BurtLaw's Lawyers on Parade

BurtLaw's Lawyers on Parade
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Announcement. We've finally gotten around to launching our new webzine/blawg: BurtLaw's The Daily Judge:

It is not an online newspaper and is not affiliated with or intended to be mistaken for any existing or previously-existing newspaper or journal. Rather, it is a so-called "blawg," a law-related personal "web log" or "blog," one with a subjective, idiosyncratic, and eccentric sociological and social-psychological slant that focuses not on the latest judicial decisions of supposed great importance but on a) the institution of judge in the United States and in other countries throughout the world, b) the judicial office and role, c) judicial personalities, d) the great common law tradition of judging as practiced here and throughout the world, e) judges as judges, f) judges as ordinary people with the usual mix of virtues and flaws, etc. We link to newspapers and other sources in order to alert the reader to ideas, articles, stories, speeches, law books, literary works and other things about "judges" that have interested us and that may interest the reader.

We don't promote our blawgs, but readers of this blog and of our affiliated political opinion blog, BurtonHanson.Com, may be interested in it. We don't think there is another blawg quite like it.

The associates' rebellion. The associates at a large NYC corporate law firm are in a state of rebellion. Here's a link to the full text of a long memo a group of them sent to the partners. Full text of Clifford Chance memorandum (FT 10.25.2002) Dahlia Lithwick, the best of the popular commentators on the U.S. Supreme Court and the legal profession, weighs in. Free the Baby Lawyers! Deprogramming the associates at Clifford Chance (Slate 10.29.2002).

BurtLaw Report: Law firm hazing rituals update. A recent report on rudeness in the legal profession refers to lawyers "swearing at each other in open court, interrupting judges, 'making faces, guttural noises or laughing' during proceedings, [and] an arrogant and dismissive attitude by older lawyers to those new to the profession." Hub lawyers aren't minding their manners (BusinessToday.Com 07.02.2002). Nowhere is the "arrogant and dismissive attitude by older lawyers to those new to the profession" more apparent than in the ritual of hazing of young lawyers in the firm. I've always fearlessly spoken out against this practice, and I'm doing my best to help young lawyers stay a step ahead of their sadistic seniors in the profession. Example #1: one old law firm hazing tradition is for a supervising senior partner to give the fresh young associate an urgent assignment at 4:00 p.m. on a beautiful summer day: "We've got a client with multiple legal problems governed by the law of Liechtenstein. Whip together a good summary of all the legal resources in English available in print and online regarding Liechtenstein. Put it in my inbox when you're through. I'll be in at 7:30 a.m. tomorrow to pick it up." This one won't work anymore, thanks to Mini Research Guide to the Law of Liechtenstein by Ted Metzler (LLRX.Com 06.28.2002). Just print it out, put a smiley-face sticker on it, put it in the boss' in-box, and head out the door for Lake Calhoun at your usual time! Example #2: a newer law firm hazing rite is to require the new hirees to empty the baskets, vacuum the conference rooms, maintain the bathrooms, etc. This one has been gaining in popularity in this era of cost-saving and downsizing. Here's a link to a site called Toiletology 101 (via MetaFilter), which will come in handy if you're a young associate just settling in at the firm and you discover while reading the employee handbook that you're on toilet duty every fourth week. (07.02.2002)

Thomas Wolfe on lawyers. "The more I have to do with lawyers, the more I feel as if I had been compelled to take a voyage down a sewer in a glass-bottomed boat." Thomas Wolfe (1900-1938), American novelist (Look Homeward, Angel), in a letter in 1937 to Maxwell Perkins, the renowned editor of Wolfe, Fitzgerald, Hemingway, and other writers.

