A grief observed

I have appropriated the title to this post from C.S. Lewis and his little book entitled a “A Grief Observed” that recounts his thoughts shortly after the death of his wife. This book helped me get through the death of my first wife the day after Christmas in 1986.

This is a blurb about the book:

Written after his wife’s tragic death as a way of surviving the “mad midnight moment,” A Grief Observed is C.S. Lewis’s honest reflection on the fundamental issues of life, death, and faith in the midst of loss. This work contains his concise, genuine reflections on that period: “Nothing will shake a man — or at any rate a man like me — out of his merely verbal thinking and his merely notional beliefs. He has to be knocked silly before he comes to his senses. Only torture will bring out the truth. Only under torture does he discover it himself.” This is a beautiful and unflinchingly honest record of how even a stalwart believer can lose all sense of meaning in the universe, and how he can gradually regain his bearings.

This post is not about a death of a spouse. Rather, it is brief reflection on trying cases to juries and the impact trying cases has on the souls of the lawyers.

Yesterday, my jury returned a verdict for the defendant. When I take a verdict, I review the verdict form first and then have the courtroom deputy show the lawyers the verdict. After that, I read the verdict out loud. In civil cases, I don’t require the lawyers and clients to wait around the courthouse for a verdict. They can go home if they wish, and we call them with the verdict. However, they can wait if they like.

The plaintiffs waited with Mike. It is hard to wait. Jim and I speculated how we could get the injured man and his wife some money if we could in good faith do so. The fellow was very credible. He was a lean and tough working man with an amputated leg, over a half million in medical bills, and lasting and horrible disabilities. Jim and I felt for him. But we ultimately concluded that if we had to decide the case we would be compelled to rule for the defendant a big corporation. No negligence would be our verdict. That’s what the jury ultimately found.

Credit: Museum of the Origins of Man

Credit: Museum of the Origins of Man

As I looked into the faces of Mike and his clients as I read the jury verdict I saw the pain that the rejection of their claim caused. The pain was palpable.

What struck me most was the pain on Mike’s face. He is not a kid. He’s 49. He has done this many times before. I wondered what he would think as he flew back to Denver to address the files of other clients piled high on his desk.

I know that when you devote your life to trying civil cases that after a while the highs are not so high as they once were and the lows get even lower too. And I thought of C.S. Lewis:

“Nothing will shake a man — or at any rate a man like me — out of his merely verbal thinking and his merely notional beliefs. He has to be knocked silly before he comes to his senses. Only torture will bring out the truth. Only under torture does he discover it himself.”

Trying lawsuits is torture on the lawyers, and the pain is searing when the jury goes against you. It takes an unusual person to do this for a living. I hope Mike will be OK. If our situations were reversed, I am not at all sure that I would OK.

I might well take up heavy drinking and pick fights with my wife. A divorce would not be out of the question. I might be cruel to my friends and anyone who happened to venture within my sight.  I could easily turn into a “prick” lawyer making life miserable for my opponents and the judges before whom I appeared. If so, I would revel in their frustration. I would develop an ulcer or some other physical problem that I would ignore but bitch about incessantly. In short, I would be transformed from the loving and kind young man who started law school into a real bastard.

Trying lawsuits is torture. As CS Lewis observed, torture can bring out the truth in a man. Alternatively, it can turn a good man into a beast.

I sense Mike will retain his sense of humanity and confidence in himself. I certainly hope so.

We lawyers and judges who sit on the sidelines should have empathy for those who venture into the modern-day Coliseum of the courtroom to do battle with the lions and tigers that are waiting to rip out their beating hearts. Trying cases is a merciless endeavor, and it takes a very unusual person to do it day after day with grace and a peaceful soul.


55 responses

  1. I don’t think trying cases is torture. It is hard–the hardest thing I’ve ever done (except for one thing that I won’t share here), but it can be exhilarating. Once in a while you see the question strike home–the one where it doesn’t matter if what the answer is. Or you get a juror who nods at all the right places. Or a client who gives the perfect answer on cross-examination.

    On the other hand, I tell clients that waiting for the verdict is purgatory, and hell is the time between learning that there is a verdict and hearing what it is.

