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Do you fight over discovery? Admit it. It’s ok, we’re all friends here, no?

Apparently lawyers still wage discovery battles. I won’t pretend that I’m immune. I still mix it up with the best of them. But I came across an article in the November, 2013 issue of Practical Law which attempts to make a compelling case why we might serve our clients better by adopting a spirit of cooperation.

In their article, “Learning to Cooperate,” Jonathan Redgrave and Peter Hennigan talk about The Cooperation Proclamation originally published by The Sedona Conference in 2008. They say:

“At the time of its release, The Cooperation Proclamation provided attorneys with a practical, if aspirational, framework to understand cooperation. Today, there is really no longer any question of whether or not counsel should cooperate in discovery. Cooperation is required by the current and proposed rules, expected by the courts and consistent with attorneys’ ethical obligations. Perhaps most important, cooperation is also what the clients want.” (Id. at 27.)

Well hold on now. Isn’t litigation an adversarial process? What about zealous advocacy? We’re talking about opposing parties and opposing counsel here, right?

Merriam-Webster defines “cooperation”–which, in case you wondered, is pronounced (?)k?-?ä-p?-?r?-sh?n–as “1 : the action of cooperating: common effort; 2 : association of persons for common benefit.”

“Common effort?” “Common benefit?” What!?! Your guy sued my guy, right? You’re demanding some ridiculous sum of money and, because my client won’t just pay you, you’ve prepared and filed a civil complaint, dragging my client into court, isn’t that right? Why on God’s green earth would my client want to make any common effort to do anything for your client’s benefit?

Before we get our dandruff up,† let’s stop for a second and find out what “cooperation” is supposed to mean in this context. Are we supposed to just give in? Roll over? Do our opponent’s job for them? The authors claim the answer is no.  Citing the Proclamation, Redgrave and Hennigan say:

“The Sedona Conference explicitly states that cooperation:

•  Is not capitulation.

• Is not an abdication of appropriate and vigorous advocacy.

• Does not require volunteering legal theories to opposing counsel or suggesting paths along which discovery might take place.” (Id., citing The Case for Cooperation, 10 Sedona Conf. J., 339, 340, 359 (2009).)

What’s left? Here, the authors offer some “ABCs of Cooperation.” A few of these make a lot of sense:

• “Be flexible. Like any negotiation, counsel may have to compromise or use alternative means to get the discovery or relief that the client needs.

• Consider what discovery is truly needed, and not just desired.

• Document the agreements reached with opposing counsel, as well as any areas of dispute, and try to obtain resolution without the court’s intervention where possible.” (Id. at 29.)

I can go along with these. But I think it needs to be said that the rationale underlying this spirit of cooperation should properly be that it ultimately benefits our clients. If done properly, cooperation in litigation and discovery saves our clients money. It makes their lives easier. As the authors point out:

“The best argument in favor of cooperation is that clients want it. Clients are beginning to realize that a scorched-earth approach to discovery, and the wasteful and time-consuming discovery disputes such an approach invites, rarely (if ever) serves their interests. Moreover, clients want cooperation because they recognize that being cooperative enhances their attorneys’ credibility with the court.” (Id.)

Where I part ways with the authors is their appeal to some other, ethereal motive for cooperation. They spend a lot of time citing various courts and model rules, etc. and harp on about “duties to the tribunal, the judicial system, opposing counsel and opposing parties.” (Id.) Blah, blah, blah. Save it! What matters at the end of the day–at least for those of us in the trenches–is getting the best possible outcome for our clients. If the straightest road to that result is through cooperation, I’m all for it. But let’s not forget it’s our client–not opposing counsel or opposing parties–who keeps the lights burning.  

†The earliest known citation for this strange saying was in the April, 1853 Wisconsin Tribune, wherein someone apparently wrote: “‘Well, gosh-all Jerusalem, what of it?’ now yelled the downeaster, getting his dandruff up.”

I previously wrote about the circumstances in which it makes sense strategically, financially or otherwise to involve local counsel. Here I want to draw on my experiences as an attorney who has frequently both hired and been hired as local counsel to offer some suggestions on ways you can be an outstanding local counsel.

One observation at the outset. Some lawyers or firms view the role of being local counsel to another “lead” lawyer or firm as less than desirable. They see it as somehow akin to being a second class citizen in the context of a lawsuit (or, I suppose, deal). While lawyers who have this attitude will usually swallow their pride and do the work, assuming they perceive the engagement as fiscally attractive, they never really put their hearts into it. I’ve had good fortune over the years with the firms I’ve hired as local counsel. And I hope my client firms have felt I brought value to our cases.

