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Big Brass Ones: A true story

Setting: Your office's conference room.

The Scene: You are a junior associate that works for a midsize transactional firm that has been hit by layoffs and massive paycuts. Needless to say morale of the associates is at an all time low. While you are present in the conference room, an equity partner walks in and begins to make small talk about his family.

Partner: I just found out that my eldest just got accepted to Harvard.
Associate: That's great, sir. You must be really proud.
Partner: Absolutely. Now he just has to decide between Harvard, Yale and Stanford.
Associate: Can't go wrong with any of them.
Partner: This means you are going to have to work harder so I can pay for it.
Associate: You already cut my pay 35% I don't think you need any more help from me.

With that, the associate leaves the conference room, heads to his office and returns the call to that pesky recruiter that keeps calling.

A Forecast of Technical Difficulties and Change

Apparently the walls of this site are crumbling and we are facing a pissed off slumlord. I am in the process of moving this blog over to Wordpress and hope to launch it in the next week or so. In the meantime, Blogger has eaten my link lists and apparently there are issues with the RSS feeds.

Email me at the thenambypamby@gmail.com if you find any issues or if you want to be included in my new blogroll.

I'm hoping that this upcoming move will not tank my decent traffic numbers and large masses of RSS feed subscribers (this is your shoutout...hello RSS feeders!). Please don't leave me loyal readers...I'm addicted to reading my site traffic every 15 minutes.

Even though I was at the ABA Techshow for the briefest of moments (did you see me? I WAS THERE), I have absolutely no idea what I am doing with this technical side of things. Probably because I am too busy with clients or I'm stupid. Most likely the stupid part.

Anyway, this is what I've got planned. Hope you don't mind the dust.

Browbeating the client into submission

Clients occasionally like to ignore the advice of their lawyer because, apparently, we know nothing. Sometimes the end result is the client firing your firm. Sometimes the end result is the client firing your firm and filing a complaint with the bar. And sometimes the client actually listens to you.

Normally, when I have bad news to break I duck the client calls until the letter gets sent out. This is because breaking bad news never is done well over the phone. This call, which happened as I was writing this post, illustrates my point:

Client: What’s the latest?
Me: We just completed our investigation and we just don’t have the evidence to prove your case. I actually sent you a letter today about this issue.
Client: What do you f***ing mean? I am clearly in the right here. THIS IS BULLSHIT!!!
Me: I’m sorry, we just can’t prove...hello? Hello? I think I just got hung up on...crap.

Like I was saying, ideally you write the client a letter analyzing the hurdles that will prevent the outcome he or she wants while focusing on the cost benefit analysis.

Dear Client:

I hope that you are doing well. I wanted to let you know that your case f***ing sucks monkey balls. That’s what the evidence says, that’s what the retained experts say and that’s what I say. I could bore you with the details, but frankly, it isn’t worth my time to write a detailed letter to you. You should authorize me to settle for whatever piddly some I can coax out of the defense counsel.

Very truly yours,

Namby

Unfortunately, you just cannot tell the client what you actually think about them when you are trying to convince them to listen to you. That’s why I’ve spent more time than I care to admit this week drafting one of these letters to a client. It’s now in excess of 10 pages.

If you can’t use vulgarity, you might as well use facts.

I am the model of professionalism

I’m thinking today’s deposition transcript is going to read something like this:

By Opposing Counsel:

Doctor, the patient history is based off what the individual patient tells you.

Witness:

Correct

By Opposing Counsel:

The records indicate that on June 15, 2010, the Plaintiff came to you and was complaining of left knee pain.

Witness:

That’s what she said.

By Mr. Pamby

[Snorts…Coughs…Drools on Self] Sorry about that.

Outside of that minor hiccup, that deposition went really well.

Responding to the Partner’s Sunday Email

It’s 7:15am on the Sabbath.

I was awake because there is an English Premier League soccer game to watch my body hates me and won’t let me sleep in. Upon waking up, I did what I normally do: check my email. Lo and behold my partner has sent me an email. Before 7am:

“Where do we stand on the Acme case? We were supposed to do [insert legal mumbojumbo here] by Monday. Is it done?”

Now to properly understand why this email is special, you have to understand that the sending partner does not give me a lot of work. Nor do we work together on much of anything. There are days that I think he thinks I am a secretary. Or a potted plant. This is the long winded way of saying I have no idea what is going on in the case that he emailed about while I was in the final seconds of blissful sleep.

