The year was 2008. I had just passed the bar after graduating Temple, a Tier 1 school. Man, I was so ready to practice law… I had just finished a two year clerkship at a major prestigious law firm. Before the clerkship, I had been a judicial intern in the Superior Court of Pennsylvania. In my mind, I knew pretty much everything there was to know about the practice of law. I had been taught by some of the best. So when a small suburban Philadelphia law firm hired me as an associate, they were getting a first round draft pick. Biglaw stock, if you will. I mean, let’s tell it like it is – I had great grades from a top law school, clerked at a prestigious firm where I got a lot of experience, and I had clerked for an appellate level court. They were lucky to get someone so talented and experienced. Sucks that I had to take a job with a small firm out in the counties because the economy was down, but I’d be back at a major law firm in no time. Until then, I would have to suck up small firm county practice. Ugh.
About a week in, I got an email from my boss, James. “Jordan: I need you to cover a discovery motion hearing for me on Monday because I will be in court. Please come see me at 3:15pm to discuss. Thanks, James.”
I went into James’s office to discuss. I guess it was cool he was letting me argue a motion on my own, even though it was a stupid discovery motion, and not even in federal court… this was a podunk county state court. When I worked at BigFirm, all our work was in federal court. Real court.
“Alright, Jordan. Here is my draft of the motion. Shore it up, Shepardize the cases I cited, and check the local rules to make sure it complies. I haven’t had a chance to call opposing counsel but you should…”
“James, I got this. I don’t need you to tell me how to handle a discovery motion. When I was at Bigfirm, I drafted hundreds of them for Senior Partner, mostly in federal court. Just hand me the file and let me come back with a few heads on a pike.”
“Are you sure? I have a few minutes to go over the nuts and bolts with you, but if you know what you’re doing I have plenty of other things I could be working on.”
“I did so much stuff when I was at Bigfirm… you’d be surprised at how much I know. I’ve got this, thanks.”
I figured James would be impressed with my “go getter” attitude and all my experience picked up as a clerk at Bigfirm. He sure made a great hire. And let’s be honest – I didn’t need James, a county lawyer, telling me how to argue a discovery motion. I learned how to do that at Bigfirm, with important trial lawyers in federal court. I had drafted opinions for a Superior Court judge on the subject, too. What could James possibly teach me about a discovery motion that I didn’t already know?
James looked at me, taken back a bit. “You did so much stuff, huh? Maybe in your head, child. But if you think you know what you’re doing, have at it I guess. This should be very routine anyway. Just don’t talk yourself into trouble.”
I went back to my office and pulled out the county practice manual. Now, granted, I had never actually argued a motion. But I had drafted them for Senior Partner at Bigfirm, and written draft opinions for an appellate court. This isn’t rocket science… just explain to the judge what’s in the motion. Besides, not everyone has my talent and pedigree in a podunk county state court.
About 4 hours later, I had an outline, a supplemental memorandum of law, and an opening statement that was going to blow everyone away. The schmuck on the other side isn’t going to do nearly as much preparation as I’m doing. Hell, I bet he hasn’t even read the Turner that came out last month. Turner is right on point. The Superior Court upheld some pretty serious sanctions for discovery violations, and at least the decision was issued by a real court.
You know what? I think I’m gonna ask for sanctions… get real aggressive. Show James how it’s done.
The next morning I strutted into the courtroom. Suit pressed, cuff links shining, a fresh haircut and a brand new briefcase. I looked awesome.
“Anyone here on Smith v. Jones?” I bellowed. I saw other lawyers doing that earlier, so it must be the right thing to do. Act like you’ve been here before, Jordan.
A portly fellow in a tan suit walked up to me. He had a stain on his tie, and I could smell cigarettes on his breath. What a slob. “I’m gonna eat this guy for lunch” I thought to myself.
“Hello, you must be James’s new associate. I’m David Coopersmith. It’s a pleasure to meet you. I reviewed your motion this morning and I have to tell you… I’m a bit surprised you are asking the court to sanction me, especially without a 208 certification. I am willing to produce the discovery you want, but it’s going to take me a few more weeks to put it all together. My client has been out of the country, and there is quite a bit to produce. I was also on trial last month, and I guess I let this get away. I’m sorry about that, but I promise I will get it to you… do you want to just withdraw the motion and call it a day? I’m sure we both have better ways to spend our morning.”
I wasn’t really sure how to respond, and what the hell is a 208 certification…?
“Can’t you have your girls put it together?” I asked him. I’d heard a few older lawyers use the term “your girls” or “the girls” when referring to secretaries. I figured this would make it sound like I’m an old veteran, like I knew what I was doing.
“My who? I don’t understand. Look, just give me two weeks and I’ll put it all together.”
“Sorry, David. The rules say you have 30 days to produce all your documents. I have a significant amount of case law that’s right on point. I mean, did you see what Judge Kleinfelter said in Turner? It just came out last month in the Superior Court, where I used to clerk, you know. Have you read the decision?”
“…you seriously want to go through with this, after I told you that I would get you the documents, and that I was on trial last month?”
“Yes, I want to put it before the court.” You’re goddamn right I want to put this before the court. Turn your documents over on time, otherwise face my wrath. You should know better. I win, you lose old, man.
James was going to be so impressed. Not only was I going to win the motion, but I was going to come home with fresh sanctions. When is the last time you’ve gotten sanctions, James? Let me show you how it’s done…
After waiting about an hour and a half, the judge finally called our case. Shit… do I sit on the right side, or the left side? I’ll just strut up there slowly and then sit on the opposite of where David goes…
“Good morning David. Nice to see you” the judge said. “I hope your son enjoyed his birthday party last weekend.”
