You know how I know that? Because if I was more mature, I would not be sitting here telling you about how I had breakfast yesterday with a client and his girlfriend. I would certainly not tell you that the girlfriend has been featured a couple of times in Playboy (Brazil) and was on the cover of Playboy (Italy). Nope, I would not tell you about that at all. By the way, she was, in addition to being gorgeous, a delightful and lovely person.
I was the only man in the room who did not look when she got up to go the bathroom -- I kept my eyes firmly fixed on my client's face. That said, I did happen to be behind her as we walked out of the restaurant.
Some days, I love my job.
An article in the NY Law Journal (a must read for everyone, I know) caught my eye a moment ago. A lawfirm filed a preemptive lawsuit against a former employee, a secretary, who has threatened to bring a $9 million sexual harassment suit. The lawfirm/plaintiff denies that she was raped but admits that she gave a partner a "consensual lap dance" in the privacy of his office.
Consensual lap dance. In his office. The lucky recipient has been practicing for 32 years and is a former assistant district attorney. Old enough to know better, you see.
When you hire a lawyer, you want someone with good judgment. Not someone getting free lap dances from the staff.
You cannot make this stuff up.
Let's say you worked your butt off on a set of motions in a case that is now something like 19 years old. The motions were marked submitted by the judge back in May or June. It is now December. You have not heard anything about the motions. Indeed, you have practically forgotten about the entire existence of the case, not just the motions. Then, it is 1:00. You get a call from the Part Clerk saying that the judge wants all the lawyers to come in at 9:30 tomorrow morning. When you ask why, you get the impression that the Part Clerk has no idea but is merely speculating when she tells you that "there are motions outstanding and maybe the judge has some questions".
Hit the panic button. Run around like an idiot for a half an hour. Now, pull the huge stack of papers you have on this case and try to prepare yourself for whatever the judge might be wondering about since he got the papers back in the spring.
Pat, Vanna, I would like to buy a clue, please.
One of my partners is withdrawing from the firm. This happens pretty regularly at big firms but it doesn't happen everyday at smaller firms, much less at small firms like ours. In one way or another, this partner has been associated professionally with the firm for at least 25 years. The other partners are hashing out the terms of his amicable departure in the conference room across the hall from my office. I am not attending this conference, I am happy to report. Just because I never liked the guy doesn't mean I am sorry that he is leaving -- I am, kind of.
I imagine things are going to be unsettled around here for a bit.
This is, or was, a rather intimate relationship in a small firm. When someone leaves, it changes the dynamics substantially. In a big firm, you're really just another number. In a small firm, you are a person.
We are now one person less.
Getting retained on a $100 million piece of business creates, without question, an observable halo effect -- it makes you, the guy who got retained, look beautiful to other potential clients. No question about it.
I told one father at a birthday party I took the Boy Child to on Sunday that I got retained on Friday on a $100 million dollar deal gone bad and the next thing I knew, I was being quizzed about my experience defending sexual harassment cases in the financial products industry (the answer was not only yes but I was able to talk intelligently about a Court of Appeals -- NY's highest Court -- decision that came down on Friday right on topic). We're having lunch soon.
I told another guy about this retention in the gym this morning and I was asked about my experience doing employment law. I have a lot. I am about to get retained to handle a problem for him at his shop and he wants to pass my information along to a buddy of his.
There appears to be a lot of reflected light an attorney can bask in as shed by $100 million. A lot of light indeed. I just didn't realize it. Now, honestly, that I am alert to it, I will be trying to work it into conversation wherever I can do it without looking like I'm pushing. Well worth giving up my Saturday, now that I think about it.
Well, it is Saturday morning and here I am at my desk. Taking a quick second between emails with a client. He retained us (me) yesterday after receiving a notice from his lender that things were not going well with his $100 million loan. He (my client) also signed, I am so sorry to say, a personal guaranty on that $100 million loan. The collateral securing the loan may be, shall we say, impaired in terms of value. I don't want to say that the loan is upside down. Yet. But I spent the entire day yesterday plowing through several 100 plus page loan agreements. There is nothing more byzantine, and deliberately so, than a commercial loan agreement. Also, probably, nothing as restrictive and cumbersome and burdensome and odious. Scary stuff, really.
I printed out all of the documents (as far as I know) associated with the loan transaction. They have covered the surface of a conference table that can seat about 18 people.
I am alone in the office today trying to determine, under some pressure, what wiggle room my client has, if any.
Yup, days like this, when I have a client with a huge problem, a conference room table full of 100 plus page documents, a headache, and I cannot find an out for him, are days I dislike my job. I would be happier if I could find just a little out. A teeny little mistake made by the drafter of the loan documents. It don't look good. For him or for me today.
Hasta.
and the briefs, notices of motion, affirmations in support, volumes of exhibits, and the request for judicial intervention are all then going to be bound. The briefs (not very brief) total over 70 pages. This project has consumed my professional life for over a month. That's what happens when you come into a 20 year piece of litigation completely cold on the facts and the prior proceedings and those prior proceedings include at least two appellate decisions.
I think that the papers are pretty good. I think that some of the arguments are going to give the other side fits.
But here's the thing. I have been running so hard and so long on adrenalin that I feel drained and let down now that the papers are ready to be served. Anyone else get like that at the end of an intense project?
Don't ask, please, what I was researching earlier this week when I discovered that while NY Law prohibits messing about with explosives and explosive gasses, the following exception applies:
This provision is not to be construed to prohibit or forbid the manufacture and sale of soda water, Seltzer water, ginger ale, carbonic or mineral water, or the charging with liquid carbonic acid gas of such waters or ordinary waters, or of beer, wines, ales, or other malt and vinous beverages in such cellar, room, or apartment of a tenement or dwelling house, or any building occupied in whole or in part by persons or families for living purposes.
Seriously, thank goodness, can you imagine NY without a seltzer bottle?
Easy.
Have a senior partner call you and say: "Excuse me but I was reviewing this draft complaint and I noticed that these transactions go back to August of 1999. Do we have a statute of limitations problem?"
GULP. "Um, boss, er, uh. [pause to think for a second] What case are you talking about?"
"Oh, sorry. Rang the wrong guy"
Right. Thanks. Put heart back in chest.
So, we get there for our inquest. Legal bags full of important legally looking documents with captions and pretty backers, folders full of urgently yellowed research with cryptic notes at the tops of pages [note to self: in about a month, try to remember that the notation "punis" refers to punitive damages and is not a word coined to describe a judge as being a small penis (wonder what kind of google searches this one is going to pick up!)]. All dressed up, polished up for the inquest.
The judge's courtroom deputy looks at us and says, "uh, you guys have witnesses to put on? Live testimony?" And we say, "well, yeah". "Oh", says he, and "I'm going to have to reschedule you until September". "Oh", says we. And then "shit".
The good news is that nice pre-judgment interest keeps acruing at 9%.
And the defendant, in the hallway, acted like such a jerk that when I got back to the office I wrote to the Court to request an emergency conference to discuss how to guarantee my and my client's personal safety.
Yup, a real interesting day.
I sit here finishing up my opening statement to the Court for an inquest on damages. An inquest is simply a trial where liability has already been proven and the Court is going to determine how much money it is going to cost the defendant. I am happy to be representing the plaintiff on this one. This inquest, this mini-trial, has been all me. I have had zero help from day one on this case, from the initial interview with the client through right now as I ready myself for the conclusion. No doubt, I will be opposing the appeal, too. I am feeling a little like how a sole practioner must feel. The only scary thing about it is that I worry that I am missing something big. Hence my taking a moment to write about it so as to either purge the feeling or prefigure the result.
Hopefully, I will return from this with a nice big judgment for my client. If not, well, it won't be because I didn't try hard enough.
This case, by the way, is responsible for the paucity of posting of late.
I defended a deposition in the afternoon, yesterday. It is a small case involving commissions owed to a former salesperson for a major media company here in NYC. The deposition was taken at the offices of the defendant's attorneys located in the same building as the company. While I was waiting for my habitually late client to show, we were meeting in the lobby, I was treated to a display of young models signing in for a cattle call upstairs. All young, all trying to look young while still looking world weary and sophisticated, all bravely clutching their portfolios. Nice way to pass the time. The only thing that distracted me from the parade was the vision of the New York City tow truck towing a quarter of a million dollar new Bentley coupe. Ouch. That's gotta hurt.
Anyway, client arrives (late but not too late) and deposition commences.
The lawyer for the defendant was really pretty bad at this. She asked lots of circular questions, lots of questions attempting to restate my client's previous testimony (and by previous I mean from 5 minutes ago), lots of questions assuming facts not in evidence, lots of questions which were irrelevant and dealt not at all with the complaint or her client's affirmative defenses. I objected a lot. I was forced to. All to the form of the question. I doubt that much of what she asked will be admissible. Oh, and don't get me started on the marking of exhibits.
Well, you had to go and get me started, didn't you?
Exhibits and documents, same thing sometimes, get marked at deposition and questions are asked about them. Experienced and careful attorneys understand how crucial it is to examine on documents in such a way as to authenticate them and make them admissible for trial or for summary judgment later. Why summary judgment? Well, lots of times lawyers forget that a summary judgment motion has to be made on admissible evidence. I regularly can knock out parts of other attorneys' summary judgment motions by attacking the admissibility of the evidence. Judges love to be reminded of stuff like that. If you don't lay a foundation for the admissibility of your evidence at deposition, you are in big trouble later. You should only have to make that mistake once in your career before you never make it again.
