Teaching legal imagination: Harvard dean calls for it, I am grateful, but a lot of work remains.

Kristopher Nelson of in propria persona graduated from Harvard Law School in May and now is a graduate student in the history of science. He astutely observes that law school emphasizes training its students to practice law but does a rather poor job of actually doing so: “Law school . . . while pushing the prac tical, does not teach it.” As I’ve made clear, I think his criticism is particularly well placed when it comes to Harvard.

So I am happy to see that Nelson points to an article written by co-written by Martha Minow (pdf), the new dean of Harvard Law School, in which Minow and her co-author, Todd Rakoff, explicitly acknowledge that law students need more. What do they need? I think Minow and Rakoff are right to identify it as “legal imagination”:

[S]tudents need more, and they need more not for arcane or unusual careers, but simply to be good lawyers. While an expert in differentiating mental skills could probably produce a raft of labels for what they also need, when we think of what students most need that they do not now get, we think: “legal imagination.” What they most crucially lack, in other words, is the ability to generate the multiple characterizations, multiple versions, multiple pathways, and multiple solutions, to which they could apply their very well honed analytic skills. And unless they acquire legal imagination somewhere other than in our appellate-case-method classrooms, they will be poorer lawyers than they should be.

How will they be taught this legal imagination? By being given “cases” more like students are given in business school than students are given now in law school: complex problems in which the students are required to generate real world alternatives, recommend the best, and be evaluated on the quality of their judgment:

[T]he type of materials we have in mind can be described in general. Students ought to be presented with relatively dense materials that lay out a situation, experienced as a problem for a person, or group of people, for legal treatment. Students should face a choice that challenges them to identify options and that permits multiple resolutions, sometimes within a relatively tight ambit. Such resolutions might include issues such as which settlement offer would make it sensible to forego litigation. Sometimes these choices might be within broader (but still specifiable) alternatives, such as whether trying to get particular legislative language adopted would be feasible and preferable to private ordering. The problems ought not to be situated in one doctrinal area, but should present opportunities for mental maneuvering around the legal universe. Teaching should emphasize generating alternative solutions as well as appropriate grounds for choosing among them. And criteria for resolution should include legal, normative, and practical considerations.

Of course, Minow and Rakoff also believe that “following the business school model, we think that case writers will need to get their materials from practitioners.” Why isn’t this already going on throughout law school? One reason, I’ve always believed, is that law professors are those who have done best in law school (not necessarily, or even usually, as lawyers), so they perpetuate the existing institutional model in their belief that if law school has identified them as the best and brightest it must be well designed. Law professors are not unique in this tendency. Anyone who succeeds in an institution has a vested interest in believing the institution’s promotion procedures are very good at judging genuine merit. 90% of law firm partners will tell you their firm is better than most at judging associates. And Minow even recognizes this impediment to the change she calls for:

Law professors were good law students, and given the history of legal education, this means that they almost universally feel comfortable handling appellate opinions in the classroom even if they have no experience doing so in practice. By contrast, for many of us, the arenas of the legislature, the agency, the political movement, the media— perhaps even the trial courts—are ones we may only remotely watch. Ideally, case studies and teachers’ notes could be crafted so that they could be taught by professors as we know them in law schools as we know them. But, frankly, many of us will need to learn some new things.

I am thrilled that the dean of Harvard Law School is making these arguments. As goes Harvard, so goes virtually every law school in the country. But there is also another piece of the puzzle that needs to be put into place, as I’ve previously written about: how in the world can we measure whether we are effectively teaching “legal imagination”? In many ways I think I’m ahead of Minow in trying to do what she calls for. But until I can prove that what I am doing in fact teaches students how to be lawyers better, I’m afraid that I won’t have a ton of influence. Fortunately, Minow, merely because she is the dean of Harvard Law, can have influence even without first proving what she is arguing for works.

Lawyers do the best they can for clients; I wish law professors realized that’s what lawyers should always do.

As someone who has practiced over ten years and taught over ten years I am particularly sensitive to the divide between legal practice and legal academia, and I am partial to the legal practice side of the debate. It’s not that a lot of law professors don’t do a lot of good things; rather, it’s that too many law professors and too much legal education proceeds as if the world of practice is irrelevant. In fact, I am convinced that legal education and legal theory divorced from the application of law in practice is meaningless. Law does not exist except as it has the potential to affect the real world (unless you’re talking about religious law).