    Twice I have stood and heard the juries say that there was no discrimination, and then a few seconds later that they had found that the company retaliated against our client for complaining of discrimination. From the depths to the heights in those few moments. (In the more recent of those cases, our second plaintiff lost on both counts.) I had a case in which the jurors were laughing at the defendant’s witnesses–and not because they were telling jokes, or that I was trying to make fun of them (I would never do that to a witness). That did not stop those jurors from coming back for the defendant in three hours.

    I don’t know what it is like where you are, Judge, but here in the East almost all substantial settlements involve mediation. (I’m one of a diminishing number of lawyers who remember what it was like to negotiate with our opposite numbers.) A good mediator will always point out to the jurors that a settlement is their choice, and that if they do not settle the decision will be left to others. When we take a new case, we point out to the client that we can make no promises–that we do not control the other side, or the judge or the jury; we can try to influence all of them, but we have no control. Most settlements are driven by the fear of trial–which generally is a good thing.

    Trials are a necessary mechanism to decide disputes, but they are often harsh, even cruel. And sometimes reach unjust results–although generally that’s in the eye of the beholder.

    Finally, although I’m a plaintiffs’ lawyer, I try to recall often the question that Roger Fisher asked us in civil procedure class: “What do you do when the widow is rich and the railroad is bankrupt?”

  2. During my last year of law school I was privileged to attend a full semester Trial Advocacy class led by the Honorable Warren Urbom, surely one of those men in recent times who set the gold standard of what it means to be an effective and respected judge. Anyhow, one day during a free-wheeling discussion with the Judge, one of the students asked, “When can a lawyer consider him/herself to be an experienced trial lawyer?” Judge Urbom’s opinion was, “When you’ve tried about 20 jury cases to a verdict, you can call yourself an experienced trial lawyer,” and added, “That will probably take you about ten years.” Ten years! That sounded like an eternity to a law student about ready to graduate. However, based on my own experiences I believe Judge Urbom was correct. Because I went to a small firm that regularly handled cases in about half the state of Nebraska for numerous insurance companies, I was thrown into the courtroom quickly. I reached Judge Urbom’s guideline in about eight years and recall looking back at what he had said and realizing the truth of it. Trial work is a tortuous bitch at times, with huge peaks and valleys of emotion, as stressful and tiring as anything I have ever done (I’ve never been in wartime combat), and the trial lawyer game is not nearly as “fun” as it used to be for lots of reasons too numerous to mention here. I think I’ve avoided the mental consequences of all those battles (I’m sure my wife probably disagrees), but I have some physical scars – three stents in my heart, starting in my mid-40’s, and now a Type II diabetic who on occasion enjoys more wine than is good for me. It might seem crazy, but even in the “bad” trials I’ve experienced I can say that during those trials, while actively engaged inside those courtrooms, I perhaps felt as alive as I ever am, truly engaged and using all my resources and skills, total concentration and focus. There is something fulfilling in such an experience, knowing that few others are able to do this and avoid it like a plague.

  3. Juries, I trust implicitly. But I lost my soul dealing with dishonest judges long ago. Only the torture of reality brought out the truth.

    The purpose of this blog is to defend the indefensible, and even you know it. You chastise Posner, but took no issue with what the SSM dissenters said.

    John Roberts and Antonin Scalia told the truth. We are ruled by judges, and we never consented to your rule. By what right, Sir, do you rule? If you ever do write to “Tony,” could you get an answer for us?

    It is the unjust and lawless nature of judicial action which infuriates me. When trial judges refuse to treat the entire United States Reports as so much as a polite suggestion, appellate judges are too busy jabbering about their golf games to read the decisions they “deliver,” and SCOTUS Justices don’t do windows or error-correction, you can’t say with a straight face that you are doing your job.

    Well, maybe you can. Judges are liars. You have to be.

  4. Anonymous,

    I am truly sorry that you feel that way. I wish I could think of a way to convince you, gently, that you are very wrong. But, I lack the skill necessary to do so.

    All the best.


  5. Twenty cases tried in 10 years? If you are handle civil cases in a moderately large or larger metropolitan area, you would be lucky in today’s environment to try twenty cases in 25 or 30 years. Between motions to dismiss, summary judgments and settlements, it’s almost impossible to get a jury trial in civil cases–especially in federal court. And on the criminal side, it’s even more rare to see a trial, so great is the imbalance between the government and private citizens.

