For post number 1200, I bring tidings of good news and great joy

Over the last two weeks, I have been laid low by the swine flu. It's been fun. Really. I haven't left the house since I got home from work last Wednesday. But now, after more medications, I can taste food again and I plan to be at the office tomorrow. Even if it means giving swine flu to my clients. Suckas.

However, my health is not the purpose of this post.

The good folks at the ABA Journal have deemed my rantings, ravings and recantings worth reading for the second straight year.

I've been nominated in the third annual ABA Journal Blawg 100 for 2009 in the 'lighter fare' category. All I can say is that I am humbled, grateful and glad that every time I pass the ABA building in Chicago I leave $100 for the editors hoping that I can live up to the expectations.

Thank you ABA Journal. This is a huge honor. One that I surely will not forget any time soon.

This is not the way I wanted to be spending by Thanksgiving

Swine flu is a bitch.

But that’s just because I can’t breathe out of my nose and have a horrendously sore throat.

That’s really all I can say. I got better. Then I got worse. And then I spent the time that was supposed to be the family Thanksgiving gathering by myself because I was feeling too disgusting to socialize, eat or be human.

The worry around the holidays is that you are going to overindulge in tasty treats. Presently, I am over indulging in hot tea, napping on the couch and napping in my bed. On the positive: I am not dead [yet]. On the negative: I am having the hardest time sleeping.

It’s a bad sign when I want to take every cold, sinus and flu medicine in the house in addition to the antibiotics to help me feel better.

Ugh.

The Second Most Terrifying Thing in Lawyering

I believe that the most terrifying thing I do as an attorney is handing my partner a brief for the first time ever. “Don’t fire me because I’m stupid. Please”

The second most terrifying aspect of my job is when my partner calls me into his office, motions for me to sit down, hands me a copy of a brief that he just wrote and says “I want your thoughts.”

I have no trouble speaking truth to power. I’m pretty adept at it. And perhaps, I engage in it a little too frequently. But this is different. This is my boss, the one who signs my paychecks, handing me his hard work, a red pen and a hunting license. “Don’t fire me because I think you’re stupid. Please”

I took the brief to the morning court call and started to jot down my thoughts as I casually waited my case being. I startled my opposing counsel when I began to laugh at one point…[the word ‘mismash’ is funny to me]. I returned to the office, fired up Word, hit ‘track changes’ and started editing in a manner fitting my linguistic style. Passive voice became active, the word choice became a little more cutting edge and the brief just began to flow.

203 changes later…

I get called into my partner’s office. He’s got the 14 pages of the brief strewn in front of him, a contorted look on his face and he motions for me to sit down. He goes to the last page and begins to talk: “I’m going through this and I am incorporating some of your changes. Except for this one. [Points to the page] This one sentence is supposed to be singular, not plural.” Well, I thought ahh…that it should… “Don’t argue with an English

After taking the hacksaw correction pen to the partner’s baby, I still have a job. At least until the next time he asks for my thoughts…

Attempting to repay the piper

One of the less publicized portions of personal injury legal work occurs without the chasing of ambulances. This fun job responsibility is the process where we, as lawyers, negotiate down the liens held by insurance companies, medical providers or the government so that our clients end up walking away with more money from their settlement. And we can justify taking one third. Plus costs.

For those that think I am talking in gibberish, when you have an accident and your health insurance pays the bills for your care, the health insurance company can likely demand to be reimbursed if you are compensated. (I say this knowing that there are a lot of caveats and other things…but all I am asking is that you work with me here)

“Ah yes, Doctor Jones, you are entitled to $50,000, but you should take nothing and like it…”

Typically, we want stupid people doing the negotiating because, shockingly, we can take advantage of them with big lawyer words, martinis and a paisley tie get really good deals for our clients that way. The best example that I know of went something like this: my partner was negotiating with Medicare. At issue was a $200,000 lien that the federal government held on our client’s settlement. The negotiating strategy was complex: “Please…um…could our client keep her money?” The government, after listening to my partner’s folksy plea, buckled under the pressure.

And accepted $3,000 in full payment of the lien.