This attorney has not had that experience, I guess. She laid no foundation for her documents. She may have some trouble later. Oh, and without a foundation, I'm going to move to strike whatever testimony she got from my witness with regard to any particular inadmissible document.
Anyway, my favorite objection of the afternoon:
Examining Attorney ("EA"): Now, is it my understanding that you did the following thing after your termination meeting?Me: Objection, instruct the witness not to answer the question. [By the way, that instruction may not have really been totally proper, but still, I did it anyway]
EA: What! How can you instruct her not to answer? What is the basis?
Me: I thought you said you didn't want speaking objections. Now you want me to explain?
EA: Yes.
Me: Ok. Your question didn't just call for the witness to testify to the operation of another's mind, it called for her to testify to the operation of your mind! Totally improper. You want to restate the question?
EA: No. The question was fine. I want to take a break.
*break taken, EA leaves room*
Court Reporter to me: You were right. That was a totally fucked up question.
The whole deposition was kind of a waste, really. Let's just say that at the conclusion, we had some meaningful settlement talks.
Some day, I intend to look back at the last several days and laugh. Probably not for a really long time, mind you, but one day. Stands to reason, right? I mean, it kind of has to be that way. If not, I will be very sorry indeed.
Anyway, a bright spot on the horizon. I am off to have dinner with Simon, that exceptionally smart, erudite and all around good guy from Hong Kong. We're off for Austrian food way downtown. I'm very much looking forward to this and have been for weeks. And right now, at least, it looks as if I will not have to cancel on him, which is nice since he came all this way. Anyway, I'm pretty excited.
Finally, in lieu of any other post today, I will leave you with the words of the Girl Child from this weekend informing her mother and me about her plans for the future:
GC: When I grow up, I want to be a ballerina and a butterfly. The only problem is that I don't know how to make a cocoon.
Some friends have checked back in to see if I updated from the Bay Day post of Thursday. I would have, but I didn't feel like whining. So, instead, I opted not to post. Let me just note that Friday was actually worse than Thursday. I was actually despondent, a word I do not use lightly. Indeed, I actually, in the little cracks of time I could find, managed to get out 6-8 job applications to places all over the country -- Phoenix; San Diego; and at least one or two other places I can no longer recall. May have been an act of desperation, beats me. I am not going to examine it too deeply or too closely. Instead, I'm just going to roll with the punches and see what happens.
I think I'll know better by Monday end of day or Tuesday morning how its gonna shake out. Right now, I guess it could go either way.
Anyway, thanks for caring enough to check in and request an update.
Expect no posts today.
Having one of those bad days with respect to a case I have an emergency in wherein one alternates between vertigoes feelings of despair, complete with desire to vomit and feelings that legal research reveals a glimmer of hope through which the needle can be threaded, the rocks and shoals successfully navigated, and the ship brought home safely without foundering on issues better left to the imagination.
I think I want a new career. Just saying.
My desk is a lovely shade of reddish/brownish wood. I had forgotten it was so lovely. It only took just under five hours today to clean it up enough for me to see it again. Also, while on the subject of good news, I do not appear to to have buried anything of a time critical nature such that I have defaulted on something, let a statute of limitations run, missed an important deadline, or otherwise committed malpractice per se. That's always the really big risk with having a messy, messy desk.
Yup, looking mighty shiny and clean in here today. I can practically see my reflection in the surface of the desk.
What the hell. Beats working!
Thanks to some guy in Missouri, vicarious liability is dead in NY. Vicarious liability ("VL") is a really interesting concept. It has to do with ownership of a conveyance -- a motor vehicle now but a carriage before. VL means that liability for the damage caused by the motor vehicle is imputed to the owner of the vehicle and not merely the operator. This meant that car companies were on the hook if a leased car got into an accident. NY was one of the only states with this law.
VL dated back quite some time and came into being when horse and carriage travel was popular. It made a lot of sense. Horses and carriages were very expensive things but they were generally driven not by the owners but by a poor and poorly compensated carriage driver. If the driver hurt someone, there was no recourse. So the NY State Legislature provided recourse to the owner of the horse and carriage, generally a person of substance.
The concept was simply carried forward to motor vehicles later.
At the time, it seems to me that VL was not particularly revolutionary. I recall from my days studying Roman Law (literally, the laws and legal system of Rome and the Roman Empire) that it provided for VL. If you threw something out of a rented apartment and hurt someone, the injured person had recourse against the owner of the apartment building, whether or not the owner had anything to do with throwing the object out the window. VL, no?
However, VL in NY has made leasing cars very, very expensive and caused all sorts of havoc in terms of insurance and in terms of indemnification of the car companies by the lessee. I know because I got involved in one of the cases once. Went all the way to the Appellate Division where we lost.
Representative Sam Graves, put an unexpected end to the issue.The provision is in the federal transportation bill under "Title X: Miscellaneous Provisions." It states that people who rent or lease motor vehicles to others "shall not be held liable under the law of any state" for any harm their vehicles cause, as long as they are not guilty of "negligence or criminal wrongdoing."
Representative Graves's amendment passed the House in March by a vote of 218 to 201, mostly along party lines, and it stayed in the bill through the conference committee process. When the full bill went to a vote, it passed overwhelmingly, because it included billions of dollars of spending on transportation projects that lawmakers in both parties wanted for their districts.
If the president signs the bill, officials said, the federal law will take precedence, and New York's vicarious liability law will no longer apply.
No matter what you think of VL, it was the law of NY and has been hotly debated, again and again in the Legislature. For some schmuck from Missouri to come in and change NY law is, to me, an abuse of the federal system. I may not have liked the law, but I resent like hell this hick coming in and usurping the powers granted to the dysfunctional NY State Legislature by the equally dysfunctional citizens of the State of NY.
Sometimes I am amused by my colleagues, all of whom are wicked smart. Here is the comment made by one of the senior guys when he changed a "will" in a letter I drafted to a "should".
I want it to be unclear whether it is "should" in the normative sense or "should" in the predictive sense.
Are we all clear?
I walked out of his office with a small smile on my face. The games we lawyers play sometimes.
Remember my post from two days ago, about how a strong finish can redeem a whole bad day? It's two posts below this one, if you don't recall it. Well, I was wrong, sometimes your bad day/week can overwhelm your ability to finish.
I'm not really sure where this post is going. All I know for sure is that this has been a very difficult week. I have swung between two opposite poles -- one really enjoying what I do and one loathing what I do so much that I almost walked out (no joke).
Enjoying: it is beyond cavil that it is great fun sitting for three hours with a finance professor who is on everyone's short list for the Nobel Prize and parsing a complicated multi-party international economic transaction in order to stress test your assumptions at each step of the transaction in order to conclude that the transaction was a fraud, ab initio. Seriously. I love that. It was a mix of practical mechanics and theoretical finance conducted at a pretty high level. High enough to make my nose bleed. This was a part of my yesterday. The day before was spent in meetings with the possible plaintiff and his lawyer, the guy who referred the case to me. I feel a smidgeon of guilt for taking their money since it was so much fun, I'd have done it for free.
Detesting: there may have been a mistake made by co-counsel in a case I have. I did not catch the mistake and it may result in great unhappiness. Certainly, I feel like shit. I think it is fixable, but still, there will have to be some quick dancing and some interesting decisions. I have no idea how it will come out. I do know that I have not been very happy about it. How unhappy? Verge of quitting unhappy, anxiety attack symptoms unhappy, heart pounding unhappy (not exaggerating at all), bottom dropping out of stomach unhappy. Why? What if it wasn't a mistake on his part, what if we were getting set up to take a particularly nasty fall? And I didn't catch it. I have been running to try to fix it, but still, there are times and this week is one of those times, I really do hate my job.
Quite the dichotomy, no?
Today, I would like to write about work, sort of as an outlet for the frustrations creeping up over the edge of desk and jumping into my coffee while I'm not looking.
But I can't.
I cannot write about how annoying it is to have two different sets of lawyers between me and my client, both sets thinking it's ok to modify my firm's retainer agreement. It isn't. Neither of you idiots understand the intricacies of my firm's retainer. You may be good bankruptcy and corporate lawyers, respectively, but you aren't litigators. Your suggestions contravene the rules of ethics, the disciplinary rules, and the Rules of the Appellate Division, First Department, of the Supreme Court of the State of New York. This is a big ass case these idiots are potentially pissing all over. I wish I could write about it.
I cannot write about how much fun it is to be caught, with my cousin, between my father and my uncles and attorneys in two other states as the family attempts to put together a shareholder agreement for a family concern. This is way too annoying. Let me content myself with this, because I actually feel myself physically getting angry, a buy out provision in a shareholder agreement that calls for an accountant to value the interest being bought out at generally accepted accounting principles (mostly meaningless, by the way) but lacks a requirement that the corporation's books and records be kept in accordance with GAAP is downright dangerous. I think that this is going to make people very unhappy.