  6. MOK,

    Wonderfully put. (I agree with Warren, but that’s no surprise.)

    You’re “feeling alive” point is especially salient. Trying cases does make you feel alive, and that is why it can become so horribly addictive with all the attendant consequences of addiction.

    All the best.


  7. Jon,

    Perhaps I exaggerate with the use of the word “torture.” But I’m close.

    You are so well grounded that I doubt you suffer from the malady that I fear. That said, I expect that you know a lot of lawyers who lost their souls doing trial work.

    All the best.


  8. MOK,

    I said I agreed with Warren. Let me amend that slightly. Warren started trying cases when a young lawyer was given a file, told to go to the courthouse and try a minor car accident case where only property damages were at issue. The young lawyer did so in a 2-day trial. It is virtually impossible to get that kind of experience now.

    All the best.


  9. Jon,

    It is very hard to get civil cases to a jury in federal court and that’s a fact. However, at least out here, we do try criminal cases fairly frequently. So, young lawyers who want experience are encouraged to apply to become Criminal Justice Act panel lawyers. That expands their opportunities for trials and serves as a good teaching experience in the art of trial work.

    All the best.


  10. One of the best ways to get the trial experience is through the military. I went into the Navy JAG program and have no regrets. Personally and professionally it was one of the best experiences in my life. I love trial, and I have to agree that it is unfortunate that so many civil cases settle-out before trial. We are really beginning to lose reliable data on just what a case is worth. You really only know by getting the jury verdict. Judge Mark Kravitz wrote a really good law review article on this very subject shortly before he died.

    Good point with respect to CJA (on the criminal side), but where I’m from it became nearly impossible top get on the list. It seemed to me at the time that it was comprised almost exclusively of lawyers from ages 50-60, and they weren’t to open to helping out younger lawyers added to the roles. I turn fifty this August, but I’m not sympathetic to having exclusive panels. We have obligations to younger lawyers, and the greater community. Civil pro bono can be a great way to gain experience in federal court as well. If I were in charge, I would make membership on the criminal CJA panel contingent on taking some of the civil cases. It used to frost me that I couldn’t crack on to the criminal CJA panel when I was so loaded with pro bono civil matters. But that’s life.

  11. If the plaintiff appeals, it will be interesting to see if the defendant works into his/her appellate brief the fact that the trial judge, as reported on his blog, thinks the jury got it right.

  12. Why would that matter? If the trial judge thought there was procedural error wouldn’t he or she grant a motion NOV or some other such?

  13. If the plaintiff appealed on grounds that the jury got it wrong, then this might be relevant, but the appeal would necessarily fail, because that’s not grounds for appeal (as you surely know).

    If the plaintiff appealed on other grounds, then this would not be relevant.

    Which is not to say the defendant-appellee wouldn’t cite it, but I don’t think it would be persuasive.

  14. Appellate attorney,

    I thought about that issue before I wrote the post. I will not bother you with the reasons why that did not concern me ethically or otherwise, but it didn’t. All the best.


  15. The fender bender without a jury in Muni Ct. in Omaha and Lincoln was the old training ground. Long gone but we all learned what a dog fall was.

  16. What the hard right-wing of the Court said in their SSM dissents was not only inflammatory, but genuinely jaw-dropping. Your colleagues often hint around it delicately, but few have expressed this ugly reality with such brutal candor.

    Here in Cali, we are graced with the presence of the smartest appellate judge in America: Chief Judge Alex Kozinski. He says things like that all the time. Is he wrong?

    As a long-time lurker, I would deny that you don’t have the skill. Instead, I would suggest gently that you don’t have the facts.

  17. That’s not that surprising. Few have empathy when the other guy suffers injustice. But when it happens to them (or, those who know them), the equation changes.

    One of my friends from Stanford Law ended up on the business end of it. See http://www.westword.com/news/blackburned-5096662. He got sanctioned for winning a jury trial against the wrong defendant. The judge was bought, and was vindictive about it when my friend made him look like an idiot in front of the jury. My friend was suspended for a year, and the state insists that he take a psych exam as a condition of returning.

    We all KNOW that the system is corrupt, and that the psych exam was an instrument of harassment. It is what judges and state bars do to dissenters.

    If there is a just God, you will be next.

