Practice Pointers

Inside Straight: Projecting Defeat

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During my 25 years litigating at law firms, I fretted about two words: “winning” and “losing.” (As one old-timer put it: “They don’t pay you twelve dollars a minute to lose.”)

Now I’m in-house, and I’m still fretting about two words: “probable” and “estimable.”

What happened?

The accounting rules require corporations to take a reserve (which causes an immediate hit to revenue) when a “loss contingency” (which is accountant-speak for lawsuits, among other things) becomes probable and estimable. If it’s likely that you’re going to lose, and if you can estimate the amount (or, at least, the lower bound of the amount) of the loss, then it’s time to take a reserve.

This can make in-house life odd….

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Inside Straight: Reporting On Depositions

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When is a litigator thinking most keenly about a specific witness’s testimony?

There are two days: The day you’re taking (or defending) the deposition of the witness, and the day — months or years later, if ever — when you’re examining the witness at trial. So when should you be making notes about the witness’s testimony and your reaction to it? That question answers itself: You should make quick notes of key points during the deposition, and you should write notes to yourself immediately after the deposition ends. “Immediately after”: Not later in the week; not the next morning. Now, when your brain is fully engaged.

Those notes don’t have to be comprehensive, but they have to memorialize the things that you noticed during the deposition that you’re likely to forget by either the next morning or the day, a month later, when you’re reviewing the transcript. The notes are quick and easy. Write an e-mail to yourself that says: “Today I took Smith’s deposition. These were the highlights: (1) He admitted A; (2) He denied B; remember to create some other admissible evidence on that point; (3) He evaded on C; there’s something fishy going on there; (4) Opposing counsel started interrupting when I got near D; we should press harder on that point; (5) His testimony opens up issue E; let’s do some legal research.” There might be a half dozen points; there might be a dozen. But the key is to record immediately the fleeting ideas that you had while your brain was most in gear.

During the deposition, you’re as attentive as you’ll ever be. Don’t lose the moment; capture it.

What do you use those notes for?

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Inside Straight: The Ghosts Of Incompetents Past

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There’s a reason why people get crotchety when they get old. People forget about things that went right in their professional lives; that’s like water off a duck. But people remember things that got screwed up; that’s what sticks in their craws.

You personally are not necessarily incompetent. But you’re tarred by the ghosts of incompetents past. When your elder — a partner, a boss, a client, whoever — asks you to do something, the boss assumes that you won’t do it. The boss doesn’t assume this because she knows that you’re irresponsible; she assumes it because the clown she asked to do something six months ago was irresponsible, and she has to hedge against you being an irresponsible clown, too.

How do you prove that you’re not irresponsible?

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Small Firms, Big Lawyers: Pricing Legal Services in Eight Easy(ish) Steps

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So Lat calls me up all excited about some Biglaw Midsummer Bonus or something, which I totally ignore, and also about some hysterical dicta that Judge Kozinski wrote, which I also ignore (although it probably was pretty funny), and then he starts asking me about my law career. Which, you know, ended. And he points out that I failed to get ATL approval of my decision to close my small firm, which means technically, my column should just be called “Big Lawyers,” which is a whole other kettle of fish.

Then Lat says he knows how we can fix it. “Go on,” I say. Lat says that I can tell our readers exactly how to start pricing their legal services instead of just billing their time. “But Lat,” I plead, “I can’t give away my secrets. I have a whole new consulting firm to tell people these secrets in exchange for scads of dollars.”

Lat is quick to admonish me. “We don’t keep secrets from our readers, Jay. That’s why our readers know all about my obsession with all things Sophia Chua-Rubenfeld and why they all know that Elie is as jovial as an Ewok in real life.” Then his tone sharpened: “Plus we can always get Staci to write your column in a tenth of the time it takes you. And we can even have her use your name as a pseudonym.”

Well played, Mr. Lat, well played. So here then are the secrets to pricing your legal wares in eight easy(ish) steps.…

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Small Firms, Big Lawyers: Six Steps to Becoming an Expert

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Ed. note: This is the latest installment of Small Firms, Big Lawyers, one of Above the Law’s new columns for small-firm lawyers.

So you’re at a small firm and you want to be successful. Good. Why you wouldn’t want that is beyond me. But if you want to be a successful lawyer, you need to make a name for yourself. If you don’t want to be a successful lawyer, you can leave this post now. We’ll wait. [Waits while the preternaturally mediocre leave ATL for Dlisted or whatever.] OK? The rest of you stick with me.