Getting into a business with your family presents issues that don't exist in most negotiations. There are sensitivities and sometimes grudges that have to be taken into account. The agreement will be less than perfect and all will have to trust to the good faith of everyone else. That shouldn't be a problem, but you never know. Ultimately, as I tell my corporate clients, a corporate agreement or contract is only as good as the people signing it, no matter what any lawyer tells you about how iron clad the protections are.
Trust, my friends. Without that, you're already f*cked even before you sign the contract. With it, you may not be f*cked until later.
Sure is ugly here in my office today. I'm going to throw away the rest of my coffee and see if I can get rid of some of my frustrations with it.
This morning, I had the pleasure (ok, not really) of sitting and waiting for an hour while a court reporter was procured who could record our oral argument. So I sat and I watched. And I came to realize that I was in the place where dreams died, where hope is buried. I realize that sounds melodramatic but I was in a courtroom where every case but mine was what we in NY call a Domestic Relations case, a matrimonial part, a divorce and custody case.
The room was so weird. I don't do matrimonial work and I’m so glad.
People start off married, usually, in the ordinary course, with great hopes for the future and dreams about the lives they are going to build together. This is part of the American dream, the fantasy wedding, the perfect spouse, then maybe some children and picture perfect Christmas cards with the beautiful children and Golden Retriever every year on the front.
Those dreams die in the matrimonial part. People come to bury their marriages, their hopes, their dreams, to fight over the issue of the marriage (the children), to battle over money and possessions. They start from love and end up in bitter hatred. I said to the Court Clerk, who I've come to know from before this Part was a matrimonial part, how can you stand the pain in this room? And he looked at me, surprised, and said, "I don't and I'm here every day".
The people in that room were interesting. There were lawyers and litigants. The lawyers seemed, many of them, to know each other. I guess it's a small bar, even in NYC. The lawyers were on friendly terms with each other, and that's to be expected when they're not in front of the judge trying to tear each other's hearts out. But the litigants. . .
The litigants were different, although democratic in terms of social class. First, every woman client in that room, whether her marriage was officially pronounced over by the State of New York or not, had taken off her wedding band and engagement ring. Every one. And I looked, out of curiosity. Second, the room ran the gamut of types of people -- young blond Upper East Side looking women; older people; young people who looked too young to be married; a woman in the uniform of the US Postal Service and she was sitting next to a much older man in a suit and tie who was wearing what must have been a $10,000 watch (and yes, I kind of know these things). Very democratic in that sense, as all the problems were washed up equally in front of this judge's bench.
And the hatred, hiding as indifference, the aggressive indifference as people there were ending their relationships. They would refuse to look at each other, even as they had to pass within inches of each other. Why, I wondered. Two of them were there to fight over custody, neither of them in the full flower of youth anymore, why couldn't they behave like adults, I wondered. How badly had they hurt each other that it came to this?
The postal worker sat next to me for a little while. I think she was not represented by counsel and I guess she took time off from work to attend this session of the Court. She looked so sad.
And one woman, one woman hovered behind her attorney as he made his argument to the bench. And she crept ever closer as he spoke, until, when the judge made a ruling, she stood behind him and buried her face in her hands and began to cry, very quietly. And no one in the room batted an eye as she almost silently wept, except for the lawyers there with me on the commercial case. We don't usually see clients cry. But then, we don't usually hang out in a place where dreams go to die.
I am just totally slammed today. Running around, working with four other lawyers in my office, trying to get a pleading put together that will survive a motion to dismiss, a very technically complicated pleading in a very complicated case involving several different judicial fora. Still no time, therefore, to report back on Washington D.C., other than to say it was a great trip.
Played hookey this morning from work and accompanied the Girl Child to her "art show" at pre-school. That was great fun and I got to be the adoring dad and take pictures of her posing in front of her creations.
Then I went to work and went right back down the rabbit hole. C'est la vie.
This is shaping up to be a very bad year, demands of practice wise. This week alone:
*I am preparing a major adversary proceeding complaint arising out of a bankruptcy as special counsel to the trustee in bankruptcy;
*I have been approached by another lawyer, a friend from the train, who wants to refer me a potentially huge case involving really arcane issues of property law -- she said, and I thought this was nice, that she's tried to explain this case to three or four other lawyers and so far I'm the only one who has been able to follow the bouncing ball; and,
*I believe that I will be retained today in a piece of international litigation that will make every other case I've ever worked on in my whole life look like a rounding error and has the potential to consume me like a monster.
The rest of the year is suddenly looking like it's going to be exceptionally busy.
Oh, and I'm supposed to go to Guatemala again tomorrow on the dawn patrol flight for the weekend. Expect blogging to go real light for the next couple of days.
And now if you'll excuse me, I have to go call some economists. I also need to consider having my head examined.
I am not a generalist as a lawyer. I am a specialist, practicing in the field of complex corporate litigation, often dealing with complicated and expensive financial matters, sometimes frauds. There is a lot of law I don't know diddly about. In fact, there is more work that I don't do, way more, than work that I am qualified to do. For instance, the list of things I have no experience in would include, but is not limited to, family law, matrimonial, personal injury, medical malpractice, tax, entertainment, patent, trusts and estates, criminal law (except for white collar), and, construction law. I could go on, but you get the idea, right?
That long preamble was intended to explain why I have never seen a "Citation", as the document is called, from NY State Surrogate's Court. The Surrogate's Court is the Court which deals with the probate of wills and the administration of estates. As an aside, the building in NY City is flat out gorgeous and if you have the chance, you should stick your head in. Anyway, one of my colleagues is working on a contested will case. Bitterly contested and I won't go into the details here because, inter alia, I don't really know them. But my colleague came in to show me this Citation because it starts with the following language:
THE PEOPLE OF THE STATE OF NEW YORK By the Grace of God Free and Independent,
And then it continues by telling the reader what the Court is ordering you to show up and argue about. But I was struck by this lovely opening language in the caption. By the Grace of God Free and Independent. Isn't that lovely and quaint and maybe even antiquated as a formulation? Even if we are free and independent, although maybe less so since the feds aggregated all sorts of powers to themselves and expanded the role and power of administrative agencies and delegated all these quasi-legislative powers with little oversight to them and then created all of these unfunded mandates. . . Well, you get the idea. I'm going to stop here.
Still, I like it. By the Grace of God Free and Independent. That has quite a ring to it, doesn't it? I wonder when they started using this style.
I need it to be yesterday. I need for the partner who had the other half of the brief in opposition to which we were preparing a reply brief, to have come to me yesterday to say that he needed me to pick up an extra point to write on, not today. I need to have him be responsible, like I was, and have gotten his shit done three days in advance, like I did. I loathe the last minute brief. Especially when we had over two weeks and dick all else to do but this critically important brief. I'm just hunting for a break.
You know that you need a quick break when, in the middle of working on a $40 million dispute, you realize that Supercalifragilisticexpialidocious has fewer syllables than tortious interference with prospective economic advantage and that you want, in your reply brief, to define T.I.W.P.E.A as Supercalifragilisticexpialidocious because you think that it might be quicker to type.
Such that, your sentence, "[t]he proposed amended verified answer with counterclaims states a good claim for tortious interference with prospective economic advantage", might read instead as, "[t]he proposed amended verified answer with counterclaims states a good claim for Supercalifragilisticexpialidocious". What do you think? Think the judge'd like it?
More coffee? check.
That someone is not me. I am not snowed in at home, I regret to report. Deeply regret to report, I should say. Instead, I am sitting at my desk and ignoring anything that doesn't bear a label: Caution, contents under extreme pressure and may explode, you dumbass, thus causing malpractice, if you don't attend to said contents, you understand? In other words, I am sort of catching up on long neglected matters which need tending to, prodding, or kicking.
Part of that tending to will be that big ass brief I have to put a reply in on. I don't really like big firm litigation tactics. They kind of suck, for the most part. They throw bodies at issues and attempt to overwhelm with the shotgun, scattershot approach instead of the rifle. I prefer the rifle. I prefer a targeted argument, the most effective argument, not every argument I can possibly think of thrown up without discrimination.
One thing I do find useful from big firms, though? Their legal research and citation. Yeah, pretty much I can rely every time on the big firm litigator to cite cases that are more helpful to me than they are to him/her. With some firms, I can begin my research from their cases.
Let me explain a little about computerized legal research. Cases are summarized by the West Group into headnotes. Headnotes describe the legal proposition advanced by the case. Before computers, you really used to research by headnote. I am of the generation of lawyers who learned to do legal research pre-computers. Let's say you want to find a case that says that to allege a particular kind of business tort, interference with pre-contractual relations, you have to allege that you would have gotten the contract with a certainty. Now, with computers, you can do the following search for the proposition: "certainty" /s "contract" /p interference. That brings up any case that uses certainty and contract in the same sentence and has interference in the same paragraph. Easy, right?
Well, no. You see, American jurisprudence is really based on the facts of each case. The facts decide what legal principles are applied to each situation. So, if all you do is the search and you find your quote and you cite it to the Court and move on as happy as a clam (although why clams are reputed to be happy is beyond me), then you have not really done your job. Big firm lawyers do this all the time. They cite the little bit and move on to the next point.
Then I come along and I read the whole case. And I get to find that in the following paragraph, the court goes on to say that despite the fact that you need certainty, no where in the history of American jurisprudence was a plaintiff required to establish that he could prove his cause of action in his complaint. Kind of an important, maybe even critical, distinction, no?
