Advice to Young Lawyers #29

Dear Mr. Schaeffer:

My problem is a lawyer from New York named T. Hadley Stevenson III. I’ve changed his name and his state of practice, but you get the idea—he’s typical of a certain type of lawyer who could be practicing anywhere. This particular T. Hadley Stevenson III is making my life miserable. He deliberately sets depositions on dates he knows I’m not available. He sends letters “confirming” things I've never said. He objects to every discovery request I make, no matter how innocuous, daring me to see the judge about it. He knows I probably won’t, since just last month the judge told us he’s “not our goddamned babysitter” and that he “doesn’t want to see us again until the morning of the trial.” The trial won’t happen for at least two years. Meanwhile, T. Hadley Stevenson III won’t return my phone calls. When he does, he’s condescending. “You’ve sure got a lot to learn,” he told me yesterday, adding, as an afterthought, “You little weasely punk.” When I threatened to put his name-calling in an affidavit, he said, “Go ahead and do it. I don’t care. I’ll deny it.”

I don’t just hate the man, I abhor him. Next week, he’ll be in town for a deposition. Do you think I’d be justified in having him killed?

Signed, Willing to Risk Everything in Englewood

Dear Willing to Risk Everything:

As I think you probably know, having another lawyer killed is a very drastic litigation measure. Not only is it drastic, but it probably won’t take care of your problem. Lawyers such as the one you describe seem to be cast from a mold. All over the country, our nation’s law firms are churning them out one after another faster than ever before. Sure you can kill one or two, but others will simply take their place. A second problem is that cold-blooded murder flies in the face of the conventional wisdom that lawyers should be “civil” to one another. It's a sort of conventional wisdom that's been created so that lawyers don’t have to face up to the real problems that have ruined our profession. Instead, we grumble a little and complain a bit and drag ourselves off to a one-hour ethics CLE where we sip lukewarm coffee and listen to an "expert" tell us to quit making so many speaking objections and to stop instructing witnesses not to answer valid questions. It’s harmless and it makes us feel like we’re doing something to help. Meanwhile, no one teaches us what to do when we’re the only ones who are being civil and everyone else has decided to use our civility as a weakness to exploit. Suddenly, murder doesn’t seem so crazy after all.

Is there any solution to the problem? As someone who regularly experiences the sort of litigation tactics you describe, I sure hope there is. Just think of all the talent, time, and money that are being wasted as these tactics are repeated every day at law firms across the country. The money expended on legal fees alone is an outrage that must be stopped. Yet I refuse to make the mistake of the naive legal ethicists whose big idea is that lawyers should smile more often at one another. What do they know? Most of them are law professors or professional has-beens who don’t have to practice for a living. While I agree with them that civility is a wonderful thing, the easy fixes won’t work. The lawyer who nods politely and shakes your hand because he’s just been to an ethics CLE is still just as anxious to make your life miserable with dirty litigation tactics as he was the day before. The only difference is that now, he’ll do it with a smile. Big deal.

Here’s the sad truth: things won’t change until the adversarial model of U.S. litigation has been transformed from the ground up. Should the transformation begin by killing the most obnoxious lawyers? Absolutely not. Killing the most obnoxious lawyers would be too humane. Let’s get them where they’ll really hurt: let’s take away their license to practice law.

Too many lawyers. Too many courts. Too many indefensible litigation tactics. Obviously, it’s seriously affecting my judgment. After further consideration, I take back everything I just said. Go ahead and kill the bastard. The world will be better off without him.

Your friend, Evan Schaeffer

Related posts:

1. Advice to Young Lawyers #23 (Living at Borders)

2. Advice to Federal Judges #3 (Judges with Weblogs)

3. The "Advice" Category--all previous advice posts

Comments

[noah]

any tips for actually dealing with the guy?
he seems to have won if he makes questioner angry.

[Evan]

noah: Good point. I've advocated the lighthearted approach to litigation (i.e., ignoring your opponent) in the past. But let's say you're working on fifty cases involving twenty-five obnoxious lawyers. Will a smile do the trick? How about telling yourself not to get mad? No and no. Sometimes only an energetic smack-down will work. Retaliation, in other words. Full-scale warfare until someone blinks. Getting even, then some. That's the answer to your question.

You see the problem. Some lawyers thrive on it, but it's a waste. The lawyers get paid but their clients lose out. What a terrible system. Perhaps I'll have more to say about it later.

[T. Hadley]

It ain't me! The resemblance of name is sheer coincidence. ;)

I've had some people like that on the other side, though. I was fortunate enough not to encounter them very often, but it's still one of the reasons I'm not litigating these days. I'll look forward to reading anything more you have to say on the topic, though.

