SMR had briefly moved to Houston after Katrina and was still somewhat in flux. Several attorneys—their home flooded or lives otherwise disrupted—had not followed SMR back to New Orleans. With nine total attorneys in the firm at the time (including me), the litigation section was only one partner, a senior associate who had joined a few months before I did, myself, and a crusty of-counsel, who, for the most part, worked by himself with his own clients. (The of-counsel was one of those older attorneys who seemed to belong to another age. He would have easily substituted as the “most interesting man in the world” beer commercials—voice, beard, stories, and all.) Two-and-a-half of the firm’s three paralegals worked almost exclusively on transactional projects, and, in fact, had little litigation experience. (The third paralegal spent the other half of her time acting as our firm’s IT support.) However, I thought this small size suited admirably and settled down to my work.
The first few matters I dealt with were small cases—collections or similar contract disputes between oil field contractors and equipment suppliers—and their files fit neatly two or three to a shelf. However, Jerry, the head of the litigation section, shortly began introducing me to things called “legacy lawsuits.” These are a significant part of my (and SMR’s litigation) practice, certainly the largest in terms of discovery, witnesses, and experts to keep track of—and the background to my article—so they bear a short explanation.
In Louisiana, legacy lawsuits are suits filed by a landowner against an oil company lessee, demanding that the lessee clean up pollution and equipment left on the lease. In practice, there usually has been a succession of oil companies who owned the lease, as the lease was assigned one to another, from a major to a series of large and then smaller independent companies as the field lost value with age. The plaintiff alleges that the oil companies were careless to the point of gross negligence in operating their field, and that various contaminants are present on his property, from actual hydrocarbon spills, salts, and salt water pumped to the surface with the oil, drilling mud, or other fluids used in operating the field, to old pipelines, concrete pads, or other equipment left on the lease. These allegations may or may not be on speaking terms with the truth.
Plaintiff’s experts will generally opine that tons of soil and water need to be dug up and disposed of to remedy the contamination. Defendants will reply that they behaved very well, that they spilled nothing, or, if they did, it was insignificant, and any remediation that needs to be done will be far less in scope and cost than that recommended by the plaintiffs. Plaintiffs regularly estimate a cost of more than $200 million all told, and trial is typically at least two weeks. The stakes are high, the factual issues complex, and the defendants generally unpopular to begin with, thanks to the spiritual descendants of Upton Sinclair who reside in southern California. I should note that I invariably represent the defendants in these suits, so realizing that I am unbiased and completely accurate in my evaluation of environmental plaintiffs I leave as an exercise for the discerning reader.
My first legacy lawsuit was one into which the firm had stepped in media res. Our client had been sharing counsel with a codefendant, and SMR had been brought in strictly to evaluate and pursue an indemnity claim against another codefendant. One year into the case, the counsel our client shared decided he could not represent two defendants, and our client hired us to represent them in the legacy lawsuit as well as in the indemnity claim.
An Associate’s Life: Motions, Memos, and Managing a Library?
One of my first tasks in the suit was to review the files sent to us by the former firm. The suit was roughly a year old at this point, and depositions, expert reports, filings, correspondence, attorney notes, and the various other items that make up a file had been dumped into 10 boxes and sent to our office. (The document productions—consisting of the oil companies’ field records dating back to the 1920s—would arrive later.)
Jerry asked me to skim through the boxes and figure out what we had and what we were missing. I quickly gave up on trying to skim and take brief notes, and fell to devising a crude card catalogue system to catalogue and label the various folders. Being the person who first organized this library, maintaining it became my responsibility as it grew beyond the capabilities of my card catalogue numbering system, which was originally intended to index the contents of only 10 boxes. As the case files and produced documents annexed shelf after shelf in their pursuit of cellulose lebensraum, and locating a particular file or document upon the call of my superiors became more difficult and more frequent, and after I had had to find several replacement clean copies after another attorney marked up an original, I put nearly all the documents onto our office’s network drive in an attempt to preserve my unmarked copies and to keep needed documents organized and easily at hand.
Eventually, one of the paralegals was tasked with my librarian duties. I’ve never had the heart to ask whether and how many of the hours I billed to “maintaining the evidence library” were written off. It needed doing, and being only months out of law school, it never occurred to me to ask whether this was something a paralegal would do.
Review to a Kill
I have several friends who have served as contract attorneys. Their jobs have always seemed to involve document review, which I always thought of as far less exciting than a title like “contract attorney” deserves. For years, I was also puzzled by their job. After all, the person reviewing your documents is going to be the person who knows, better than anyone else, what is in those documents. When trial rolls around and new questions arise about the document reviewed, the contract attorney will no longer be around to answer them. So why have someone else review for you?
It’s for the review before you review, to weed out the stuff of which you have no need. Without contract attorneys to do your “doc review,” you do it yourself. This is common enough, and I’ve come to enjoy the process. Colleen (a senior associate and my partner at most of the reviews) and I have developed a routine, and even have contests as we review—e.g., who can find the oldest original conveyance (photocopies don’t count), least legible field notes, and most colorful expression in those notes. My personal best was from a pumper in a marsh in southwest Louisiana, who noted in his daily log that it was “raining like a cow pissing on a flat rock.”
