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Going Hence Without Day
© Jerry Buchmeyer, 1981

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 Stayton’s Texas Forms for assistance. After some initial difficulty(2), the deceptively simple (or simply deceptive) denial paragraph flowed easily:

“Defendant denies each and every, all and singular, the allegations of the plaintiff’s 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 be inserted.

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 shouldn’t 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.

Defendant Denies
‘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, don’t 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 answer.

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.”

The Allegations ... 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 Plaintiff’s 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. Doesn’t such?”

The Prayer for Relief
“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 Day
“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 don’t 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 don’t know, Forg, but I don’t 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.

Wherefore, premises and at least one possible answer considered(6) this et cetera column shall, of course, Go Hence Without Day.


Hon. Jerry Buchmeyer

 


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