And it is fundamental to the practice of law that the first and primary responsibility of the lawyer is to the client’s best interests. When you start treating the client merely as a means to raise intellectual issues you find of greater interest you’re doomed to get in trouble.

Charles Nesson is a good example of a law professor who doesn’t understand how to be a lawyer. Nesson ignored the advice of many who are sympathetic to the plight of file sharers in conducting his defense of Joel Tenenbaum, a case which resulted in a $675,000 verdict against his client. There were many who considered Nesson’s defense bad lawyering, including myself. Blue Mass Group even asked whether he was “the worst lawyer ever” in a post that supported the legitimacy of the question with examples from the case:

[T]hrough the course of the litigation, Tenenbaum gave sworn statements that he then contradicted at trial. And in a dramatic moment, it seems that at the end of his testimony, just before the verdict, he actually admitted liability, causing the judge to find him liable and the leave only question of damages for the jury to decide. Who prepared Tenenbaum to testify? Did anyone bother?

It also seems that Professor Nesson made audio-recordings of depositions in the case–perhaps for use in the classroom?–without the knowledge of the lawyers on the other side of the case. This is potentially a crime, as well as an apparent violation of the Rules of Civil Procedure, which require a lawyer taking a deposition to notify the other side of the method to be used to record it (though perhaps if Professor Nesson was recording depositions taken by the other side, he would not be in violation of the rule–I’m not sure).

Now, Professor Nesson says he will appeal on the judge’s failure to instruct the jury on fair use. I’m not a copyright law expert, but I’ve heard others describe this issue as likely to lose.

In any case, it seems clear to me that Professor Nesson did not really act to protect Tenenbaum’s interest. This twenty-something graduate student is now facing bankruptcy when he could have settled the case for next to nothing.

More support for the criticism of Nesson’s job defending Tenenbaum comes today with the news that the judge in Tenenbaum’s case ordered defendants who did not even bother to defend file sharing charges to pay the minimum penalties allowed under the Copyright Act, prompting Ars Technica to point out that Tenenbaum and others like him “would have been far better off monetarily if they had simply ignored the complaint altogether and failed to show up in court.”

The sad part is Ars Technica is right — sometimes bad lawyering is worse than no lawyering.

Nesson’s response to criticism that he ignored defenses and other strategies he might have used to minimize Tenenbaum’s liability? He writes, without an ounce of apparent regret: “these defenses do not join the fundamental issues. this trial was not an exercise in getting joel off the hook.”

That’s precisely my point. If you treat a case as a means to an end and are willing to sacrifice the client’s best interests to get to that end, you are not doing your ethical duty as a lawyer. If you insist on a jury, make legal arguments there is no good reason to think will prevail, allow your client to lie in pretrial testimony and go ahead and put him on the stand anyway, flout good sense in recording hearings without having gotten the judge’s permission to do so, and then go and post those recordings on line, is it any wonder your client ends up paying a big price?

As I indicated in my last post (and numerous times on this blog and elsewhere), I am convinced the RIAA’s campaign to sue file sharers is misbegotten as a practical, business matter. I’ve even gone out of my way to try to help Nesson. (See also here.) That doesn’t mean that Nesson is a noble guy in sacrificing his client to what he considers a greater cause, and a lawyer should know better.

Lincoln on legal practice

From The Writings of Abraham Lincoln, “Notes for a Law Lecture,” from July 1, 1850:

DISCOURAGE LITIGATION. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser-in fees, expenses, and waste of time. As a peace-maker the lawyer has a superior opportunity of being a good man. There will still be business enough.

Never stir up litigation. A worse man can scarcely be found than one who does this. Who can be more nearly a fiend than he who habitually over-hauls the register of deeds in search of defects in titles, whereon to stir up strife, and put money in his pocket? A moral tone ought to be infused into the profession which should drive such men out of it.

The matter of fees is important, far beyond the mere question of bread and butter involved. Properly attended to, fuller justice is done to both lawyer and client. An exorbitant fee should never be claimed. As a general rule never take your whole fee in advance, nor any more than a small retainer. When fully paidnbeforehand, you are more than a common mortal if you can feel the same interest in the case as if something was still in prospect for you, as well as for your client. And when you lack interest in the case the job will very likely lack skill and diligence in the performance. Settle the amount of fee and take a note in advance.

Then you will feel that you are working for something, and you are sure to do your work faithfully and well. . . .