--Tim

[Yeoman]

Those fellows are aggravating. If anyone figures out how to deal with them effectively, let me know.

Here's what I've done in the past on some of these things.

1. Memorialize everything in writing, in a very friendly tone. Then when he represents to the judge that you said something, you can pull out the correspondence and embarrass him. I've found this to be highly effective, particularly if you take a position that your poor addeled opponent must just be very confused. CC any correspondece to other counsel in the case, if there are any.

This can be amusing as in:

"Gee judge, my correspondence indicates it was Mr. X who asked for discovery to be kept open on all experts. It says so right here in my letters of 4/14, 4/21, and 4/25. I don't know why he says he never agreed to it, as I quoted him as saying . . ."

2. In the case of misrepresenting what you've said, I once had a case against an opponent who was chronic about it. He did it constantly. I was always writing back with corrections.

I finally couldn't take it anymore and did something you really shouldn't do. I received a letter that was just extreme, saying something like:

"In our conversation of last week you agreed to admit damages in the amount of $100,000. . .". I'd neve admitted any such thing, or had even been close to such a foolish statement (I ultimately won the trial against this party), but I was so mad I wrote back:

"Dear Bill, you are in error on your letter of 6/1 in which you state that I'd admitted damages in the amount of $100,000. In actuality, I think you will recall you admitted your case lacked merit and that you were going to dismiss it. If you do not reply by the end of the day I mailed this, I'll assume that we have an agreement. . ." Again, you shouldn't do that. But he actually called me on the telephone and said that he'd knock it off.

3. In another category of things you really should not do, I had a case against an opponent whose letters were horrifically nasty. I later learned that he sends the same letters out in every case. He accused me of hiding evidence, conspiracy, and fraud, and was going to sue me. This was because he'd agreed to a settlement without understanding it, and wanted out. I wouldn't let him out, as I'd sent him a flood of letters prior to entering into the agreement explaining in detail what we were doing, and repeatedly asking him for any revisions. He did contribute some, but apparently didn't really understand what he was doing.

Anyhow, I came into the office on a Saturday and received a blistering nasty gram. The dumb thing I did was to call him at home. His wife recognized my name immediately and must have known what was going on, as she (a nice person) sounded paniced and told me he wasn't home, and never would be. This cowardly sob wouldn't take my office calls after these letters. I assured her I could call back that evening, but she begged off. I imagine he received a little bit of a dressing down from her, as he never sent another letter. But that was a dumb thing to do.

More effecive, however, was collecting all the letters up and attaching them to the motion to enforce the settlement with the Court. Har! The judge then pretty much assumed he was unhinged.

The lesson of all this is to keep really good correspondence files yourself.

Nasty lawyers are one of the prime reasons, by the way, I'd like out of this line of work. About 25% of all lawyers are pond scum.

[Obi Wan Anonymously]

What to do with those types of lawyers? That's easy. Go to "Can We Tape" and find out whether it's legal to tape all conversations with opposing counsel. If so, go to a spy store and purchase a telephone with a recording device enabled. They're only about $250 - expensive, but worth because you're also purchasing justice.

If it's illegal to tape, a more expensive solution is to have a stenographer present during the next conversation to transcribe the conversation. Again, although this might be costly, justice is worth the price.

Then, the next time you're in court, wait for the opposing counsel to misrepresent the facts or a conversation. Do a form of cross-examination: "Your honor, I want to make sure that Mr. Smith meant x, y, z." Make Smith clarify. Close the box on him the same way you would close it on a deponent.

Then, bring out your evidence. With as much gravitas as possible, say: "Your honor, I'm really disappointed that an officer of the court would make such misrepresentations. I'm really sorry I have to do this, but actually, here is really what was said."

Follow up with a complaint to the state bar. Never relent. Attack, attack, attack.

No one will ever screw with you again.

[Tim Hadley]

Lawyers who are considering taping conversations should also check the professional rules, disciplinary opinions, and hypothetical ethics opinions in their own jurisdictions.

Some lawyers have told me that in some states, state law may permit Average Joe to record his phone conversations, but lawyers cannot do so without at least disclosing that the conversation is being recorded and obtaining permission.

[Trevor Hill]

I'm a 2L, so I'm sure someone will tell me that this suggestion is terribly naive, but is it?

Why not just report them to the bar? You've got a bevy of rules against misrepresentation in any setting, including misrepresentation through omission sometimes.

I'm sure that if everyone who encountered this behavior sent a complaint to the proper disciplinary authority, these would pile up on the bad cases and some action might eventually be taken...