Judge Vaughn Walker's decision to strike down as unconstitutional California's ban on same-sex marriage has attracted a huge amount of commentary. Predictably, those who support same-sex marriage, such as the Washington Post's Eugene Robinson, have hailed the decision as a "homerun", while gay marriage opponents such as Newt Gingrich have condemned it as "outrageous." Whatever your view of same-sex marriage, Judge Walker's written opinion illustrates an important trait of lawyers that is often misunderstood.
Lawyers value intellectual honesty and independence much more than most people do. Most people are extremely reluctant to upset people who have done them favors; lawyers—not so much. Judge Walker was first nominated by Ronald Regan. Nancy Pelosi and others objected in part because that he was perceived to be too conservative and hostile to the rights of minorities. The first President Bush renominated Walker and he became a judge. Many people might be tempted to please the President who made it possible for them to have this amazing life-time job. Lawyers--not so much. I wonder how the first President Bush now feels about Vaughn Walker. if he's disappointed, he can perhaps commiserate with son, George W. Bush. Ted Olson, who represented George W. Bush before the U.S. Supreme Court following the disputed 2000 election now represents the same-sex couples who sued to invalidate Prop 8.
This kind of switching sides has led many people to view lawyers as immoral hired guns. But that is too simplistic an explanation. Are some lawyers mercenaries who will work for the highest bidder? Absolutely. But non-lawyers often underestimate the fact that lawyers pride themselves on their independence. They don't believe that the client is always right, and they tend to value the opportunity to follow their most deeply held values. I have no doubt that Ted Olson decided to represent the plaintiffs who were denied the right to marry for no other reason than he believes in their cause.
So what should a client do when you see your lawyer display an independent streak? You should embrace it. The worst thing you can do is to try to convince the lawyer that they should do everything you want simply because you are paying their bills. Good lawyers will respond badly to that kind of approach. A better alternative is to encourage your lawyer to provide you with their full, unvarnished advice. Lawyers understand that clients are free to disregard some or all of the advice they provide. Lawyers are also more thick-skinned and accepting of disagreement than the typical person. They are not likely to hold a grudge if you disregard some of their advice, so long as you make clear that you heard the advice and considered following it.
Many people, especially business owners, complain that they are surrounded by yes-men and yes-women (yes-people doesn't sound quite right). Lawyers can be a welcomed antidote; take advantage of their independent streak and desire to say what they really mean. It will make the relationship with your lawyer more effective.
Lawyers can be among the first to know when a fellow lawyer rips off a client or otherwise commits a serious violation of the rules of professional ethics. Question is: How likely are lawyers to turn each other in to bar associations and other organizations that have the power to discipline lawyers?
There are some institutions, such as police and fire departments, which long have long been reputed to shield their members from outside accusers. The tendency of police officers to protect each other has been described as a "Blue Code of Silence."
In my experience, lawyers are not quite so insular. Lawyers are trained to keep secrets; they are not by nature or training likely to be blabbermouths. Lawyers are also competitive, so it's not that uncommon for lawyers to file ethical complaints against opposing counsel in a lawsuit. This can be part of a broader strategy to serve their respective clients. Lawyers also have an independent streak. We are trained not to lie on behalf of a client or otherwise to compromise our professional judgments. Thus, I believe that, while lawyers aren't enthusiastic about snitching, they are significantly more likely than police officers to report a colleague's misconduct.
The legal profession's attitude towards reporting wrongdoing is reflected in the recent decision of the Board of Governors of the State Bar of California. A Commission appointed by the Board recommended that the rule requiring lawyers to report misconduct by other lawyers be expanded to include certain felonies. As reported by The Daily Journal newspaper on July 27, 2010, a Committee of the Board of Governors rejected the recommendation and kept the current rule unchanged.
The committee flatly rejected a proposed rule, also much narrowed from an ABA [American Bar Association] rule, that would have required lawyers to tell discipline authorities about another lawyer's felonious conduct in certain situations.
"It's protection of the public," commission chair Harry B. Sondheim, a retired Los Angeles County deputy district attorney, told the board committee on Friday. "It's a major change from current California law."
The committee members clearly were concerned it would have been too big a change. Governors worried civil lawyers wouldn't be sure whether a theft by a colleague was a misdemeanor or a felony, for instance.
State Bar Deputy Executive Director Robert Hawley put the committee's concerns succinctly. Though arguments favoring the felony-snitch rule make for "good sound bites," Hawley said, the rule "doesn't work well anywhere" and "makes you your brother's keeper."