This idea of a refund or reduction of charges from the lawyer in a failed case is a new one to me-but not a bad one.

Good lawyers are not terrorists.

There is a pronounced tendency among non-lawyers to believe the best lawyer is the most belligerent lawyer, the one most willing to make things difficult for the other side. A certain segment too of beginning law students believe their professional role will be to make their adversaries’ lives as difficult as possible not by being smarter and more persuasive but, rather, by being more of a pain in the butt.

First, this attitude is very wrong-headed. Mindless aggression can be effective, but only when matched against mindlessness. A smart lawyer can calmly run circles around mindlessly aggressive lawyers. Fortunately, as well, the court system has its limits. The Blog of the Legal Times reports that a court ruled that Robert Fastov, a D.C. art dealer who also happens to be a Stanford Law School graduate, “must pay more than $630,000 in attorney fees and expenses to Christie’s for a suit a judge said only served to harrass the auction house after it refused to sell a painting . . . .”

Typically, and almost always, both plaintiffs and defendants in U.S. lawsuits pay their own costs of litigating, win or lose. In fact, this rule is known as the “American Rule.” The “English Rule” requires the losing party to pay the winning party’s costs. Thus, in England, far fewer individuals sue corporations because the individuals know the corporations can afford to pay the plaintiff’s costs, while the plaintiff cannot afford to pay the corporations’ costs of defense.

But, as the Fastov case indicates, someone can act so egregiously in U.S. courts that he will be charged with the costs of his adversary’s lawyers. The interesting part of the decision is that the court does not discuss the merits of the plaintiff’s lawsuit (which were plainly non-existent); rather, the decision affirmed a trial court decision that focused on the enormous size of the briefs and the enormous number of documents the plaintiff submitted in the case, making the point quite clearly that the mass of materials was useless merely because it was such a mass. As the trial court’s decision (pdf) explains:

In response to defendants’ motion for summary judgment, plaintiff has attempted to file a 59-page opposition, a 90- page declaration in support of his opposition, a 461-page statement of disputed and undisputed facts, and three volumes of exhibits totaling approximately 1,500 pages. A first-year law student is taught that a filing in support of or in opposition to any motion should be tailored to achieve the paramount goal of assisting the Court in rendering its decision. Plaintiff’s filing does the opposite. It is an abuse of the litigation process.

The crucial point: A first-year law student is taught that a filing in support of or in opposition to any motion should be tailored to achieve the paramount goal of assisting the Court in rendering its decision. A lawyer’s job is to give the judge the tools to rule in his client’s favor. Your job is not to give the court a bunch of information from which the court can derive its own decision and reasons. If you explain to a court in a convincing fashion why your client should win, the court is likely to adopt your reasoning and rule for your client. I have even had courts cut and paste my brief into their opinions. When they’ve done so I haven’t felt plagiarized; I’ve felt vindicated.

Neither is your job to so overwhelm the other side they want to give up. That, plainly, was Fastov’s intent. After Christie’s had refused to sell a painting Fastov owned, he sent Christie’s a 79-page letter, with hundreds of pages of attached exhibits, threatening to sue for damages “in excess of $265,000″ and “punitive damages in an amount to be determined, but considerably in excess of $1,000,000.” He also explained that “the cash outlays that Christie’s will, to a legal certainty, have to make (and will not recover, even if Christie’s wins) to defend the litigation will be approximately $221.3K (very conservatively understated) or (more realistically) well in excess of $300K.” He went on to threaten dire consequences if his demands weren’t met:

[I]f you decide for tactical purposes to delay your response beyond my three week deadline, Christie’s costs of settlement will increase appreciably. If you decide to wait to see if I actually file the suit before approaching me to discuss settlement, you will find that the chances of achieving settlement are virtually nil, unless Christie’s is prepared to reimburse me for all of my costs to date of settlement and pay all of my compensatory damages, which will be well in excess of $265K, and an extremely high percentage of the amount of punitive damages prayed for in the complaint, which shall be in the millions of dollars. . . . Do not bet against my inclination, will, ability, experience, and tenacity to file and successfully maintain [Fastov v. Chritie's] through to its successful conclusion. It will be the worst and most costly conclusion and bet of your life. The settlement proposals and the purposes of this letter are inherently pacific in nature. If you and Christie’s force me to go to war, those who have litigated for, with, and against me will tell you that I am extremely tough, intelligent, and tenacious. I give no quarter and ask none, and above all, I will take any and all actions, both within and without the courtroom, that do not violate the rules of professional conduct, necessary to achieve Christie’s unconditional surrender.