Thus, at 7:16 yesterday morning, I was faced with several options on how to respond:

The “honesty is the best policy” option

Since you sent me the email, I’ve been looking through the firm server and my personal files. Unfortunately, I have no record of that being done. Please let me know if there is anything else I can help you with on this file.

The “I don’t need no stinking job security” option

I have absolutely no idea what is going on with the Acme case. The last substantive work you had me do on the file was to staple a stack of documents that you needed as you were running over to court. And that was two months ago. You have never shared with me what the court has ordered, what work needs to be done on the file or the names of opposing counsel. I consider it a blessing that I actually know what case you are talking about in your email. To answer your question: I have no idea if it was done or not.

The “Sunday” Option

Mark email as unread. Face consequences Monday. Go Golfing.

Weekend emails are the worst.

Lawyers behaving badly. Before the judge.

Some courts allow agreed matters before beginning the bulk of a daily call. This usually entails basic a discovery matter or service issues and the attorneys spend less than 37 seconds in front of the judge telling them what they've done and when they want to come back to do this again.

In actuality, it is glorified speed dating.

Every once in while, attorneys try to shoe horn a non-agreed matter before the judge and it throws the whole process off. It gets really unsettling when there is a line of attorneys attempting to get their most basic of matters heard and this non-agreed matter is droning on and on. And that is where I found myself today.

I was number two in line on this particular agreed call when the gaggle of attorneys in front of me get into a fight over scheduling (lawyering is a very mature business, folks). This matter goes on for nearly ten minutes.

At that point, one of the attorneys behind me said ever so softly "This is taking way too effing long". As this is one of my former opposing counsel that I am friendly with, I turn around and responded: "Just for you, I am going to take as long as possible." This lawyer is a rather imposing individual but has a teddy bear like quality to him. He whispered his response without missing a beat: "If you take your time, you are going to find my size 14 shoe up your ass."

Wouldn't you know that just as I am doing my best to turn away from the bench to hide that I am failing to suppress laughter while turning beat red my case gets called.

I love the courtroom.

Here's your sign

I’ve got one case that is like a bottle of wine. A bottle of boxed wine.

And it gets worse every day.

Over the past 12 months, we have been able to resolve the “problem” cases except for this Albatross. This one will not settle and my delay-at-all-cost strategy has just been ended by judicial fiat.

We are heading to trial. Where we will almost certainly lose. In coping with this set back, I broke down the positives and negatives with my partner. The signs are telling us that we need to stop wasting our time on this case:

Signs of Weakness

1. The Client has a malleable relationship with the truth (especially while under oath).
2. The Client has a relevant (and insuppressible) history with the Federal Bureau of Prisons.
3. The Client thinks she is smarter than everyone. And will tell you why.
4. The Client’s claim is not supported by the evidence.
5. The Client is not likable. The Defendant is extremely likable.
5a. I like the Defendant. I do not like my client.

Signs of Strength

1. I can have a charming personality.
2. I have better ties than my opposing counsel.
3. I would be much more comfortable if this list had a substantive third strength.

It’s never a good sign when your client will accept nothing less than 200 times the Defendant’s final settlement offer.

It’s a bad sign when your client has more criminal convictions than I have fingers.

And it’s a downright damning sign when your opposing counsel knows all of this...and gleefully tells you the only option you have left is to “roll the dice” with the jury.

The Settlement Meeting Quiz

Cases can frequently be resolved by a simple phone call: “Hey, I got you a lot of money, let me settle your case”. The client hears this, is overjoyed and then promptly begins to complain when you give them their share of the settlement proceeds. However, not all clients and cases are this easy. There are those that require a face-to-face meeting. In the client’s home. With spreadsheets, pie-charts and a lot of caffeine.

Yesterday was my turn to take part in one of these meetings.

As I want you to learn (or at least laugh) from my experiences, I have a few questions for you that will allow you to focus on what really matters at these meetings. I’ve prepared a few questions for you based on my meeting yesterday.

Question 1: Upon entering a clients home for the first time you see is a large portrait of the client’s significant other portrayed as a celestial being (angelic looking...I think). You are ushered into the room for your meeting where said portrait is clearly the object that this room focuses on. Your client notices that you are ‘admiring’ this portrait and begins to talk about it. How do you respond?

1. Compliment the artistic vision of the painter, but focus your most lavish praise upon the subject of this piece of “artwork”. Spend a lot of time talking about the way the light highlights her stunning facial features while stopping short of discussing the multiple chins.
2. Stare at your feet, shuffle awkwardly and hide behind your partner until they stop looking at you.
3. Compliment the client, the house, the hospitality and everything else that allows you to not talk about the damn painting which offends God’s sensibilities.