There are practical problems in enforcing a rule that hinges on the definition of a felony. Some crimes which seem significant might be characterized as misdemeanors and other seemingly trivial violations may in fact be felonies. And I don't doubt that some lawyers would make mistakes in this regard. The real question therefore is what kind of error is worse--punishing a lawyer for failing to report a crime that was in fact a felony or allowing a lawyer to keep silent when another lawyer commits a seemingly serious offense that happens to be a misdemeanor.
My sense is that many lawyers would be hesitant to turn in a lawyer for borderline crimes regardless of whether the crime is technically a misdemeanor or a felony. Thus, for example, I don't think that many lawyers would turn in a fellow lawyer for stealing a large quantity of paperclips from the office, even if that were technically a felony. Moreover, the State Bar would exercise its discretion whether to prosecute cases that were brought to its attention.
The Board of Governors decision is understandable. Most of the lawyers I know who have studied this issue more deeply than I have support the decision not to expand the current "snitch" rule. I do, however, have a nagging feeling that the attitude underlying the Board's decision is incomprehensible to most clients. For them, the bottom line is pretty basic--if one lawyer knows that another lawyer is a thief (something more significant that a few office supplies)--that conduct should be brought to the attention of the authorities. I would have a tough time explaining to members of the general public why known thieves can stay in the shadows.
This decision also has the unfortunate consequence of reinforcing what many cleints probably already feel--if it turns out that the chief witness against their lawyer is another lawyer, they probably will be blocked a Lawyers' Code of Silence.
When most people think about lawyers, they think about trial lawyers. Those are the lawyers that we consistently see on TV. There is a world of difference between the reality of a trial and the way it's depicted on television. For starters, the issues raised by trials are not resolved in 44 minutes. You also never see a television lawyer filling out forms or reviewing boxes and boxes of documents.
There is, however, one attribute of TV lawyers that you may want to replicate when you hire your own trial lawyer—likeability. Juries feel their way to a decision more than they think their way there. Moreover, they reach conclusions and make decisions based on what they understand. And one of the things they intuitively grasp is personality. Specifically, they pick up on subtle nuances of your lawyer's personality, and don't want to be lectured to or feel that the lawyer is talking down to them.
So if you interview a lawyer and feel they are a pompous ass, don't be surprised if a jury will reach the same conclusion.
An experienced and accomplished trial lawyer I know recently put it this way: "If you are hiring a trial lawyer, it's important that they take a Dale Carnegie class." Carnegie is best known for his book, "How to Win Friends and Influence People." It's one of the all-time classics about interpersonal relationships and communication strategies.
Carnegie is also pictured above.
I'm not saying that a Dale Carnegie course is absolutely required for trial lawyers. But I wouldn't hire a trial lawyer if I felt they needed to take the Dale Carnegie course on effective communications.
I woke up yesterday to a kitchen counter full of fruit flies. The prior day I had bought some fruit, but almost all of it was in the fridge and none of it was on the counter.
What to do? The modern answer to everything is — Google. So I typed in the phrase, "how to kill fruit flies" and came across a detailed illustrated article on wikihow.com
The article identifies half-a-dozen different natural techniques for getting rid of fruit flies. I opted for the one that is described as the most simple—pour apple cider vinegar into an open container such as a jar and then mix in a couple of drops of dishwashing liquid. To a fruit fly, apple cider is a choice meal. It smells just like rotting fruit and it's darn near irresistable. Problem is that the detergent changes the surface of the vinegar. The fruit flies can no longer stand on it as they eat; instead they fall through and drown. Left overnight, this diabolical concoction is supposed to transform a glass of vinegar into a fruit fly graveyard.
No, you haven't mistakenly wondered into the wrong blog; this really does have something to do with lawyers and how to work with them.
The connection is risk; specifically, how do you evaluate information that you find on the Internet. The wikihow article seemed authoritative; it even has pictures of a jar containing what looks like dead fruit flies. I took this advice and followed it religiously. But that is despite my background as a lawyer, not because of it. Lawyers are among the small number of people who are trained to distrust information that cannot be verified as authoritative. They, along with scientists and journalists, are trained not take other people's word for things. This is one reason why lawyers tend to be much more risk averse than most of their clients. They are trained to see what can go wrong in a particular situation.
Sometimes it's comical just how risk averse lawyers can be. I know lawyers who, back in the mid-1990s, didn't fully trust email. They would email and FedEx certain documents to their clients. It took them years and thousands of dollars to conclude that email almost always reached its intended target.