Baywatch Law? I've been meaning to write a "recommended reading" on the novels of John Casey, one of three outstanding fiction writers whose attendance at Harvard Law School in the 1960's overlapped with mine -- the other two are James Alan McPherson, the Pulitizer-prize-winning short-story writer, and John Jay Osborn, Jr., author of The Paper Chase and of a new, soon-to-be-published sequel to his novel, The Associates). The first Casey novel I read was actually a novella, A Year in Mid-Air (1972), republished in Redbook's Famous Fiction 56 (1977) (Harriet, a sweet, shy, pretty girl with "soft features...high, smooth forehead and...pale, fine hair," makes the Harvard Law Review, then asks her study-mate, stuttering Harry, to marry her and live happily ever after). I haven't read his next two books, Testimony & Demeanor and An American Romance, but I read The Half Life of Happiness (which perceptively recounts the breakdown of the marriage of a young lawyer and his wife) last winter & just finished reading Spartina. Spartina, which won the National Book Award, is about a year in the life of a lobsterman in Rhode Island who is building his dream boat, the one that means financial independence and a restoration of pride in himself and of his family's place in the community. After just yesterday finishing the book, which recounts the difficulty of surviving as a lobsterman, I was surprised to read today, in the Bangor News, a story dated 07.04 out of Bangor, Maine, about the divorce trial of a lobsterman & the lengths to which his wife's attorney's investigator went to disprove his claim that he earned @ $50,000 a year. More. The investigator posed as a tourist with a video camera & persuaded the lobsterman to let him and his "wife," an attractive woman, accompany him. (Interestingly, there's a chapter in Spartina in which a documentary filmmaker and an attractive woman accompany the hero, Dick Pierce, and a boat owner on an outing to harpoon swordfish & tend lobster pots.) Anyhow, on camera, with the videotape rolling, the lobsterman made the mistake of saying he can earn up to $125,000 a year from lobsters. This tape was admitted at trial and was relied upon, in part, in awarding the wife the family home, a lump sum payment and $1,750 a month in support. On appeal, the husband argued the investigator's testimony & tape were inadmissible because obtained in violation of a bar ethics rule prohibiting an attorney or his agent from directly contacting the opposing party. But the appellate court ruled there was no evidence the wife's attorney knew the investigator was going to contact the husband directly. The husband's attorney also argued, without success, that the woman accompanying the investigator was "an extremely seductive woman," an "enchantress" who loosened his client's tongue, which led to his exaggerating his income in order to impress her. The article ends with the attorney saying: "You’ve got Maine’s answer to Baywatch -- the sexy babe with the private investigator, and my client is suffering from it....How much can you take from a poor, hard-working lobsterman?" Perhaps, in response to the admission of the tape, he ought to have offered a copy of Spartina in order to give the court another version of the economic reality of lobstering. (07.05.2002)

Who are they? "They hurl bagels and books and cellphones. They cuss like harried commuters and dish like Don Imus. Snarled one of them: 'Get your foul, odious body on the other side of the table.'" They, of course, are attorneys, and the quote is from "Lowering the bar - Rude lawyers besmirching the profession, some say" (click here) by Kathleen Burge in the Boston Globe 03.26.2002. I love the comment by one judge, Hon. Carol Ball, who, after saying she "love[s] the practice of law," said she "really fear[s] that this growing problem of incivility is doing great damage to the soul of this great profession.'' Soul of this great profession? Pretty funny stuff. I'm reminded of a speech I had to sit through once by a judge, whom I admired, to a bunch of lunch-munching members of "this great profession," during which the judge actually said he "loved" lawyers and "loved" being around them. It seemed somewhat surrealistic, as if I had traveled in time back to 1922 and I was sitting with Sinclair Lewis next to George Follanbee Babbitt, our friendly realtor and hometown booster, listening to a speech by a judge to the Zenith Chamber of Commerce. At least Lewis' lawyers were slicker: they didn't hurl bagels at each other. (03.26.2002)

George Follanbee Babbitt. Here's a brief excerpt from chapter IV of Babbitt (1922):

"But Babbitt was virtuous. He advocated, though he did not practise, the prohibition of alcohol; he praised, though he did not obey, the laws against motor-speeding; he paid his debts; he contributed to the church, the Red Cross, and the Y. M. C. A.; he followed the custom of his clan and cheated only as it was sanctified by precedent; and he never descended to trickery -- though, as he explained to Paul Riesling:

'Course I don't mean to say that every ad I write is literally true or that I always believe everything I say when I give some buyer a good strong selling-spiel. You see -- you see it's like this: In the first place, maybe the owner of the property exaggerated when he put it into my hands, and it certainly isn't my place to go proving my principal a liar! And then most folks are so darn crooked themselves that they expect a fellow to do a little lying, so if I was fool enough to never whoop the ante I'd get the credit for lying anyway! In self-defense I got to toot my own horn, like a lawyer defending a client -- his bounden duty, ain't it, to bring out the poor dub's good points? Why, the Judge himself would bawl out a lawyer that didn't, even if they both knew the guy was guilty! But even so, I don't pad out the truth like Cecil Rountree or Thayer or the rest of these realtors. Fact, I think a fellow that's willing to deliberately up and profit by lying ought to be shot!'"

Warning to lawyers: be careful who you marry. Contrary to our popular image, we lawyers are too trusting, always assuming the best about other people, especially in relationships. That apparently explains what happened to Sacramento attorney Larry McNabney. When he met and married an attractive woman named Elisa, he thought she was who she said she was. And he thought he was getting an office administrator, to boot. (Isn't that every male lawyer's fantasy -- to marry a legal secretary or office administrator, who then will take care of all the small stuff? Of course it is.) But then one day last September Larry "disappeared" while competing in a horse show, and the next day, it turns out, "Elisa" was giving away his show clothes. According to investigators, she also "forged client settlement checks and deposited them to her account, signed a signature on legal documents, effectively maintaining, over a period of several months, his law practice, [and] emptied out client trust funds." Investigators allege that she killed Larry using horse tranquilizers in September, then refrigerated his body for several months before burying it in a shallow grave in a vineyard, where it was discovered in early February, three to six weeks after having been buried. By the time investigators satisfied themselves what had happened, Elisa herself had "disappeared," along with an estimated $500,000. It turns out "Elisa" is one of many aliases she's used and that her real name is Laren Renee Sims, 36, of Massachusetts. A warrant has been issued for her arrest. More (KCRA 03.13.2002 and internal links to prior reports and photos). What will come of this? Undoubtedly, a TV-movie. More positively, I'd like to think our state bar associations, here and elsewhere, will establish new specialized support groups, Lawyers Concerned for Lawyers Who Marry Con Artists (LCLWMCA), one function of which will be to provide emotional and psychological support to lawyers who discover they've been duped by their spouses, another function of which will be to provide preventative or prophylactic protection to all the naive lawyers out there who are foolishly inclined to think their prospective spouses really love them for who they are. (03.15.2002) Update: Slain lawyer's wife hangs self in jail (Sacramento Bee, 04.01.2002); wife's suicide note: sue them for failing to prevent my suicide (Yahoo, 04.04.2002)

Law and literature. "For former Maine Chief Justice Daniel Van Wathen, it was an essay by...Montaigne that shed light on decades of bland legal dockets. He was participating in a course for lawyers and judges when he read a passage on how nothing is so universal among humans as diversity. 'I realized how easy it can be, after seeing thousands of cases, to think 'oh, this is one of those,' he says. 'But you really have to consider the complexity and diversity of every human affair -- and when you forget that, you start doing injustice.'" From Sara Steindorf, "A Novel Approach to Work," Christian Science Monitor 01.29.2002, an article on why people in a variety of professions are turning to literature for insight into everyday issues they face. More. We've been recommending it for years. Some of my favorite memories of my 28 years as an aide to the Minnesota Supreme Court are of wide-ranging discussions I had with that fellow lover of Montaigne and Frost, that poet-philosopher among judges, Hon. John E. Simonett, who is still in active practice in Mpls. with the leading firm of Greene & Espel. The late grandfather of my ex-wife, John G. Rauch, Sr., personal counsel to Eli Lilly and a leader of the Indianapolis bar whom I admired greatly, for years was a group leader in the Great Books program. (01.30.2002)