There was all sorts of other really useful stuff in this case. When I cite a case to the Court, I tend to read the entire case first and only cite it if the whole case is good for me. Takes a little more time in terms of legal research, but really makes all the difference and you are left knowing that your brief and your legal citation is bullet proof. That is peace of mind when you are in front of the Court on oral argument.
I am looking forward to seeing what other useful gems await me in this big firm brief.
But I still wish I had my snow day.
Let me just observe, after breaking the tax code in the hot sun all day, and then reading the "Regs", that I am so glad that I did not elect to take an LLM in Tax and specialize in the area. I am only blogging now, in fact, because I feel like I've hit a wall and need a break.
I listened yesterday morning to a former treasury official say that the United States deserves a tax code that looks as if it was created on purpose. Hear, hear. Can we get any volunteers to re-write the Code? And the Regs?
The world of law is a small, if not confined world. You practice, especially in big cities, among an ever changing cast of characters but often in front of the same judges. It feels closed and sometimes insular. The same names pop up, again and again. If you meet someone new, you can usually find a common point of reference, a school, a case, another lawyer, pretty quickly. In this regard, I doubt that the practice of law is really very different from, say, the world of high yield bonds. Especially at the higher end of things. But back to law.
In my world, reputation is everything. Again, I doubt that is a unique situation. For instance, diamond traders live by their reputation. And so do I. So, when I get a compliment from another attorney, a sincere compliment not a I'm blowing smoke up your ass so you'll drop your guard a bit and I can either slip one in or manipulate you, I'm pretty darn pleased.
I found one today in my email box as a lawyer I know from previous litigation sent me a referral. In this email, he described me as "wickedly smart" and possessed of a "mildly professorial demeanor", which he assures me and the potential new client he means as a compliment.
It is so nice to shine, just a little bit, even if no one outside of my insular little world really knows about it. Or cares. But I know and I can enjoy his little description. It is awful nice to be appreciated. Even nicer if the potential new client signs up, of course!
Seriously. You know that you should consider applying for federal emergency disaster relief for your desk when the only way you can find your cell phone is to engage in autotelephonation and then it still takes you what feels like 5 minutes to find it buried in the mounds of paper on your desk.
Actually, I think I just saw the Governor go by in a helicopter as he came to inspect the disaster that is my desk.
Here's the call you hate getting from a client at any time of the day, really, but particularly first thing in the morning:
Guess what? I've just been made the subject of a Federal indictment. What are we gonna do?
One of my colleagues just got that call, now.
Oh, joy.
[cynicism]You really hate it when that happens to a client who has been sooo good about paying his or her bills.[/cynicism]
In all seriousness, I'm truly bummed. I like this guy a lot, actually.
UPDATE
Actually, the call came from the client's wife to say that her husband had just been taken away, in handcuffs, by six Federal agents.
No word on whether the agents were singing: "Bad boy, bad boy, whatcha gonna do, whatcha gonna do when they come for you. . ." Seemed tacky to ask her, really.
Federal indictments suck.
I'm way jealous that Jan at Secular Blasphemy got to this story first.
The group of prospective jurors was summoned to listen to a case of Tennessee trailer park violence.Right after jury selection began last week, one man got up and left, announcing, "I'm on morphine and I'm higher than a kite."
When the prosecutor asked if anyone had been convicted of a crime, a prospective juror said that he had been arrested and taken to a mental hospital after he almost shot his nephew. He said he was provoked because his nephew just would not come out from under the bed.
Another would-be juror said he had had alcohol problems and was arrested for soliciting sex from an undercover officer. "I should have known something was up," he said. "She had all her teeth."
Another prospect volunteered he probably should not be on the jury: "In my neighborhood, everyone knows that if you get Mr. Ballin (as your lawyer), you're probably guilty." He was not chosen.
The case involved a woman accused of hitting her brother's girlfriend in the face with a brick. Ballin's client was found not guilty.
"[H]ad all her teeth". *Snicker* I'd also be concerned if I was Mr. Ballin who has the reputation in the community for the counsel of choice for those who are guilty. I thought it was a nice touch for the article to note that Ballin got this guy off.
The judge signed my Order to Show Cause and required me to serve it today on the client. That's why things have been so quiet here today. In any event, the Order is returnable before the Court on the 23rd, at which point I hope she will let the Firm out of representing the client. In the meantime, the entire action is stayed. That means she froze everything pending the hearing on the 23rd. I always ask for a stay pending the hearing and determination of the motion, but the court attorneys who review these filings always take out the part about the determination of the motion. Either way, I'm just glad she signed it.
I had an 8:30 meeting with the client who owes the Firm a lot of money in legal fees. I explained that we could not represent him anymore. The meeting ended on an acrimonious note. I have spent the next several hours preparing an Order to Show Cause which I will present to the Commercial Division Support Office to ask the Court to stay the action to permit the client to get new counsel and to let our Firm out of any further representation.
I suppose I ought to be tougher than this, but some of the things he said I found particularly wounding. Greedy? No, unfair and untrue. I am not greedy. I do expect that bills for services rendered will be paid. I do put my clients' interests first because I am a fiduciary and I understand what that means. I don't, however, work for free and nor does the Firm. The way he called us greedy, however, left me and everyone else in the Firm thinking that the only word he left out was "Jew". It was just said in that kind of way. Maybe I'm overly sensitive here, but the impression struck me the instant he spoke it.
Breakups are messy and this one will be no exception, especially if the Firm chooses to sue the soon to be ex-client to recover the legal fees and expenses he owes.
I feel as if I've had better days, truth be told.
UPDATE
I have just returned from Court where my Order to Show Cause was accepted for filing by the Commercial Division Support Office. It has to be reviewed first by a court attorney to see whether it can be accepted, you see. As with all of these things, she told me that I'd have to come back and pick it up tomorrow morning, which I will do after my Federal Court conference across the street is over. But I tried to take it up to the judge today anyway. I pulled the court attorney to one side and explained that the reason I rushed down here, and why I don't want my name associated with the case for any more time than it absolutely has to be, is that at the conclusion of my meeting with the client today, he called me a "greedy", then he paused, "Neeeew Yoooork lawyer". When I told her that, her head shot up and she said, "gee, the only word missing from that sentence was Jew, wasn't it?" She promised to do what she could to help me get out. She also let out a bit of a whistle when she saw how much was owed.
I didn't think I was imagining it.
I skipped merrily down to the train station this morning to take the 5:56 a.m. train to work. It gets me to my desk by right about 6:30. This was good today. Why? Because it is really nice to have a little bit of extra time when you find out that there has been a change of plans and you are going to be cross examining the former Chapter 11 bankruptcy trustee today with respect to his reports and the calculation of a credit in the bankruptcy in the context of a hearing on damages.
Gotta run!
Sorry so quiet today, but I got to work late after staying home to be with the kids while my wife fled the house early for a long day of job interviews. Keeping fingers crossed!
When I finally got to work, it was only to discover an email from a very good client. My client, also my friend, had been the victim of a vicious assault by a store owner's employee. He had been struck in the head with some unknown object, hospitalized for two days with swelling in the brain, and suffered significant blood loss. He was almost killed. He wants me to help him sue the owner and anyone else we can think of for damages caused to him and consequently to his business (since he isn't there to run it).
I have been feverishly doing legal research on all of the finer points of tort law this morning -- vicarious liability, negligence (maybe for the hiring practices), etc.
I have never taken a personal injury case before and have sworn I never would. However, I feel a great sense of personal outrage and motivation here. Time to make somebody pay, I think. I can't help the healing, but I can help the recovery.
Did I mention that my friend let his medical insurance lapse and will have to cover all the medical bills himself?
What do you think, assuming you are not a lawyer, about what the practice of law is? I think that there are many different images. Maybe you think it is like television, all Ally McBeal or LA Law -- lots of well dressed people running about like idiots and arguing with judges. Maybe you think it is the movie image of Atticus Finch in To Kill a Mockingbird or Tom Cruise in a Few Good Men. Maybe you have the used car salesman image of the sleazy personal injury or insurance defense lawyer. Maybe it is the tweed coat wearing law school professor image or the ivory tower Supreme Court litigator who sits high above and contemplates serious issues. What else? Maybe the grizzled old criminal defense lawyer or the young earnest prosecutor. Maybe the crusading environmental lawyer or the terribly serious public interest guys with the long hair and earrings who still think that smoking weed is consistent with the oath they took upon admission to the Bar.
Reality? Pretty much nothing like the above descriptions. At least, not in my practice. No, in reality, even at the big firms, a lawyer is a small business operator. He sells services to individuals and to companies and then he tries to get paid for them. Some of the services are measured by the amount of time spent performing them and those are charged on an hourly basis. That hourly basis charge is a very expensive way for an individual to purchase legal services, especially the services I provide -- complex corporate litigation and dispute resolution. Litigating by the hour is a terrible way to go, for most. In fact, just out of curiosity, how much do you think my firm charges out my time at? I'll be interested to see what you come up with.
