Case Closed. Now What?
Lawyers Who Have Taken on Time-Consuming Litigation Share Their Strategies for Surviving and Even Thriving
Posted Aug 1, 2004 4:12 PM CDT
By Martha Neil
When Henry W. Asbill said he would represent one of 26 defendants in an organized crime RICO case, he expected it to be an interesting, complex criminal defense with a trial lasting about three months.
He was right about the interesting and complex parts. But he soon realized he had seriously underestimated just how long the trial would last.
What he thought would take up only a part of 1986 stretched on into 1988. At 22 months, Asbill says the trial actually set the record as the longest criminal trial in federal court history.
Fortune was with him in a number of ways—he got along well with the client, his client could afford to pay him, and he eventually won the case, Asbill recounts. In fact, all of the defendants were acquitted on all charges on the first day of deliberation.
Nonetheless, he recalls the Newark, N.J., trial as the most challenging period of his career. Long before the days of cell phones, laptop computers and PDAs, the location was several hours away from his small firm’s Washington, D.C., law office, his wife and his 2-year-old son.
During the week, Asbill shared a house with a Florida lawyer also working on the case. The low point came when that lawyer returned home and was diagnosed with cancer. “He never made it back to the trial, and died,” Asbill says. That left Asbill as the only out-of-town counsel in the case. “Everyone else had their family around, and their children, and their practice, except me.”
Asbill doubts his practice could have recovered had he returned after a two-year absence without a winning verdict. “I wouldn’t do a trial like this again,” he says, “unless I was paid enough money up front to ensure that I could retire at the end of it.”
Nonetheless, “I never thought I was not going to be able to rebuild it,” Asbill says now of virtually starting his practice again from scratch when he returned to his law office in D.C. after two years away. “I had enough self-confidence to believe that I could do it. And there really is no choice. What was I going to do? Go be a doctor? This was my career path, and I was going to make it happen no matter what I had to do.”
MAKING HAY WITH MARATHONS
Long-running cases present unique challenges, both personal and professional, and can even make or break a legal career, say lawyers who have accepted them and lawyers who have been unexpectedly caught up in them. But it is definitely possible to survive—and even thrive—in the face of the continuous court date.
Some practitioners even prefer the long battle to shorter struggles. Darlene M. Ricker, a solo practitioner in Malibu, Calif., says she is very content working as a federal criminal defense attorney, handling court-appointed death penalty cases that often stretch on for years.
Recently appointed to represent one of approximately 40 defendants in a national death penalty case involving the Aryan Brotherhood, she expects to be spending much of the next five years preparing it for trial. At the same time, she will continue to focus on other death penalty appeals that she has been handling, which she also estimates will take years to complete.
Ricker’s practice has focused on such matters since 1990, and she enjoys being able to concentrate on a small number of cases.
“It’s easier to deal with one or two people on two big cases than it is to constantly keep in touch with 10 or 12 people on smaller cases,” she says. “If you have one or two cases, you really can be on top of your game for those cases, and right there for the clients with the information they need when they need it, and give them some really good attention. You’re just not spread as thin.”
Another advantage of her practice is that it gives her “a lot of freedom lifestyle-wise,” Ricker says. It’s easy to arrange her schedule so that she can run an errand or ride her horse during the day, yet still be available to the one or two clients who may need to be in touch with her. And a lot of her practice involves research and writing, which can just as easily be done at night, if she prefers.
Carole E. Handler also speaks highly of the long-running case. Now a partner in the Los Angeles office of a 300-lawyer national firm, she routinely works on massive antitrust cases, and she talks up the opportunities such cases can provide, especially for associates.
Some young attorneys try to avoid major-case, long-term litigation so as not to be part of “a team of associates carrying the briefcases of the major lawyers,” she says.
But Handler sees it differently: While big cases can be a career nadir for some attorneys, they can also offer big opportunities. She herself had a positive experience when, as a fledgling associate at a Philadelphia firm, she was assigned to a huge constitutional case. It involved a challenge by the motion picture industry to state statutes throughout the country.
The case was tried in 1985, five years after she started, and then “sort of came back” more than a decade later, in 1999, when Handler worked on a related matter. She found the case fascinating, and she says it offered her the opportunity to work with very talented senior lawyers as one of only a couple of lawyers handling the matter for her firm. “I happened to luck out,” she concludes.
But a big case can also present major difficulties for a lawyer, both while it is ongoing and when it is over.
Despite the opportunities for concentration and career advancement that a big case can offer, many lawyers find it difficult to avoid focusing virtually all of their attention on a long-running case. As a result, they say practice development and rainmaking responsibilities can suffer.
This can set lawyers up for a major crash when the case concludes. Solo and small-firm practitioners often find they have to replace clients who migrated elsewhere during the course of the big case. And even lawyers who work in large and midsize firms—with a broader base of partners who may be able to share some of their work—say that finding help to get re-established isn’t always forthcoming.
“What frequently happens is that lawyers make very bad transitions when they’ve just been devoting themselves exclusively to a case,” says Martha Fay Africa, who works in the San Francisco office of legal recruiter Major, Hagen & Africa.
“Law firms handle this kind of thing very badly. They expect people to be able to gin up a practice overnight, and of course they can’t,” she says. “They sacrifice their entire practice for the sake of one client.”
For partners who are expected to generate business, it may be difficult to find partner-level work that other partners are willing to give up, says Carol M. Kanarek, an attorney who works as a career counselor in New York City. And partners and associates who have spent a large part of their career on a single case may find that they lose assignments to others in the office who are better-known because they haven’t been away for months or years, she says.
