
When I was a little kid, staying up late was a bonus, a luxury. A treat. There was an unpredictability to it. That made it even more exciting when it actually happened.
Most of the time, Baby Michael and I would get a “no.” Not even a “no,” just that look from Mom or Dad. Usually Dad. The one that made it crystal clear we shouldn’t even bother to finish asking the question.
Bedtime was an obligation that applied even when there wasn’t anything to get up for, because our house was too small for parents to properly sleep (or periodically not go to sleep right away) if their two young boys wrestled and argued and argued and wrestled deep into the night. Not that we ever made a lot of noise when we got to stay up late. Neither of us were all that smart, but we were bright enough to know that breaking glass or smashing furniture after midnight would result in fewer chances to ever do it again.
I don’t remember much about the things Baby Michael and I actually did when we stayed up late, because I’d quit thinking about those nights. I’d quit thinking about those nights, because I’d quit thinking about Baby Michael. I’d quit thinking about Baby Michael, because I’d become extremely and permanently pissed off at Grown-up Michael.
For Grown-up John, staying up late is the exact opposite of bonus, luxury, or treat. I need my sleep. And there’s nothing fun about being awake after eleven o’clock. Not anymore.
Staying up that late now means I’ve got a trial starting soon, or I’m in the middle of one. It also means no sleeping in on the other side of staying up. I never did sleep deprivation well. I’ve gradually learned how to live with it. It’s a debt that eventually gets paid off, at some point when life gets back to normal.
I’m not sure that I’ve ever fully reconciled those deficits. Maybe I’ll finally balance out the ledger when I’m in the old folk’s home, when there will be nothing else to do other than smear pudding on your bib or dump crap in your pants. Or both. Maybe at the same time. Maybe that’s when I’ll finally pay off that sleep debt. Just in time to go to sleep for good.
The accounts payable had spiked again lately, thanks to the double whammy of a trial coming to an end on Friday and Christmas Eve landing two days later. With three kids—fifteen, twelve, five—things that as of the morning of December 22 I didn’t even know had been bought by my wife would have to be some-assembly-required in that sliver of time between the lights going out upstairs and the youngest one springing awake to a non-stop, jabbering frenzy of activity. To make things worse, Macy (whose full-and-complete-assembly-required bike was hidden in a large cardboard box under the workbench in the garage) had already begun hounding Linda about going to midnight mass, a legitimate occasion to stay up late even though the girl would transform into a sweaty clump of eye boogers well before I heard the term from Isaiah 9:6 that never made much sense to me.
Whatever it meant, it was what I needed to be that morning. The trial had started on Monday. The lawyers representing the company had asked for a delay on the Tuesday before Thanksgiving. I’d given the maximum contribution to the judge’s two campaigns exactly for times like this. They’re not supposed to know who gives what and how much, but the full list of donations becomes public record, and it’s way too easy to give in to the temptation to check. So I gave to the limit, Linda gave to the limit, her parents gave to the limit, and mine would have given to the limit, too, if they both hadn’t been gone for more than two decades.
We all gave to the limit so that, for example, a random collection of local residents would get to decide two days before Christmas Eve whether one of their own had her rights violated by a rich, powerful, and faceless corporation. Sure, the company provides jobs for hundreds in the area. It also fires people from those jobs without regard to the law. And it sucks tens of millions of dollars in raw profit out of the state, every month.
The idea of handing a wrongful termination case to a jury on the 22nd of December sounded very good, in theory. I’d always wanted to do it, but I could never get the dominoes to fall the right way. When the judge held a scheduling conference sixteen months earlier, I could see the other dates and deadlines for the litigation were pointing toward the end of the year. I suggested with deliberate nonchalance December 18 for trial. The low-level, billable-hours-churning, fresh-from-law-school underling who’d been given the lead partner’s calendar didn’t realize that starting a trial on that day would result in the jury getting the case dangerously close to Christmas, and that I’d then spend the entire week clanging a bell next to a red kettle, a Robin Hood who had swapped his green hat for a red cap trimmed in white.
I know how that sounds. I do. But that’s the way it works. Good lawyers secure every possible edge for their clients. If there was any way I could nudge the process toward the jury returning a big verdict in the matter of Matherson vs. U-Sav-Plentee, Inc. et al. so close to Christmas, I wouldn’t have been representing my client the right way if I hadn’t at least tried to do it.
I’d succeeded. I got the date, and I fought off the motion for a continuance. I probably was a little too much of a jerk when pointing out that if Mr. Anderson had planned to go out of town for the holidays on December 20, he shouldn’t have allowed his junior associate to agree to start the trial that week—or maybe he should have participated in the scheduling conference himself. But here’s the thing. Proper representation of a client in litigation requires being a little too much of a jerk, pretty much all the time.