I spend some of my time dealing with the frustration of making sure my clients pay the firm for the services we provided. I do a good job for my clients and usually obtain pretty good results, but there is no guarantee about anything and I have had some bad decisions and bad results. But, those bad results don't mean that the client is relieved of his obligation to pay his bills. And if the client doesn't pay me, what can I do? I can't stop performing services because I am a fiduciary to my client. I can make a motion to the court to be relieved as counsel but that is not a guarantee that I will be relieved. I may be stuck with this client, as I am probably stuck right now, with a client who has a $40,000 plus bill and has not given me anything on it but empty promises and mumbles.
It is annoying to be lied to about your bills.
So, no, instead of thinking of a lawyer as an Armani suit wearing guy who spends his days yelling at judges, think instead of a small business owner who struggles to get paid. And also sometimes yells at judges, if they get lucky.
Today is the day I push to complete the remaining *cough* 10 hours of Continuing Legal Education. Streaming video is my friend under these circumstances. I can sit here, blog a little, learn a little, clean my desk, etc.
For your information, because I know you care, here are the following classes I'm taking today (and maybe tomorrow morning):
*Evidence & Objections: Laying Foundations for Introducing and Raising and Rebutting Evidence (2 hours)
*The Irving Younger CLE Series: Hearsay (Younger was a legend of the trial bar) (3.5 hours)
*Inadvertent Disclosure: I Didn't Mean to Read It, I Forgot What It Said - Can I Stay in the Case? (2 hours of ethics credit)
*What Every Lawyer Should Know About LLCs and LLPs (4 hours)
Can you feel the excitement? Is it crackling over your internet connection?
Proximate cause is a legal concept that you find in tort cases and in securities fraud. It is a requirement that there be a causal link between the wrong alleged and the damage caused. It is sometimes thought of as the "but for" test. But for the actions of the defendant, plaintiff would not have been damaged. Here is a not very illuminating definition.
In any event, I saw in the New York Law Journal today, a story about proximate cause that really caught my eye. I quote (because I don't know how long that link will be good for):
A piece of grilled shrimp flung playfully by a Japanese hibachi chef toward a tableside diner is being blamed for causing the man's death.Making a proximate-cause argument, the lawyer for the deceased man's estate has alleged that the man's reflexive response -- to duck away from the flying food -- caused a neck injury that required surgery.
Complications from that first operation necessitated a second procedure. Five months later, Jerry Colaitis of Old Brookville, N.Y., was dead of an illness that his family claims was proximately caused by the injury.
But for the food-flinging incident at the Benihana restaurant in Munsey Park, N.Y., Colaitis would still be alive, attorney Andre Ferenzo asserts.
"They set in motion a sequence of events," he said.
Alleging wrongful death, Colaitis' estate is seeking $10 million in damages. The complaint includes claims for pain and suffering and loss of consortium.
Benihana has denied all of the complaint's material allegations. In other papers filed with the court, defense attorney Andrew B. Kaufman also questioned whether Colaitis was trying to avoid the flying shrimp or catch it in his mouth.
* * *
When the chef flipped a piece of shrimp at Colaitis, he allegedly ducked away, injuring two vertebra in his neck. Doctors reportedly told Colaitis that if he did not have corrective surgery, another injury to the same disks might leave him paralyzed.
The first operation was in June 2001, six months after the Benihana dinner. A second procedure was performed two weeks later.
In succeeding months Colaitis developed a high fever and problems with his breathing and memory. He died in a hospital five months after the second surgery, on Nov. 22, 2001.
A contributing cause of his death, Ferenzo said, was a blood-borne infection. Justice Mahon's decision also listed respiratory failure and renal failure as causes of death.
Neither side has sought to add the doctors or hospital where the surgery occurred, New York University Medical Center, to the case. Colaitis died at St. Francis Hospital in Roslyn.
Arguing for partial summary judgment, defendant's attorney Kaufman challenged the plaintiff's ability to prove proximate cause. In court papers, he said that Benihana cannot be liable for Colaitis' death because of a break in the chain of causation between the first or second procedures and his death five months later.
"Essentially, as the plaintiff's decedent died of an unidentifiable medical condition, the plaintiff will be unable to establish that any alleged negligence by Benihana proximately caused his demise," Kaufman wrote.
In denying defendant's motion, Justice Mahon held that whether the tableside events caused Colaitis' death would best be resolved at trial.
I think that the defendant has a pretty good argument here and I am shocked that no one has brought the hospital in. Unless, of course, he did not die from any malpractice. I don't know about this one. Interesting issue.
UPDATE:
Thanks so much for the link from Robert at the Llama Butchers! After you linked, Robert, I went ahead and did a little legal research (2 minutes and 40 seconds, according to Westlaw, actually), and I include below a discussion of the concept of proximate cause from a very recent opinion. So, click on Extended Entry if you want to see what the Hon. Herbert Kramer has to say about the concept in connection with a case involving Philip Morris, cigarettes, and the issue of comparative fault. The case is called, FRANKSON v. PHILIP MORRIS INCORPORATED, 4 Misc.3d 1002(A), 2004 WL 1433008 (Sup. Ct. Kings Co. June 24, 2004).
Proximate Cause"The concept of proximate cause, or more appropriately legal cause, has proven to be an elusive one, incapable of being precisely defined to cover all situations ... Depending on the nature of the case, a variety of factors may be relevant in assessing legal cause." Derdiarian v. Felix Constr Co, 51 N.Y.2d 308, 314-315 (1980) Nonetheless, all a plaintiff need show is that the **4 defendant's conduct was a substantial factor in bringing about the injury. Nallan v. Helmsley-Spear, Inc., 50 N.Y.2d 507, 520(1980)("It is plaintiff's burden to show that defendant's conduct was a substantial causative factor in the sequence of events that led to ... injury.")This showing need not eliminate every other factor that may have contributed to the cause of the injury. Galioto v. Lakeside Hospital, 123 A.D.2d 421, 422 (2d Dept.1986). ("It is well settled law that in order for a plaintiff to recover damages, a defendant's negligence need not be the sole cause of the injury; it need only have been a substantial factor in bringing the injury about.".)
"Proximate cause serves a somewhat different role in products liability cases than in ordinary negligence actions. To establish proximate cause in a products liability case, a plaintiff must show that the defect in the product was a substantial factor in causing the injury. [The] causal connection [is] not automatically severed by ... intervening conduct unless that conduct was, as a matter of law, extraordinary under the circumstances, not foreseeable in the normal course of events or independent of or far removed from [the defendant-manufacturer's ] conduct." Nutting v. Ford Motor Co., 180 A.D.2d 122, 131(3d Dept.1992). In Nutting, the driver continued to knowingly use a car whose engine had stalling problems.. A fatal accident occurred when this car drifted into the path of an oncoming vehicle as the driver was attempting to cope with the stalled engine. Nonetheless, the Court declined to find, as a matter of law, that the driver's failure to correct the problem broke the chain of causation, but rather held that such conduct is relevant to issues of intervening cause and apportionment of fault. Id.
The chain of causal connection is, indeed, sturdy and not readily susceptible to disruption by intervening conduct. In one recent instance, a drunk driver drove his car off an exit ramp at thirty five miles an hour, straight into a utility pole. According to the Court of Appeals, plaintiff's decedent's conduct did not affect the auto manufacturer's duty to "produce a product that does not unreasonably enhance or aggravate a user's injuries." Alami v. Volkswagen of America Inc., 97 N.Y.2d 281, 287(2002). Since Volkswagen did not even contest the expert's findings with respect to the crash worthiness of the vehicle, The Alami Court strongly disagreed with the Appellate Division's determination that intoxication was, as a matter of law, the "sole proximate cause" of the accident and decedent's injuries and reversed. The dissent, vigorously protesting, pointed out that this case falls squarely within the preclusion doctrine of Barker v. Kallash, 63 N.Y.2d (1984) and Manning v. Brown, 91 N.Y.2d 116 (1997), which denies judicial relief to those injured in the course of committing a serious criminal act and does not permit the apportionment of fault between the parties.
*3 As the discussion above demonstrates, where fault on the part of the plaintiff is implicated, the only time that fault is relevant exclusively to proximate cause and not to an assessment of comparative fault is where, as a matter of law, that fault is the sole proximate cause of the harm or where because of a legal impediment, plaintiff's fault cannot be considered unless it is shoe horned into the case by being characterized as the sole proximate cause of the injury. [FN8] As one commentator aptly noted, the sole proximate cause defense does little more than divert the jury's attention from the ultimate issue of the defendant's relative fault." John G. Phillips, The Sole Proximate Cause "Defense"; A Misfit in the World of Contribution and Comparative Negligence, 22 S.Ill. U.L.J. 1, 2(Fall, 1997).
FN8. We see this in cases decided under the Labor Law where defendants are strictly liable and plaintiff's contributory fault cannot be considered in assessing damages. To avoid the unjust result that flows in the wake of this doctrinaire approach, the courts have found negligent plaintiffs to have been the sole proximate cause of the harm. Weininger v. Hagedorn, 91 N.Y.2d 958(1998); Corrado v. Allied Builders, Inc., 186 Misc.2d 780(Sup Court, N.Y. Co., 2000)(reviewing the record on appeal in Weininger observing that Weininger had misused the ladder by standing on its cross bar.)
This Court agrees.
These deposition excerpts courtesy of the blog Margi turned me onto some time ago. Thanks, Margi! I thought they were very funny.
