McElhaney on Litigation

Subduing The Snarl


Angus walked into my office with two mugs of dark mountain roast and a pair of apple-walnut bear claws.

“It’s bribe time,” he said. “I’m going to ask you to read these two letters and then tell me what you think.”

“Do I get to use them in my column?” I said.

“If you only eat one bear claw,” he said.

I started to read.

Dear Angus:

I have a serious problem. I recently moved up in the world and am not certain what to make of it.

I started out practicing with a small firm in Portland, Ore., and found I really enjoyed working on intellectual property cases. I was certain I was hitting the big time when I got noticed by a massive litigation firm in Los Angeles that has an intellectual property division twice as big as the entire firm I had started with. Here was my chance to work with the best lawyers on the leading cases that actually make the law.

I was prepared for the change in weather, culture, hous­ing costs, the pace of work and even the long commutes. But not for the lack of ethics, the attitude toward the practice of law and the culture of deception that seem to permeate the firm.

On my very first day there was a meeting of the intellectual property litigators, and I was shocked when Nor­bert Collins, the head of the division, said, “Now, don’t misunderstand me. I am all in favor of professional courtesy. But it is not in our best interests to casually agree to extensions of filing dates and other unnecessary accommodations to those thieves and brigands who are on the other side of our cases. Your job is not to make our opponents happy or comfortable. Our object is to inflict pain on the opposing lawyers in every aspect of pretrial practice.”

Later that week, I went through a list of documents in a patent infringement suit to see which ones we had to turn over to our opponents. I sent the list to Mr. Collins, pointing out eight key documents that suggested we might have to change our entire theory of the case.

I got called into Collins’ office to talk about my report. Frankly, I was expecting a pat on the back for spotting a serious problem that two other lawyers on the case had simply missed.

But instead, Collins erupted like Mount St. Helens. “It’s not our job to hunt down all the smoking guns we can find and send them to the enemy,” he barked. I looked at him. “Mr. Collins,” I said, “I like practicing law.”

“What’s your point?” he snapped.

“I’d like to keep my license,” I said.

Collins forced a smile. “Don’t you worry,” he said. “Our firm policy is to scrupulously comply with all discovery requests with ‘all deliberate speed.’ And the first step with these documents is to send them to our privilege specialists to make certain they are not only authentic, but that there is no possible privilege that is our duty to assert before we transmit them to plaintiff’s counsel. It is a laborious, time-consuming process, but one that is an essential part of our professional responsibility to our clients.”

Then he stood up and opened the door so I could leave.

The next week, I started hearing interesting bits and pieces of the firm’s history, like how we lost several big insurance companies as clients when they audited our bills. They discovered that we were billing 30 percent of our associates’ hours at partners’ rates and 40 percent of paralegals’ hours at associates’ rates. We had some “billing enhancement” software in our computer that automatically cooked the books. The total number of hours we reported was accurate, but the amount we actually charged was fraudulent.

A few months later, I told Mr. Collins that a brief we were about to file in the patent case made a subtle—but serious—misstatement of the law. I knew, because I had done all the research for it myself.

He thanked me for telling him, but filed the brief with­out doing anything to fix the mistake. When I talked to him about it, he told me his interpretation of the law was “perfectly reasonable and no one would notice.”

“If that’s the case,” I said, “why not just be honest and make it right?”

Collins just stood up and opened his door so I could leave.

But my biggest problem is the petty backstabbing and suspicion that is pervasive throughout every level of the firm. There are more vicious rumors and lies floating through our halls than you can count. With only two exceptions, I don’t feel there is anyone in the firm I can trust.

Despite all of this, the firm continues to enjoy a fine reputation even though we are known for playing hardball. Some of my friends from other firms ask, “How can you get along with all those pit bulls?”

I just say I carry a little bag of raw meat so I can toss them a few chunks whenever they start to snarl.

But the truth is, it really bothers me. So tell me: Is it just me, or is there something wrong here? What do I do? Talk to the head of the firm, find another job or just accept the fact that this is what the practice of law is really like? Bothered by the Big Time Dear Bothered:

Most of the lawyers I know are honest and ethical, keep their word and do their best to play by the rules.

On the other hand, there are no perfect law firms. All organizations, all institutions, all families, clubs, schools, hospitals, churches, political action groups, hockey teams—and especially law firms—have their own individual cultures. And all are flawed, some more deeply than others.

Those cultures, with all of their faults and strengths, tend to take on lives of their own. There is a cultural inertia in all organizations. Their methods, habits, values and beliefs are slow to change, even when new people come and old people go. What this means is that it is easier to find a different firm that suits you better (or start a new one of your own) than it is to try to remake the one you’re in.

The pit bull tradition of nasty, vile, untrustworthy, unethical lawyers has been with the profession for a long time. But it did not become a dominant culture in many law firms until the late 1960s and early 1970s. That’s when the litigation explosion started.

In a time of huge cases, double-digit inflation and no prejudgment interest, justice delayed seemed just fine to lots of large firms. Dilatory pleas and discovery abuse seemed like good economic tactics to thousands of lawyers.

At the same time, the business climate of cooperation and accommodation changed to a fierce competitiveness—and lawsuits multiplied.

Down from the top came the goal of looking and acting like the meanest dog in town. As a result, a deposition in the average personal injury case that typically was a pleas­ant, civilized affair followed by a cup of coffee and a donut became an emotionally charged, gut-wrenching battle.

It’s unprofessional and unethical, and everybody knows it, but a lot of lawyers do it.

So what should you do?

The wrong answer is to accept it. I was heartened by the way you stood up to Norbert Collins, but the tone of your letter says this climate is gnawing at you enough to distract you from your work and make you seriously unhappy. And even if you could learn to live with it, you would pay a price. Lie down with dogs and you will pick up fleas.

Success in the practice of law is not defined by the big­gest salary, the largest firm or the most important cases. Success is about righting wrongs, keeping the system honest and helping people who are in trouble. Few things are more rewarding than confronting injustice.

But then, I think you already knew that each time you walked out of Mr. Collins’ office.

Angus

“What do you think?” said Angus.

“About what,” I said, “your letters or Ms. Bothered?”

“Ms. Bothered,” said Angus.

“Anybody who can stand up for what’s right like she did seems to have the spark,” I said. “Think we need an intellectual property lawyer?”


James W. McElhaney is the Baker and Hostetler Distinguished Scholar in Trial Practice at Case Western Reserve University School of Law in Cleveland and the Fred Parks Distinguished Lecturer in Trial Advocacy at South Texas College of Law in Houston. He is a senior editor and columnist for Litigation, the journal of the ABA Section of Litigation.


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