But the fact that there are a lot of idiots handling the lien claims cuts against us just as frequently. I’ve had a doctor yell at me because his bill wasn’t paid within a week of the settlement check arriving at our office. (The doctor was owed $140.00). Clients don’t understand how negotiating takes time. (It’s been three days since we’ve settled…what do you mean that you have to withhold the funds?!?). Business managers get offended when you ask for a reduction in the amount owed by the client. (Your client should be so lucky to have gotten any treatment for her injuries! Now pay us in full or we will go to court!)

What got me thinking about the idea of settlements, liens and all of this jazz was a phone call that I got late this afternoon. The call came from a lienholder servicing corporation [a collection agency with arrogance] that I have dealt with in the past. The phone calls with this group never end well:

Lienholder: Yes, I’m calling on behalf of XYZ Hospital and I want to know the status of the Jones settlement.
Me: Ok. Have you sent us a lien?
Lienholder: Absolutely.
Me: Looking through the file, it doesn’t seem that we received one. Can you send me another copy?
Lienholder: We already sent you one.
Me: I know that’s what you said, but I don’t have a copy of it. I’m not doubting you, but if I am going to work with this on you, I have to have an actual idea of what the lien says.
Lienholder: But we sent you one.
Me: Just send me another one, fax it, email it, doesn’t matter, I just need a copy.
Lienholder: You should already have a copy.
Me: All I am asking for is a copy.
Lienholder: I’ll just call back later.
Me: You realize I won’t have a copy of the lien unless you send it to me again.
Lienholder: [Hangs up]

Now remember, he wants me to pay him money. Let’s think if that is going to happen anytime soon.

Better lawyering through chemistry?

I’ve been sick for the past week. It’s been awesome. Not. I took Wednesday and Thursday off so I could celebrate my trial win in style take up residency on the couch and mainline lemon tea and an array of pharmaceuticals.

Friday morning arrived and while I can delay complying with a court ordered deadline due to my illness, the statute of limitations would not be so malleable. Under the influence, trying to get a complaint ready for filing was as mentally taxing an activity as I have encountered in the practice of law. The aftermath has taught me several points worth mentioning:

1. Copy, cut and paste and go horridly wrong if your head is socked in with fog. [Worse things can happen when attempting to do the aforementioned while engaging in e-mailing and/or g-chatting]
2. Operating a stapler constitutes the use of heavy machinery. [Might have had to restaple a few times.]
3. Writing a check was too much for me. [I wrote out the amount due to the clerk in the area reserved for actual numbers]

Anyway, I’m heading in tomorrow. I’m off the big boy pills and back onto the over the counter, by the handful variety. I’m hoping that I can hide in the office, unplug the phone and sleep.

But we all know that that won’t happen meaning it could be an interesting Monday.

Trial post-mortem

Partner: What you are going to want to do is let the client know that this is the end of the case.
Me: I can do that.
Partner: It wasn’t like this was unexpected. I said that it was a loser.
Me: Yeah. You did.
Partner: Oh well, next time.
Me: We won.
Partner: You what?

Don't try and pull a fast one on the guy on DayQuil

Interrogatory #4: Did you receive a ticket or citation as a result of the car accident at issue in this lawsuit?

Answer: I was cited for driving under the influence of alcohol and driving under the influence of alcohol, BAC level above .08

Interrogatory # 12: In the 24 hours prior to the accident, had you consumed any alcoholic beverages?

Answer: No.

Time for the Supplemental Interrogatories:

Supplemental Interrogatory #1: In the 24 hours prior to the accident, were you really fucking hammered?

Supplemental Interrogatory #2: While answering these interrogatories, how many drinks did you have?

I'm an ass.

All time high on the inverse positivity meter

I've spent the entire weekend taken down by the not-so-swine flu (Diet Swine Flu?). I feel better than I did yesterday. But that's like complimenting the suit on the guy in the coffin. Not really sure if I will be going to the office tomorrow. Which means that Monday's plans are in doubt.

Monday: I'm suppose to meeting with a client tomorrow. The client is not going to be understanding when I drop the good news about why the meeting is occurring in the first place. That being, Tuesday's big event:

Trial Tuesday: It's a winner. Which clearly means we are going to lose. To complicate things further, I haven't prepped nor do I know the facts in all of their unhelpful glory. I do know the law. My trial strategy at this point involves banging the table throughout my case in chief.

Thuper Thursday: I've got to respond to a dispositive motion on Thursday. My response, that has yet to be started, is also a surefire winner.

Time to write the week off and just start Thanksgiving.