The following exchanges were in depositions of bitterly contested divorce suits:Q. Isn't it a fact that you have been running around with another woman?
A. Yes, it is, but you can't prove it!
....
Q. Did you ever stay all night with this man in New York?
A. I refuse to answer that question.
Q. Did you ever stay all night with this man in Chicago?
A. I refuse to answer that question.
Q. Did you ever stay all night with this man in Miami?
A. No.
....
Q. Isn't it true that on the night of June 11, in a prune orchard at such and such a location, you had relations with Mr. Blank on the back of his motorcycle?
(there was a complete sentence for about three minutes; then the wife replied.)
A. What was that date again?
....
Q. What was the nature of your acquaintance?
A. Oh, there wasn't no nature to it, nothing like that, at all. No nature to it. We were just friends, that's all.
NY State, in its infinite wisdom, has decreed that I must accomplish 24 hour credits of Continuing Legal Education (CLE) in order to renew my license to practice law every two years. It is a self reporting system. Theoretically, they can audit you but I've never heard of it happening. No matter, I will comply because I can't actually contemplate signing my name to a false affirmation that I did comply. And if I could contemplate doing so, no amount of CLE is going to make a difference. Certainly not the 4 hours of ethics. I figure that if you make a knowingly false affirmation, you are beyond the help 4 hours of ethics can provide.
One nice thing is that I can do it by way of streaming video over the internet. I am picking among the following interesting (said with no irony at all, that's how pathetic I am) looking classes:
*Evidence and Objections: Laying Foundations for Introducing and Raising and Rebutting Evidence
*Credibility and Cross Examination by Irving Younger (A giant of the trial bar)
*Hearsay (also by Younger)
*Nuts and Bolts of New York Appellate Practice
*Summary Judgment in New York: A Review
*Avoiding Professional Malpractice
There are also some good bankruptcy programs on asset protection.
I look back on this list and I weep with the knowledge that I am actually looking forward to a little evidence refresher. How reduced I have become.
Still, as for a bright spot, at least I am not in Minnesota, where:
The Minnesota Supreme Court issued an order making ethics and diversity training mandatory for Minnesota attorneys. As of July 1, 1996, lawyers licensed in Minnesota are required to take three hours of ethics courses and two hours of elimination of bias training as part of the 45 credit requirement to keep their attorney licenses up to date.
The University of Minnesota allows you to meet this requirement with this kind of silly course:
ENGL 3741: Literacy and Cultural Diversity 4 creditsMeets CLE req of Citizenship/Publ Ethics Theme; meets CLE req of Cultural Diversity Theme
Description: Through reading, writing, and community action, this course examines the function and variety of literacies in contemporary U.S. culture. Readings in literary, sociological and pedagogical theory, imaginative literature, autobiographies and memoirs, will engage students with the idea of literacy. By working in community organizations, students will enter into the complex practices of literacy among young school students or adult learners, with long-time citizens as well as newly arrived residents from Africa, Mexico, South Asia, and elsewhere. Reading across history and culture, but with a special emphasis on the vexed case of U.S. literacy, we will think about inscription and exclusion, the politics of power and knowledge, institutions and disciplines of literacy and literature, about race and schooling, about migration and disapora [Ed. comment: SIC!!! This is so stupid that they cannot even spell DIASPORA. It's DIASPORA, you idiot!!! There, I feel better now and return you to the course description], and about the possibilities for renewed and revolutionary literacies. Readings may include works by Paulo Freire, Michel Foucault, Pierre Bourdieu, Franz Kafka, Frederick Douglass, Zitkala Sa, Nuruddin Farah, Theresa Hak Kyung Cha, Myung Mi Kim, Anne Fadiman. As part of the course, students commit to 2 hours a week of literacy work (broadly defined) in a local community organization. A one-day literacy training session, usually scheduled for a Saturday early in the semester, along with a variety of on-site trainings, will help students prepare for their community work.
Class Time: In addition to course work, a 2 hr/week service commitment off-campus
Work Load: Assignments will include a reading and reflection journal, a literacy autobiography, several short writing assignments, an in-class presentation, and a final project.
I'm sure that the clients of Minnesota are better served by lawyers who can fight their way successfully through bull shite like this. 100% sure, I am.
As this blogger points out, the real problem is that there is really only one stream of ideology that qualifies for inclusion in this curriculum. Guess which one? If you guessed conservative, you're wrong! The lawyers in Minnesota have tried to litigate this requirement and lost.
I guess I'm grateful for the small favor that if I have to take CLE, at least I can pick professionally useful classes and am not required to pay someone for the privilege of brainwashing.
Back to evidence!
The first day of trial has finished. In preparing for this and attending the first day, we have billed over 400 hours of time. Is it any wonder that high stakes ($30 million in asserted liability) corporate litigation is too expensive for ordinary civilians to conduct on anything but a contingency fee basis?
In any event, the judge has great animus for our client and, by extension, us. This is the same judge I got in a fight with before (here for story). She is hypertechnical, snide, rude, and not too swift. She is creating an appealable record. In other words, she is making errors with her evidentiary rulings. This is the kind of thing that an appellate court can seize on to reverse a final determination. As for snide, she actually over-ruled an objection by saying, "maybe I'm just not as smart as you are". Astonishing sarcasm from the bench.
I think that generally there has been an irretriveable breakdown in the civil relationship between the bar and the bench. Judges and lawyers are just downright more hostile and mean to each other. I really don't know why. I suppose I have some guesses, but there really is no excuse at the end of the day. Moreover, judges who are rude are abusing their position, I feel.
Trial is an odd thing. Its billed as a search for truth. Its more like a formalistic dance between skilled lawyers who try to thread their way through, or impede their opponent from doing so, a complex thicket of evidentiary rules designed to protect the fact finder from unreliable information. The Rules of Evidence are fascinating, archaic, and a trap for the unwary. We're pretty good on them at my office and can often use them to trip up the other side. The judge has an obligation to follow them but only if you call the correct rule to his/her attention at the correct time. This is a situation of make the correct objection in a timely manner or have it be deemed waived. Once the information is in evidence, and thus been accepted as reliable, you can argue from it to your heart's content. This includes, by the way, documentary evidence.
All documents are, by their nature, out of court statements usually offered to prove the truth of the matter they assert. Thus, classic hearsay. Sometimes more than that. Sometimes the document may also report on what someone else says. Say its a memorandum of a telephone conversation. Then the memo is hearsay and contains hearsay within hearsay, or double hearsay. You need an exception, and there are a lot, to each level of the hearsay objection or else the document isn't coming in. At another trial some time ago, I made the hearsay within hearsay objection and kept out of evidence a whole series of memoranda and caused opposing counsel to actually get so angry that he began jumping up and down. It was . . . sublime. In fact, that lawyer then complained to the judge that he let in all of my similar documents and the judge responded that the fellow didn't object at the time and he was not now, at the end of trial, going to revisit every one of his evidentiary rulings. A very satisfying moment, indeed.
So, maybe trial isn't really a search for truth but a search for reliable information upon which a fact finder can make factual findings based on, among other things, the credibility of the source of the reliable information. Plaintiff is still putting on its case here and the fact finder, in this case it is the judge, is judging the credibility of plaintiff's witnesses. By and large, so far, they look credible. We'll see what happens when we reconvene next month. Next month, you may ask yourselves? Yes. It is a bench trial so it goes in dribs and drabs, starts and fits, whenever the judge has an odd bit in her calendar and can fit us in. Then we do post-trial briefs, proposed findings of facts, post-trial motions, etc. and she makes her decisions.
It was a long day and has been a long couple of weeks.
Yesterday was also my wedding anniversary. I called my wife to wish her a happy anniversary and said, has it really been 11 years? And she said, yes, and they have been the happiest 3 years of my life. Zing!
I was on the 8:40 train home last night (early for this week, actually) and it broke down in Pelham. They evacuated the whole thing and, happily, had another train to us in less than 15 minutes but it was not fun there for awhile.
I am off to the wine store shortly to buy something fun to drink. Tonight, we light a fire in the fire place, drink wine, and put on the first episode of To Serve Them All My Days. I cannot wait.
I have a moment to make a quick report, in case anyone was wondering where I've been. I have, since Friday morning, now billed 30 hours in preparing my emergency application. I smell bad, my glasses are filthy, I am out of emergency chocolate, and my desk is a wreck of old torn up drafts, empty coffee cups, lost pens, files, folders, documents -- both originals and copies, statute and form books, and transcripts. I have a notice of motion, a memorandum of law, and, most importantly, an affidavit for my client to sign. I will serve it all tomorrow morning and then see about digging out. I believe it will hit the plaintiff right between the eyes.
This is not the fun and romantic career I thought I was getting into when I used to watch L.A. Law.
I hope I have not missed much fun stuff on all the other blogs.
I rank yesterday up there in the top 5 worst professional days I have ever had the joy to experience. I cannot, for reasons obvious to at least me, go into great detail about this, so you may not get the full flavor of why, for instance, I actually wanted to throw up at one point. But I will try to summarize just a little bit, if only to help myself move past it.
