You know what...this judge WAS a few fries shy of a Happy Meal
Ever since I've started my site, I've blogged about situations where, in my view,
judges have gone way over the line in sanctioning attorneys for conduct, such as sending a lawyer to jail for refusing to apologize or showing up late for a hearing. But typically, these sanctions have issued against solo and small firm attorneys.
But outrageous judicial conduct isn't any less outrageous when it's directed against our biglaw colleagues. And that's why the scenario described in this,
Lawyer's 'Super-Size' Gaffe Costs Him Client and Possibly Right to Practice Before Fla. Court (law.com 5/31/07) really ticked me off. According to the article, William Smith, a partner at large, Chicago based law firm of McDermott, Will & Emery commented to Judge Laurel Myerson Isicoff during a hearing Bankruptcy Court for the Southern District of Florida that "with all due respect, you're a few french fries short of a Happy Meal." The relevant portions of the transcript, available here at David Lat's Above the Law show that the judge didn't say anything other than "proceed counsel" at the hearing. But subsequently, issued a Show Cause order asking Smith to demonstrate why his pro hac vice status shouldn't be revoked in light of his remarks. The judge also denied Smith's motion, and Smith's client has since replaced him with a local firm.
The judge's decision is wrong on so many levels that I can't even begin. First, if she was offended by the comment at the hearing, she should have said so right away and given the attorney a chance to apologize. To me, this smacks of a set up. Second, quite frankly, this is overkill. Requiring a lawyer to respond to a show cause order and convening a hearing uses time and resources. Why couldn't the judge simply have slapped the lawyer with a monetary sanction right on the spot? At least, it would have ended the matter. Third, did the judge really need to copy every other judge on the bench with the show cause order? To me, that's simply vindictive. After all, many judges may have taken the remark in stride or come back with a snappy quip from the bench in response.
I also question the judge's motives. I wonder whether she'd have reacted the same way had a local attorney rather than one from an out of state, biglaw firm made the same remark. And as a result of her action, the client did channel its case to a local firm. As a solo, that should give me pleasure (since I often serve as local counsel), but it doesn't. If I get business, I want to win it fair and square - not because local judges are mistreating out of state counsel.
Seventh Circuit and Wikis
The Seventh Circuit just introduced a really neat tool that I posted on at Legal Blogwatch: a wiki that judges and practitioners can update with helpful tips and advice on court practice. The wiki will help Seventh Circuit newbies, but as I wrote at Blogwatch, more experienced lawyers can use the wiki for marketing. Let's say you're aware of a strange quirk in the Seventh Circuit rules. Post it on the wiki, with a link to your website and blog. Other lawyers visiting the site might come to view you as an authority, and might contact you with a referral or a question, which could lead to paying work. And imagine how much prestige you'd earn if a judge like Posner or Easterbrook jumped in with a "me too!" to your comment. Perhaps you could even become the next Howard Bashman!
Even the Best Lawyers Have Bad Days - But They Know How To Cover When They Do
Perhaps the greatest fear that I hear from most shinglers-to-be is the fear making mistakes. For example, many lawyers contemplating solo practice, whether fresh out of school or after a tenure at biglaw, have never argued a motion, filed a complaint or taken a deposition (sometimes they've never even observed others doing it). They're afraid that if they take a case on that involves these skills, they'll make a mistake. And they're concerned not so much about a grave error that would trigger malpractice liability, but rather, the smaller errors that cause public embarrassment and humiliation in front of a judge or the client.
Guess what? It's not just new solos who make these kinds of little missteps, who have days when they can't get a coherent argument out or break a witness on cross examination. Everyone does - that's why we call our profession the "practice," rather than mastery of law. But what more experienced lawyers do have is a bag of tricks that they can use to cover errors or mitigate them. Consider this nifty trick that Ron Miller of Miller and Zois' Maryland Injury Lawyer Blog discussed in this post entitled Cross Examination of the Witness That Cannot Be Cross-Examined. You need to read the post in its entirety to appreciate the story, but to briefly summarize, if you can't lay a hand on a witness, compare him to a greased pig. The story is a great example of how to explain away any lack of effectiveness - and then - turn it to your advantage.
A $2 Million Reason to Keep Control in the Courtroom
I have a feeling that the state bars will be a little less busy reprimanding lawyers in Staten Island for unprofessional conduct after the decision reported in $2M award yanked after lawyer's theatrics go too far, (Staten Island Advance 4/7/06). Now that lawyers know that unprofessional remarks can cost them and their clients money, they ought to have a financial, if not ethical, interest in controlling themselves in the courtroom.
Was the judge's action an appropriate response? Should he have penalized the client so severely for her lawyer's actions? Or will the judge's decision help to show clients that an overly aggressive lawyer isn't necessarily the best choice? I'm sure that a decision like this one will make lawyers think twice about their courtroom tactics and with so much unprofessional conduct, there's nothing wrong with that. At the same time, if judges are going to police conduct, they need to make sure that they don't go too far so as to deter lawyers from zealously representing their clients.
Free Sample Pleadings Online
At his Illinois Trial Practice blog, Evan Schaeffer links to the Miller and Zois Attorney Help Center. The Help Center makes available, online, sample pleadings, motions and discovery materials for personal injury cases in Maryland, though many might potentially serve as a model for other states as well (though don't forget to check applicable state laws and local court rules to make sure). I'd actually come across this site several weeks ago and used one of the pleadings as a loose model, so I can attest first-hand to the utility of the site.