When Christie’s failed to give in to his threats, Fastov filed a 225 page (!) complaint. The complaint begins the lawsuit. The motion for summary judgment (in connection with which he filed approximately the 2,100 pages referred to above) is an effort to dispose of the case before trial. If you need that much paper to convince a court you’re right, you’re either inept or your merely engaged in terror. More likely, you’re both inept and engaging in terror, as was Mr. Fastov. Your job in a lawsuit is to get the court on your side, not to destroy the opposition. If clients and lawyers understood this was the purpose of litigation we all, lawyers and clients, would be better off.

The financial institutions and their lawyers could not see the big picture, redux

I’ve written before of the failure of our financial geniuses to see the “big picture” when they created their house of cards built of mortgage backed securities, credit default swaps, and the assumption that housing prices wouldn’t crash. But there’s a piece of the picture other than the inevitability of falling markets those geniuses failed to consider — what is required to foreclose on the homes that are the underlying asset giving the mortgage backed securities their value.

In order to foreclose, the owner of the mortgage has to be identified.  But no one knows who owns mortgages that have been packaged into mortgage backed securities.

The mortgages packaged into mortgage backed securities weren’t packaged whole.  In other words, if you are the owner of a mortgage backed security, you were not holding the right to collect on the loans to one or more specific homeowners.  Instead, you were holding the right to collect a portion of an enormous number of loans made to an enormous number of homeowners.  Thus, each homeowner’s mortgage is owned in by an enormous number of buyers of mortgage backed securities, to each of whom some fraction of his loan is owed.

For example, the day after I financed my house my mortgage company sold its rights to collect on my home loan to one of the companies who put together these mortgage backed securities.  Then that company likely took its right to collect on my loan, split it up in littlet pieces, and put those each of those little pieces into different mortgage backed securities along with little pieces form other loans.  Theoretically, if I owed $1000 per month on my mortgage, there could be one thousand people to whom I each owe one dollar,  or one hundred thousand people to whom I each owe one cent, and so on. Could anyone tell me who owns my mortgage? Maybe 1,000 or maybe 100,000 different individuals and institutions.  Could anyone identify them to a court hearing a foreclosure case against me?

I doubt it.

Thus, as the Foreclosure Defense Group puts it:

In Ohio and other states, the inability of the “Lender” or Mortgage Servicer [the company in the above example who purchased my mortgage the day after it was created and subsequently packaged it into mortgage backed securities] to produce the original note and mortgage, combined with their inability to produce the documentation regarding the assignment or sale of the loan has resulted in de-linking the mortgage from the security interest in the home and the cancellation of the note giving the borrower free and clear title to the property that was subject to the original loan transaction.

It’s hard to train good lawyers.  Students just want “the law.”  But practicing law isn’t just a matter of knowing the law.  Knowing the law or, as is more often the case, knowing where to find the law, is of course necessary, but it’s the easy part.  The hard part is making sure your clients make good business decisions based in part on the law and in part on all the other constraints the clients operate within (including financial constraints, constraints established by the client’s aversion or lack of aversion to risk, constraints imposed by market and social conditions, etc.).

In order to do that you always have to have in mind the “big picture,” the implications of any specific decisions to the client’s long-term interests.  Lawyers might have reviewed every single possible regulation pertaining to securities when they approved the mortgage backed securities.  What they apparently didn’t think to look at, however, were the requirements the states impose on foreclosure actions.  Without the power to foreclose, the mortgage backed securities have no mortgages to back them.

The next time someone starts talking about financial geniuses (which I hope at least won’t be for some years), run!

Good lawyering means remixing

Gerry Spence on one of the secrets of his enormous success:

Economic pressures motivate law firms to try innovative billing practices

There is nothing new in lawyers trying to find ways to price their services in ways other than the standard practice of charging a price for each “billable hour” of work performed for a client.  Each lawyer, of course, is billed to a client by her firm at a different rate, the precise rate per lawyer depending primarily on her experience.  When I began practice in 1984, my firm billed my work to it clients at about $100 per hour.  By the time I left practice to teach, the hourly rate my firm billed my time out to clients was $315 dollars per hour.  I can only imagine that had I continued in practice, by now, twelve years later, my hourly rate would be in the ballpark of $500 an hour.    According to the New York Times, Cravath, Swaine & Moore in New York is “one of a number of large firms whose most senior lawyers bill more than $800 an hour.”

