Goodbye To 2021: Don’t Let The Door Hit You On The Way Out

David Sedaris (Google him) has said that if he thinks he’s gotten nothing done, he has only to look at his filled wastebasket and think that the time wasn’t totally wasted. Our 2021 wastebaskets are overflowing. All the hopes for a return to normal that we had have been shredded. Let’s stipulate that everyone is delighted to see this year end.

What a lousy year. Would anyone disagree? Those who have received huge bonuses for all the arduous work done this year might, but are those enough to compensate for the losses, the heartaches, the headaches, the illnesses, the upside-down nature of lives this year? How to decide what’s important and what’s not at this year’s end? Who is important to you and who isn’t?

But I couldn’t let this year end without a little bit of snark, which is the only thing in adequate supply, unlike COVID-19 home tests.

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We always like to have the last word, and judges always have it. Lawyers (remember that judges were lawyers first) also like to have it, be it in court or on the phone or email or a text, but will we ever learn how just to let it go? The last word isn’t necessarily the best, as we have seen during this past year.

January 6th, to vax or not to vax, to booster or not to booster, to mask or not to mask, sorry Will, but those have been the questions this year. Courtrooms closed, courtrooms reopened, but only to a limited degree. Courts twisting themselves into pretzels in efforts to say, in a temperate way, that stare decisis is a lot of hooey and has no precedential value anymore.

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We can disagree but not be disagreeable, but agreement is a relic of olden times when compromise was not a dirty word and people worked together for the common good. Is there a common good anymore? What if extra-terrestrials attacked us? Would we, could we, unite to fight a common enemy? If the pandemic is any example of how we’d react as a country, we are toast.

The antics of those in our profession, both lawyers and judges, continued to amaze this year. Did all of them really pass the bar? And for those who rose to the bench, where was their judgment? I forgot, they left it back in chambers, or it’s in David Sedaris’s overflowing wastebasket. Here’s a classic example of a judge who was tossed off the bench for a variety of reasons, including calling another judge an “Uncle Tom,” an employee a “heifer,” and using Facebook aliases to communicate with parties about their pending litigation. Wait, what? There’s more but that’s enough to give you a sense of why she was removed.

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I’m repeatedly stunned that people who are supposed to be smart leave all their brains behind them when they post on social (aka unsocial) media. I see the trail of discarded brains, akin to the Hansel and Gretel (Google them) crumbs, when lawyers and judges post. You would think (assuming facts not in evidence) that judges would be able to distinguish when personal comments on social media make sense and when they don’t. Neutrality? What’s that?

And don’t get me started on lawyers on social media. Is an apology sufficient for “overheated rhetoric”? You tell me. Once it’s on social media it’s out there, forever.

And whose bright idea was it to insert nasty comments (e.g., antisemitic) about opposing counsel in post-trial filings? This conduct took the concept of “sore loser” to new depths and once again showed that prejudice against minorities is still alive and well. The essence of cheap shots, the trial court agreed and benchslapped counsel for its reprehensible remarks. Just because the plaintiff was an Israeli company and the defendant was Amazon was no basis for finding antisemitism.

Sanctions? Plaintiff’s counsel have been ordered to take 30 hours of ethics MCLE.  BFD. How about reporting them to their bar disciplinary offices and mandating pro bono work for Jewish organizations helping the very last living Holocaust survivors receive reparations from Germany? And they ought to review the history of Jewish law firms in New York City, when Biglaw firms were not hiring more than token Jews, if any, and so many Jewish firms were startups, long before the term came into being because the lawyers didn’t have any other options. It wasn’t all that long ago.

My hope is that this coming year will be better for all of us, that the profession will continue to grow in diversity, equity, and inclusion, that civility will be the rule, rather than the exception, and that lawyers will “show, not tell,” driving a stake through the heart of prejudice, in whatever forms, and above all, just not being a jerk.

The late humorist Sam Levenson (Google him) said: “It’s so simple to be wise. Just think of something stupid to say and then don’t say it.” If even one person heeds his words, then 2022 will be off to a good start. Here’s a New Year’s resolution for us all: STFU.

Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at [email protected].

Topics

2022, 2022 Year in Review, Biglaw, Coronavirus, COVID-19, Jill Switzer, Legal Ethics