In Breaking Bad, a meth dealer is arrested sitting on a bench splashed with the ad “Better Call Saul”—Saul being a sketchy storefront lawyer whose cartoonish ads on TV end with “Better call Saul.” With a picture of the Constitution in the background, Saul Goodman earnestly proclaims: “I believe that until proven guilty, every man, woman, and child in this country is innocent.”
By the looks of Saul’s waiting room, the garish ads work. Every seat is filled with those in neck braces, casts, hoping that Saul can transform their fender benders to real dollars so they can escape their harsh, dreary world for a Kardashian life of clothes and celebrity. For Saul, money is the deal. “I can give you the best criminal defense that money can buy,” he brags. No mention of justice, fairness, or other ideals that we preach in law schools and at bar associations.
Saul Goodman is, of course, hyperbole. Yet, some of his actions are recognizable. Many associate greed, questionable ethics, and outright deceit with our profession. Even my process server, a childhood friend, said this about one of our lawsuits: “I’ve seen some bull . . . in my life, but this is unbelievable.” It was then I realized it’s not always the other guy.
When he first meets Saul, the DEA agent spits: “Your ads suck.” Yet, we can’t watch TV or surf the net without being bombarded with similar appeals from lawyers vowing to vanquish the ruthless insurers, the corrupt corporations. They use nicknames, slogans: “Life is short, get a divorce.” Their mugs adorn billboards. Their jingles—like the annoying one for Cellino and Barnes—are embedded in our brains. They’re trolling for business, appealing to the unsophisticated, trying to make a living, I guess. Just call 1-800-123-CASH and you’ll be rich. In some ads, the subliminal message is: I’ll make sure you win even if you should lose.
We the Virtuous
We, who are virtuous, aren’t crooks like Saul. Yet, we hide the preexisting injury, fail to cite an adverse ruling, bury the incriminating email. We play infantile games—make the motion returnable on Christmas Eve, serve thousands of documents in random order a minute before midnight. And if we were questioned in the dark of the confessional, we too would admit that we vowed easy victory to secure the retainer. True, my picture is not on an ad next to the ad for hemorrhoid remedies on the R train, but our websites and literature embellish our qualifications and successes. As a “Super Lawyer,” I’m not shy about listing my victories, but somehow I’ve never catalogued any of my, how should I put it, failures.
As litigators, our goal is to win. “You play to win the game!” former Jets coach Herm Edwards famously insisted. You don’t make partner by losing. The more you win, the more you earn. I always liked getting paid, and I never felt guilty if I collected a large fee. After all, money is one reason we sat through all those painful Uniform Commercial Code or tax law lectures. When I started decades ago, we were essentially assured of earning more than a cop, teacher, or nurse. That is no longer true. Yet, law continues to be lucrative, and we shouldn’t be embarrassed to be part of the 1 percent. I once spoke to an older neighbor, an insurance executive, who made the leap from working-class Brooklyn to an upscale suburb on Long Island. I wanted to know how he selected that particular specialty. He said that in college a professor listed the various areas of insurance on the board starting with the most lucrative. “I chose the one that made the most money,” he said simply.
In my world, where our idea of wealth was a tiny, tin-roofed bungalow in Breezy Point, putting food on the table equaled success. A bit different today. One of my daughters refuses to eat leftovers. If I had had the same aversion to day-old food, I’d have starved to death. But there’s a distinction between earning a living and the epidemic of self-promotion. I was taught never to boast, never to show off. Everyone was equal; all had talent and promise, albeit in different areas. Modesty and humility were virtues, and anyone who bragged was dismissed: “He’s full of himself, he is.”
Today you can’t open your iPhone without seeing a smiling beauty on the beach in the Maldives or lounging poolside at a Hampton’s 15,000 square-foot monstrosity. This social narcissism isn’t limited to special occasions; it extends to every aspect of daily life. I can’t enjoy steak frites at some Manhattan hot spot without being blinded by flashes of diners taking photos of every morsel. Even President Obama and the Danish prime minister took a selfie at a memorial service. Humility, it appears, has disappeared like the typewriters and three-piece suits of my early days.
Our profession will never revert to handshake deals or be populated with partners like Bill Shea—after whom Shea Stadium was named. Many years ago, Milton Gould, of the long-gone firm of Shea & Gould, told me that while he was hospitalized, Bill Shea would visit every day, stand at his bedside, and pray. I’m sure such actions still exist, but they’re the exception. Loyalty to the firm, to partners, is trumped by finances. They’re nice people, of course, but this other firm is offering me more—see ya.
Even I have to accept the reality of Instagram, Snapchat, Facebook, Twitter, and the ability to communicate instantly. Videos and pictures have replaced the spoken word. In nanoseconds, we can alert the universe that our historic motion to strike 47 of our adversary’s 129 interrogatories was granted. So how do we litigators handle such amazing and powerful resources? How do we navigate the boundary between providing too much information or too little?
What to Do—And Not to Do
Be modest and professional. “Better Call Saul” ads lose as many clients as they attract. Intelligent, sophisticated people, including the referring attorney or general counsel, will investigate to determine whether your promotional material is accurate. In aviation disaster litigation, some firms claim they led the steering committee when they didn’t even sit through one deposition. Don’t be shy about listing your virtues, but be truthful. Detail your successes clearly and succinctly. Don’t exaggerate. Potential clients will use the Internet to verify your claims and character. They will check your Facebook page, your Instagram, your Twitter account.
Remember, everyone is listening, watching. You know that graphic email you forwarded? Well, that’s going to cause a boycott of your firm. You know that racist aside you whispered? Well, now you have to sell your National Basketball Association franchise. Even what you considered innocent can be ruinous. Yes, there are double standards: The greeting card industry has no problem invoking degrading stereotypes every St. Patrick’s Day, yet they dare not for other groups. But you’re an attorney who needs clients to survive, and you cannot risk offending others. Even if you think the joke is funny.
Your actions, whether in an elevator like Ray Rice’s or outside a bar in the Mission District, are recorded. Making a fool of myself wasn’t limited to my college years—just last week. . . . But please don’t post photos of you or a pal puking on the sidewalk. The naked body is beautiful—well, at least while you’re young. If you want to admire your physique, look in the mirror. Saving a photo could be problematic. Ask Jennifer Lawrence.
Understated elegance is best. Sure, you will lose clients who are desperate to hear that their whiplash claim is worth $50 million. But I’m certain I garnered more retainers when I explained the reality of litigation. As college football coaches preach, the other team is on scholarship too. Every case is a battle—clients should know this at the outset. Tell them; they deserve the truth. Be positive, but don’t make promises you can’t keep.
An attractive website and effective promotional materials are essential. If you have to hire a public relations firm or media consultant, do it. Assigning a junior associate is not a good idea. Before potential clients visit, they will have seen your website and Googled and Facebooked your name.
Don’t be shy. List your victories. The days of being admonished if you answered “Yes, I’m the highest scorer on the team” are over. So detail your qualifications, honors, successes, bar and civic association involvements, your articles, lectures, and whatever else is appropriate. Sure, there are some stinkers in our business—and I’m convinced I’ve encountered them all—but we’re good people, working an honest day and trying to help those less fortunate. If you don’t tell people, they’ll never know.