July 01, 2013

Letters to the Editor

American Trial Lawyers

Preachers do not preach sermons lamenting the death of the American Trial Lawyer. No charities take up the cause of more jury summonses. Social media do not teem with email, posts, and tweets desperate with anxiety about the decline in civil jury trials..



It seems in fact that only ATLs themselves, past and present—the people paid handsomely to preen and posture and declaim in front of their fellow citizens—worry in the slightest about fewer civil jury trials, a “bulwark of liberty” not found necessary by any other polity in the world. Some ATLs, in other words, are today’s teamsters, extolling the glories of horse-drawn wagons and issuing dire warnings about the dangers of the new motorized “trucks.”

Civil jury trials are inaccurate, inefficient, time-consuming, and expensive.  Judges value civil juries for removing from judicial shoulders the burden of decision and explanation. ATLs value civil jury trials because, being inaccurate, inefficient, time-consuming, and expensive, they are a splendid and remunerative opportunity to deploy theatrical and (today) psychological skills to influence jurors toward, not the complex truth, not even the historical facts, but toward the position of the litigant whose lawyer “frames” the better “narrative” morality tale. 

We ATLs may console ourselves with the thought that our fellow citizens are afflicted by Marxist false consciousness. But is it really any wonder that they fail to share the affection we ATLs feel for this costly relic?

— Stephen Fink

Thompson & Knight LLP


Partners and Associates

Your article “I Don’t Feel Your Pain” [Litigation Spring 2013] is simply the greatest collection of thoughts since the Declaration of Independence. I was slapping the desk in agreement. We have casual dress every day, which I despise. On the most casual of casual days, on Friday, I wear a tie and cufflinks in defiance.

There is no time to get in touch with your inner self if you are trying cases for your client. The personal journey of fulfillment may go through Tibet, but it doesn’t go through a law office. Lastly, your observations about electronic etiquette were spot on. Put that damn thing in your pocket or purse and look me in the eyes.

— Terrance C. Sullivan

Weinberg Wheeler Hudgins Gunn & Dial



Associates and Partners

I found my blood boiling reading Lee Stapleton’s short, well-written, and to-the-point essay in Litigation.

Partner, you have a lot of great points to make about the practice of law as a business, and about some of the hard work and dedication an associate has to commit to, in order to be able to do well in the practice of law. But, you’re right, Partner, you have a “jaundiced” (your word) view of the law and the practice of it, and of the place associates occupy within it.   

The law is people, and people are life.  Sometimes an associate (or a partner) can learn a lot more about the law, how to take a deposition, a strategy to take in a litigation, or whether to settle or fight a case by taking a walk, going fishing, having a beer, and shutting off the phone. Being accessible 24 hours a day, 7 days a week does not inspire confidence. A sleepy-eyed lawyer whose sleep is interrupted (after a grueling day and evening of work) is not someone who will be at their sharpest or capable of responding to the needs of a client. Sometimes circumstances dictate that you have to be able to do that. As a routine practice it is illogical, and at its worst, incompetent.

You may not think that much practical usefulness can be had in sitting down for an afternoon and reading Dickens or Emerson, or in encouraging your associates to do the same. You’re wrong. Clients deserve counselors, not mere legal technicians.

You said, “I truly wish you a well-rounded life, but your rounding off must work within the straight lines that are the parameters of lawyering.” I’m not sure how to understand this. On one level you seem to be suggesting that the well-rounded life is separate, but perhaps parallel, to the “parameters of lawyering.” On yet another level, it implies that the well-rounded life must somehow give way, or be subsumed beneath the “parameters of lawyering.”

If there are “straight lines” involved with lawyering, I’m not aware of what they are, unless you refer to the rules of professional responsibility governing a lawyer’s conduct. But I understand your comment, in light of your essay, as referring to a larger understanding of the practice of law, and an associate’s place in it.

The law is as varied, diverse, and capable of gradients of color as there are people and places under the sun. There is no “one” way of doing anything, because the law requires people in order to exist. It requires the interpretive thrust of judges, the dialectical advocacy of attorneys, and must be grounded in logic, in order to be respected and carried out by the people. Into that milieu I know of no “straight lines.” For me, the contours that shape the “parameters of lawyering” (an elegant phrase) incorporate the mystery of human existence and hope, the desire for meaning, a belief in the goodness and worth of individuals, and the possibility to always be better. If those are the parameters that you refer to, then by all means sign me up.  But to suggest that a lawyer has to talk, think, act, and be in a particular, singular, unchanging way denies the life force that continuously shapes the law.

— Michael B. Lopez

Epstein Law Firm

San Rafael, California


We welcome your letters at Litigation.Journal@americanbar.org