Look. You didn’t end up at a big firm, because you didn’t go to a top law school or because your first-year grades weren’t as stellar as they could have been. So you’re not going to be making a huge salary in exchange for billing 2,500 hours a year. Deal with it. That doesn’t mean that you can’t have a very successful career as a lawyer. It just means that you need to take a different approach.

The most important thing you can do to make a name for yourself as a lawyer is to find a way to stand out from the crowd. Here are six tips on how to do it.…

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ATL Practice Pointer: Don’t Discuss Private Matters in Public Places (Or: A Thelen partner’s reaction to ATL layoff coverage)

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E train New York City subway car Above the Law blog.jpgConfidentiality. Lawyers get lectured about it all the time. Despite all the warnings, attorneys young and old routinely get themselves in trouble through indiscretion (not just Eliot Spitzer).
Sometimes Supreme Court clerks are overheard talking about their cases. Sometimes law firm partners are overheard talking about firm business. An in-house tipster provides this account of a morning subway ride:

I was sitting on the E train at approximately 9 AM today. Next to me was a tall, older woman with a short (obviously dyed) blond hair cut. A younger (I would guess in his 40s) man saw her and made some comment about how funny it was to see her. She made a face, said she was in a rather bad mood, and showed him an email on her blackberry.

Now this conversation only lasted from the 7th Avenue stop on the E to the 5th Avenue one where Male (I’m assuming Partner) got off in order to attend a meeting, and Female (I’m assuming Partner) got off at the Lexington/Third Avenue stop [at 53rd Street].

Note: Thelen’s offices are at 875 and 900 Third Avenue, around 53rd Street….

The conversation continued to express FP’s concern regarding the person in the email. That FP would “talk to her” as soon as she got in. MP seemed somewhat unconcerned as he “suspected something like this would happen.”

Talk to Her — the title of a critically acclaimed Almodovar film. In this context, however, we’re guessing that FP’s secretary or assistant got laid off (or is about to get laid off) — and FP needs to discuss the situation with her.

Then MP mentioned your piece in AboveTheLaw.com (which is how I figured out what they were talking about), stating that the firm was reflected fairly well all things considered, and how the piece could have been worse. FP made a comment about how it only got bad when you read the comments, where it seems a lot of information was given out that made her very unhappy.

Ah, the comments. Sometimes they make us “very unhappy” too — although, for the most part, we are grateful for the insight and humor contained therein.
Welcome to the internets, FP. And exercise greater discretion next time — you never know who might be listening.
Earlier: Nationwide Layoff Watch: Thelen Reid Brown Raysman & Steiner

ATL Practice Pointers: Do Not File Gay Porn With Judge Jordan

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gay porn do not file Above the Law blog.jpgWhen it comes to knowing how to make proper court filings, don’t bother with the FRCP, or even the local rules. Just read ATL.
We tell you everything you need to know. E.g., don’t file an egg with Judge James Muirhead (D.N.H.).
And don’t file gay pornography with Judge Adalberto Jordan (S.D. Fla.). From GamePolitics.com:

That gurgling sound you hear could be Jack Thompson’s legal career swirling down the ‘loo.

The frequent video game critic, already facing professional misconduct charges from the Florida Bar which could see him stripped of his license to practice law, has outraged a U.S. District Court judge by including images of men having sex in a document filed with the court last week.

What was he thinking? And no, the gay porn was not essential to the case (as it might have been in, say, an obscenity prosecution arising out of said porn).
More details — if you want them — after the jump.

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ATL Practice Pointers: Do Not File An Egg with Judge Muirhead

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egg hardboiled egg hard boiled egg vs man Above the Law blog.jpgIs this litigation kosher? You bet. From Vos Iz Neias (Yiddish: “What’s News”):

A New Hampshire prison inmate’s file drove a federal judge to rhyme to express himself.

A prison inmate protesting his [non-Kosher] diet attached a hard-boiled egg to documents sent by mail to U.S. District Court Judge James Muirhead.

“I do not like eggs in the file. I do not like them in any style. I will not take them fried or boiled. I will not take them poached or broiled. I will not take them soft or scrambled Despite an argument well-rambled,” Muirhead wrote in his response to inmate Charles Wolffe.

Wolffe, 61, says he is an Orthodox Jew and has accused prison officials of refusing to feed him a kosher diet. He is seeking… proper foods and $10 million from the state. His case has been scheduled for a trial.

More discussion, plus the full text of Judge Muirhead’s order, after the jump.