1. That motion to take discovery? Lost. All of it. Every bit of the relief requested. Why? The Judge loathes my client. Also, it was a totally cold bench (she didn't read one single word of the papers my firm charged my client thousands of dollars to prepare). I get spoiled by appearing mostly in the Commercial Division when I'm in State Court. Ivan Chonkin (if he stops by today) will understand about this since he's had the experience. Then, the judge simply fucked me. No other way to describe it. She is withholding the decision on the motion and refusing to issue a stay. When I said to her that by doing so she would prevent me from going to the Appellate Division to seek a stay, she told me that she would not issue an order just to permit me to "run up huge costs and expense and generate a lot of paper". This was at the end of the appearance. I became so angry here my hands started to shake. I put my finger in front of her, told her that I do not practice law to bring meritless motions or do anything just to run up the costs, I resented the implication that I did, that I had done nothing in front of her that could have ever given her that impression, and that she was out of line. I have never yelled at a judge before and I guarantee my voice was raised. And you know what? She said that she was sorry and that she didn't mean to give that impression. Fuck her.
2. The judge has withheld the decision, as I said above. I am now preparing a motion to by brought by notice of motion (because denial of an ex parte application brought by emergency order to show cause is not an appealable paper in NY) that will request relief in something like 6 parts, with many subparts, and it has to be served by no later than Tuesday. I will be here all weekend. This motion is pure damage control because there ain't no way she's granting it. I will be writing for the appellate panel here.
3. I lost an appeal in another case. A decision came down on an appeal and the appellate court didn't even address the arguments we made. Also, and much much much worse, the client is devastated, both personally and financially. His marriage has broken up over the stress. I'm glad I did not have to make the call to tell him, coward that I am.
I met my wife for dinner afterwards because it was date night and we hadn't been alone for about 2 weeks. It was not joyous but just being with her can sometimes make things a lot better.
But the best part of all? Coming home to find my daughter was still awake, letting her get out of bed while I took my tie and suit off, and then sitting with her in her rocking chair and rocking, chatting, and rubbing her back until it was time to put her back to bed. That did more to salvage my day than I think anything could have.
Finally, I will leave you with a funny Girl Child story, to reward you for getting this far. The nanny told us about it when we got home. She and the GC had the following conversation:
GC: I know, let's switch listening skills. I'll take yours and you take mine.N: Ok. Hey, GC, let's go, its time for your bath.
[silence]
N: Hey, you have to listen to me because you have my listening skills and I always listen.
GC: [looks up at her] Fine. I want mine back.
I wanted to blog a lot today. There were a number of things that interested me and I wanted to write about them. Instead, I have been preparing for oral argument for tomorrow to defeat, I hope, a $30 million or so claim. Or at least get the Court to give me discovery on damages and I have a novel theory that I am hoping the Court will allow me at least to pursue. If not, off to the Appellate Division. But I write instead to tell you that at 4:08 p.m. I just finished the last of the black coffee I bought at 7:15 this morning. That tells you all that you need to know about my day today, I bet.
At least I am feeling better physically. Thanks again for all your good wishes!
Margi had the link to this legal humor site.
I found particulary funny this lease provision:
47. END OF THE WORLD. The occurrence of the end of the world prior to the complete performance by Tenant of the terms, covenants and conditions of this Lease ... shall permit Landlord to accelerate and demand payment for all charges which remain as an obligation of Tenant under this Lease, and Landlord's collection of monies due from Tenant may be pursued by an immediately available procedure. For all purposes hereunder ... such notice [shall] be given to Tenant by the then prevailing medium of communication. Landlord shall be deemed aligned with the Forces of Light and Tenant shall be deemed allied with the Powers of Darkness notwithstanding either party's final ordered placement.
Lawyer humor for lawyers.
I just got another cold call my secretary did not weed out. I love these.
Woman: This is Dee from R__ K___'s office and he'd like to drop you some information in the mail.
Me: That's nice. Who's R___ K___?
Dee: Well, he works with Wall Street. [Delivered in slightly reverential tone as if I am lucky to be getting a call from the flunky of a man as busy as this]
Me: What? The whole Street? Really?
Dee: Well, he works for Almond (actually another nut) Securities.
Me: Them? Pass. [Hang up]
Closing thought: Perhaps he pushes a broom on Wall Street.
Actually, I did an internet search on the real name of the firm and came up with a suspended license story. Ah, well.
Hi, all,
Just a quick wave to let you know that I am still alive. Just facing some deadlines here at work. Left the house to catch that horrid 5:56 train again and I left in full night. The moon was out, sort of hidden by the clouds but illuminating them completely. It was beautiful but I just can't keep doing this. I am over committed at work (where I can't keep up with the new business), at home (where I'd rather be taking care of my children), or with all of the non profit stuff (where I have to learn to start saying, no, when asked to do more stuff).
I am definitely having one of those days in which I wonder, fleetingly, how far I can get with my car before American Express wises up to the fact that I've done a runner and cancels my charge card. Mexico? Through Central America? Maybe Argentina? If I stay away from places where the hotels, such as they are, can check with American Express, maybe further? If my next dispatch is bylined, "From the Road", you'll know what happened.
All suggestions as to destinations are welcome.
I appeared for a conference and for argument to oppose a motion this morning in the Federal District Court for the Southern District of New York. I prepared most of the day yesterday for it and took the 5:56 train this morning so that I would arrive at the office with plenty of time to get my documents organized and be calm and happy. It was pretty damn dark when I left the house this morning with not even a hint of the sunrise. Winter's coming, no doubt about it.
This was a motion I expected to lose, by the way. It was to vacate a default judgment where the defendant had not filed an answer to a complaint and been out of touch for something like 9 months. Nonetheless, this is the kind of situation that a court will bend over to alleviate because the courts have a bias in favor of deciding a case on the merits, rather than on default.
And I did lose. But not before getting a rather nice compliment from the Judge who told me that my arguments were "forceful and skillful" and that I had been a "real gentleman". He also, even though I had lost, awarded my client $1,000 in costs in opposing the motion. Do you know how rare that is? To be awarded costs when you lose the motion? That's the first time for me. So the day wasn't a total loss. I walked out of the courtroom with the knowledge that I have a lot of credibility with the Judge and that is a fabulous thing for my clients. Credibility with the court is everything. If you have it, a judge will believe your representations and give you the benefit of the doubt. If you don't have it, you are in for a whole world of trouble.
So now, I'm pretty beat. Feeling a little drained. I have a meeting in 30 minutes and then a meeting after work. I'm just waiting for the Advil to kick in and I ought to be good to go.
I saw that Mr. Green has hung it up, or at least is taking a break. Blogger fatigue? I don't know. I think that some of this is cyclical for people. I feel a little burned out today but I feel that way about everything.
Last thing and this amused me. I was on the subway going down to Court and this young man looked at me up and down and asked me, "Lawyer?" I admitted that I was and we then had a very pleasant conversation.
The phone just rang through and I picked it up. The voice on the other end asked, is "Mr. Smith free?" And I just could not help myself. I actually replied:
Mr. Smith is not free, but he is cheap.
Fortunately, the fellow on the other end of the line laughed. I wonder sometimes how I manage to keep this job.
We are getting a German law student intern for a week starting today. We are taking her as a favor to a friend who practices exclusively corporate law primarily for German clients in the United States. This should be fun for her to see how litigation is conducted here. Our friend told us that she really wants to work when she is with us. That's nice. The fact is that she will be able to contribute very little of substance to what we do on a daily basis. Most law school summer associates are useless as are most first year associates. It takes a long time to be able to practice litigation effectively and correctly and they do not really teach you much about it in law school. Still, I've supervised foreign interns before and I have an idea of what to do for them and with them and no, I don't mean to imply a reference to our last President here.
We will let her sit in on a very contentious deposition scheduled for today and I will take her with me to Court later this week. I will give her some research material and a draft pleading and ask her to write me a memo about what I need to plead in order to get around the problems this client may have. I know the answer to that question already, of course, but if the memo is any good she can walk out of here with a small writing sample.
All in all, it should be fun.
Anyone recognize the source of the title, by the way?
My Firm has just gotten retained by someone who is facing a potential $40 million judgment against him. Partial summary judgment has been entered on the first cause of action against him, his affirmative defenses and counterclaims have been dismissed, and the matter has been set down for an assessment of damages hearing. A note of issue has been filed by the plaintiff to certify discovery is complete and the case may be placed on the ready trial calendar. We appear to be long past the 20 day period in which one may move to strike the note of issue and remove the case from the calendar. We have had no discovery of any kind and need to take discovery on, inter alia, the issue of damages, both the computation and even the existence.
Welcome to my day. It's going to be quiet over here today.
Nothing like getting retained in a timely fashion.
The following just got taken out of a letter I drafted to send to opposing counsel. I regret its deletion and publish it here:
During the course of our negotiations, I was treated to several unprovoked outbursts of hysterical screaming from you. Indeed, I was forced on several occasions to ask you to calm down. Most recently, on Monday, I had to suggest that due to your obvious overwrought emotional state, we hang up and continue our conversation when you had collected yourself. Based on the foregoing, and based on the vituperative personal attacks you made in your letter to me, I conclude that you have an anger management problem and I urge you to seek professional help.