What's in it for the firm, you might wonder, to "give away the milk for free," so to speak. First of all, the attorneys who make use of this site are more likely to be newer attorneys (after all, why else would they need to find a sample to begin with?). And newer attorneys will probably attract clients with smaller or more difficult cases that probably do not interest Miller & Zois anyway. Second, newer attorneys (or non-PI attorneys) do manage to reel in a client with a large PI matter and can't handle the case, they'll be far more likely to refer the case to Miller & Zois because they'll have an opportunity to review some of its work.
When I started my firm back in 1993, lawyers were obsessed with not giving away anything for free. They'd write articles that consisted only of teasers or headlines, without any real substantive information. Blogging and the Internet has changed those attitudes by showing that lawyers who make real information available as a public service will get real benefits back many times over.
What David Swanner's Giving Away, and Not Just for Holiday Gifts
A few weeks ago at Blawgthink, I met David Swanner, who blogs at South Carolina Trial Law Blog. David was giving out copies of his Winning With Powerpoint CD that you can get from him through his blog as described here. From David's perspective, the payment is possible referrals, but more importantly, an opportunity to help improve litigation practice.
It's taken me a while to put up this post because I actually wanted to take a look at the CD. David has put the presentations together in a professional and organized manner. As for the quality of the examples, some presentations are quite good while others don't seem that they'd be very effective with a jury. But you can learn from the good and the bad about what to do and what not to do. Also, seeing some of the poorer quality stuff made me a little less intimidated since I'm still trying to improve my own power point presentation skills. Anyway, go over to David's site and learn more about him and his CD and maybe you'll come up with a marketing idea that's similarly cool.
Solos and Small Firms Should Cautious When It Comes to Litigation Financing
Fellow solo and small firm lawyers: another litigation financing company wants to sell you a service, claiming that it's just what you need. According to this recent press release, LegalFish Bridges the Funding Gap for Plaintiffs and Attorneys in Litigation.:
The purpose of the [Life Funding] program will provide access to non-recourse loans that can help plaintiffs in litigation meet ongoing expenses as they await their trial date, and allow their attorney time to work toward a larger settlement. The term “non-recourse” means that if a plaintiff loses his/her case, they there is no obligation to repay the advance[....]
"After working with many attorneys, it became apparent that small-to-midsized firms and solo practitioners often required additional funding to finance their litigation expenses on select cases. Our goal is to provide lawyers an advantage over traditional lending sources with a risk-free service." added Shah. (emphasis added)
Sounds like a great program, right? Well, as a practical matter, attorneys need to think long and hard about taking advantage of this so-called risk-free services. As we've posted before, some jurisdictions have found the interest rates for litigation financing services usurious (at least for those services available to clients), while in other situations, terms of the financing may force an attorney to turn down a settlement and go to trial because the terms of the financing arrangement render the settlement uneconomic for the client.
There's no such thing as risk free when it comes to litigation financing. If the case is a dud to begin with, chances are your firm won't qualify for funding. And if the case looks like a winner and you receive the loan, eventually you'll need to repay it with interest which raises ethical questions like whether the lawyer pays the interest or the client. And as an attorney, will the fact that there's a loan outstanding on your client's claim, will that compromise your judgment and decison making in the case. What happens if you take a case to trial (because it doesn't cost you to do so) - and wind up with less than what was offered in settlement? Might you face malpractice liability?
There may be valid situations for litigation financing. But don't rush out and buy it because a company says it's what you need. Instead, educate yourself on the benefits and drawbacks before making a decision that could impact your practice and legal career.
Being Nice Can Pay Off
Lawyers take different approaches to litigation - some believe that a threatening, aggressive demeanor produces results, some prefer a cool, professional air (think robotic!), others adopt a good old boy, blackslapping friendliness. This post by Seth Godin persuasively argues in favor of the power of being nice. (among other things, you may save your client money and avoid the embarrassment of losing to a pro se litigant).
More on Lawyer Rates
Reader attorney Frank Kautz passed on to me this link to the "Laffey Matrix," which lists the court approved hourly rates for fee shifting case in the District of Columbia. The rates start at $105/hr for paralegals and law clerks and top out at $380/hour for attorneys with 20 years of experience or more. The fees listed provide an interesting contrast to the numbers discussed in Fair Rates for Court Appointed Counsel whereby I and various commentors addressed whether a court appointed rate of $40/hr was appropriate.
Incidentally, I don't see a tremendous inconsistency between the rates contained in the Laffey Matrix on one hand and court appointed rates on the other. Most significantly, in court appointed cases, attorneys are always paid whether they win or lose for the client, while in fee shifting cases, attorneys only collect where the client is the prevailing party. With more risk, comes more reward. (Moreover, there are even more limitations on the fee: let's say a client presses three issues and wins on only one. The rates are subsequently pro-rated so if the attorney spent equal time on each issue, ultimately, he or she may recover fees for only a third of that time (it won't be as stark a breakdown because of overlap, but it's a potential) Finally, for many of these fee shifting cases, lawyers front the costs of depositions and discovery out of pocket and thus, have greater investment in a case and risk than a court-appointed attorney.
That's not to say that attorneys don't make good money off fee shifting cases -better money than court appointed counsel. Which is why court-appointed attorneys should try to diversify their practices and position themselves so that they have the resources to take on other cases that will generate a bigger payday. Maybe fighting discrimination under Title 7 doesn't give the same satisfaction as upholding the constitutional rights of the accused but if you don't make enough money to stay in business, you can't do either one.