My practice has never been filled with the kind of temptation that is the stuff of ethics opinions or newspaper stories. Instead, it has been rife with the more mundane, but equally pernicious, temptations to procrastinate, to wish away unpleasantness, to resist change, to fail to question certain statements of fact or opinions, to fall in love with a legal argument even when the equities of the case are strongly against you, to fudge (just a bit) the facts or the law, and to be rude or uncivil to an opposing counsel or party. While these kinds of temptations generally will not lead to the spectacular and public career flame-outs caused by the famous sex, drugs, and money trilogy, they can just as effectively derail or limit a legal career.
What leads us into these temptations? Reality. Every lawyer practices within a complicated and usually conflicting set of goals and constraints, and that conflict leads to temptations. Your firm wants you to bill a large number of hours at the highest hourly rate that the market will bear. Your clients want high-quality legal services but at the lowest possible price and at a moment’s notice or over a weekend. Your adversaries are constantly working to undermine your case. Key witnesses die, move away, conveniently forget, or do not want to be involved. Documents must be reviewed, organized, checked and redacted for privilege, and synthesized, but that necessary work is tedious, no client wants to pay very much for it, and newly minted associate attorneys burnishing impressive academic pedigrees do not want to do it. You are competitive, ambitious, and out to establish or maintain a reputation. The messy realities of litigation are getting in the way of your personal goals.
These are the roads that lead us into temptation. This piece focuses on four of the worst temptations: the temptation to jeopardize your credibility, the temptation not to work up a case, the temptation to resist change, and the temptation to ignore the equities.
Law would be much easier if we had the ability to bend the facts or law relevant to a case to suit our litigation needs. The reality is that the law is frequently messy and almost all cases have warts. Good lawyers know how to impose shape and structure on the law and the facts of a case. This is an art, but it must be practiced within recognized limits. The temptation to exceed those limits must be resisted at every juncture.
The need to resist this temptation is much more than an ethical requirement. In litigation, credibility is king. In the words of one of my more colorful partners, in a trial “the first guy who gets caught lyin’ loses.” Never be tempted to do anything that calls your personal credibility into question. Equally important, never allow your clients or witnesses to do anything to undermine their credibility. Most of the cases that go to trial are close cases. In my experience, the more credible side almost always wins close cases. Said differently, the side that blows its credibility usually loses. In almost every case I have seen or tried, the loser did something to seriously undermine its credibility.
The intense pressure to win is what leads counsel to succumb to this temptation. A witness with a questionable, but favorable, story will not be challenged. A witness with problematic testimony will be encouraged or convinced to “remember” differently. Practitioners who succumb to this particular temptation also frequently exhibit a high degree of personal arrogance and convince themselves that their adversaries will not be able to expose the deception. Such practitioners are rarely as smart as they think they are. Liars are more often than not exposed.
When credibility is lost, it is a disaster not only for the client but for everyone associated with that side of the case. An expert who allows himself or herself to be pushed will be more susceptible to a Daubert challenge, which is a serious career limiter, if not a career ender. For an attorney who is a repeat player in certain courts or before certain judges, years spent building credibility can be wasted in an instant. That loss of credibility is going to have a ripple effect that will follow that attorney for years.
Judges are busy people. Their clerks are bright but usually inexperienced, and they rarely have time to check the veracity of every citation in a brief. Some attorneys attempt to exploit this. That is a mistake. Judges have to be able to trust the facts you state and the law you cite. Otherwise, the system does not work. If an attorney gets caught fudging a fact or overstating the holding of a case, most judges will make the attorney pay. The motion will likely be denied, and the credibility loss will follow the attorney for the remainder of the case and into other cases. By contrast, if you build and maintain a strong reputation for credibility, honest mistakes will quickly be forgiven and more “fifty-fifty” balls will go your way.
Not Working Up a Case
For some reason, almost everyone in the world except me seems to have a crystal ball and can quickly predict how an opponent will react to being sued. The opposing party knows it is wrong, cannot afford to litigate, cannot handle the publicity and the institutional disruption of litigation, or does not have the intestinal fortitude to see the case to the end. When this kind of case is dangled in front of you, encouragement is given to accept a small retainer, keep the bills down, and “don’t waste too much time” on the case. Very similar thinking is what got the United States bogged down in wars in Vietnam and Iraq.
In litigation, as in war, no battle plan survives the initial contact with the enemy. Defendants do not like being sued, so they sue back to obtain negotiating leverage. They move to transfer or stay the case. They demand that your client endure the expense and disruption of litigation. If your client is big and the opponent small, the discovery burdens can often be exceedingly asymmetric. Suddenly, your client is in a low-leverage position you were told not to expect and your client is asking how it got there. All of this because you did not work up the case, examine the contingencies, and advise the client accordingly.
You may be tempted not to work up the case for other reasons. The subject matter is boring or unfamiliar; there are more interesting cases currently on your desk; and there are more urgent, but less important, deadlines on your calendar. You may not personally like the client very much. It may be a low-rate case, and there may be higher-rate work to do first. All of this can lead to the temptation to cut corners and let a case languish. This is how you and your client lose big.
In litigation, as in sports, if you are not taking the case to your opponent and making the opponent react to you, you will be on the receiving end of such treatment. Parties that are on the defensive throughout a case are later known as the losing parties. Small cases can be just as hard to work up as large ones and must be given the same priority and attention as large cases. If you are not prepared to do that, then do not take such cases. There are many formidable trial attorneys practicing in small firms. Such firms do not knowingly take weak cases. The economics of their practices do not permit such indulgences. If they are pushing a case that you think is baseless or sure to settle, then they usually know something that you do not. If you fail to work up your case and give it the attention that it deserves early in the case, you will usually be in for a large and unpleasant surprise.