“He did. Thank you, Judge Moore.”
The Judge looked at me… “And you are? You’re not James.”
“I’m Jordan Rushie, Your Honor. I’m filling in for James today.”
“Your Honor…” David butted in.
Is he allowed to do that? I thought I got to talk first. That’s what it said in the practice manual – I’m the moving party. I’m supposed to give my opening statement here. What the hell is this?
“I represent the defendant, Ms. Jones. I just want to let you know as a preliminary matter that I was on trial all month last month, a large medical malpractice case before Judge Rubin. It lasted almost two weeks. My client was also out of the country on business. My responses to their discovery is late, but I told Mr. Rushie this morning I could get it to him in a couple of weeks. There is no discovery deadline in place, and his client waited almost two years to file this lawsuit. Given the large amount of documents we have to produce, surely they can wait a few more months. But that wasn’t good enough for Mr. Rushie, who won’t agree to give me more time. Mr. Rushie has also requested sanctions in this motion, even though he has never called me to try and work out our dispute before this hearing, which our local rules require. If anyone should be sanctioned, it’s Mr. Rushie for his failure to comply with Local Rule 208.”
The judge looked at me with an angry glare. “Mr. Rushie, is that true?”
“Well, yes Your Honor. But the Superior Court in Turner made it crystal clear that…”
“Mr. Coopersmith told you he was on trial last month, and that his client was out of the country, and that he would have the documents in two weeks?”
“But your Honor, and I quote the Turner court verbatim, which I remind you is authority from the Superior Court…”
“Mr. Rushie, that’s enough. Thank you. Your motion is denied without prejudice. You may re-file it within 45 days if Mr. Coopersmith does not produce the documents. I am also sanctioning you in the amount of $100 for failing to try and work out this motion in good faith, payable to Mr. Coopersmith within 5 days. As you know, well as you should know but obviously don’t, Local Rule 208 requires you to try and work out disputes before wasting the court’s time. Today you have wasted everyone’s time.”
Admittedly, I had not looked at Rule 208, and I didn’t know what it said.
“But… Your Honor! We haven’t even mentioned the Turner case, it’s from the Superior Court! Is the court even familiar with the Superior Court’s recent…”
“Mr. Rushie… I am familiar with Turner. That case involved an ongoing pattern of discovery violations, along with some serious spoliation issues. Not someone needing an extra 20 days to produce documents. If you looked at Turner a little closer, you would have realized that I was the lower court judge who imposed the sanctions in the first place, which the Superior Court upheld. You are not even arguably on point here. So yes, it’s fair to say the court is familiar with Turner. In fact, I am intimately familiar with Turner, Mr. Rushie. You obviously are not. If you disagree, well, feel free to take it up with the Superior Court. Next case!”
David walked up to me after and shook my hand. “Kid, you got a lot to learn… but you shouldn’t have asked for sanctions. That really pissed me off. Did you talk to James about that first?”
I got in my car, completely dejected. All that preparation, my outline, the case law… and I managed to get sanctioned on a motion that I should have won.
“James, it’s Jordan.”
“Hey Jordan, how did it go?”
“Um, bad. The judge denied the motion and sanctioned me $100…”
“…you’re joking right? How the hell did you get sanctioned on a routine discovery motion where they had not produced the documents within 30 days?”
“Well, he offered to produce them in two weeks and I wouldn’t agree to that.”
“Are you a moron? Why didn’t you agree to that? Did you even call David before the hearing like I asked you to, and like you are supposed to under the local rules?”
“No, but I read the Turner case, and it said sanctions were appropriate for discovery violations, so I moved to sanction him for…”
“You did… what?! You do understand that I have to interact with David and appear before Judge Moore fairly regularly? And you moved to sanction David over a very minor discovery issue without trying to resolve it first?! I am just… astonished… at how bad your judgment…”
“C’mon James, that fat slob made some some lame ass excuse about “being on trial for two weeks with some medical malpractice thing” and his client being out of the country. He should have gotten us the documents on time. We’re in the right here! I will start drafting our appeal to the Superior Court as soon as I get…”
“Just… shut up. Stop talking. I should have known. I really should have known. This is why you don’t send children into court. You may think you’re a bigshot, that you’ve done so much, and that you’re special because you clerked at BigFirm. But you aren’t – you’re a child. You’ve never tried a case before a jury. Hell, you’ve never even filed a complaint or handled a case from start to finish. You’ve probably never woken up in the middle of the night thinking you’ve missed a deadline that would constitute malpractice. Up until today, your biggest stress was missing a homework assignment, getting a bad grade, or making it to the bar after your friends left. I believed you, that you knew what you were talking about, and that you were able to handle this motion like an adult. I was wrong. No, you lied to me. And you know what else you did? You made me look like a complete and total moron by sending you into court hopelessly unprepared and inept. I will need to apologize to both Judge Moore and David for your… antics. I am so pissed off right now that I’m going to start screaming, so I’m going to hang up. I want you to go directly home, because I don’t want to see you at the office. We’ll talk tomorrow, because otherwise I might just suggest finding work elsewhere. And I still might do that tomorrow, but I want to sleep on it. Do you think I’m impressed with you? Because honestly, I’m not…”
At 26 years old, was I too old to cry? Who cares. I wiped my eyes on my French cuffed shirt, feeling like a child wearing his father’s suit rather than a big time litigator…