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ATL Practice Pointers: Don’t Taser the Client

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Even if you have a possible justification for doing so — ’cause it might be illegal. From the ABA Journal:

Taser lawyers taser client Abovethelaw Above the Law blog.jpgProceedings have been delayed in a California misdemeanor case in which the defense is claiming that police brutalized their client with a stun gun during his arrest at a shopping mall last year.

That’s because the defense team is now being criminally investigated for allegedly violating human experimentation laws by repeatedly using a stun gun on their client themselves during an evidence-gathering effort in a law office.

Additional details here. Our tipster, a criminal defense lawyer, observes:

“I can’t decide which I like better:

(1) imagining those nervous, sweaty-palmed, study-group types from law school, wringing their hands and saying, ‘C’mon, guys, we have to be PREPARED! How are we gonna know what he looked like when he was writhing in agony unless we shock him AGAIN?’ or

(2) the idea of defense lawyers seizing the opportunity to taser a client — which we have ALL dreamed of doing.”

Shocking Case: Legal Team Tasers Client [ABA Journal]

An Update on Litigation Support Guy

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Quinn Emanuel Urquhart Oliver Hedges associate salary Abovethelaw Above the Law blog.jpgIn case you’re wondering what happened to the litigation support guy at Quinn Emanuel, who sent around an office-wide email reprimanding an associate for allegedly rude treatment, here’s an update:

The lit support guy got his walking papers almost immediately. The litigation associate to whom he directed the email was baffled by the entire event.

Apparently, he just told the guy that there was a mistake and that it needed to be fixed ASAP. Knowing this associate pretty well, I say it’s pretty inconceivable that he would treat someone like a “dog,” or even unprofessionally.

So maybe the associate didn’t do anything wrong, and the litigation support guy was just a bit unhinged — a beleaguered support staff member, on the verge of a nervous breakdown. Cf. The Patton Boggs librarian.
Since the litigation support guy got fired over his email, we hope he derived a lot of satisfaction from sending it.
Earlier: ATL Practice Pointers: Be Nice to the Support Staff

ATL Practice Pointers: Be Nice to the Support Staff

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Quinn Emanuel Urquhart Oliver Hedges associate salary Abovethelaw Above the Law blog.jpgFirst, it’s the right thing to do. Second, if you’re mean or rude to support staff members, they might start talking trash about you behind your back — not good for your reputation at the firm. They might also handle your projects with less care or speed in the future.
If you REALLY piss them off, they might tell you off directly. And cc everyone at the firm, just to make you look like a total d-bag (even if you’re generally known as a nice guy among your colleagues).
The following email was sent out this morning by a litigation support team member at Quinn Emanuel to a litigation associate. Copied on the message were (1) the entire New York office and (2) litigation support firm-wide.

From: [Litigation Support Guy]
To: [Litigation Associate]
Cc: [New York Office]; [All Litigation Support]
Date: Wed, 15 Aug 2007 09:15:46 -0700
Subject: Respect

[Litigation Associate],

I don’t care who you are and what your title is…

Have respect for people when you speak to them. Education should teach you such life lessons. No one is your dog. If you want a dog go buy one or visit the zoo.

Sorry I did not see your wonderful screen shot as Trial Graphix did not see it either. People are human and make mistakes and I am sure you have made a few such as not providing the Bates number for us to cross reference.

Enjoy,
[Litigation Support Guy]

We like this cheeky message, but we have a quibble. The zoo? Dogs aren’t really exotic enough to be in the zoo. Maybe try Michael Vick’s house?
Oh, sorry — you want a live one…
(The usual rules apply. Please don’t identify either the sender or the recipient of this message. Thanks.)

A Heartfelt F.U. Farewell to Greenberg Traurig LLP (and Biglaw)

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This resignation letter has been making the rounds by email. Whaddya think?
The conventional wisdom about farewell emails and resignation letters is to keep them short and sweet. Say as little as possible, and only say positive things, even if untrue (“I greatly enjoyed my time at [Biglaw X]“). Above all, don’t burn any bridges.
But if you’re leaving the legal profession altogether — and you’re really, really sure that you’re never coming back — is it okay to let off some steam? To tell them how you REALLY feel?
Please opine on that question, and anything else you see in this farewell letter, in the comments.
(But please don’t name the individual who sent this letter. We’ve intentionally redacted his name from the missive. Thanks.)
Greenberg Traurig LLP 2 farewell letter goodbye message Abovethelaw Above the Law blog.JPG
P.S. Speaking of Greenberg Traurig, does anyone know what ever happened on this insane front? Did the firm ever respond? If you can enlighten us, please do so by email. Thanks.