The Dersh's latest book. It seems only yesterday that the Dersh, a/k/a Prof. Alan M. Dershowitz of Harvard Law School, was on the talk shows promoting his diatribe against the USSCt's decision in Bush v. Gore. The events of 09.11 pretty much consigned that book and the other ones dealing with the election to the remainder bins. But fear not, the Dersh already has another one in the bookstores, this one titled Letters to a Young Lawyer. The Christian Science Monitor's reviewer, Seth Stern, doesn't think much of it. As I've said elsewhere, the Dersh was my teacher in first-year criminal law at Harvard during the 1964-65 school year, the first year he was teaching law. I like him and don't doubt that I owe something to him: for nearly 30 years I was paid good money by the Minnesota Supreme Court for, among other things, maintaining an expertise in criminal law and procedure, an expertise for which the Dersh laid the foundation. His style, it seems to me, is that of an intellectual provocateur and one of his favorite tools is overstatement. If one bears that in mind and doesn't get overly defensive just because one's initial inclination is to disagree with this or that provocative assertion, one can learn much from what he says. For example, Stern quotes Dersh as saying, "The heavy thumb of careerism is on the scale of justice in nearly every criminal case." That is a provocative statement, one that, I submit, should not be hastily rejected. Think about it.... (11.14.2001) And reread my entry titled Judges and the media . (11.15.2001)

What? Coke has sugar in it? There's a judge in Germany, Hans Josef Brinkmann is his name, who has filed suit against the makers of Coca-Cola, claiming he drank Coke not knowing it had so much sugar and that it caused his diabetic condition. More (Ananova) Could soft-drinks be the best thing for class-action lawyers since tobacco? Might the Minnesota AG be able to drag another set of out-of-state big-pocket defendants into Minnesota and use the threat of a big-time home-town verdict to scare them into settling? Stay tuned. (11.13.2001)

Another obligatory goodbye cookie party at the office? From The Onion: "Paula Mooney, 29, a not particularly popular Sentinel Savings & Loan mortgage underwriter, was the recipient of awkward goodbyes from coworkers Monday, her last day with the company. Mooney, who in two and a half years with Sentinel "never quite hit it off with the gang," was given a polite but emotionless going-away party near her workspace. Featuring an Entenmann's chocolate cake, Hi-C fruit punch, and a good-luck card signed by whomever happened to be at their desks when it was passed around, the 15-minute gathering met the minimum standards for a farewell fete...." [more] If you've worked in just about any organization, you probably know that management's clap-trap about "the company family" is just that, clap-trap. Truth is, folks, your boss probably doesn't give a damn about you or any of your co-workers. Nor do your office "pals." Two days after you're gone -- hell, two minutes after you're gone -- they'll forget about you. You're just a proverbial cog in the machine. Those in management think they truly are important, but they're not either. They might get a fancier send-off -- perhaps a dinner instead of just a cookie party, maybe an inscribed something-or-other doodad, likely a better pension. But that's the only difference. And the same is true when you die as when you walk away from the environs of the office water cooler. Henry Watterson wrote that the famous have this to anticipate: "A mound of earth a little higher graded/ Perhaps upon a stone a chiselled name/ A dab of printer's ink soon blurred and faded/ And then oblivion...." Sorry to burst your bubble, but.... (10.31.2001)

Who do we dislike more - lawyers or politicians? "When the president of the Law Society asks ministers to stop lawyer bashing, it presents the rest of us with a dilemma. In a spat between lawyers and politicians...how do we determine the villain?" That's the question posed in the UK Independent by Simon Carr, a parliamentary sketch writer. His answer is not one most lawyers want to hear. Of divorce lawyers he says: "The ability of divorce lawyers to drive a wedge between an amiably separating couple is well known. It's how fees are generated. There's no money in a three-letter correspondence. (I say no money: there's £600.) Having watched a friend go through the full gruelling marathon, it remains amazing that this legal practice is still legal." I don't doubt there are many people in this country who might think he's describing our lawyers. Carr's commentary appears to be occasioned by recent vigorous criticism of the UK legal profession by David Blunkett, the new Home Secretary, whose comments have prompted the head of the Law Society to call for an urgent meeting with Blunkett and other ministers critical of the profession. For more on my views of the profession, click here. (10.30.2001)