A small victory goes a long way for weekend morale

I wrote yesterday about how we were working to tell one of our judges to politely fuck off that his mental elevator doesn’t go all the way to the top, plays bad muzak and doesn’t work weekends. But you can’t do that directly in a brief. Just ask Sidley Austin.

But you can find legal workarounds for when a judge shits the bed. And that’s what I’ve been working on for the last several days, waste deep in technical case law attempting to find the pathway for a victory. This morning, I presented my partner with the brief for the first read today.

For me, this is the most terrifying thing to do as a lawyer. [Shakes fist at my inept legal writing teachers]. I hate when I turn over my hard researched brief to someone that has shaped the law in this state for thirty years. I don’t want to be called stupid. Worse, I don’t want to prove to him that I am stupid.

I got the feedback from him this afternoon. He loved it. So much so that he has now changed his legal theory on this case to the arguments I crafted. This doesn't mean we will win, but it solidifies our position for what will be a certain appeal. After two shitty weeks, a little ‘hey, you’re not that dumb’ really goes a long way.

Now, it’s time to destroy the brain cells one liquid libation at a time.

Trying to convince a judge he is wrong is an art, a science and not suitable for network television

Partner: We need to incorporate the public policy reasons for the doctrine.
Me: Look at the first couple paragraphs in the Jones case.
Partner: [Reads] Ah…yes…good.
Me: I was thinking about how we can get around the judge’s second argument…
Partner: [Cuts me off] We call him on his blatant mistakes.
Me: That’s subtle.
Partner: “With all due respect, the Court misunderstands the controlling Supreme Court precedent, the procedural underpinnings of this case and the basic practice of law. Because you’re a fucking idiot.”
Me: I like it.
Partner: Maybe leave out that last part.

I’m sorry, he’s just not that into you

Yes, Client, it’s Namby. You are talking to me.

I understand you wanted to talk to my partner.

I’m going to give you a great excuse as to why he is not talking to you right now and you are going to believe it. The fact, that I will never tell you, is he called me while you were on hold and told me to take your call because he has to do something much more important.

Like napping.

I understand that you are going through the worst experience that you have ever experienced in your life. I understand that you need hand holding, someone to love you and someone to tell you everything is going to be alright. I understand that it is tough talking to someone twenty years your junior when you feel that you world is ending due to this evil lawsuit that is attacking your precious company.

Yes, you keep talking to me not as your lawyer, but as someone you must think is a paid functionary dutifully taking down your every word so that it will be hand delivered by angels on horseback announced by a ticker tape parade. What I really am doing is continuing work on my fantasy football team while debating the merits of casually responding to your ranting with a softly echoed “I told you that bitch crazy.”

You keep talking and telling me about how this lawsuit is the worst thing that could ever happen to you. Twenty minutes have gone by and I have dutifully not written a single word that you have said down. I have dutifully written “Telecons with client re: litigation strategy” and all I am waiting to do is to put down the amount of time that I get to bill.

I’m not your secretary. I’m not my partner’s secretary. I’m an associate attorney that spends a lot of time preventing you from further harm. The fact that you do not get this is not my problem. The fact that you don’t understand how a lawsuit costs tens of thousands of dollars to defend is also not my problem. The fact that you have been told to settle and you won’t is not my problem.

The fact that you are trying to waste my partner’s much more valuable time is my problem.

That’s why you are talking to me and not to my boss.

Conversations abounding during the beginning of the work week

Where the work of the profession gets done

Me: Get in any golf this weekend?
Sage Lawyer: Yeah, I did, twice and next month, I’m heading to Hawaii for the 30th annual golf outing for a bunch of my friends.
Me: I’m really jealous now.
Sage Lawyer: Of course, over the years, our numbers have thinned due to people going to jail.
Me: Sounds like you are playing with members of Congress.
Sage Lawyer: Nope. Just lawyers and Judges.

Do they have a vaccine for food poisoning?

Me: Feeling better?
Daisy: meh…I think the puking is over.
Me: Happens to the best of us.
Daisy: I was like “Sweet! married one month and I’m already puking!”
Me: Look at it this way food poisoning, much like swine flu, is a great weight loss program.
Daisy: Very. True. And I’m down four pounds.