Question 2: You have just driven three and a half hours and your client is offering you hard liquor. You still have the return trip to accomplish (not to mention an early morning courtroom date with a Chicago judge the next day) and it is still quite early in the day. What do you say?

1. “I’ll have what you are having. No wait...make that a double.”
2. “I’m sorry, but I’m ok for the moment. Plus, I have to drive.”
3. “Not right now, but if I could have a to-go cup. A little whiskey will definitely help spice up the drive.”

Question 3: Your Partner is finishing up the substantive side of the meeting, he turns to you and asks is there anything else. Your response is?

1. Compliment your firm’s work, your boss’s tireless drive to get the best result possible and assure the client that this is the best possible result.
2. “I think you covered everything, boss.”
3. Reach into your briefcase, handout the prepared materials and begin discussing your client’s newfound dream of timeshare ownership.

There is no wrong answer. Unless something you say gets you fired.

Kwality Medikal Keer

Client: Why haven’t I gotten any money yet?
Me: Have you gone to a doctor?
Client: I’ve been treating with my Chiropractor for 9 months!
Me: I’ve told you each time that we talk that insurance companies do not like Chiropractors. And that they are not real doctors. Please, go to a real doctor so we can find out what is wrong with you.
Client: What do you mean fake doctor? I’ve seen the degrees on his wall.
Me: You’ve treated with him for 9 months?
Client: Yes.
Me: Has given you a diagnosis?
Client: No.
Me: Fake doctor.

Clearly my client did not follow my tips for those about to be injured.

My client scared me to death

Dear Client:

I know that you are presently in a facility that is not your first choice of residence. I know that you don’t like the fellows and ladies that live along with you behind those cloistered rubber walls because they are [insert your racist reasoning of the day here] ignoring the fact that you were not born in this country. I know that you nucking futs.

Today, however, you have outdone even your multiple personality self with your latest letter to my office.

The handwritten note that starts “Hi Namby, My Dear Namby” wasn’t really the issue that prompted the heart palpitations, flop sweat or excessive swearing when the mail arrived today.

The problem was that in addition to your love note you included a second letter on larger paper. That second letter was all I saw when I opened up the envelope. All that I saw when I pulled out the paper from the envelope were the 5 worst words in the English language for an attorney:

“ATTORNEY REGISTRATION AND DISCIPLINARY COMMISION”

Thanks for causing chest pain.

Very truly yours,

Namby Pamby
No Longer Your Attorney at Law
thenambypamby@gmail.com

p.s. It doesn’t matter that this was a five-year old letter or that it was about an attorney that you retained nearly 20 years ago.

p.p.s I don't know why you can't find a guy like me. It could be be that you are twice my age and have none of your original teeth. But stop asking me this question...it's getting creepy.

Shower prevents 'Check You Email', world continues revolving

It was about eight o'clock Saturday evening when I received a somewhat frantic email from a somewhat frantic partner:

WHAT'S GOING ON WITH SMITH??????!!?!?!?!?!? I NEED TO KNOW ASAP

This late weekend missive was sent in an attempt to find out the status of one of the files that we have that was rapidly moving towards the statute of limitations. Also, it was an attempt to reaffirm that this individual works too much. And uses caps lock inappropriately.

Now, this email was sent to me and my senior partner was CC'ed in on it. Since I do not live with my phone attached to my side and I had just finished working out; I had missed this email's arrival by about 12 minutes. (I'm sure this would have been grounds for termination at BigLaw). So, I'm standing in my gym's lockerroom, in a state of sweaty undress, when I begin my response:

Smith was summarily executed, dismembered and sent to Siberia for burial.

Regards, NP

But for whatever reason, I didn't hit send. I saved the email and hit the shower.

15 minutes later, I return to my locker and check my phone. Two text messages, two missed calls and one tersely worded voicemail were awaiting my attention. From my senior partner letting me know that I was not to respond to this other partner's inquiry and that he'd handle it.

Now, I don't think that the end of the world would have happened had I hit send...but my question with this whole situation is what would have happened had I been drinking?

Saint Patrick Inspired Additions to the Illinois Supreme Court Rules

On this, the day after St. Patricks Day, I think it is time that we took into consideration the proclivities for younger attorneys and/or law students to overindulge in the sacrament. As this should be an encouraged way of life for attorneys here in Chicago, I offer two suggested rules for the Illinois Supreme Court to adopt as quickly as possible.