Rick Rescorla - a lawyer who was a hero, many times over. "When Rescorla was a platoon leader in Vietnam, his men called him Hard Core, because they had never seen anyone so absurdly unflappable in the face of death. Now he was vice president for corporate security at Morgan Stanley Dean Witter & Co., and a jumbo jet had just plowed into the north tower. The voices of officialdom were crackling over the loudspeakers in the south tower, urging everyone to stay put: Please do not leave the building. This area is secure. Rescorla was ignoring them. 'The dumb sons of bitches told me not to evacuate,' he said during a quick call to his best friend, Dan Hill, who had indeed been watching the disaster unfolding on TV. 'They said it's just Building One. I told them I'm getting my people the [expletive] out of here.' * * * Morgan Stanley lost only six of its 2,700 employees in the south tower on Sept. 11, an isolated miracle amid the carnage. And company officials say Rescorla deserves most of the credit. He drew up the evacuation plan. He hustled his colleagues to safety. And then he apparently went back into the inferno to search for stragglers. He was the last man out of the south tower after the World Trade Center bombing in 1993, and no one seems to doubt that he would've been again last month if the skyscraper hadn't collapsed on him first. * * * [T]o the friends he left behind, his death made a kind of cosmic sense on a day when the universe was out of order: The right man in the right place at the right time. He left in a blaze of glory. With no parade." I can't say I've ever personally known a lawyer I'd call "courageous," and I'ver known more than a few who are cowards. But Michael Grunwald of The Washington Post appears to have found a heroic one in Rescorla, the subject of a profile titled A Tower of Courage. I recommend reading it. (10.28.2001)

Falling back on billable hours. Today, 10.28, is the day we "fall back" to Standard time, meaning the day is 25 hours long, the only day each year that a lawyer can stay put (that is, not move from time zone to time zone in order to pick up extra hours) and honestly bill his clients for 25 hours in one day. For more on the almighty, inefficient and notorious "billable hour," at the temple of which so many lawyers worship, click here. (10.28.2001)

Bar exam essay question. B.B. hits 73rd home run of season, a record. Video shows spectator, A.P., catching the ball in his glove. Other spectators converge on him, clawing at the ball. Someone takes ball from A.P. and it ends up in possession of P.H. P.H. says it's his. Ball is estimated to be worth maybe $1 million, maybe more. A.P. retains you as lawyer. What advice do you give him? What steps do you take to protect his interests? [more]

Chivalrous lawyers win coupons for consumers, cash for themselves. I'm not one to question the motives of any of the lawyers who prosecute class action law suits to benefit consumers, etc. I'm willing to concede that most, maybe all, of them are indeed chivalrous soldiers in a civil crusade for justice for ordinary folks who've been wronged (and may not even know it). But I'm always irked when the settlement they negotiate on my behalf entitles me to coupons I'll never use and them to cash to pay them for their costs and effort (as well as to fund bigger houses, better cars, and campaigns for political office so they can continue to represent my interests in Congress). I prefer cash rebates instead of coupons to use on my next purchase from the folks who allegedly ripped me off, just as I prefer tax rebates from the government instead of coupons to use at historic sites run by the government. Some judges in recent days (presumably ones who weren't plaintiffs' lawyers or elected on contributions from plaintiffs' lawyers) have questioned, even rejected, proposed class-action settlements that give the plaintiffs' lawyers a pile of cash and the wronged consumers a pile of coupons. Here's a link to a report about one such rejection. I'm sure I'm not the first to suggest the idea but I propose that if a certain part of the settlement supposedly benefiting the members of the class consists of coupons, an identical part of the amount set aside for the chivalrous plaintiffs' lawyers' compensation consist of coupons. (08.18.2001) For those of you who want to read more on the subject, I refer you to the archives on class action lawsuits maintained by Walter Olson of Overlawyered.Com, who is employed by the Manhattan Institute.

The "egocentric bias" and the settlement of conflicts. "People say they are unique yet perceive themselves as largely similar to others." So say the folks at Brown University in Providence, RI, who studied individuals' (i.e., some college students') perception of themselves and their social groups. "Your mother always told you you’re special," says Joachim Krueger, the study's lead researcher, "but subconsciously you do not believe it." Interestingly, those studied perceive that they are more similar to the group than are other members of the group. This the researchers call "egocentric bias." This bias, which most people aren't aware they have, "may create barriers to the resolution of conflicts" between individuals in a group. This is because if a disagreement arises between two members of a group but each of them believes most others in the group agree with his position, then each of the two may be more reluctant than he otherwise would be to make any concession. [more]

Tips from secretaries to managers: enhancing the relationship. Click here.