But I have sensed this kind of friction on occasion, particularly where my partners and I, as lead counsel, insist we do tasks that local counsel believe (perhaps accurately) that they would perform better and cheaper. This decision is usually based either on our financial arrangement with the client (a flat fee, for example) or because we perceive the client expects that we, as lead counsel, will do the work. There’s not much to say to local counsel in these circumstances beyond, I suppose, get over it.

With that piece of throat-clearing out of the way, here are some thoughts about what local counsel can do to set themselves apart and, in doing so, make future engagements more likely.

1. Put yourself in lead counsel’s shoes. Acting as local counsel is unique and calls for a kind of flexible, outside-the-box kind of thinking. Rather than “how would I handle this (situation, development, procedural requirement, etc.)?” the relevant question becomes “what does the client (i.e., lead) firm need to know in order to make an informed decision what to do under the circumstances.” This can be challenging because it may require a lawyer to suppress or ignore her own instincts about what to do, which sometimes conflicts with what the client/lead firm ultimately decides to do.

2. Don’t take much (or anything) for granted. Experience litigating in multiple venues may give us an idea how things are “generally done.” But some jurisdictions do things radically different. For example, the state courts in my home, California, have a very specific procedural scheme, particularly with respect to expert discovery. Out-of-state practitioners struggle to follow our rules of civil procedure because they are unique. Other states adopt procedures that seem to mirror the Federal Rules. The key for local counsel is not to assume your lead counsel knows what is required, even if your state court procedure is mostly on par with the Federal Rules.

3. What do you know about the judge? This is probably obvious, but one of the reasons to hire local counsel is for information and to have local connections. The best local counsel are active in their local bar association and/or Inns of Court. Excluding improper ex parte communications or other unethical influence, it is really helpful when the judge recognizes and respects our local counsel. Educating lead counsel about the judge is another area that is really helpful. You are our eyes and ears on the ground in the local venue.

4. What do you know about opposing counsel? Ditto from above. Even if not friendly or social, do you have–or can you develop–the kind of rapport with opposing counsel that will easily facilitate extension requests or other courtesies? Does opposing counsel have a pattern? Are they lazy until the last 90 days before trial? Do they always fight hard and then settle? Are they competent in front of a jury? Do they know the judge well? Even if you don’t know the answers to these questions, you should have the resources (i.e., connections within the local bar) to ferret them out.

5. What makes your venue potentially unique? This goes back to not assuming anything. The procedural routines you’ve dealt with your entire career may be completely unique and unfamiliar to your lead counsel. Think of this on both micro and macro levels.

6. Exponentially increase lead time. I’ll confess this has been a personal challenge, but you absolutely must think far in advance and let your lead counsel know about upcoming events and deadlines.

A perfect example is California’s summary judgment procedure. I cannot speak to how summary judgment motions are scheduled in other jurisdictions, but the California Code of Civil Procedure requires dispositive motions be heard 30 days before trial. The Code also requires 75 days notice (assuming personal service) of the motion (with additional notice if served by mail, overnight, etc.). While this seems easy to calculate, the rub comes with the clogged dockets of our virtually bankrupt state court system, which can make it all but impossible to ultimately schedule a hearing date within the necessary window if a party does not begin the scheduling process very early. There is authority which suggests the court’s docket, etc. cannot deny a party the right to bring a dispositive motion, but the practical impact of delay will include expensive additional, sometimes nail-biting  procedures, like ex parte applications to have motions specially set the hearing and/or to reduce notice.

7. Communicate, communicate, communicate with lead counsel. And then make sure you communicate some more. Seriously.

8. Don’t friggin’ poach the client. The idea behind taking this work is not as an angle toward poaching the client away from lead counsel. If you see it otherwise, you’re not doing anyone, including yourself, any favors.

9. Do what you can to make lead counsel shine in the eyes of the client. When you’re hired by a general counsel, legal staff member or claims adjuster, it should be an important goal to make that person look good in the eyes of those to whom they answer, whether it is a board of directors, a more senior legal staff member or a claims superintendent. When you get a local counsel gig, make it a goal to make your lead counsel shine in the eyes of their client.

Because I am at the stage in my career where I am aggressively building my own practice, I take opportunities to act as local counsel for what they are–great opportunities to work for new clients and with different lawyers. There’s no reason you shouldn’t do the same.

One of my favorite books about negotiation is Getting To Yes by Roger Fisher and William Ury. As the book jacket suggests, it really is “for everyone who has ever worried about what to do in a disagreement or dispute.”

