Biglaw

Victory Laps, Pleading Guilty, The Economy, And Watergate

Those who remember the Great Recession will also remember what a toll it took on the legal profession.

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Nixon TrumpA lawyer crowed about defending a wrongful death case. In the abstract, there’s nothing wrong about being proud about winning a case. That’s what we do. Unfortunately for him, his celebratory remarks ended up on social media. That drew objections to the remarks from other lawyers, and so, now the lawyer is eating that crow.

The death certificate and the coroner’s report said that the decedent had died from a combination of sepsis and an incorrectly placed feeding tube, but the lawyer for the physician who had inserted the tube argued to the jury to ignore the death certificate and ignore the coroner’s findings. He claimed that other hospital staff had contributed to the death, there were other causes, and the case was a “cash grab.”

When the video hit social media, a backlash ensued. Did the lawyer trick the jury into telling it to disregard the evidence? We tell juries all the time to disregard evidence in favor of other evidence, but here, the evidence of the cause of death was unchallenged.  What do you think about this lawyer’s post-judgment behavior? Is this just another example of the “win at any cost” mentality that permeates our profession (and the larger world)?

Unanswered questions for me: was the physician the only one sued? Hard to imagine. What about the hospital itself and “other medical staff” that the defense attorney claimed bore responsibility? Regardless, the victory lap that this lawyer took, which went viral, was not a good look for the profession. Yes, he apologized (would he really have done so if the video had remained private?) but the damage had been done. Another hit to lawyer reputations. The public doesn’t understand that litigation, unless settled, is a zero-sum game: one side wins, the other loses. (Do we tell the clients that? I wonder.) I am sure that there are many other similar victory laps, both for plaintiff and defense, but the moral here is to keep them sub rosa.

Michael Avenatti has changed his mind (even lawyers do that) and now wants to plead guilty to charges in the pending retrial of his case in Orange County, in which he stands accused of, among other things, multiple counts of embezzlement of client funds. However, it’s unclear as to what charges he would plead to and whether the government would agree.

Do you think that the several years of employees being able to negotiate working conditions in the COVID-19 world will come to a screeching halt? Now that we are officially in bear market land, it’s anyone’s guess as to whether those advantages will continue. Are layoffs a harbinger?

One firm that had intended to merge now finds itself in the unhappy position of having to lay off staff, including lawyers. The layoffs are a 10% whack of the workforce. If there is indeed an oversupply of lawyers and an undersupply of work, and that is to be determined, some rethinking may well be looming. Unfortunately, history does have a way of repeating itself, and those who remember the Great Recession will also remember what a toll it took on the legal profession: the dearth of hiring, especially new admittees, and lots of layoffs.

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In the past decade, since the end of the Great Recession, lawyer population has increased by more than six percent. Will the bear market be able to keep lawyers busy and billing? Or will clients and lawyers be looking for spare change under the sofa cushions?

As an old lady lawyer, I remember the Watergate hearings in 1973 and watched them gavel to gavel as I awaited starting law school that fall. I was glued to the television, which, aside from movie screens, was the only screen we had back then.

I remember Sam Ervin, the senior senator from North Carolina, the chair of the select Senate committee holding hearings to investigate Watergate. Ervin’s bushy eyebrows, his “country lawyer” demeanor, along with his pocket copy of the U.S. Constitution that he always had by his side, remain indelible images.  His “country lawyer” façade hid a mind of breathtaking sharpness and made me even more convinced that I had made the right choice to go to law school.

I remember a young John Dean, testifying that he told President Nixon and his two henchmen, Bob Haldeman and John Ehrlichman, that there was a “cancer on the presidency.”

I remember Alexander Butterfield, whose testimony drove the stake into the heart of the Nixon presidency: the existence of Oval Office tape recordings that proved, beyond a reasonable doubt, that Nixon was at the heart of a both a conspiracy and a coverup.

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I remember Judge John Sirica, who ruled that the tapes had to be turned over to the Committee, that there was no executive privilege that attached, and I remember the Burger Supreme Court that upheld unanimously Sirica’s decision. Convictions of a number of lawyers in the Nixon administration led to the almost instant institution of an ethics portion of the general bar exam, at least here in California.

Although Watergate grew out of a third-rate burglary, it gave rise to a constitutional crisis in a nation already racked by war, assassinations, racism, inflation, and other traumas. We have been living in an age of trauma ever since. Almost 50 years after Watergate, what and who will we remember from the House January 6 Committee hearings about the events of January 6, 2021?

old lady lawyer elderly woman grandmother grandma laptop computerJill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at oldladylawyer@gmail.com.

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