In one case, our client had recently merged with company X. The owner of a field in which X had operated sued our client as X’s successor, and discovery was due. So like diligent little litigants, we went to our client to find out where they might keep the well and field records for this particular piece of property.
This produced a bit of confusion. It eventually worked out that our client was in the process of closing down X’s office several states away, and the files were “somewhere.” Eventually, they would get to our client’s office, but right now they were being collected, packed, and shipped, and the people in charge of closing down the office didn’t really have time to “find a few papers” for some useless lawyers, so how about we not jostle their elbow, hmm? It’ll get there soon enough.
“Eventually” doesn’t really sound good as an answer to a judge, so once the files from X’s office were shipped, Colleen and I hopped a flight out and arrived shortly after the boxes did. This was not at the client’s office, but rather at the warehouse of their offsite storage contractor. The contractor really is amazing: Tell him or her that you want a particular file folder for your production, and out of an entire complex of warehouses, they can get it to you in 24 hours, provided it has been properly coded, labeled, described, and filed.
We were led through the warehouse to a bay that had been set aside for us. Our jaws dropped when Hercules (I swear I am not making that name up—that’s how he introduced himself) drove up in a forklift with a wooden shipping pallet stacked six feet high with boxes, and followed it with another. It quickly became clear that these boxes were not indexed the way they should be for long-term-filing. Because we had been insistent that we had to see the documents now, the documents were given to us as soon as they came off the truck, still on their shipping pallets. Furthermore, X had not kept particularly organized records premerger, and boxing those files up wholesale and shipping them across the country on pallets had done nothing to improve the situation. I remember a whole series of box after dusty box full of folders (marked in X’s filing notations, which might as well have been hieroglyphics to us and our client’s legal department), each of which turned out to contain nothing more than maintenance records and invoices for X’s truck fleet for the past 20 years. Some folders were easily dismissed, but not knowing the mergee’s filing methods or notation, others were sufficiently oilfield related, and we didn’t dare dismiss them with a simple glance at the front page. By Friday, when we had almost finished the pallets before us, Hercules asked us when we would want him to bring around some of the other pallets.
Everything got very quiet. Colleen and I looked at our Augean stable of a warehouse bay, with the several hundred pounds of dusty papers we had already sifted through, containing the maintenance invoices from some mechanic called Pick-’Em-Up Trucks, personnel records, expense reports, and accounting data, then to the 20 or so boxes left that we assumed must contain the information we were seeking, then at each other, and then at Hercules.
“WHAT other pallets?” Colleen asked.
The others that came with these,” Hercules said.
WHAT other ones that came with these?”
Hercules lead us through the labyrinth of pallets, boxes stacked on them generally still plastic wrapped from shipping, to the back aisle of that section of the warehouse.
Those,” he said.
Colleen, being very practical, simply counted and asked, “All 12 pallets?”
Yeah,” he said. “Those, and the ones in the next bay.”
How many,” I ventured, “are in the next bay?” I felt a Sisyphean laugh bubbling up.
Oh, about 10,” Hercules replied.
Twenty-two,” I breathed. “Any more?”
No, I think that’s it. Lemme go check our manifests, though.”
Colleen and I quickly tallied up how many more hours it would take to go through the truckloads of documents we had just been shown. Comparing our figures, and contemplating our failure thus far to find anything that without doubt related to the field in question, we weighed: (1) Our distaste at the thought returning to Jerry neither bearing our shields nor being borne upon them; (2) the likelihood that we could get an extension based on these facts; (3) the relative costs of our continued review versus one made by contract attorneys or a more focused review by us once our client and its contractor had thoroughly catalogued, labeled, and filed the documents; (4) whether our client wanted its case evaluation so quickly that it was willing to pay us to go through several short tons of un-cataloged paper; (5) the thought of the other tasks we had laid aside to do this urgent review; and, most importantly, (6) our horror at the prospect of watching cable TV at the hotel every night for the next couple of weeks.
Number six decided us. Home we scurried. A couple months later, we went back with the documents relating to the subject field nicely lined up in 10 to 20 boxes before us.
Your Summation, Counselor?
There are other differences as a young litigator at a small firm. There’s no trial support group, so we hire out the running of our technology at trials. And there’s no dedicated IT support at our immediate beck and call, so when the server crashes at eight on the evening of a huge filing, the panic is that much more desperate, but perhaps this is a problem in many larger firms, too.
I don’t wish to make it sound as if trying large cases at a small firm is the legal equivalent of the Shackleton expedition. It’s usually interesting, and so far I’ve never felt that I’m slipping into a routine or pigeonhole. I enjoy it. And I enjoy knowing that regularly our performance has been superior to that of our larger brothers who stood at the bar beside us.
Keywords: young lawyer, small firm, document review
Jeff Goldman is an associate at the firm of Slattery, Marino, and Roberts, PLC, in New Orleans, Louisiana.