So that’s how it went. In the months before the trial started, I questioned thirteen U-Sav-Plentee employees in the conference room of my law office. The company’s lawyers produced more than fourteen thousand documents for me to review, since they always bury a handful of needles as deep in the haystack as they can. They eventually filed what’s known as a motion for summary judgment. It forced me to put together a twenty-page legal brief that turned over just enough of my cards to show there was more than enough evidence of wrongdoing to support a jury verdict for Sandy Matherson. Along the way, we attended a court-ordered mediation session that made no progress at all toward a settlement because the manager of the local store barely had the power to go to the bathroom without first calling corporate headquarters for permission. After all of that, the case went to trial as scheduled.
Being at trial can be exhilarating. Getting ready for trial blows. It takes hours and hours and hours of focused effort, usually at night and on weekends because the rest of your practice doesn’t take a hiatus. Trial prep requires focus, resilience, perseverance. It needs a careful eye, scanning every relevant piece of information, over and over and over again for anything that can be used to support the arguments being made on behalf of the client, and to avoid a sawed-off shotgun of attacks being fired by the other side. It’s much more than knowing how to present your own case; it’s about understanding how their case will unfold, while also being ready to swing at any and all curve balls that may or may not be heading directly for your temple.
They might dig up dirt on your client from years before she even got the job. They might pull a key document out of nowhere, after hiding it from you for months. One of the jurors could bow out, because a kid suddenly has the flu. In comes the alternate juror, and the whole dynamic of the group changes.
I had to be ready for anything and everything, all the time. I had to have a plan for dealing with any and all wrinkles. If I didn’t have a plan, I had to come up with one. If I couldn’t come up with one, I had to act like I had one. And I had to do it all while staying up late and getting up early, night after night after night.
Why was I still doing this? I started off working for a big law firm that represented employers. I became a partner. Impressive title. More money. I didn’t care. I wanted to handle cases I believed in. Lawyers who work at big firms have to handle the cases that get filed against their clients, no matter how good or bad those cases may be.
For me, more often than not, they were bad. I didn’t believe in them. So I’d work on the case until the time was right to explain to the client why the case should be settled. That alone was an art. Telling the client that it needs to write a check to make a case go away too early in the process comes off as weakness. Waiting too long invites questions like, “Why didn’t you tell us this sooner?”
The business creates an incentive to keep a case alive as long as possible. Lawyers who represent corporations get paid for their time. If a case goes way too quickly, there’s much less time to be spent and, as a result, much less money to be made. The goal, even with a stinker of a case, is to let enough of the litigation play out before telling the client the time had come to broker a deal. Legal fees fully earned, problem fully solved, justice fully done. Or whatever. Regardless, I got no pleasure from handling dying-dog cases that, sooner or later, would be put out of their misery, and mine.
Now that I hung a shingle and practiced alone, I got to screen the cases. Pick the cases I believed in. Accept the cases that felt like they were rooted in truth and righteousness. The cases also had to carry a good chance of kicking out some cash. Practicing law is still a for-profit enterprise. Fighting for principle never kept the lights on or the kids fed. The cases I took needed to include rights that were violated, financial losses that were real, and a defendant that could pay without blinking an eye. Otherwise, it just wasn’t worth the time, the effort, or the money required to get a case ready for trial.
In Matherson vs. U-Sav-Plentee, Inc. et al., the numbers made sense. U-Sav-Plentee was one of the biggest companies in the world. It had billions on the balance sheet. It made millions more every day.
For the company, this case was a one-winged gnat, not even rising to the level of gently mild annoyance. Whatever the verdict might be, it’d fall far short of the interest earned in a single day on the loose cash the company kept in its worldwide bank accounts. But U-Sav-Plentee still fought Sandy Matherson aggressively and zealously, because that’s what companies like that do. If they didn’t, every employee with any complaint of any kind would line up for their own chance at what the company viewed as a lottery prize, and not as fair compensation for the misbehavior of its poorly-trained, randomly-supervised, and/or badly-intentioned local managers.
At trial, I had to show that U-Sav-Plentee fired Sandy Matherson not because she had a habit of clocking in more than fifteen minutes late (she did, but plenty of others at her store did, too, and none of them got fired), but because she’d been targeted after complaining about the store manager having an affair with one of the other employees. That person was receiving favorable treatment, such as better shifts and more pay than her colleagues. Predictably, the manager denied everything. His mistress denied everything, too. The company paraded a stream of witnesses into court. They all testified under oath they’d never seen anything, never heard anything, never suspected anything. I cross-examined each one with questions that made it clear how much they liked their jobs, needed their jobs, hoped to keep their jobs. That they wanted to get promotions and raises and other benefits, and that toeing the company line wouldn’t hurt those prospects, at all.