Law and Anna Deveare Smith. Anna Deveare Smith is an actress and playwright who teaches lawyers. What does she teach them? How to "act" in court? How to "script" a trial? No. How to listen. In creating characters for her plays, she first listens to many people, in each case looking for "the poem that a person has." She believes that it takes patient listening and "waiting for the rest of a person's language to move out of the way for this poem to come forward." What she listens for is that "something that nobody else can say." For her, character "lives not in what has been fully articulated but in what is in the process of being articulated, not in the smooth-sounding words but in the very moment that the smooth-sounding words fail us." [more] Last year Smith taught a class on listening at the Yale Med School. Next spring she'll be teaching listening to future lawyers at NYU Law School. [more]

Hey, it's o.k. for Christians to sue their neighbors. Apparently some folks believe it's not the Christian thing to do to sue someone. But some Houston p.i. lawyers are trying to change that. They say, "We, being Christian lawyers, disagree with that." According to a story on 07.08 in the Houston Chronicle, these "godly lawyers," after trying traditional legal advertising for 10 years, have begun airing commercials arguing that, like the Apostle Paul, who they say knew how to use the law to his advantage, they'll use the law for their client's advantage. Click here for more. One can have fun playing with this idea. A quick re-read of the "10 Commandments" and the "Lord's Prayer" might get one's creative juices going. Here's one theme for a 30-second spot that just came to me: "Jesus taught us to forgive the trespasses of others. But he didn't say we should forgive the negligent driving of others or let other folks' insurance companies off the hook. Being a Christian doesn't mean being a sap. Give us a call. We're Christians, too, and we can put the fear of the Lord into those who've wronged you." (07.08.2001)

Good news for p.i. lawyers specializing in foot boil claims. The increased use of whirlpool footspas to provide pedicure services to narcissistic women apparently carries risks. "At least 109 women who got pedicures at a California nail salon developed boils -- and suffered permanent scars, in some cases -- from bacteria in the shop's footbaths." [ABC story] "[S]pot checks of other nail salons elsewhere in California showed that the microbe [causing the boils] was present in the vast majority of footbaths." [more detailed NYT story] "The boils typically developed anywhere from 10 days to four months after a pedicure in the salon and numbered as many as 37 in one woman." Id.The California Board of Cosmetology has issued new regulations. [more] Should a plea of "I couldn't help myself" save a shoe fetishist-turned thief from prosecution? [UK Telegraph story]

John Donne (1572-1631), libertine, lawyer, poet, preacher. He was a "brilliant" student at Cambridge and "equally good" law student at Lincoln's Inn. His future "seemed assured" when he became a sort of law clerk to Sir George Egerton, who was "Master of the Rolls and a councillor to the Queen." But, alas, he was at heart a poet, a romantic: when he was 30 he fell in love with -- and married without her family's consent -- Anne More, a 15-year-old beauty who was niece of his employer and daughter of a powerful nobleman. "Donne's career was in shreds, since he had broken the rules of the establishment, and all his combined talents could not land him another suitable post." There followed the proverbial 40 days in the wilderness, during which he "even" considered suicide. But "talent will out." His writings caught the eye of King James I, "the wisest fool in Christendom," who steered him towards the ministry in the Church of England, where he became the most famed preacher of his time. Comes now a new biography, reviewed here in The Irish Times. Click here for an online selection of his poetry, meditations, letters, and sermons. Lawyers who are getting married might enjoy reading his marriage poem, Epithalamion Made at Lincoln's Inn. (FYI, an "epithalamion" is a lyric ode written in honor of a bride and bridegroom.)