Lawyers have always also used pricing schemes other than billing per hour.  Certain types of transactions are generic enough that lawyers can charge a flat rates for representing a clients in such a transactions.  And, of course, firms that represent clients with modest to poor economic means suing wealthy clients have regularly charged contingent fees, collecting a percentage (typically 25-40%) of any recovery achieved as a result of the lawsuit.  Those firms finance their losing cases with the windfalls they earn in winning cases.  And their clients benefit because without the contingent fee arrangement they could not possibly afford to pay for the lawsuit.  The most typical types of cases employing these billing methods are personal injury and malpractice lawsuits.

But in most other situations the billable hour has been the standard way to price legal services.  There always have been severe criticisms of the practice. Its potential defects are plain.  Some firms break the hour into 15 minute segments; others into 6 minute segments.  If you perform one minute of work by, say, making a brief telephone call on behalf of a client, you might well  record an entire billable segment (6 or 15 minutes) for the call.  Everywhere I worked I had the discretion to choose not to record time for such brief tasks.  So I wouldn’t.  I couldn’t justify the cost the minimal effort would cost the client. If, for example, an attorney makes a one minute telephone call, the attorney records that call as fifteen minutes of billable time, and his  firm bills his work out at an hourly rate of $300 dollars, that one minute phone call would cost the client $75.

But the fact I wouldn’t bill a quarter of an hour for a one minute phone call could hurt me in a very real way.  It reduced the amount of time I recorded as billable hours.

And the number of hours a lawyer bills over the course of a year plays a significant part in the firm’s evaluation of his performance.   The lawyers conducting the evaluation may understand that the sheer number of billable hours bears little relationship to the quality of a lawyer’s work, but any overburdened organization engaged in evaluation tends to put a lot of weight on hard numbers that bear little relationship to the qualities being evaluated.  So my failure to bill a quarter hour for one minute of work could work against me in my efforts to advance within my firm.

The system also biased the evaluations against better lawyers.  I always prided myself on my research and writing skills.  I felt I could identify, analyze, and research a disputed issue faster and more effectively than any of my colleagues.  I also felt I wrote better and more quickly than my colleagues.  Yet colleagues who were slower at the same work I did billed more hours for that same work, and that higher number of hours accrued to their benefit, at least in part, when our performances were evaluated.

I was exceedingly fortunate in not suffering from these potential defects in the billable hour system.  I worked regularly with a close-knit group, so we knew each other’s work well.  Our work, therefore, could be evaluated direrctly on the basis of its quality.  But the larger the firm and the more a lawyer is shuttled from colleague to colleague as he works on new matters, the less the firm will evaluate his work based on its intrinsic quality and the more the firm will rely  on the number of his billable hours.  And some firms, naturally enough, don’t care why a lawyer might bill more hours than a better performing colleague.  The higher number of hours mean more money for the firm.

I certainly felt the constant pressure to bill as many hours as possible.  Over my 12 years of practice I billed between 1900 and 2400 hours a year.  1900 billable hours seemed a livable amount of work (and seemed to be the minimum an associate could get away with), but it hardly amounted to what most people would consider a reasonable work schedule.  For one thing your billable hours are not the hours you work.  They are only the hours you work on matters that can be billed to clients.  The hours spent on administrative work on behalf of the firm, on pro bono work, on training younger attorneys, and on the necessary interludes from the demanding work are not billable hours.  In my last years of practice, as a partner, when I was still a relatively young but experienced commercial litigator, I generally was in the office from 8:30 a.m. until sometime between 7 and 8 p.m.  I also worked regularly on weekends for 3 to 8 hours.  During my busiest times, which occurred with regularity, I could easily bill something on the order of 110 hours a week.  I don’t know how I did it.  There are only 168 hours in a week.

The system provides an incentive to the firm itself, and not merely its lawyers, to maximize the number of hours billed to a client.  The more time a firm spends on a matter, the more money the firm will make.  That makes for a perverse incentive — clients want matters resolved as quickly and cheaply as possible.  But it is in lawyers’ short term financial interests to resolve matters in the most complex and drawn out ways possible.  As the New York Times points out,  “In litigation, firms that charge by the hour can suffer if they are too successful and end a lawsuit – and the stream of payments from continuing work – too quickly. One law firm that recently collapsed, Heller Ehrman, was hurt in part because a number of cases had settled.”