I'm happy to say that I overcame my skepticism about the article. The suggested technique worked like a charm. In fact, it's kind of creepy how well it worked. Who spent the time to develop such an ingenious way to kill fruit flies?
So remember: be very careful about blindly following your lawyer's assessment of risks. Have your lawyer explain the benefits and drawbacks of a particular course of action. But the ultimate call about what to do is yours.
Lawyers will tend to advise you to act cautiously. Sometimes that's good advice, but it can also lead you to put up with fruit flies you don't have to.
On June 1, Attorney General Eric Holder announced that the United States Department of Justice was investigating BP for potential criminal violations in connection with the massive oil spill in the Gulf of Mexico. This announcement caused one prominent observer, Keith Olbermann of MSNBC, to question Professor David Uhlmann of the University of Michigan Law School about whether BP could be trusted not to destroy documents requested by the Justice Department.
Professor Uhlmann's correctly points out that requests to maintain documents are routinely made in criminal investigations. His answer, however, left something important unsaid. The reason why the BP case doesn't raise red flags about destroying documents is that lawyers—even ones working for BP—can be trusted to do their best to help their clients comply with requests not to destroy documents. This may sound like a naive view, but it is based on years of personal experience. I once was part of a team that represented a large oil company during a Justice Department investigation. That company was Exxon, and the investigation was conducted by the Antitrust Division at the Justice Department in connection with the then-pending merger between Exxon and Mobil. Requests to preserve documents do raise tricky questions. For example, what do you do if a company's regular pre-existing policy is to destroy backups of email messsges every year, and the emails would normally be destroyed before the government's request has been formally received? These are the kinds of questions with which lawyers wrestle.
But I never once saw or heard another lawyer do anything other than make sure the company complied with requests not to destroy documents. I have no doubt some lawyers have from time-to-time helped their clients evade such orders. But the overwhelming majority of attorneys wouldn't go down that road. It's just not what lawyers do. And that's not only because the rules of professional conduct prohobit such conduct. There is a sense of self-preservation that prevents lawyers from jeopardizing their licenses. A cynic might point out that lawyers have a financial incentive to maximize the number of potential documents in any case. The more documents, the more hours billed to review the documents. This could be motivating lawyers, rather than some more noble instinct.
But there is something more to it—something that Keith Olbermann and many others fail to appreciate. Lawyers don't help their clients destroy documents because of a certain kind of professional pride and training. There is a deeply ingrained notion in lawyers that, no matter how heinous your client's conduct might be, you shouldn't join them in prison. Moreover, lawyers have an ingrained sense of professionalism, an important element of which is that they don't believe—and are trained not to believe—that the customer is always right.
Clients have legitimate reasons to complain about how the "professionalism" of lawyers harms them. There are many circumstances where lawyers do need to take a more client-friendly approach. But let's not forget that there are significant upsides to the attitude that most lawyers take. It's that attitude that allows us to explain that requests not to destroy documents that are routinely used, and regularly complied with during government investigations.
After noting that most people aren't experienced in hiring lawyers, Mr. Kitta outlines identifies a four-step checklist for hiring a family lawyer.
1. It is good practice to go to the lawyer's office, look around, and network with the staff. The attorney should be ready to deal with your questions and concerns.
2. Carefully evaluate the lawyer's ability to contemporaneously provide you with comprehensive thorough answers to questions. This is the surest test of knowledge, experience and an ability to be an effective communicator.
The first thing to realize is these steps are not too focused on finding a lawyer. Rather, they deal with evaluating a lawyer once a client has already decided to visit the lawyer's office or, at a minimum, speak with the lawyer by phone. Moreover, the second step assumes that a family lawyer's ability to verbally answer your questions is the "surest test" of whether they have the knowledge and related expertise to help you. Is this a reasonable assumption? In family law, your lawyer should be able to answer questions off the top of their head more often than in other areas of law. There have been millions of divorces, adoptions, and perhaps just as many prenuptial agreements. The law in this area is generally fairly settled. Thus, it is reasonable to expect that your lawyer should be able to answer a very large percentage of your questions. That does not mean that every question will have a precise answer. For example, if a divorce involves a family-owned business, a good lawyer will indicate that the valuation of the business is likely to determine who gets what. Determining the value of the company may, however, be a complex matter. It may require the hiring of forsensic accountants and the ability to convince a court that the valuation provided by this accountant is better than the valauation provided by the other side's forsenic accountant. While it's good to find a lawyer who can answer your questions while you're in your lawyer's office, verbal communication skills probably aren't the "surest test" of a family lawyer's ability.