Proposed Supreme Court Rule 139

(a) All Settlement Conferences with addicts, reprobates, geriatrics, mean people and shitty lawyers will be conducted with at least one of the lead attorneys, or 711 licensees, with a blood alcohol content in excess of .10 but to be no greater than .19. Failure to comply with this rule shall result in immediate sanctions consisting of Jagermeister shots administered off of the nearest Bailiff’s navel.

(b) All attorneys working in traffic related matters, specifically those prosecuting and defending driving under the influence cases, shall refrain from liquid lunches on days where his or her trial call has more than five DUIs.

(b)(1) Rule 139 (b) is invalid on all Fridays, Mondays and rotating bi-weekly Thursdays.

Proposed Supreme Court Rule 195

(a) Counsel who appear before the court on motion arguments, status hearings and/or trial will be given greater deference in their arguments and overall presentation if they are engaging in what the Court, the clerk and opposing counsel mutually agree upon is a 'walk of shame'.

(b) Any counsel who meets the criteria of section (a) of this rule while complying with Sup. Ct. Rule 139 shall be immediately granted whatever relief he or she is seeking, with all reasonable costs awarded.

All in favor say cheers!

Not how I envisioned the day going

For those of you following my twitter feed, you know that I had a major oral argument today.

To cut to the chase, I lost.

Granted, this is the first true defeat since my first trial where I just lost (3 years ago) so it's been a while since I've tasted this sort of disappointment. Yeah, I've gotten chewed out, lost the inconsequential motions or been threatened with sanctions, but this was the equivalent of a not guilty. Total and utter defeat.

Here's the simple fact: I'm not pissed that I lost. I'm pissed at how I lost.

I've spent the last two weeks getting ready for today. At first, I didn't understand the nuances of the law at issue but I learned that. I didn't understand the mechanics of the facts, but I learned those. I had all of the knowledge I could possible grasp at my fingertips and able to spew out at a moments notice.

After a lot of work, I was ready.

45 minutes of argument later I was sure that I had carried the day. The court announces that it will take the arguments under consideration, take a brief recess and render a ruling. My first comment to my opponent: 'Think the judge is going back to chambers to flip a coin?'

The Bible does say pride goeth before a bitch slapping...

The judge reappears mere minutes later in the courtroom, announces that there is a written opinion (6 effing pages) and that I've lost. I could have spent the last two weekends doing something fun instead of preparing for the circle jerk that was this oral argument.

On the bright side, I drank really good scotch tonight to console myself. Though I'm sure my client doesn't give a rats ass about that...

Thank goodness tomorrow is Friday.

If you are in need of additional reading material...

Check out my column on picking the battles worth fighting over a Constitutional Daily.

DO IT.

Please?

It's not unethical if it's true

Clients are like Veruca Salt: they want their settlement and they want it now.

Unfortunately, for their attorneys who have to put up with their crap, this is not how it works. Clients just do not comprehend that lawyers have actual work to do for other actual clients. Nor do they understand that lawyers are notorious procrastinators that only do quality work under the threat of being fired, committing malpractice or a contempt citation.

Thus, we arrive at the problem: you tell the client the truth and you are in trouble. But...if you lie to the client, you are in more trouble. Thus, there needs to be a balance that meets ethical standards of the practice of law. Or at least meets the gray areas of those ethical standards.

In my four years vast experience, it seems the attorney needs to have a way to put the client at ease when they call demanding immediate action. In other words, a lawyer has to spin the truth in such a manner that makes the client happy (Come on, we’re lawyers after all!!!). For these occasions, I’ve got a few handy phrases salted away:

• I am engaging in heated negotiations with opposing counsel: I am playing phone tag with the defense counsel.
• We are working with a private investigator: I assigned a law clerk and told him to start Googling.
• A paralegal has run off with the file and is presently working on it: I have no recollection of who you are or what your case is about.
• We recently had extensive motion arguments in your case: I wrote a shitty complaint while I was hungover and looking at inappropriate photos on the internet. Unfortunately, the Defense counsel isn’t as dumb as I hoped and called me on my crap.
• We successfully defended against the Motion to Dismiss: We lost the oral argument but were given leave to replead.

The hope is to leave the client thinking that progress is being made while you are hanging up your phone, scrambling to get to the work done.

