The first moment of Sheer
Panic I experienced in practicing Iaw(1) happened without warning.
I was working on the
most important pleading I would every prepare the General Denial
in My Very First Case Cautiously using Staytons Texas Forms
for assistance. After some initial difficulty(2), the deceptively simple
(or simply deceptive) denial paragraph flowed easily:
denies each and every, all and singular, the allegations of the plaintiffs
petition and demands strict proof thereof.
But, then, when I
turned to the prayer for relief, there it was! A blank!! A truly awesome,
even malicious blank and that ______________ go hence without day.
And, Stayton left me without a hint as to what, or which, or who should
Should I pray for
the plaintiff to go hence without day (that seemed logical and it would,
certainly, show the rascal for bringing such a spurious lawsuit). Or,
should I demand that the defendant go hence without day (that seemed right,
too, since My Client shouldnt even be bothered by such baseless
claims). And, what Was I asking, what did it mean Go Hence Without Day?(3)
My tremulous choice, that defendant go hence without day,
was later vindicated when Judge Richburg dismissed the case after the
plaintiff failed to appear for trial.
But the concerns still
lingered Until, finally, Frank Elliott(4) supplied a possible answer to
the Going Hence Question in the form of a letter from Bryan J.
McGinnis,(5) a Beaumont attorney McGinnis gives a classic legal analysis
of a pleading filed after extensive legal research in a suit
referred to McGinnis by one of his former Iaw school professors. The letter
begins with an explanation.
You will note that we began by saying defendant denies.
We were somewhat at a loss as to how to begin. However, after a discussion
with Mr. Drayer this point became clear. He said and this is significant
that there was no truth to the allegations. It was just a simple
step of logic to ask him the important question It is a fact,
then, that you deny the allegations? He caught the point immediately
sharp fellow and said, Yes, yes, that is right. I deny the
allegations. Rather clever, dont you think?
Each and Every
Of course, we then were faced with the rather hard question of what
he should deny. We have found, in our experience, that it is best in these
cases not merely to deny an abstract, but to deny some thing. My associates
and I decided that it would be best to deny each allegation. One of our
younger members, who has had extensive experience in this area, then brought
up the point. that although this would be well, in order that there could
be no misunderstanding we should also perhaps deny every allegation. After
extensive discussions and exhaustive briefing, we decided that this perhaps
was best, so this explains the wording each and every in the
All and Singular
Now, one might think that this could be the end of the matter. We
do not wish to appear smug, but may I say, that this is where the men
are separated from the boys in this profession. To further clarify our
position, we decided a master stroke to also deny all
of the allegations. Of course, we have now gone from the specific to the
general. As aforementioned, our briefing and experience indicated that
we should deny some specific thing. Therefore, we added singular.
The poetry of it is overpowering each and every, all and
singular and the precise simplicity refreshing.
... and Demands Strict Proof Thereof
By this time, we had forgotten what it was we were denying. After
an extensive file review, and further briefing, we determined that we
were denying the allegations. But, the question arose, what allegations?
Again, one cannot be too specific in these matters and you will note that
we have tied it down to the allegations in the Plaintiffs Petition
contained. At this point, we had worked ourselves into such a frenzy at
the ap-parent injustice of this cause, and the persecution which our client
was being forced to suffer, that we decided to let them know, by God,
exactly where we stood, and so we told them we demand strict proof
thereof. We feel that although this required a great deal of thought
and investigation, such was worth it because such clearly expresses exactly
where we stand. Doesnt such?
The Prayer for
But how to conclude? The precise, poetic fruits of our vast labors
simplicity is only achieved with great effort must be highlighted.
Shall we ask the Court to protect the innocence of our persecuted client?
No, much too mundane. With tears of righteous wrath rising in our eyes
at the attempted perpetration of this gross injustice, turning to tears
of exuberation upon realizing that all of the great machinery of justice
was at the disposal of our cause, however small and insignificant might
be our client, we found our answer. We would not merely ask redress from
the Justice Court, however marvelous and august that institution might
be. We would not merely petition the State to redress our grievance. We
would lay our case at the feet of liberty. Our client would put himself
upon the country! And, of course, we felt it necessary to ask the Court,
premises considered, to enter judgment for our client, because what else
might the Court consider save and except the premises.
Going Hence Without
And, of course, should we prevail, it would be necessary for our
client to go somewhere, for one cannot stand forever cluttering up the
Justice Court. And where to go? Where else, but hence. And it has been
our experience that it is most injust that one go hence empty handed.
Therefore, you will note that our client go hence with his costs.
I must admit
to one curious aspect of what, I am sure you will admit, is a masterpiece
of pleading, arriv-ed at after long hours of briefing and discussion by
our several partners and associates, and that is the phrase at the end
of the pleading without day. I must admit, rather shamefacedly,
that I dont really understand this as incongruous as this may seem
considering the beautiful logic of the balance of the answer and the apparent
labor that went into its preparation. However, an explanation of how it
happens to be there, may partially explain this dilemma.
When we held
our final conference of all the partners and associates, following our
several days of briefing concerning the preparation of the answer, to
arrive at the final wording of our pleading, and when we arrIved at the
end, after having decided on the precise wording after much deliberation
and discussion, we felt that something should be added after the word
cost, but were at loose ends as to exactly what would best
serve our purposes at that point. When we were all to the point of exhaustion
with the matter, T. Fortesque Clemmons, one of our more brilliant young
associates, en. dowed. however, with an irritating streak of irony, rose
and said that it was simple. We had said that he was to go hence with
his costs, and certainly, balance the pros, he should also go without
something. Therefore, we could say that he should go without day. Brilliant!
we all agreed.
As we were leaving
the conference, however Forgous Clampton asked me privately What
day was T. Fort talking about Monday, Tuesday, Wednesday?
I said, I dont know, Forg, but I dont think he had reference
to days in that sense. I think he meant persons, like Doris Day. Lorraine
Day, having a significance of going it alone. So. to be succinct,
I cannot explain the significance of without day, but T. Fortesque Clemmons
being as brilliant as he is, I am certain that whatever the reason is,
it is a brilliant one.
and at least one possible answer considered(6) this et cetera column shall,
of course, Go Hence Without Day.
Hon. Jerry Buchmeyer