I think I might like this file

Claims Handler: I’ve been reassigned the file.
Me: Lucky you! Sounds like a happy Monday present from your boss.
Claims Handler: I only deal with lawyers.
Me: That’s a shitty job. Who did you piss off at the company?
Claims Handler: I like lawyers, I get along with them very well.
Me: Are you one of the chosen few?
Claims Handler: No I’m not.
Me: Ahh, a respectable person. I like it!

In the jailhouse now…

It seems that there has been a trend beginning for who is calling my number

Caller: I was being taken to jail and I tripped and I hurt my knee, I want to sue.
Me: When did this happen?
Caller: July 2007.
Me: I’m sorry, your claim is barred by the statute of limitations.
Caller: Well that’s a bitch!

Later on…

Caller: I want to sue for the death of my child.
Me: What happened.
Caller: Well, I was charged with her murder in 1999 but I was acquitted…
Me: [Hangs up the phone]

And finally…a client calls

Client: I want to get a status on my case.
Me: We’ll, we haven’t heard from you in a long time.
Client: That’s because I’ve been incarcerated.
Me: That’s what we’ve heard.
Client: So how’s the case going?
Me: Not going well. Since you are in jail, you haven’t been able to go to the insurance company’s doctor for an examination. The insurance company won’t pay you any money until you go to their doctor. When are you getting released?
Client: 2014.
Me: That’s a problem.
Client: Well, can you send me a loan?

I am all about winners.

Stupid Interrogatory gets a Snarky Answer

Defendant’s Interrogatory to Plaintiff #15:

State whether the plaintiff(s) or plaintiff(s) attorney have the means of possessing any writing, document, statement, letter, record, or other pertinent information that relates to the alleged debris or foreign object which precipitated the plaintiff(s) fall. If so, identify the item, the date of its acquisition, the source of its acquisition and the means of its acquisition.

Plaintiff’s Answer to Interrogatory #15: :

Counsel believes that documents or other items are stored under lock and key in the corporate headquarters of the Defendant. Plaintiff’s counsel is looking to retain the services of Howard Hunt, Gordon Liddy and James McCord to properly assess the most exacting and efficient way to ‘have the means of possessing’ said items. As to if and when Plaintiff’s counsel (or our agents) obtain said items, Plaintiff objects on the grounds that it would call for disclosure of attorney work product and that it would violate the constitutional right to be free from self-incrimination. That said, Investigation continues.

It would be nice if discovery actually allowed for a sense of humor.

Memo to client: Listen to me. No really, shut up and listen to me.

I do PI, I do employment law defense and various sorts of law in between. I have corporate defendants, stockholding plaintiffs and other clients on their way to intensive care. I have lots of clients each of them with a different background, level of education and success and none of them are lawyers, despite their best efforts to be just that. Besides each of their self-assured belief they are the reincarnated form of Johnny Cochrane, they equally believe they all deserve their day before a judge and jury.

The problem here is that this, by and large, is a wretched idea. You can use small words, pie charts and case law to ram home this subtle point. And it won’t make a bit of difference. They are Rosa Parks, or the dumb guy that got lung cancer from smoking. And damnit, they need 12 people too stupid to get out of jury duty to validate their existence. Clients are dead set on going to trial and their lawyer must protect them from themselves.

It’s easy to tell a client that the Defendant will win on Summary Judgment or at Trial and that they should take the settlement offer that is on the table. It’s harder to tell a client that they have a personality like a rusty woodchipper and that even though they have a great case, a jury will view them as a child murdering, seal clubbing, good-standing member of the KKK.

There are a few salient points that I find frequently reiterated to the stubbornest of clientele:

1. The Judge doesn’t think you are special. Your personal tale of woe will not impact her. In fact, it may inspire her to dismiss your case because it is crowding up her docket.

2. The judicial system, as much as you want to believe it, is not conspiring against you because of your politics, your religion, your injury or your race. The judicial system is conspiring against you because you are the winner in the “fails to listen to sound legal advice” contest.

3. When the lawyer says settle, settle. When the judge says settle, settle. You don’t want the jury to say you should have settled.

4. The Judge won’t care that you are spending tens of thousands of dollars on lawyers. You are a business and spending $400,000 to prevent a $50,000 verdict (or a $15,000 settlement) is just plain dumb. And the Judge is quite understanding of this point.

Clients are responsible for us incurring and paying the bar tab. What a vicious cycle.