Judge Papov looked pissed.
“You’re really going to instruct your client not to answer the question and waste everyone’s time, Mr. Rushie?”
“Judge, you’re not giving me much of a choice here…”
The judge didn’t even bother to hear argument. He looked at me, looked at my older adversary, and made a decision as soon as we reached the podium.
A week ago I had instructed my client not to answer a question in a deposition because it called for privileged information. The other side filed a motion to compel a response.
Before coming to court I had done the research and written a brief on the issue, confirming that my instruction not to answer was appropriate. No judge in their right mind would force my client to divulge privileged information with 5th Amendment implications, especially when the case law was this clear, right?
Of course, this was discovery court, where the dreams of young lawyers go to die. When it came to justice or convenience, convenience always seemed to win out. At one point the judge mentioned “If you don’t like my decisions, maybe you should work out your disputes before hand.”
As the judge glared down, I think this was the last place in the world I wanted to be. It was 85 degrees, and was packed to the brim with dozens of lawyers hoping to be heard quickly and get out. I waited over two hours to be called. Until my hearing, the judge had been moving through his docket quickly, mostly making decisions that seemed almost arbitrary. For a brief second, pressed shirt now drenched with sweat, I pictured myself laying on a beach somewhere drinking a piña colada. I could hear the ocean.
Judge Papov brought me back to reality and bellowed, “Mr. Rushie, I told you once, and I will not tell you again. Instruct your client to answer the question. I don’t have all day.”
Gary turned and whispered in my ear. “We can’t give them that information, right? You gotta fight for me…” Gary was right.
“Judge, with all due respect, answering the question would violate the attorney / client privilege. It also implicates significant 5th Amendment issues. If you would just hear me out for a second, I wrote a brief, which I filed with the court a few days ago. Here is another copy. The case law is spot on, and I’ve even attached copies of the cases….”
The judge looked at me almost quizzically.
“Court reporter? Go off the record. Mr. Rushie, stop playing games. I don’t care about your brief or what the case law says. I have over 100 cases on my docket today that I need to get through. What I do not need is a baby lawyer playing games in my courtroom. Look at all these other people around you. Do you want everyone to be here until midnight? For you? I, for one, have dinner reservations with my wife, and I’m not going to ruin them for the likes of you.”
I became painfully aware of everyone around me. I could hear snickering in the background. One of the older lawyers groaned “C’mon kid, hurry the hell up or I’m gonna be late for my golf game…”
I tried to say something but the words wouldn’t come out. How do you tell a judge no? Can you? Should you?
“Back on the record. Mr. Rushie, I’m going to make this easy on you. Instruct your client to answer the question. If you do not, I am going to hold you in contempt.”
Was he serious?
Gary passed me a note, “Is this normal?”
I thought to myself, “Nothing is normal in this profession…”
“Everything is fine, Gary,” I whispered. “But sometimes you gotta do what you gotta do.”
This was gonna be interesting…
“Judge, I’m not going to instruct him to answer. I’m just not.”
“Very well. Pete, lock him up. Next case.”
There were more snickers from the gallery. I heard someone say “Rushie’s going to the can!” as I was marched away in handcuffs. Lovely. Leo was going to be less than thrilled.
Here I was wearing a fresh suit in a small cell surrounded by junkies, pimps, drunks, and violent thugs. I tried to find a clean corner but there wasn’t one. Why did I bother wearing a white shirt today? It must be 90 degrees in the cell. What was my client going to think? What was Leo going to think? Should I have just done what the judge wanted?
I had nothing to do but agonize. Sitting in the hot cell sweating like crazy, surrounded by junkies, suddenly the practice of law felt a little less glamorous.
After about three or four hours, Pete came to my cell.
“Rushie? Judge Papov wants to see you.”
“You’re not gonna put me in cuffs again, right?”
“Nah. And you know, I didn’t have to put you in cuffs, Jordan. I just wanted to,” Pete said laughing.
“Did you at least get a picture for my Instagram account?” Somewhere there was humor in all this, I hoped.
I walked back in the courtroom with Pete, not sure what was going to happen next. But I wasn’t going to budge.
“Judge, I’m still not going to instruct him to answer the question. Even if I have to spend the night here.”
“Mr. Rushie, I read your brief and I’ve reconsidered. You’re right, your client does not have to answer that question. But you should not have defied a court order. In the future, you will respect this court.”
I didn’t really have a choice. “Uh, yes Judge, understood.”
“I hoped you learned a lesson.”
A lesson had been learned, but I wasn’t really sure what it was.
When I got out of the courtroom Gary came rushing up to me, smiling. “I can’t believe you did that! You went to jail for me!”, he said, laughing and giving me a hug. “…you smell like shit, though.”
Leo wasn’t going to be happy at all. How would I break this to him? I decided to give Scott Greenfield a call for some advice on the situation.
After I told Greenfield the story, he got quiet.
“So you went to the can, eh?,” he asked.
“Yep. Leo is going to be so pissed.”
More silence. “I hope you learned something from this,” he said slowly.
“Don’t defy court orders?”
“No, no, no child. You did good. Here is the lesson – don’t take shit from anyone.”
“Not even a judge?”
“Especially not a judge. The day you start acting in the best interest of the court or the system is the day you should pack it in. We’re here to represent clients, kid. Not to become complicit for the sake of convenience. Sometimes that means pissing a few people off, even a judge. But always remember… your job is to protect your client, not to make sure the judge gets home for dinner on time. You’re there for your client and not anyone else. Never forget that.”
I got back to the office, opened up some scotch, and laid down on Leo’s couch. He looked at me with a bit of disdain. Not unusual.
“You look like hell” he muttered.
I felt like hell.
“…rough morning. Um, you got a second to chat about something?”
“No. Not now. By the way, Greenfield called. Good job. Now go stink up your own office.”