  18. To convince me that I am wrong, you have to have the power to alter judicially noticeable facts. You probably do that on a daily basis in summary judgment motions, but this is the real world. It is not a lack of skill on your part, as this is beyond any mortal’s power.

    Judges write law under the fraudulent guise of interpreting it all the time. Allow me to demonstrate:

    “I have to be free to rape little Petra with impunity so that I can protect her from being raped.”

    That is the illegitimate judge-made doctrine of judicial and absolute immunity, in the crudest terms imaginable. Do you honestly think that either you or Petra’s father would ever have agreed to such a rule? So, how do you find these rules in the Constitution? And where? In the emanation of a penumbra? if Griswold was a joke, this one isn’t funny.

    You can’t find this in the Constitution. You just rewrote the Constitution to benefit yourselves, and we all know it. Your hero John Roberts even said so! Now, how do you change that set of facts?

  19. Judge:
    My trial experience echoes that of MOK in that I have never felt more alive than in the moments when I was interrogating a witness. As for the bad part of litigation, I am reminded of an incident early in the career of the esteemed trial lawyer Gerry Spence. Spence, representing an insurance company at the time, successfully defended the case despite the plaintiff being extremely sympathetic and worthy of victory. Sometime later Spence ran into the plaintiff in a supermarket. Unsure of how he would react to him, Spence recalled that the man was entirely understanding and said something along the lines “It’s OK, Mr. Spence. You had a job to do.” Spence was so touched by this man’s reaction that he immediately went to his law practice, laid out all of his files on the floor for any other lawyer in the practice to inherit, and made a vow to himself never to represent defendants again (and he never did). My point? Sometimes trial lawyers, like alcoholics, have to hit bottom with their grief in order to become something else.

  20. Robert,

    I once had the opportunity to meet Mr. Spence. It was at a law school graduation when we both sat on the dais. He acted like a crazy ego maniac during his terrible and overly long speech about how great he was and how bad “non-breathers” (corporations) were. Thus, while I appreciate the story about Spence and his conversion moment as illustrative of your broader point, the reference to Jerry, with his Buckskin costume, caused me to flinch.

    In fairness, one meeting is not enough to judge another person. But, I’m not fair.

    All the best.


  21. Judge:

    Incredibly well written by you.

    I am ordering two copies of that CS Lewis book (used) for two widow friends; one who just lost her husband in May. Thanks for the recommendation.

  22. The purpose of this blog is to defend the indefensible, and even you know it. You squawk a lot. What’s your alternative?

    Eric Hines

  23. Anon.,

    Thanks for your kind remarks. And, yes, “A Grief Observed” is a book anyone who recently lost a spouse should read. It is raw and honest and thus comforting. Mr. Lewis shows us that the surviving spouse’s feelings (numbness, anger at the dead spouse, etc.,) are shared by most people who go through that special hell, and this realization, explained through Lewis’s suffering, is both surprising and comforting.

    All the best.


  24. Geoffrey,

    “If there is a just God, you [me] will be next.” That seems a bit harsh. However, since I am not at all sure there is a God, just or not, I doubt I will be very concerned.

    All the best.


  25. As any good appellate lawyer knows, there are optics/atmospherics/equities at play in an appeal just as there are in a trial. That’s why it could matter.

  26. I haven’t researched it, but the ethics of a judge blogging re the merits of a case it has just presided over, and that may be appealed, seems questionable to me. I would love to hear your thought process on the issue if you care to share.

  27. Appellate Attorney,

    I am happy to give you an abbreviated and over simplified answer.

    Point One: Because the negligence question is and was purely a matter for the jury since I had already denied a Rule 50 motion, my discussion with my law clerk about what we might do if we were the fact finders as compared to what a jury might do as the fact finders would not be properly construed as a comment on the merits since the jury’s job was not ours to appropriate. No reasonable person could believe otherwise. More simply, our discussion was idle talk.

    Point Two: “The prohibition on public comment on the merits does not extend to . . . scholarly presentations made for purposes of legal education.” Canon 3(A)(6), Code of Conduct for United States Judges. I sincerely believe that my blog and the comment you questioned is and was a “scholarly presentation” and that it was “made for purposes of legal education.” Id.

    All the best.