3. Ask legal counsel about his staff. Does his firm have back up attorneys that can cover all situations if there is a conflict. The worse thing is to retain an overworked lawyer who time and time again continues your court dates because of his or her unavailability because they are over booked and/or double calendaring. Also, ask the lawyer about his staff. How long have they been working there and is there a family law legal help on the staff? If the attorney has long term employees, it tells you that this is probably a good business operation and people will be very experienced. If the staff is very experienced, this significantly reduces any possibility of mistakes and wasted time. Another problem is that if a firm is not well staffed, you will inevitably end up paying attorney fees for clerical matters. I've seen many lawyers who type their own letters and also deliver documents for filing to court. These tasks can be handled by clerical staff or courier service at a mere fraction of the cost of having the attorney involved.
Mr. Kitta makes valid points about the importance of staff, especially in a family law practice. In many states, including in California, courts have created standardized forms that cover many of the recurring issues in a divorce. For example, the husband and wife need to disclose financial information to each other, and there are specific forms that need to be filled out to make the required disclosures. In this kind of practice, it is beneficial to have an experienced staff; they can be more efficient and may save you money. Whether you save money depends, in part, on how the lawyers and staff bill for their time—if it is on an hourly basis. If you are being charged a flat fee, and such fees are fairly common to handle certain issues in family law such as prenuptial agreements, a better staff will be more efficient but may not save you money. If you are in a contested divorce, whether a staff is cheaper depends on the respective rates the two offices charge. It also depends on whether the lawyer charges the same hourly rate to handle clerical work as he or she does to more typical lawyerly work. Overall, having a staff can be a big advantage, so long as the lawyer doesn't depend on the staff too much. It is important to find out about the lawyer's fees and billing practices. In addition, there is no question that, all things being equal, I'd prefer a lawyer who seems to have demonstarted managerial ability. Having long-time staff is a good sign that the lawyer probbaly treats people fairly well. And in divorce cases in particular, experienced staff can make for efficient lawyering.
4. Bring up this question: how long has this lawyer been practicing and how much of it with a focus on family law. Another question: have they dealt with over a hundred cases with similar concerns as yours. Find out if the attorney is often in the same courthouse as the one you will have yours. Almost, without exception, you will always gain advantage by hiring a lawyer with extensive experience in family law and who regularly and frequently practices law in the jurisdiction where your case will be heard. A local practitioner will be aware of not only the local rules, but also the nuances of each particular family law judge in that community. While a new lawyer may have energy and enthusiasm, nevertheless, they will not have the tactics, strategy and timing that takes many years to develop and greatly assists the practitioner in his or her representation of the client. At a high level, and hopefully you will obtain legal counsel of this caliber, the case will be one half tactics, timing and strategy and one half legal theory. In family law, there is a lot more than just going to the books and looking at the statutes.
Mr Kitta finally gets to the heart of the matter. You need to know whether the lawyer you are considering hiring has the specific experience necessary to help you. And yes, specific experience in a divorce case means having appeared before the judge or judges which will likely preside over your case. It means knowing, for example, how many cases they have actually taken to trial. Family law generally doesn't permit jury trials. The relatively few cases that go all the way to trial are decided by a judge. Thus, it's good to have a lawyer who has at least some trial experience before that judge. That will not always be possible to find. Some judges are new, and no attorney has much experience with them. But all things being equal, I fully agree with Mr Kitta that relevant experience trumps entusiasm when hiring a lawyer. That doesn't mean you should simply hire the lawyer who has been practicing the longest. Someone who has been family law for the past eight years in a particular location, and knows all the local rules and judges, is likley to have as much relevant experience as someone who, like Mr. Kitta, has 32 years of experience.
So what should we make of Mr. Kitta's article? I wouldn't be surprised if the article, which appears on the website ezinearticles.com was created with a marketing purpose in mind. That's perfectly fine. Nor should Mr Kitta be criticized for the somewhat self-serving nature of his article. He has been practicing for 32 years and believes experience matters. He seems to be proud of his experienced staff, and not surprisingly he thinks that having an experienced office staff is a big deal. When a practicing lawyer writes an article about how to hire an attorney, it's almost impossible for it not too sound at least parly self-serving.
You may be wondering how I came across Mr. Kitta's article. The short answer is Twitter. At least five people on Twitter re-circulated Mr. Kitta's article. Some of these folks are in the habit of publicizing law-related articles that appear on ezinearticles.com. I used the search function on tweetdeck.com to locate Mr. Kitta's article. Ironically, Mr. Kitta doesn't appear to have a Twitter acount and may be unaware of the Twitter echo that has taken place. I'll let him know. In any event, he should be commended for taking the time to write an article that provides useful information about hiring lawyers. It's certainly offers a good start.