All the hard work over the weekend paid off today in spades as the judge granted my motion in full after a good 45 minute oral argument. I completely turned her around from the beginning, when she said that she thought we were going to need to hold a hearing to take testimony just like the plaintiff wanted, to the end, when she said, "well, now that we've really parsed the issues it's clear that no hearing is necessary for me to decide this motion". To review, quickly, I moved to disqualify plaintiffs' lawyers on the grounds of a conflict of interest and to compel these lawyers to turn over all of the files they had since because of the conflict there could be no attorney client privilege. Oh yeah, almost forgot, I also moved to have the law firm return to the company all the legal fees they charged for this conflicted and improper representation. We had one session of argument with the judge prior to this and she allowed the other side to submit additional papers. I worked all weekend on the reply papers.
It was about as close to a complete and total victory as you can get. It's nice when the good guys win one.
It's probably not what you think. The Gay Pride Parade is going on right outside my office and the music totally rocks. I LOVE the gay house/dance music. Seriously, I go buy the Gay Pride CD every year down in Chelsea. How the hell do these people expect me to be able to concentrate on the memorandum of law I am drafting for submission to the Court on Tuesday (for argument on Wednesday) with this excellent, get up out of seat and dance, music pounding away just steps from my building? The music is killing my concentration! And it makes me want to get down there, join in, cheer, and "stand by my man"!!!
Let's hear it for gay marriage! All of you other Republicans who want to join me on this issue, come on out of your closets, so to speak!
Update: Now, I wanna be, a macho man.
There was an interesting article in the NY Times today about bullying bosses. Have you ever had a boss who was a bully ("BB")? I have. I still do, in fact. My BB is named Stinky, because he is English and he doesn't always wash enough. So if you get real close to him at depositions, for instance, it'll break your concentration. Stinky is a bully. One associate who used to work here, and that reminds me that I owe her a call, used to throw up in the morning before coming to work on the days that she had to work with Stinky. On the days I worked with him, in the beginning, I used to come home from work, take a beer out of the fridge, sit down in the big, black comfy chair and not speak for about 20 minutes or so. Not one word until I was able to let the bad place go. I've seen three other associates quit rather than continue to work with him.
One associate, R, liked it. He became a mini-Stinky until the other associates practically slapped him upside the head. The article discusses this phenomenon, too.
The article also says that there is insufficient data about workers confronting their BB's. Well, I confronted him a couple of times. The first was in the beginning when he told me that I seemed to have a problem with his criticism and I told him that I did not have a problem being criticized, but the "manner in which he did it was positively lacerating". With that, he turned and walked out of my office and did not speak again to me for weeks. It was bliss. I'm still not sure why that was such a horrible thing to say, but it worked.
Stinky has class problems. He brought them with him from the England in the early 60's where he grew up in a large Irish-Catholic family in London when, I bet, it wasn't so easy to be Irish-Catholic in England. He claims to have no class problems at all. Untrue. Let me give you an example. I said something to him, not that long ago, and said, "that was not criticism" and he snorted and said, "how could it be? You are an associate and I am a partner, you couldn't criticize me". See what I mean? That's a social position/class issue in my mind.
Stinky also has this faux-hail-fellow-well-met persona. You never know if he's actually angry with you or just in a good mood. That keeps you off balance and guessing.
I dislike working with him and I hate reporting to him when I have to. He is one of the big reasons I don't think I want to become a partner here.
I'm not taking this much further today down memory lane with him because almost none of them are good.
Have any of you had BB experiences? I bet you have.
Sorry to all of you who dropped by yesterday looking for something new. I was too pissed off to post yesterday after oral argument in front of a judge who was not prepared to the argument. As it turns out, it wasn't entirely her fault, as the clerk stamped over the front of my motion and obscured a portion of the relief I'd requested. It started out like this:
Court: Mr. RP, I don't understand why you think you are entitled to get all of the files and papers from the other law firm.
Me: Because the Court of Appeals says I am, your Honor. (For you non-NY lawyer types, the Court of Appeals is the highest court in the state).
It sort of went downhill from there until she figured out that she had not known what I was asking for in my motion.
Before that, though, the attorney for the plaintiff pretty much lied to the Court about the extent of his firm's activities. This was a motion to disqualify his firm from continuing to represent the plaintiff against the defendant because this firm had represented both parties at one point. That's a big no. In any event, my opponent way underplayed what they had done for my client.
At the time my opponent was speaking, the court room was fairly noisy as the attorneys who were waiting their turn for argument were chatting. When my opponent finished, I got to go. I may have been a little more dramatic, but I had outrage on my side. When I finished my presentation, I noticed that you could hear a pin drop in the court room.
Unfortunately, she gave the other side extra time to brief the issues. I, of course, get extra time to reply. And that is why I was so pissed. This should have just been submitted. The other side should not have been given another bite at that apple.
That said, an older lawyer once warned me that you should be extra cautious when a judge grants all of your smaller applications leading up to an ultimate resolution. He or she may just be creating an appeal proof record. I hope that is what is happening here.
The phone rang through here at the office so I picked it up:
Her: May I speak to John?
Me: Who may I say is calling?
Her: Donna with Opinion Marketing Research.
Me: Please hold.
Me: John, do you want to talk to Donna with Opinion Marketing Research?
John: No. Tell her that if she wants my opinion on an issue, she should call my wife [delivered in joking tone].
Me: Donna? I'm sorry, but John says that if you'd like his opinion, you need to call his wife.
Her: Oh. [silence for a second]. Does his wife make the decisions regarding the company's telecommunications needs?
Me: Most probably. Have a nice day. [hangs up].
Was that as funny to you as it was to me? Or do I need to get out more?
Someone in my office called the following item from Fox News to my attention. I am appalled. A lawyer in Oregon is planning, in defense of his client, to introduce an expert witness to testify that the reason that the defendant "whipped and broke his [two year old] son's neck and ribs [is] because he suffers from post-traumatic slave syndrome." Evidently there is some "academic" out there who, in the words of Fox News, "claims that because African Americans never got a chance to heal from slavery and still face racism, oppression and societal inequality, they suffer from multigenerational trauma."
Am I the only one who thinks this sounds like a crock of sh*t? Seriously, it seems to me that makes us all prisoners of our ancestral past to the point where each of us can disclaim responsibility for our actions based on some historical slight. No matter how long ago. Hopefully the judge will think this is a crock, too.
Buzz has at least two meanings in this post.
The first meaning is derived from the fact that I have been running all morning. I have that lethal combination of caffeine plus adrenaline. I am buzzing, almost physically vibrating. I've had meetings, phone calls, and written snide and nasty letters to those who deserve snide and nasty. I have been Mr. Productive. I've also gotten nothing off of my to do list -- all of these things are from new problems! I am, I must admit, a little bummed about all of this fabulous effort I've put forth today and I have nothing really tangible to show for it. That's buzz one.
Buzz #2 refers to the word on the street about someone. There is good buzz about me, I guess, as I got a nibble on some new business today. I also got new business thrown my way on Friday. Just when it is clear that I can barely handle everything I have on my plate now, my new business possibilities are set to full steam ahead. Soon, it may very well be that there will be people, including partners, servicing the business I am bringing in. This would be odd. I am merely a senior associate and I will, for all intents and purposes, have partners reporting to me on business I generated. But I did have a partner come into my office today, sit down, and ask me if I'm free for lunch tomorrow or the next day to go over the details of one of the cases I've just brought in that he's been asked to do some work on. It just goes to show, the old law firm golden rule is still in existence: he who has the gold makes the rules. I suppose I don't really care what they call me here, associate or counsel or partner, as long as I keep bringing in the business then I will have de facto control over the economics of the situation.
Anyway, back to work.
I just happened to come across an email address for a lawyer in way, way, upstate NY. Almost Canada, practically. It started with: always golfing, followed by the email provider service. Can you imagine a less professional image to share with a client? I will be golfing instead of attending to your problems.
That said, if I was a country lawyer, I'd have a sign to hang on my door: Gone Fishin'. A little legal work followed by a lot of fly fishing.
Ever given a deposition? Or more accurately, ever had an attorney TAKE your deposition? It's a series of questions and answers recorded by a court reporter and done under oath. It's like testifying in court except there's no judge to rule on objections or to make sure everyone behaves. They can be a lot of fun for a lawyer to take. We did one once where the deponent later became a client of the firm and he refused to ever set foot back in the conference room where we took his deposition. That was an interesting day. I am out of the office for the majority of the day today where I will be taking a deposition of an incredible fraud artist. He regularly gets written up in the papers and never seems to pay the price. Without being melodramatic, the noose is tightening on him this time.
I love to wear the white hat.
Just took a call from Mary at Verizon. It rang through to me because it's too early for receptionist types to be in. It went like this:
Mary: Can I speak to Mr. A?
Me: No, he's not in yet.
Mary: Can I leave a message?
Me: Sure. Just let me get a pen [as she starts speaking quickly and stops].
Mary: Tell him Mary from Verizon called and said that a technician has been dispatched, to his house. That's d-i-s-p-. . .
Me. Wait a second. Are you actually spelling dispatched for me?
Mary: Yes.
Me: You know what? I have seven years of higher education. I think I can handle this big word on my own. Anything else?
Mary: No.
Me: I'll give him the message.
P.S. According to spell check, just so you know, I managed to spell dispatch here, too, without any assistance.