I couldn’t just turn to the jury and say, “Trust me, folks, this is how they do it.” I had to weave together evidence that would help lay the foundation for a closing argument where I tied everything together. I had to show other employees had been late or had broken other rules and hadn’t been fired. I had to hope the jury found my client believable and, more importantly, likable. At the end of the day, it wasn’t enough for the jury to generally want to rob from the rich and give to the poor. It had to want to rob from the rich and give specifically to my poor client.
Again, that’s how it goes. In every single case like this. Even if the evidence proved that the company had blatantly violated the legal rights of the employee, the jury wouldn’t give a penny to someone it just didn’t find appealing, or deserving.
Judges tell juries over and over again to not make any decisions until they hear all the evidence. But jurors start making decisions from the second the lawyers open their mouths during jury selection. Heck, jurors start making decisions from the instant they see the people sitting at either of the two tables, plaintiff and defendant and the lawyers for each side. The jurors have to like the plaintiff, to root for her. They also have to like me, or to at least think I’m not too much of the asshole that, frankly, I am. On one hand, I want them to think they’d want me fighting for them or their spouses or their children or their siblings or whoever they cared about. On the other, if enough of them decide they don’t like the client or the lawyer at some point after the trial begins, the rest of the case is a waste of everyone’s time, especially mine.
No one knows whether a case has already been lost before the closing arguments begin. I had to hope enough of the jurors saw things my way. It was my job to load the believers up with the nuggets and explanations they would use to sell the case to the others. It would help to appeal straight to the jurors I thought were most likely to become the foreperson, because the opinions of the juror who gets elected team captain quite often become the opinions of the entire group.
That was my challenge on the morning of December 22. Mine and only mine. Alone on a high wire. Without a net. I had to bring it all home. To get the ones already on my side ready to sell the case to the others. To put enough doubt in the minds of the ones who were leaning against Sandy Matherson’s cause.
I had to talk to them in plain and simple terms. No big words. No legalese. No mumbo. No jumbo.
I had to make them choose to dress up like Santa Claus for one afternoon, and to slide down the chimney with a big, fat sack of someone else’s money and a tag tied to the bow that said Sandy.
I’d slow-played the trial just enough to nudge the closing arguments to Friday. The judge would start the day by reading pages and pages of convoluted and boring instructions to the jury. Then, I’d make the first part of my closing argument. Next, the lawyer for U-Sav-Plentee would do his entire presentation. I’d get the last word, with whatever time was left from the sixty total minutes I’d been given.
The final chunk of the closing argument would be critical. It was my last chance. I had to get them on my side. I had to get them revved up and ready to get to work on concluding that my client had been wronged. So that they’d begin crunching the numbers for her lost wages, for the emotional distress my client experienced after losing a job she’d had for more than eleven years. Then came the up-or-down, yes-or-no question of whether the mega-company with a strategically folksy lawyer should pay extra money as punishment for what it had done—and as a warning to other companies to not do ordinary citizens of our quiet, God-fearing, law-abiding county this way.
All of this rattled through my brain that morning as I forced myself awake after the fifth straight night of barely four hours of sleep. The shower didn’t snap me out of the gray haze carved by the dull knife of fatigue. I reminded myself that I was forty-five years old. I wondered how much longer I’d be able to fight these battles on my own, against the small army of lawyers that companies like U-Sav-Plentee assigned to the cases filed against it. I loved feeling like David versus Goliath. I wondered whether it was actually Don Quixote versus windmill.
The lack of sleep pressed hard against the curves along the inside of my eyes. I blinked into the mirror to focus on getting ready. Truth-tellers have a face that’s properly shaved. Truth-tellers have hair that’s properly combed. Truth-tellers have a suit that properly fits. Truth-tellers have a tie that’s properly tied. Truth-tellers with active sweat glands also wear a moisture-wicking T-shirt under the dress shirt to prevent soaked and stained armpits in the suit jacket.
It was during the drive to the office that I remembered I’d forgotten to put on the damn T-shirt. I cursed. I tried not to think about the clanking radiators in the old building, how the steam heat would combine with my stress and anxiety and a frame carrying about twenty-five more pounds than it should have. I glanced at the clock on the dashboard of the car. I didn’t have time to turn around and go home to put on the T-shirt.
What I saw when I looked up made me forget all about the T-shirt.
(On Our Way Home continues on Friday, November 25, with Chapter Two. It’s being posted free of charge. If that makes you feel guilty in any way, shape, or form, you can buy a copy of Playmakers. Do it from November 25 through December 11, and get a free, personalized bookplate.)