Two normal people are infinitely smarter than two lawyers

From the trenches with one of my best friends from law school:

Lawyer: You withheld information!!!
Client: I didn’t think that it mattered.
Lawyer: I asked you if you had ever been arrested and you told me no!
Client: That was before I found Jesus.

From my own day to day shenanigans:

Caller: I have a malpractice case and I want to sue my doctor.
Me: What did your doctor mess up exactly?
Caller: I dunno.
Me: Then when I’m supposed to tell the judge that your doctor did wrong?
Caller: I have a feeling that he is a quack.

And non-lawyers wonder why we drink so much.

Here’s to the Technophobes

I am sitting out in a far-flung suburban courthouse going through my last minute cram session before oral arguments on my opponents motion for summary judgment. I’ve been getting ready for this hearing on and off again for the better part of the week. For this matter, it is just me appearing before the Court but I have been working closely with my senior partner.

That’s when I get a phone call from my other partner:

Partner: Yeah, um, I know you’re busy, but I’m looking for the final brief that we filed in the Smith v. Jones case.
Me: The one that we filed two years ago?
Partner: Yes.
Me: Did you check the firm’s server? I think it’s in a folder named “Final Brief” because I was just looking at it the other day.
Partner: I’m staring at the server and I can’t find the file.

I pull out my iPad and log into the firm server. I quickly navigate my way into the file that he is talking about and find exactly what he is looking for.

Me: Let me walk you through this. Are you in the Smith v. Jones folder?
Partner: Yes.
Me: It’s the fourth folder down as you look at the list of files marked in the folder named “FINAL BRIEF”
Partner: I see order.doc, caselaw.pdf, memorandum.doc and the fourth file is (pauses) caselaw.doc. I don’t see any file named “Final Brief”...I just think that it’s not in here.
Me: Are you sure you are in the right folder?
Partner: Yes.

At this point I am utterly confused as to why he cannot find this file. Then it dawns on me:

Me: From the top, list everything that you see in this folder window.
Partner: Ok, something named Appellate Record, then Correspondence, then Client Correspondence, then Final Brief, then the files start, order.doc...
Me: Stop right there. Final Brief is a folder. Open that.
Partner: ....Oh....

My partner: legal genius that he is has difficulties understanding the differences between FILES and FOLDERS.

I’m going to file this under “I probably shouldn’t have said that”

Opposing counsel: You want to go get your guy? We’re ready for him.
Me: Do I have to? He makes my skin crawl.
Opposing counsel: (After he is done laughing) You realize that’s your star witness, right?

It's always good when the only person that proves your case gives you the heebee jeebees.

When your job gives you lemons, throw them at your partner

The last couple of weeks have been rather intense at the office. I’ve been swamped with court appearances, depositions of people that suck and lots and lots of phone calls with people that just want to waste my time.

This doesn’t even factor in the mindless bitch work that is getting dumped on me in any given day. Frankly, I don’t care what my partners give me to do.

Until I start getting blamed for their mistakes.

But, as an associate...no, strike that...as an associate in a horrible job market, short of going postal, what can you do? It’s a question that I’ve been pondering a lot lately (especially when I’ve been having my morning whiskey) and I wish I could come up with the best way to address this issue.

I figure that I’ve got a couple of options how I can respond:

Option A

Take the abuse, shut up about it and just stifle it along with every other reason that you are presently searching for new employment.

Upside: Retain your job.
Downside: Liver disease.

Option B

Discuss the matter with said partner behind a closed door in his office. Politely and professionally discuss what happened that lead to the error (i.e. how the partner f***ed up and how you are blameless) and offer suggestions for ways that this problem can be avoided in the future.

Upside: Maybe retain your job, clear your conscious of not standing being wrongly accused of a minor f*ck up and perhaps improve the day-to-day work product of your boss.
Downside: Maybe not retain your job, move to a higher priority on your partner’s shit list and liver disease.

Option C

Next time the Partner blames you for the slightest problem, no matter the location, list every single screw up that has been the result of the partner’s actions and/or inactions. List his personal failings and other problems with enhanced vocal volume so that everyone in your zip code can hear you. End with the classic summation: YOU NEED ME MORE THAN I NEED YOU! Storm off.

Upside: You’d likely make Above the Law in an entertaining manner.
Downside: No more job. No more ability to fund your liver disease. No chance of working in a law firm as a lawyer ever again.

Fact of the matter is that I don’t have the tact or ability to politely point out a mistake so I am resigned to taking Option A.

I just wish I had the balls for Option C.