  28. I wasn’t aiming at you, Judge Kopf. Rather, my target was Jon Margolis. His lack of empathy is breathtaking.

  29. Eric,

    How about enforcing the Framers’ Constitution? You seemed really big on doing it when it served your purposes. But you squawk about it ignorantly, as one would expect from a right-wing extremist with no legal training.

    A Seventh Amendment jury trial is yours as a matter of right, and therein, the jury was ultimate arbiter of both law and fact. Judges have no right to restrict them in the manner they have. But whenever judges don’t like a constitutional provision, they interpret it out of existence.

    You don’t like judges writing law? How about enforcing the Good Behavior Clause? When a judge exceeds his legal authority, he should be fired, as it is a violation of an essential condition of his office. Again, this remedy was in the Framers’ constitution, but judges don’t like it very much.

    There are a vast array of remedies for judicial lawlessness in the Framers’ constitution, including the right to sue a miscreant judge in tort. You could actually do this in Britain, and there is no explanation as to why that right disappeared in the Framers’ constitution. Again, judges making laws for their personal benefit. I know that you approve….

    In its Golden Age, Athens literally did away with judges and lawyers. Their system probably worked better than ours did.

    The idea of a judge being personally accountable for his actions has been around since Codex Hammurabi. It is the only answer that makes sense.

  30. Geoffrey–Sorry you think I am heartless. I’ve been a lawyer for well over 40 years. I’ve seen my clients screwed royally. I’ve been before judges who think they walk several inches above the surface of the Earth, and others who were dumb as a post (with apologies to posts everywhere). I’ve seen the bad guys get away a lot of times. I’ve been the “victim” of affirmative action (which I still think is a good thing in some circumstances, maybe even the one that “victimized” me). But seeing the same petulant comment over and over, with no change and no new insight, is the very definition of tiresome. If that;s heartless, deal with it.

  31. And yet you’ve not made your case: It is the unjust and lawless nature of judicial action which infuriates me.

    All you’ve got is ad hominem remarks and the easily observable fact that guys like you and me disagree about this or that judicial outcome. There’s nothing in there that even pretends to support unjust and lawless.

    Tiresome, indeed.

    Eric Hines

  32. Your assessment of Spence meets with agreement here. He is the consummate pontifical south end of a horse going north. I’ve always questioned that story about his revelation to never represent defendants or insurance companies again – sounds like pure BS to me, a public relations piece. Who ever said the plaintiff in a case is the only sympathetic character worthy of victory? I’ve met and represented plenty of defendants who were drug into the justice system over a lot of nothing, yet had to endure the antics and abuse of Spence-like characters looking for the big bucks. Spence is an example of a problem with our legal system – egotistical, brutish personalities who chase ambulances and make home and hospital visits (read the yellow pages) in the interest of “justice”.

  33. Pick a lane! Either the Justices have authority to rewrite the law as they see fit, or they do not. When it gores your ox, you squeal like a stuck pig, even though there was centuries of precedent for what they did. But when judges rewrite the law for their own benefit and quite obviously so, you zip it like a green cadet?

    Here’s a little thought experiment. Show me where the Eleventh Amendment says that a citizen of a State cannot bring an original action against his own State in the Supreme Court. Keep in mind that constitutional scholar Antonin Scalia admits that there was no such thing as domestic sovereign immunity in the Constitution.

    I look forward to your textualist and originalist defense of absolute sovereign and judicial immunity on your blog. Crickets on standby.

  34. When the other guy complains about injustice, it is “petulant.” But when it is me or mine? Funny how that changes.

  35. For once, I must agree with Anonymous: The Eleventh Amendment has been misconstrued for two hundred years. Unfortunately, I haven’t had the opportunity to make that argument to a court.

    One of my partners and I have suggested that the Amendment should be re-enacted in exactly the same words, with this addition: “This time we really mean it.”

    That my go for the First Amendment, too.

  36. It’s your lack of specificity or proof to which I object. As an earlier commenter said, you engage in ad hominem attacks, with nothing to back them up.

  37. In the tv version of Shadowlands, Lewis says we read to know we are not alone. That may explain what brings us here.

  38. Your honor,

    A great post. Last year, I tried a small MVA PI case in our state’s short trial program. We prevailed at the mandatory arbitration of the case, but the other side requested a trial de novo, so we had to go a second round. It was miniscule in scope, difficulty, and complexity as compared to other cases I’ve tried. At least, it was all of those adjectives when viewed on paper.