The defects inherent in billing by the hour began to become an issue to clients  in the late Eighties as a consequence of the economic difficulties set off by the 1987 stock market crash and the Savings and Loan debacle.  Money was tight, so clients would scrutinize more carefully the prices they were being charged and the ways those prices had been arrived at.   It doesn’t surprise me, therefore, that the New York Times suggests that today’s “rough economic climate is making clients more demanding, leading many law firms to rethink their business model.

One change demanded by a client I worked for back in the late Eighties and early Nineties was to produce a detailed budget in advance of his decision to have our firm represent his company in a  lawsuit.  The budget would provide an estimated cost of the representation, with the ultimate cost limited no more than a fixed amount above  the estimated total cost.  The budget would lay out in detail the work that would have to be done — work that would include, among a myriad of other things, drafting pleadings, drafting and arguing any and all pre-trial motions, conducting discovery (including the oral examination of witnesses under oath in depositions, the review of documents, and our own independent investigation into relevant matters), any and all legal research that might become necessary in the course of the case, the retention and preparation of any experts that might be required, and the preparation of our own witnesses for both deposition and trial testimony.

The time and effort necessary to conduct these tasks is to a great degree unknowable in advance of a lawsuit.  Moreover, unforeseeable complexities are almost inevitable.  It is virtually impossible to calculate  the number of new claims that might be asserted in a lawsuit, the number of new parties who might be drawn into it, the number of  new legal issues that will inevitably arise in the course of the case, and the amount of work each of these and other unforeseen complications will require.  Preparing these budgets was one of the most difficult things I ever did as a lawyer because so much of their content seemed largely the result of guesswork.

It was not, however, a senseless product I was producing.  Essentially, the budget set forth our best estimate of a fixed fee  for all the work required to conduct the lawsuit through trial.  In the event the case settled before trial , our fee would be limited to the amount the budget had allocated for the work we had actually done.

With the recovery of the economy in the Nineties and the enormous sums earned by corporate America, the motive to impose such novel billing methods waned, and the billable hour managed to maintain its role as the foundation of large firm billing practices.

But, as Friday’s New York Times stated:

The evidence of a shift away from billable hours is, for now, anecdotal, as few surveys exist. But partners at a half-dozen other big bellwether firms and lawyers at corporations, who sometimes engage outside counsel, say they are more often seeing different pay arrangements.

One such novel scheme was followed by Morrison & Foerster, and in fact resulted in the firm earning a much higher fee than if it had charged by the hour:

In one case, he said, Morrison & Foerster negotiated a fixed fee for defending a company in court, covering work up to the point of a motion for summary judgment.

On top of the fee, if the case settled for less than what the company feared having to pay if it lost in court, the law firm got a percentage of the amount saved. The arrangement made sense when the goal was to resolve the dispute quickly, Mr. Leonard said.

Lawyers on the case negotiated a settlement for much less than the client’s worst-case number, Mr. Leonard said. “The effective hourly rate was something like 150 percent of our hourly rates,” he added. “We made money, the client was happy.”

What other types of pricing will clients and lawyers develop?  It remains to be seen.   But since the financial crisis seems more dire than any we’ve experienced in the last seventy years, law firms might have to engage in the first comprehensive overhaul of their pricing systems since at least the Sixties.

Finally, let me emphasize that there are good lawyers and bad lawyers, just as there are good and bad people in every profession.  The people I worked closely with were kind, generous, hardworking, and dedicated to serving our clients as efficiently and effectively as possible.  We would not bill a quarter of an hour for a one minute phone call. The founder of one firm  I was a member of for many years,  Gene Anderson, made sure the firm’s lawyers put our clients first in everything we did.  Any business air travel, for example, had to be made in coach class.  Every lawyer I knew at comparable firms would fly First or Business Class.  Doing the least expensive and most efficient work for the client was, in short, the ethic of almost every lawyer I  personally worked with.

But I have encountered many a lawyer whose “ethic” is to extract from his every cent he can.  The principal way to maximize one’s fees is to fight as long and hard as possible on any and every issue that can be made into a fight. The truly sad part of this phenomenon is the belief among many, many people that the most effective lawyer is the nastiest lawyer.  Those people get their nasty lawyers.  They also make the cost of their representation as high as possible.

Nastiness is bad lawyering.