There is, however, a gaping question left unanswered. If we lived in northern California, and needed a family attorney, how should we assess Mr. Kitta? I'll tackle that question in a future post.
Two of the best lawyers I know share an important intangible trait--the ability to focus in a particular way.
The kind of focus I'm referring to is different that what most people think about when they think about focus. For many people who are in the process of hiring a lawyer, focus has a lot to do with being present. It's the feeling that the person with whom you are interacting is devoting their complete and undivided attention to you. Politicians are famous for having this ability-even if they interact with some one for just a few seconds.
Lawyers, by contrast, generally aren't very good at this kind of focus. And this isn't the kind of focus that makes good lawyers exceptional lawyers. That kind of focus has much more to do with the sheer ability to concentrate and focus in on details. It's a more analytical skill than an interpersonal one. This analtyical skill is important becasue the nature of a high percentage of legal work requires lawyers to perform at a very high level for a client for a relatively short amount of time. It's the time that is neeed to prepare for an important court appearance or negotiation session. The closest most of us get to this state is when we were cramming for exams. We need to get a ton of stuff into our heads for the exam, but it's not very useful stuff the day after the exam. If you are hiring a lawyer to handle a high-stakes question or problem, it's important to find a lawyer who has the ability to focus and cram on your behalf.
The kind of focus you need from a lawyer also has an instititional component. It is isn't enough for your lawyer to have the ability to focus in the way described above. The lawyer's office must be organized in such a way that the lawyer can devote the time to focus. And that is where most lawyers fall down on the job. They don't have the resources, infrastucture, or management ability to give theselves the precious uniterrupted time to focus and prepare thoroughly on your behalf.
It can be difficult to tell in advance whether your lawyer has the kind of mental focus that is needed to perform best for you. It's especially hard to tell that before you have worked with them for the first time. The quality of their written work product often provides a clue, but most non-lawyers aren't in the best position to evaluate the written work product. What most non-lawyers can evaluate, however, is how well the office is run and the resources it seems to have its disposal. I am not suggesting that you ignore a lawyer's bed-side manner. The ability to communicate with clients is important. And I'm not downplaying the importance of feeling that your lawyer is present and focusing on you as a person.
But don't forget that when it comes to the work the lawyer needs to do for you, the mental ability to concentrate and absorb huge quantities of details in a short time will help determine the outcome that a lawyer can achieve. ideally, you need interpersonal focus and mental focus from your lawyer. So when it comes to interviewing a lawyer do the right thing--focus on focus.
The September 2009 issue of Los Angeles Lawyer Magazine includes an intersting opinion piece about the limits of the attorney discipline system. The article, entitled "A Breakdown of the Attorney Discipline System" starts with the following bit of wisdom:
The California Bar Journal's monthly list of disciplined attorneys suggests that the surest ways to be disbarred, suspended or otherwise disciplined are to take client trust funds or cut off contact with a client."
The article's author, Jerry Abeles, has it about right. The only category I would add is the lawyer that fails to perform any legal sevices and just takes the money. Sadly, this too is a common fact pattern when you read the summary of disciplinary actions taken against attorneys.
Most of the article addresses a topic that gets far too litttle attention: attorneys whose abusive conduct against other lawyers is ignored by the disciplinary process. Specifically, the article describes an attorney who has repeatedly lied to judges and has even gone so far as to threaten other lawyers with "macabre death threats" and physical harm without being disciplined. I know Jerry Abeles. He is not one to exagerate when writing to a court or a large magazine readership. The point he makes is important. The discipline process tends to focus on specific, often technical, violations of the applicable rules of professional conduct. Acting as a harassing jerk is far less likley to get an attorney disciplined.
That's why clients are ultimately a better curb on obnoxious attorney behavior than the disciplinary process. Many clients don't know how their attorney treats other attorneys or court personnel. But if you, as the client, ever see your attorney acting in a way that strikes you as inappropriate, be sure to raise the issue with your lawyer. Such conduct tends to cost clients money and otherwise harms their interests. As a client, you often don't know how to evaluate your lawyer's performance. But you have a lifetime of experience judging whether people are courteous. Don't fall into the trap of deciding that you need someone obnoxious to defend you in a lawsuit or business transaction or to attack the other side.
The best lawyers are startegic, smart, and don't make enemies unnecessarily. They combine good legal skills with good people skills. Don't let anyone, especially a second-rate lawyer, convince you otherwise.