The law is a profession with professional standards. There is never an excuse not to try and do your best. Every attorney knows that plenty can go wrong even when you are giving a case everything you have. If, for some reason, you develop an inclination to resist working up a case, either snap out of your funk in a hurry or give the matter to someone who will pursue it diligently.
Law is a second career for me. I spent six years before law school (in the early 1980s) in the information technology business. Within weeks of starting law school, I quickly learned that the law was one of the most information-intensive industries on the planet. I naturally assumed that lawyers would be at the forefront of technological change and would be constantly adapting their practices to take advantage of rapidly advancing technological progress. I could not have been more wrong.
I started practicing full time in 1989 at one of the largest law firms in the country. At that time, not a single attorney in that firm had a desktop computer. The IBM personal computer had been on the market for eight years, and Steve Jobs had already been fired by Apple. By contrast, virtually every law school classmate of mine owned a personal computer and used it to get through law school. The students were more technologically advanced than the best practitioners. They all knew how to use WordPerfect, and many were proficient in the then-current database and spreadsheet software packages. The only technological advantages that law firms enjoyed were better copiers, printers, and fax equipment—and firms had the temerity to charge their clients on a per-copy basis for the routine use of these devices. Law firms were “bundling” the cost of providing high-end legal tasks with routine nonlegal tasks such as copying, printing faxes, or Bates-stamping documents. This practice, alas, has not entirely ended.
A few years later, personal computers started appearing on the desks of attorneys, but a substantial subset of attorneys either refused them or never turned them on. In the mid-to-late 1990s, email and access to the World Wide Web became ubiquitous. Many practitioners became reluctant adopters. I know attorneys who still make their secretaries print out and file paper copies of every email message they receive. Today, most attorneys can handle email to a point, peck out a short document using Microsoft Word, and fumble their way around the web thanks to Google, but that is about it. They cannot use the electronic case files (ECF) filing system; they really do not know how to use Westlaw or Lexis; PACER is a mystery to them; and they have no idea how to use sophisticated document review and analysis software or the myriad lawyer apps currently available on the iPad. Systematic “knowledge management” still does not exist in most firms. I am aware of only a few practices that use information technology for docketing or to provide a process-driven service better, faster, and cheaper than before, but these applications are typically limited to rate-constrained transactional practices in which the processes vary little (if at all) between transactions.
My personal experience is that, for at least the past 30 years, attorneys have gotten away with being slow or late technology adopters and practicing law as if we all still wrote with quill pens. There is a very big temptation for lawyers to conclude from similar experiences that they will be able to get away with such practices in the future. It is vitally important to resist that temptation.
The large law firm business model—which is built on rates, hours, and leverage (i.e., charging high hourly rates for impressively educated but inexperienced associate attorneys who are worked like galley slaves)—is under significant attack and cannot endure. It will not last long for two reasons. First, a model aimed at maximizing profits per equity partner will be defeated by firms pursuing more efficient models designed to maximize results and client satisfaction. Second, the lesson of the past 30 years is that large, well-run companies can quickly be displaced by disruptive innovators and the Internet, Borders Books being only one of the more recent examples. The World Wide Web and the related technological advances are the most disruptive forces since the printing press. Law firms avoided this disruption for a long time, but the disruption for our industry is both inevitable and near. Federal judges are technologically ahead of most practitioners and read most motion papers on their iPads. So wake up. The federal judiciary is not a bunch of early adopters. If federal judges are way ahead of you, then you have a very large problem.
The pace of change in our industry is accelerating more than most of us imagine, and you will quickly find yourself professionally obsolete if you do not adapt quickly and continue to adapt in response to the rapidly evolving business necessities and technological advances. Law is becoming “unbundled,” and law firms are no longer able to charge premium rates for less than premium services. This is both a crisis and an opportunity. Do not bemoan the need to adapt; embrace it and move toward the new opportunities. You will make mistakes, but it is a far bigger mistake to resist change and allow the industry to move on without you.
Ignoring the Equities
Lawyers are trained the way stamp collectors are trained. We are taught to classify cases and then apply the appropriate rule of law applicable to that category of case. The case method is used to teach fact pattern recognition. Pattern recognition is essential so that cases can be properly classified. In law school, concepts such as fairness, justice, and the equities are treated as either rhetorical hyperbole or matters for philosophical or political debate. Those lessons have little applicability in the real world because most judges and juries do not think like Mr. Spock from Star Trek. Judges and juries want to do what is fair. The law is often secondary and used primarily to rationalize a decision. This statement may horrify many practitioners and academics, but it is undeniably true, even at the Supreme Court of the United States.
My toughest cases have been those in which my client was in a strong legal position but weak on the equities or appearances. Given the choice, I would much rather be right on the equities. Yet, over and over again, I see attorneys overplay their hands when they think they are legally right, even if the equities do not favor their clients. Oliver Wendell Holmes Jr. said that “[t]he life of the law has not been logic: it has been experience.” That is the best description I have ever read of what really happens in courtrooms. The most successful lawyers have rehabilitated themselves from their legal training and started thinking like real people again. They argue to judges and juries to use their experience, not the logic of the law, to decide the outcome of the case. The temptation to rely on legal arguments to the exclusion of the equities is almost irresistible, given our training. Recognize that you have been psychologically damaged by your training and go back to advocating for what is fair, right, and just. It is similarly wise to advise clients to do the fair and right thing, rather than what they might be able to get away with under an aggressive interpretation of the law. Holmes also said that “[i]f you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good one, who finds his reasons for his conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience.” “The Path of the Law,” 10 Harv. L. Rev. 457 (1897). So resist the temptation to be “the bad man.” Our profession is better than that. More important, your win-loss ratio will dramatically improve.