You don’t have to sue — defamation and exposure

Another key to representing a client well is to ignore things better forgotten.  From CNet: a chiropractor sued an individual who had posted a negative review of the chiropractor online.  The chiropractor’s attorney is quoted as saying that the issue in the case is whether the review stated facts or the reviewer’s opinions:

“[My client] has no problem with people expressing their views and opinions about his service, . . .  [b]ut there is a line where if someone, even on . . . on the Internet, publishes a false statement of fact as opposed to an opinion, then that person can and should be held responsible for their words.”

But a bigger issue may be that the chiropractor’s billing practices are at the center of the defamaion lawsuit, and all the defamation lawsuit has done so far is highlight the fact the chiropractor bills insurance companies more for his services than the prices he quotes to patients.

Litigation is a public event.  Court files are open to the world.  When you sue someone, you often open up to inquiry a lot you never thought might see the light of day.  You and your lawyer need to consider these possibilities seriously before you sue.  No matter how good a lawsuit you have, you don’t need to sue, and it might turn out that even if the lawsuit alone seems to have an upside, the downside it poses to your life makes it not worthwhile.

Question authority, and then question those questioning authority

It may seem off topic to engage in a prediction regarding a sports event, but let it be heard here first — this weekend Michigan will beat Ohio State in football. In fact, you are likely to hear it nowhere else. Michigan is suffering its worst football season in history. Ohio sports writers are writing things like “Michigan (3-8) couldn’t be a bigger underdog if it were coming off a loss to St. Ignatius [an Ohio high school football power] at home instead of a loss to Northwestern.”

But my point is this: lawyers beat adversaries who never question the assumptions and premises most people never question. Lawyers need to make decisions. That’s a topic for another day. And one could question premises and assumptions forever without ever coming to a decision, so I’m not suggesting that one engage in perpetual questioning, that one ape Hamlet.

Rather, I am suggesting that the common wisdom is far more common than it is wise and that no lawyer ever got far for long by going with his unexamined gut instincts. And it almost seems a law of sports that when one team is considered unbeatable it will lose.

In the political arena, Tom Tomorrow has it right on.

Oh yeah: GO BLUE!

p.s. A friend at the ABA Journal is asking lawyers to complete the Journal’s survey on how you think the recession will affect the legal profession. You can do so here. All I know is that if Congress doesn’t help out the auto industry there are an awful lot of people in Michigan and Ohio who will lose their jobs and/or never get paid for goods and services they have already provided. I suppose, though, that bankruptcy lawyers will make out well.

Repeat after me: being a good lawyer means doing good for the client.

Time Ferris, in his post How Not to Use a Lawyer, explains well how lawyers can serve their clients.  Ferri’s observations are a “personal case study” provoked by an obnoxious letter from a laywer representing a business Ferris had actually spoken positively about in his book.  The lawyer had a legitimate request to make to Ferris regarding the specifics of Ferris’s written statement, but the letter was so obnoxious all it did was end up hurting the lawyer’s client.  Ferris’s points:

1. How you say something IS what you say.

2. It’s counterproductive to threaten someone until you determine their incentives to refuse compliance.

3. It’s better to steer the golden goose rather than kill it.

4. Don’t mistake symptoms with root problems, or confuse correlation with causation.

5. If you threaten someone in a digital world, it might become what your prospective customers see first.

Gerry Spence on being a lawyer and a human being.

Gerry Spence is as good a lawyer and compelling an advocate as I have ever witnessed. He now has a blog. If you’re interested in being an effective lawyer, it’s a must read. If you’re interested in how life really works, it’s just as important. I am pleased too that his views on certain matters are similar to mine. Here’s what he writes:

The trial of a case, in its simplest form, is telling a story jurors can understand. Yet most lawyers are taught little, if anything, about communicating with others. They are taught to deny their feelings and, at last, have so long shielded themselves against their feelings that many find it nearly impossible to get in touch with them. Yet justice is a feeling and jurors (as do we all) make their decisions based on their feelings.

Most lawyers know little about classical literature and history, have never written a poem, have never painted a picture, have never stood before an audience and sung a song, have never been permitted to confess their pain or their love, and, in short, have been denied the stuff of personhood. One need not write poetry or paint pictures to be a successful human being. But some intimacy with the arts and the language and its use and with right brain functions of feeling and creativity are essential to the development of the whole person. Little wonder that lawyers, disabled by all of the stifling, mostly useless mental exercises they have suffered, have trouble relating to jurors, much less to the rest of mankind.