Merry Christmas to All!

Have a Merry and Festive Christmas Holiday weekend. I’ll likely be offline until after New Year’s and promise to return with more topical posts (while retaining my “tell you what I really think” commentary).

And yes, I’m wishing you all Merry Christmas, not Happy Holidays. Don’t get me started on that.

These Lawyers Have Their Priorities Straight

This has to be one of the funniest and ballsiest motions I’ve seen filed – A Motion to Continue Trial Due to Conflict With The LSU Tigers’ National Championship Game.

Seriously. Their case was set for trial for Monday, January 7 in Baton Rouge, LA. Counsel, “self-professed LSU fans,” got together and asked the Court to postpone their case. While a National Championship game does not constitute peremptory grounds for continuance, the motion argues that the Court could, in its discretion, grant a continuance for “good cause.” These fine lawyers were “unable through much imagination and hypothetical scenarios to think of a better reason” than painting their faces purple and gold, getting drunk on Bourbon Street, and watching a football game.

Good for them.

Thanks to Above the Law.

What Can a Lawyer’s Verbal Attack on a Judge Teach Us About Mediation?

A Daily Business Review article explores the case of a Florida criminal defense attorney who is facing Florida Bar ethics charges for critical comments he posted on his blog about a controversial Broward, Fla., judge.

What caused the commotion? Well, I’m not a criminal attorney, but it appears that this centers around Judge Aleman’s attempt to force felony criminal suspects to declare ready for trial within 1-2 weeks of arraignment or seek a continuance, which apparently forfeits the defendant’s constitutional right to a “speedy trial.” This policy also apparently violates Florida’s Rules of Criminal Procedure, which allow a defendant a reasonable time to prepare.

After Sean Conway had one of his defendants placed in this unenviable position, he posted on his blog about the situation. The post, filled with grammatical errors and “txt msg” abbreviations, referred to the Court as “Evil Unfair Witch”, branded the new policy “illegal,” called the Judge “mentally ill” and “unfit for her position” and stated that he (Conway) would not call the Judge “Your Honor” because “there’s nothing honorable about that malcontent.” Conway is now under threat of Bar discipline for violating the ethical requirement that lawyers refrain from making false or reckless statement about the integrity or qualifications of a judge. [As an aside, the judge is also under investigation for an unrelated matter].

Putting aside for the moment the constitutional arguments over free speech (which are explored in the original article), I think this incident can be used to illustrate some (in)effective negotiation/mediation tactics. It would appear that Conway had a valid legal argument that Judge Aleman’s policy was illegal, unethical and possibly unconstitutional. But by resorting to such a crass and classless ad hominem attack, he undermined his argument.

All too often, I see litigants sit down across the mediation table and launch right into the personal verbal assaults.

“He’s a liar”
“She’s a drunk”
“What would you know, you went to [insert name of arch rival university here]!

And this is from the lawyers. Well, maybe not that ridiculous, but I’ve been involved in witness to shouting matches between highly educated, allegedly professional attorneys. More often than not, both sides have valid, legal arguments as to why they may be legally entitled to assert their claim or defense. But the other side doesn’t see them, or care, because they are too busy defending themselves from the personal attacks.

There’s an old Southern saying, “You catch more flies with honey than vinegar.” Took me a long time to realize that, but it works. Had Conway blogged about the alleged illegality of Judge Aleman’s policy in a less invective manner, or drafted a firm, persuasive letter to the Chief Judge or whatever organization overseas judicial ethics, rather than call the judge an evil nutcase, we would likely have never heard of this incident, or if it came to light, hailed Conway as a champion of constitutional rights. But now, if he is remembered, we will simply recall him as that criminal lawyer who resorted to name calling when things didn’t go his way.

The next time you are at the mediation table, put the venom aside, take the proverbial chill pill, and think of a neutral way in which to convey the fact that you think your opponent’s argument is horse dung.

Santa Groper Denies Wrongdoing

In the grand tradition of Roger Clemens, the woman accused of groping Santa at a Connecticut Mall issued a statement denying everything.

“Why would I do this? There were so many people there. If he (Santa) needed a few extra bucks I would have given it to him,” Lamy said. “I’ve never been involved in a crime or anything. This is shocking to me.”

Its hard to be serious this time of year, so

I’ll throw out a few more Christmas Funnies.

This has been reported a few places, but in case you haven’t heard, a 23 year old woman was arrested for sexual assault after groping a Mall Santa in Connecticut.

Keep reading >>>>>>

What Happens When Lawyer Advertising is Unregulated….

As the ever amusing David Lat put it on Above the Law :

The ethical rules governing advertising by lawyers are designed in large part to protect the public from misleading pitches. But maybe it’s the lawyers who need protecting — from themselves.

And boy, do these guys need some protection:

The blog where the post first came put it best:

A gorilla’s DNA is a 97% match of a human. However, these two grim-faced ambulance chasers are probably more like a 99% match. And—as part of their initial free consultation—if you think your injuries aren’t quite serious enough to win your lawsuit, ex-Marine Smith (L) will howl, pound on his chest, and throw you around their offices until sufficiently concussed.

What’s next? Sharks in a feeding frenzy?

Cheetahs chasing gazelles?

Another Parasitic Collection Agency Misusing the Word “Mediation.”

My daily Google Blog roundup email included a post entitled “Mediation, Not Confrontation.” Apparently, this is the slogan of Progressive Financial Services, a collection agency that has been harassing the blog author for several years (despite his insistence that he is not the person for whom they are looking).