    The trial went well. My clients, contingent fee plaintiffs, did well on the stand. We had a good narrative, and we did not oversell the injuries. We played it honestly, and I thought that would help us against the defendant’s pictures of the barely damaged cars.

    I’m not normally one to put down opposing counsel, but this one was particularly lazy and unprofessional during the case. This attorney’s performance before the jury was no exception.

    We waited for the jury. My wife wanted to watch the trial, but was taking care of our then-five month old son. The jury returned with a defense verdict. In the hallway after everyone had been dismissed, the jurors refused to talk with me when I asked why they returned their verdict for the defendant. I’ve never had a jury refuse to talk after a verdict.

    The event was crushing. I questioned whether I was skilled enough to put food on the table and keep a roof over the heads of my family. I doubted whether I should be trying cases, let alone deciding on who to take on as clients. I analyzed every nuance and detail of the case, and my associate did the same, trying to figure out how we got defensed. Though the instant sting lasted through the weekend, the fear and uncertainty prevailed for some time. Hell, I’m not sure it’s really gone.

    My clients were also crushed. One of them, a nine year old boy, was looking forward to getting a new pair of prescription glasses if they had received a favorable verdict. I don’t know why that comment stuck with me, but it did.

    I feel for the plaintiffs and their attorneys from your story.

  39. repentinglawyer,

    The movie Shadowlands was a masterpiece. Anyone who has not seen it, should see it, but only after first reading the short “A Grief Observed.” All the best.


  40. Pro Hac Vicious,

    I don’t like the “Vicious” part of your moniker. It is plainly wrong. Your comment proves my point. Thanks for writing. By the way, I hurt for the kid who wanted to get new glasses. I understand how that would stick with you and penetrate your soul. Be safe.

    All the best.


  41. MOK pontifical is a poor choice the average trial lawyer has an ego that makes most bishops look like Francis of Assisi, though Spence maybe unique, The lovable insurance bar is as much a problem as are the insurance companies. TV and phonebook are a gift from SCOTUS and the 1st Amendment along with the right to play a barrister at the community playhouse.

  42. Anonymous, Jon earlier made the point that in our human judicial system the crooked timber of humanity is never far away but not in every case and not always. You seem to have never seen any good at all and that issued and not I think what most lawyers observe.

  43. Anonymous, I have read most English torts texts and casebooks published in the last 50 years and can not recall a case that supports you view about suing judges at the common law. Jury as judge of law, I am dubious and the confused history of good behavior does not obviously support you reading of the Constitution. What you want enforced is your own notion of what the Founders meant, as probably we all do.

  44. @Repenting – HA! Yes, you make a good point about egos, and yes, the insurance bar can be part of the problem, too. My point was that the real people in lawsuits – the parties, the folks – also include defendants who often deserve as much sympathy and victory as the pompous Spence’s holy class of injured plaintiffs. As any good defense lawyer says, “There are always two sides to the story.”

  45. Be careful. If you keep getting so personally involved in the results of jury trials, you will burn out and look for work as in-house corporate counsel. In any event, not every lawyer has it in them to be a “trial” lawyer and I have seen some colleagues not realize that until they got into the courtroom and realized they could not accept a loss. As for that verdict, chalk it up to jury stupidity. The fact that none of them talked to you tells me they were embarrassed with what they had done and wanted to run away from it – something strange occurred in that jury room,something that is impossible to know. Bottom line: Do NOT take verdicts personally. Do the best job you can with the facts that you have and let the jury (or judge) decide (as the old saying goes, “Let the chips fall as they may”. Once the case is submitted it is out of your hands, out of your control. If you believe in the system you have to accept its foibles and failures, which in my experience, are not common. Finally, always do your very best to make a good record at trial, so you have something for appeal if that is a viable option. Some judges are sloppy with protecting the record – the present chief of this blog excepted, our course. 🙂 I have found that the court reporters are often your best friend in keeping the record. Good luck.

  46. True a lot of folks suffer because of the system. Many years ago Life asked L Hand what he learned from all his years of judging and he responded”Dread involvement with the American legal system…” though he did concede that death and serious illness were worse.But going to court was cheaper then.

  47. Pingback: Observing Jury Verdict Grief | thelegalreformer

%d bloggers like this: