Litigators

There’s not really much to say here. There are just a few things to remember to avoid an embarrassing oral argument. Basically, don’t condescend to the judges on your appellate panel, and try to show up wearing pants (and maybe some socks). Pretty simple, right?

We’ve seen this kind of confrontational tone out of lawyers before, and it never ends well for the attorney. Like when Jones Day’s Matthew Kairis thought it wise to continuously interrupt Judge Posner in Notre Dame v. Sibelius. What happened next was… entirely predictable: Kairis ended up with an earful from Judge Posner about the proper role of an advocate before an appellate panel.

This poor fellow earns the same basic tongue-lashing, just with a different accent…

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Won’t somebody please think of the children?

That quote comes from the contemptible Helen Lovejoy and probably a bunch of other sanctimonious folks trying to dupe the public into backing some BS agenda armed with the logical fallacy of an emotional appeal. The devil of it is these empty emotional pleas are so convincing to a lot of people. Sadly, lawyers aren’t above pulling this card to snowjob judges and the media.[1]

After the Vergara v. California decision there was a brief volley of commentary before everyone moved on to the next big event. The decision struck California’s teacher tenure law as unconstitutional because granting tenure to experienced teachers could possibly, maybe mean that a “bad” teacher couldn’t be fired fast enough. The decision earned the praise of a bi-partisan peanut gallery from the dwindling posse of Republicans in California to Secretary of Education and NBA Celebrity All-Star MVP Arne Duncan.

Everyone seems to want in on the “education would be peachy if it weren’t for the teachers” movement — including a metric s**t ton of Biglaw bigwigs. Gibson Dunn’s Ted Boutrous and Randy Mastro spearheaded the Vergara case. Ted Olson advised. David Boies is the chair of the Partnership for Educational Justice, a group fronted by former CNN anchor Campbell Brown bringing a similar lawsuit in New York fronted by Kirkland’s Jay Lefkowitzpro bono, of course. Now even Professor Larry Tribe is in the mix.

Stop the sanctimonious love-in. They aren’t championing children, they’re either starstruck or shilling or both. I mean, the Republicans have always wanted to kill unions because it’s easier to gut public schools for fun and profit. Democrats have jumped on board more recently because they want to suck up to tech billionaires like Bill Gates who preach that fixing the public education system that they never really participated in themselves is as simple as building an internet browser (which it is, if you want Internet Explorer).[2]

And all these legal luminaries throwing their reputations behind this effort just highlights how flimsy it is, as a matter of law and policy….

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Deepak Gupta

It’s an intimidation model. It’s a way for corporations to go after their critics and those who fund them.

Deepak Gupta of Gupta Beck PLLC, lead appellate lawyer for Steven Donziger in Donziger’s never-ending litigation with Chevron, commenting on the oil giant’s hardball tactics and aggressive litigation style (for a lengthy Rolling Stone article about the case).


Raise your hand if you’ve been to Marshall, Texas. It’s on the eastern edge of the Lone Star State, not far south from Springdale, Arkansas, where Jim Bob and Michelle are raising 19 kids (and hopefully no more), and just west of Monroe, Louisiana, where the Robertsons play whack-a-duck every fall.

I see a few hands raised. Vacationing in Marshall, perhaps? No? Visiting family? No?

Then, I bet you’re patent litigators….

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A few weeks ago, I discussed whether it was possible to go paperless. I want to pick up where I left off and drop a few more tips for how to go paperless and why it’s important. For me, as a solo practitioner, I have to be efficient. It’s how I keep an edge over other small firms and how I level the playing ground with big firms. But, it’s not all about competing with others. I reduce my paper use because I am just way too busy to spend 3 hours doing something that I could do in 30 minutes.

Also, just to be clear, when I say “paperless,” I really mean “mostly paperless.” It is not possible or practical to go entirely paperless in this current decade, but I think that the less paper we use, the better.

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Relief usually connotes relaxation and release of stress. Not so for a lawyer seeking or challenging a preliminary injunction. Especially when your filing deadline is the day after a holiday you had hoped to spend doing anything, literally anything, other than working….

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Last week’s column discussed the underappreciated role that second chairs play in modern litigation practice. But how best to fill the role, once it is earned?

The easy answer is fanatical preparation. Meaning you will need to prepare for every hearing, no matter how minor, as if you were going to be handling the argument yourself. Or if you are at trial, and supporting another lawyer on the testimony (be it direct or cross) of a witness, preparing as if you were conducting the examination. Apply the “laryngitis test” if you need motivation, as in what would you do if the first chair woke up that morning without a voice? Knowing that you could be thrust into the spotlight on short notice should be motivation enough for thorough preparation.

But you also need to put that preparation to good use. Arguing in open court is difficult, for even the most seasoned advocates. If you are being asked to sit at counsel table, the idea is not for you to admire the wood paneling in the courtroom. The expectation is that you will put your knowledge of the case to work, by anticipating the flow of the argument, and making sure that whoever is arguing has any needed information readily available for immediate use. When your partner is speaking, that means keeping track of whether they will need to refer to a document along the way. Or whether they have forgotten to raise an important point. For that latter reason, working out a non-intrusive note passing system in advance can be worthwhile. The key is not to disturb the flow of the argument, but to enhance its effectiveness. If you have nothing to contribute, you should not be sitting there wasting the client’s money. The need to be “active” does not give license to hijack the hearing or cause distraction, of course. Engaged listening at all times and sparing active participation are the better approach in almost all cases.

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Looking into the crystal ball.

Last week, at Minnesota’s Strategic Solutions for Solo and Small Firms Conference, I shared a panel with Lawyerist’s Sam Glover and an innovational speaker, Matt Homann. The panel focused on the future of solo and small-firm practice over the next ten years. Although we all agreed that the solos and smalls — and, indeed, lawyers in general — will face challenges over the next decade, I still believe that opportunities remain for solos who understand these challenges and figure out ways to overcome them.

So, no great surprise there. But all of us on the panel agreed that technology is changing the face of law practice in a way that may expand access to justice but that may also take work from solos and smalls….

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As we noted in today’s Morning Docket, the American Lawyer just published an interesting article with a provocative title: Cleary’s Litigation Slump. In the piece, Michael Goldhaber notes some high-profile defeats recently suffered by Cleary Gottlieb, which he cites in wondering whether the super-elite law firm might be losing its courtroom mojo.

The article struck me as a bit unfair to Cleary. Here’s why….

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Ed Sohn and Joe Borstein

Ed. note: Please welcome our newest columnists, Ed Sohn and Joe Borstein of Pangea3, who will be writing about the alternative legal services market and the future of the legal profession.

Stop what you’re doing! Take a journey with us to the alternative side of the legal profession for the next few minutes (and through our ongoing column). There is a revolution happening in the practice of law. And you should join it. Or, at the very least, break out the fanny packs and the binoculars and watch. For now, stop your SmartTimer and get off the clock… because as it turns out, reading this is NOT billable. Maybe try your favorite non-billable code, like “professional development.”

Here’s the newsflash: entrepreneurs and innovators are changing the legal profession for the better, having fun, and making real money in the process. The unstoppable forces of modern business — technology, globalization, the need for sleep/food/conjugal visits — are at the gates and climbing the highly defensible ivory tower….

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