Two recommendations. a) "Contingent fees do provide many people with access to justice, but sometimes the fee is so large that the lawyer becomes the real party in interest. Intelligent use of media opportunities can advance a client's cause, but many lawyers who seize them appear to be on personal ego trips. Corporate lawyers have complex loyalties, but many seem more concerned to satisfy the company managers who hire and fire lawyers than to protect the interests of scattered shareholder- owners." From Legal Ethics - Worlds in Collision, by Mary Ann Glendon, in First Things (A Journal of Religion and Public Life) (March 1994). This article is an excerpt from Professor Glendon's contemporaneously-published A Nation Under Lawyers - How the Crisis in the Legal Profession is Transforming American Society (1994), which I highly recommend. b) I not only recommend the book, I recommend her. Specifically, I was asked who I thought would make a good first-pick by "the W" when the first vacancy on the U.S. Supreme Court is announced. Her name came to my mind first. Glendon is the Learned Hand Professor of Law at Harvard University Law School, author of numerous articles and books, and oh so level-headed. BTW, she does her own work. c) Other writings of Glendon available online include: i) Review of Witness to Hope; The Biography of Pope John Paul II, by George Weigel; ii) Opening Address On Behalf Of The Vatican Delegation At The UN Conference On Women In Beijing, China, September 5, 1995.

"The lawyer's billable hour, like the quark or the gluon, is a convenient fiction." Or so says Cameron Stracher in a short, only partly tongue-in-cheek piece in the New York Times Sunday Magazine on 04.08.2001 explaining how a lawyer theoretically might bill 25 hours in a 24-hour day. Is bill padding widespread? According to Professor Carl T. Bogus in an interesting article entitled The Death of an Honorable Profession, "Padding time records is a genuine professional plague, one not confined to a few firms or even a few lawyers within most firms. It is a silent epidemic: the realization of what has occurred is so unwelcome that it is largely ignored." Actually, the article talks about two professions that the author believes have lost their way, the other being journalism. I personally have no knowledge of the prevalence of bill-padding resulting from the legal profession's emphasis on billable hours. I do think an obvious other problem with the reliance on billable hours as a basis for determing the cost of legal services is that it rewards inefficient, though honest, plodders.

More on the billable hour. "[T]he practice of billing by the hour, and not the job done, entrenches the contemptible fiction that lawyers' work is more intrinsically valuable than the rest of ours -- and that doing more, rather than less, is a good thing." Noah Richler, That Atticus Finch Was a Sucker, National Post (08.20.2001).

Fishisms. I've watched David E. Kelley's Ally McBeal since its debut in the fall of 1997. It lost some of its punch along the way, but this year, thanks to the additions of Robert Downey, Jr., and Anne Heche in repeating guest roles, the show has sparkled. One of the main characters on the show is Richard Fish, one of the founding partners of the firm of Fish & Cage, an eccentric law firm if ever there was one. He is known for his "Fishisms," such as this one: "New firm policy, listen up! Anybody who sues this firm or me, personally, we all drop whatever cases we are working on. We devote all of our intellectual and creative efforts to ruining that person's life. Are we clear? I don't want to stop short with just getting even. Retribution is not strong enough. Ruin, that is the goal. Irreversible, irreparable, irrational ruin! New firm policy!" And this one: "Piles and piles of money. If I help some along the way great, but mainly I'm in the this for the piles, heaps, the really big piles." And this one: "I didn't become a lawyer because I like the law. The law sucks. It's boring. But it can also be used as a weapon. You want to bankrupt somebody, cost him everything he's worked for, make his wife leave him, even cause his kids to cry? We can do that." Among the sites collecting "Fishisms" are this one and this one.

Antonin Scalia, Oliver Wendell Holmes, Jr., and Colin Powell on work and the cult of long hours. a) In this recent speech Justice Scalia criticizes lawyers for putting too much stock in work, for "putting in...25-hour days." b) According to Felix Frankfurter, Justice Holmes "never made a fetish of long hours...indeed, he believed that what he called work -- really creative labor -- could not be pursued for more than four hours a day. But he worked with almost feverish intensity." Unlike so many of our appellate judges across the country, he was both prolific and prompt. And brief. And memorable. Felix Frankfurter, Of Law and Men 164-65 (1956). c) Secretary Powell says, "I am 63 going on 64. I don't have to prove to anybody that I can work 16 hours a day if I can get it done in 8....Anyone logging hours to impress me -- you are wasting your time." Would that those big law firms that worship at the altar of the almighty billable hour, which rewards the inefficient, slow-minded plodders who log in long hours stretching small cases into big ones, would take heed. Powell again: "I live on the Internet." His favorite website (other than this one)? Hint: it's the one operated by Matt Drudge's father. Click here.