A visit to the home page of these bottom feeders reveals that their “motto” is, indeed, “Mediation, Not Confrontation.” According to PFS,

Our collection motto of Mediation, not Confrontation enables PFS to liquidate our clients receivables and still protect the relationship our clients have with their customers.

That’s right. How could I have forgotten that calling people three or four times a day and threatening them with lawsuits and wage garnishment was page one out of the Mediator’s Handbook.

How to Tighten an Insurance Adjuster’s Sphincter…..

My colleague Geoff Sharp found this gem of an article entitled “How to Build a Mediation Presentation That Will Make an Insurance Adjuster’s Sphincter Tighten.” Written by Bob Gerchen, a jury consultant and author, he explains that

When an insurance adjuster is listening to and watching a mediation presentation by a plaintiff, she is asking herself, “What is my downside here? What is my risk level?” And she is constantly weighing the risks of going to trial versus the costs of settling with money that the insurance company would prefer to hold on to for a little longer.

As a former insurance defense lawyer, I can attest to the fact that most defense lawyers and insurance adjusters tend to downgrade the “emotional impact” that Plaintiff’s lawyers see as all-important. They are impressed, however, by the things Mr. Gechen points out – bad witnesses, evidence of incompetence or worse, indifference to the risk that caused the plaintiff’s injury. Jurors are far more likely to increase their award for those reasons than because the plaintiff counseled deaf-blind children for a living and in his spare time fostered Michael Vick’s dogs.

Ten Tips for New Associates (with some additional commentary)

I have been in Florida visiting my parents for the past few days, so I’ve been slacking on blogging. But I saw the above article on the ABA Journal website and thought it was interesting.

Associate David Dummer of Weil, Gotshal & Manges in Dallas writes (my comments in italics):

1. Don’t be afraid to be a new associate. . . .A first-year associate who is uncertain about an assignment should ask questions and seek clarification. Don’t ask TOO many questions – there is a fine line between asking pointed intelligent questions and sounding like you never went to law school.

2. Managing supervisors’ expectations is half the battle. . . . Keep supervising attorneys aware of time-management obstacles and other issues as they come up, so they can adjust staffing, deadlines and expectations. But keep in mind partners don’t care if you are there 24 hours a day. They want someone who can get the job done. Try to limit “time-managment” issues to situations where you must be out of the office – for depos, hearings, due diligence in Dubuque, Iowa.

3. Learn to work with assistants, paralegals and support staff. . . . Partners want to work with associates who complete projects efficiently. Someone who performs administrative tasks rather than utilizing an assistant will spend more time on projects than his or her peers — resulting in a competitive disadvantage. Just remember, MOST of the “support staff” know more about the law than you. Treat them with respect.

4. The seeds planted today can make it rain tomorrow. Being a lawyer involves more than billing hours. . . . [M]arketing legal services is a long-term process, you will never regret starting early.

5. Stay in touch with friends . . . from work, college and law school. In a few years, many of them will be potential clients. Just make sure you don’t over-sell them.

6. Tap others’ knowledge. . . . While the work will require critical thought and exacting research, do not be afraid to ask for forms and samples to reference while tackling assignments. . . . Of course, do not rely solely on the sample, as this can result in stale or inaccurate work product. Be creative and be certain to check that the law or rules have not changed. While you shouldn’t reinvent the wheel, don’t give the partner a wheel when he wanted sliced bread.

7. Learn the case. When assigned projects, learn the facts and motives that drive the case. . . . Combining this encyclopedic knowledge of the facts with an understanding of the case strategy makes an associate valuable. But for God’s sake, DON’T BILL FOR IT. Nothing will piss off the partner more than that 50 hours of billable time he will have to write off. If you weren’t asked to do it, don’t bill for it. Consider it an investment in your future.

8. Be prepared and be early. When invited to attend meetings, even if they are just with other attorneys in the office, be a few minutes early and be prepared. . . . You will never be chastised for being ready, and others will notice that you are on top of your game. And remember this simple rule – in a meeting, the most junior person in the room (YOU) should act as the scribe – take copious notes.

9. Know the rules. The few minutes you take to carefully read the rules (including the local rules) will save you major headaches down the road. “Minor” things like font size, line spacing, margins and calculation of deadlines can mean the difference between winning and malpractice. I remember a story where the Georgia Court of Appeals once dismissed an appeal from a government law office because the brief was formatted incorrectly. I can’t find the story online, but it cost the governmental entity millions.

10. Your nameplate is your shingle. . . In many ways, you are a solo practitioner, and the partners and senior associates in the office are your clients. Think about what makes these clients want to hire you — consistently good work, value-added creativity and efficiency. Run your office so that you can deliver this type of work product to your clients every day.

I really hope these people were being facetious.

The American Lawyer recently published an article entitled Rich Lawyer, Poor Lawyer which laments the “loss of status” allegedly suffered by 7-figure earning BigLaw partners in the face of 8, 9 and 10 figure earning hedge fund managers and private equity bankers.

It features such pity-evoking quotes as

“Face it, we have no status,” says an Am Law 100 partner of the pecking order at his sons’ private school. “We go to these school functions, and this well-heeled group looks right through you. They won’t give you the time of day. You’re just one step ahead of the doorman.”

and

“Our place is on the poor side of town-north of the highway [away from the water],” says a lawyer, sipping a drink poolside at her East Hampton weekend retreat. “Only the bankers can afford the south side.”

Seriously? One step above the doorman?  There’s a “poor side” of the Hamptons?

Thanks to Above the Law for this gag inducing morning read.