It is possible to bounce back at the end of a big case, but it doesn’t happen without effort. Lawyers must take an active role in managing their own careers, advises Heidi Reavis, the co-managing partner of a general commercial firm of about 20 attorneys with offices in New York and California.
Reavis speaks from experience: Years ago, she changed firms because of the work associated with a big transactional case. Her mother was ill, and Reavis, then a third-year associate, felt overworked. She had turned a deaf ear to calls from legal recruiters in the past, but the pressures spurred her to begin listening.
“If I had greater maturity and courage at the time, I would have discussed this with one of the partners,” she says now. “But in the end, I was working so hard that I concluded a different firm culture might enable me to have a more balanced life.”
As she eventually realized, though, “It was not about the firm, it was about me. It was about my own ability to discipline myself and modulate the work I was doing. In fact, the first firm I was with was terrific, and the second firm was also terrific. But in the end it just took a few more years to develop the tools of balancing.”
FLEXIBILITY BREEDS CONTENTEDNESS
Now that she is in charge of her own firm, Reavis tries to see to it that the work environment there is flexible enough to accommodate the lives and needs of the junior lawyers. And this isn’t just for their benefit, she notes.
“Part of getting the most out of your staff on large matters that are either laborious or fast-paced and deadline-driven is creating an environment where the employee feels valued and feels that, on the individual level, his or her needs are met.”
While it’s easier said than done, lawyers working on big cases still need to find time to stay in touch with pre-existing clients and market themselves to new ones.
For Ricker, this is more about organization than time. She calendars a day or two a month when she writes or calls on clients whose cases are on the back burner, so they don’t feel neglected. Another lawyer Ricker knows deals with this issue by apportioning different periods of her working day to specific cases.
Even in the midst of a major matter, Ricker says, lawyers need to be thinking about the next big case.
“I keep something in the pipeline,” she says. “I kind of have an internal time clock—I sense when one of these long-term cases has gone to the point where there’s one more year in it or two or three ... and then I’ll just start looking for another one.”
Adding to the challenge of resuming a practice at the close of a long-running case is the issue of lawyer burnout. And it’s not just a matter of workload, Kanarek says. A lawyer’s identity can be so tied up with a big case that shifting to new matters is almost like getting a divorce, she says.
Instead of mourning the loss of the major matter, however, it’s important to embrace the potential for career growth, she recommends. Rather than telling yourself “I’ve lost my identity,” you should say to yourself, “I now have the opportunity to regain it in a different way.”
Launching full-steam into another matter, however, is not the answer to battling burnout, cautions John E. James, a partner in a well-known Wilmington, Del., firm that now has about 70 lawyers.
When his first mammoth case ended in 1995—after a record-setting five-month trial that settled about halfway through the defense presentation—James says he began working almost right away on another enormous insurance coverage matter. The 1998 trial of that case lasted four months from start to finish, and remains the longest civil jury case ever tried to verdict in Delaware state court, he says. Post-trial matters in the case finally came to a close in 2001.
“The crash came after I finished with that case,” James says, explaining that insurance coverage work wasn’t as easily found at that time.
“I had to refocus my practice perspectives,” he says, “and I had missed opportunities during that extended period to branch out in other areas to do the kinds of things that are essential in rainmaking, such as writing and speaking.”
Although his firm helped him get re-established in practice, business was slow for the next year or so, James says. “For 21 years, I constantly had high hours, never wanting for work,” he recounts. “And then, all of a sudden, I had to make myself into a rainmaker and start looking for work in other areas that I hadn’t been practicing in much or at all.”
In addition to the difficulty of finding new clients, “there was a pride element” to be dealt with, he says now. “I didn’t feel like I was making the kind of contribution that I wanted at the firm. I was fairly senior at that point, and was having to rely sometimes on junior partners to get work just to keep going.”
While James was waiting for new matters to materialize, he used his downtime to market his extensive insurance coverage experience and make new contacts.
He ended up writing a book on the area in which he has now become an expert, thanks to the two long-running cases. Published by Commerce Clearing House, it is called Privileged Communications and the Delaware Corporation.
He also became more active in the ABA, eventually becoming vice chair of the Insurance Coverage Litigation Committee of the Section of Litigation.
It is possible to nip burnout and other big-case issues in the bud, Africa says. She recommends that lawyers talk to their firms before diving into a big case to negotiate parameters of the assignment and address concerns that could arise during the matter and upon its completion.
Issues that might be addressed in such a negotiation, she says, include: “What’s going to happen to me when this is over? How will you take care of me?” and,
“How will you make sure that I get sufficient exposure to other partners?”
Then, if the terms of the assignment turn out to be significantly different from what was promised, she advises heading back to the negotiating table.
“People have got to stand up for themselves. People don’t do that enough,” Africa says. “People need to have some autonomy in their lives, and they lose much of it when they’re out of town.”
Of course, there’s always the amazing restorative power of a great vacation, says Kanarek. “So many lawyers I know are never happy when they’re overworked,” she says. But then, when a lull occurs, “They worry that nothing else will ever come in again.”
“Let yourself use that natural opportunity to take a break,” Kanarek advises. “And take a real break, which is something that lawyers often have a very difficult time doing.”
Martha Neil, a lawyer, is a legal affairs writer for the ABA Journal. Her e-mail address is email@example.com.