But don't lawyers do a lot of pro bono work? Heather Mac Donald argues, "It is time for [law] firms to ask whether their pro bono programs in fact serve the public good." [more]

Troubled by Hillary's brother's "contingency fee" arrangement regarding the two pardons he solicited from Bill? Walter Olson explains why we should be more concerned about contingency fees by lawyers than we are. [more]

Something to read after watching some of "those ads" on TV: Abe Lincoln's "Notes on the Practice of Law." "Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser -- in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough. Never stir up litigation. A worse man can scarcely be found than one who does this. Who can be more nearly a fiend than he who habitually overhauls the register of deeds in search of defects in titles, whereon to stir up strife, and put money in his pocket? A moral tone ought to be infused into the profession which should drive such men out of it." [more]

President Hillary Clinton -- a kinder, gentler President? Are female bosses better than male ones? Susan Estrich, whose every book is worse than the one before it, has just published a new book, Sex & Power, in which she claims that when women exercise power they "talk less, and...listen more, exercising influence and wielding power indirectly," allowing "more open discussion and the voicing of conflicting views." Dr. Christine Stolba, Ph.D, in her review in The Women's Quarterly, wonders who Estrich is trying to kid: "History abounds with sagas of powerful women who did not let others talk more, weren't good listeners, and didn't particularly relish the open exchange of conflicting views—who were, in short, as manly, if not more so, than men.... All is not order, cleanness, and benevolent harmony." [more] Hillary Clinton's example certainly doesn't support Estrich's thesis. Former Presidential Press Secretary Dee Dee Myers, in a candid television interview aired last December, said if anybody stood up and tried to say one of Hillary's ideas was bad, Hillary would "smash down" and "belittle" the person in a "very personal" way, humiliating the person in front of her colleagues. One biographer of Hillary claims Hillary's profanity-laced upbraiding of White House Counsel Abner Mikva drove him to resign. And junior White House staffers were ordered not to make eye contact with her in order to avoid angering her. [more] Hillary and her like always think they can abuse underlings without the word ever getting out, but, of course, it always does, later if not sooner.

Gored by Nader, some Gore-loving plaintiffs' lawyers withhold contributions. Recent news reports indicate some prominent plaintiffs' lawyers are withholding their usual contributions to "consumer advocate" Ralph Nader's advocacy organizations because they blame Nader's third-party campaign for Al Gore's loss. In doing some research for a book project, I came across Felix Frankfurter's explanation of why in 1924 he did not believe he was throwing his vote away in supporting "Fightin' Bob" LaFollette's third-party candidacy for President: "If you think of an election not merely as a discrete, isolated episode, but as part of a process of the unfolding of American life, then you don't throw your vote away." He also said, "[A]ll the talk of 'throwing one's vote away' is the cowardly philosophy of the band-wagon." Nader says in an interview in the NYT that he can't be blamed, that there were "20 spoilers" for Gore. He also says that a Gore Presidency wouldn't be significantly different from a Bush Presidency: "The same decision makers under Clinton-Gore are operating under Bush-Cheney. They're all over the place and they've always been all over the place. We're talking about the politicians taking their orders from corporate paymasters." One suspects the plaintiffs' lawyers, at least, believe a Bush Presidency will differ from a Gore Presidency in at least one important respect or they wouldn't be quite so angry at Nader. George W., who says he wants to make our society a little less litigious, must be chuckling to see this in-fighting. His proposals for civil litigation reform in the federal courts, which are opposed by many plaintiffs' trial lawyers, who supported Clinton in '92 and '96 and Gore in '00, are ambitious.

Prosecutors on the evening local news. I generally don't watch the local TV newscasts, but I'm told by a reader there's a certain district attorney somewhere in Middle America who never misses a chance to appear on TV to make case-specific comments about certain criminal prosecutions that local TV journalists assume merit obsessive attention. Any thoughts on the propriety of this?

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