Since I suspect that the majority–if not the vast majority–of negotiations are between parties of unequal bargaining power, I thought it might be interesting to dip into the book and see what Fisher and Ury recommend one do when he/she/it is negotiating against a more powerful opponent. One of the tools the authors advocate in this situation is for a negotiating party to formulate a Best Alternative To A Negotiated Agreement (BATNA). Just by knowing their BATNA a party becomes empowered in any negotiation.

The easiest way to get a feel for what the authors are talking about is by using their example:

“Consider a wealthy tourist who wants to buy a small brass pot for a modest price from a vendor at the Bombay railroad station. The vendor may be poor, but he is likely to know the market. If he does not sell the pot to this tourist, he can sell it to another. From his experience he can estimate when and for how much he could sell it to someone else. The tourist may be wealthy and ‘powerful,’ but in this negotiation he will be weak indeed unless he knows approximately how much it would cost and how difficult it would be to find a comparable pot elsewhere. He is almost certain either to miss his chance to buy such a pot or to pay too high a price. The tourist’s wealth in no way strengthens his negotiating power. If apparent, it weakens his ability to buy the pot at a low price. In order to convert that wealth into negotiating power, the tourist would have to apply it to learn about the price at which he could buy an equally or more attractive brass pot somewhere else.” (Id. at 107.)

Since I’ve visited the Bombay railroad station–it’s actually called the Victoria Terminus–this was an easy bargaining situation to picture. The authors just left out the part about the cows wandering along the platform. In any event, as they point out, “the relative negotiating power of two parties depends primarily upon how attractive to each is the option of not reaching agreement.” (Id. at 106.) If you can have a very attractive BATNA, your chips have greater value.

How do you strengthen your BATNA? The authors suggest this “requires three distinct operations: (1) inventing a list of actions you might conceivably take if no agreement is reached; (2) improving some of the more promising ideas and converting them into practical options; and (3) selecting, tentatively, the one option that seems best.” (Id. at 108.)

If we transition this discussion into a familiar setting, the pre-suit mediation of a hypothetical employment dispute, it may become easier to see how the whole BATNA thing might play an important role. Consider, for example, a single plaintiff who has a claim against her employer for gender discrimination. The parties engage in a mediation to see if the case can be resolved before she actually files a lawsuit. The individual employee might be anxious going into the mediation, since her employer is a large corporation with sophisticated lawyers at its disposal (at least they look sophisticated) and both she and her lawyer know it will cost a lot and be an uphill battle to pursue the case if the corporation is not inclined to settle. This sounds like an unequal bargaining position, doesn’t it? If they go in “cold” as it were, hinging their hopes on the corporation’s generosity, they’re likely to get steamrolled into agreeing to a settlement far below full value.

What can they do to enhance their BATNA and take away some of the corporate defendant’s power? Let’s apply the 3 step approach from Getting To Yes. First, the plaintiff and her lawyer “invent a list of actions” they might take if the dispute doesn’t resolve at mediation.  Here are some I invented for them:

• Go ahead and file a lawsuit and serve aggressive discovery. (True, it’s not very original.)
• Explore pursuing a class action instead of a single plaintiff case.
• Aggressively investigate whether there are quality witnesses who will support plaintiff’s case.
• Propose a second mediation session after the plaintiff has completed some (hopefully damaging) discovery.
• Associate additional reputable counsel to help level the playing field.
• Explore forum shopping options. Perhaps the corporation expects a lawsuit would be subject to mandatory arbitration, but the facts or current state of the law weakens the assumption that arbitration will be a suitable forum?

Step 2: “improving some of the more promising ideas and converting them into practical options.” I like the idea of a class action as a practical alternative option to a single plaintiff case. This is bound to put pressure on the corporation, as a class action carries both greater risk and greater expense. How to “improve” this idea? Do some investigation. Talk to plaintiff’s female colleagues. Even if their cases would not be particularly strong if pursued individually, they might have a chance in a class action situation.

Step 3: selecting which option seems best. Let’s assume there is some chance the plaintiff and her lawyer could organize and successfully pursue a class action (but would still prefer to settle her single plaintiff case at mediation), the question becomes whether to share your option with the opponent during the bargaining process. The authors say this:

“The desirability of disclosing your BATNA to the other side depends upon your assessment of the other side’s thinking. If your BATNA is extremely attractive–if you have another customer waiting in the next room–it is in your interest to let the other side know. . . However if your best alternative to a negotiated agreement is worse for you than they think, disclosing it will weaken rather than strengthen your hand.” (Id. at 109.)

Here you will need to make an honest assessment. Is the notion of converting the plaintiff’s case into a class action really just pie-in-the-sky? The corporation’s lawyers are naturally going to wonder, if the plaintiff reveals her class action alternative, why her lawyer isn’t pursuing that in the first place if there’s really a viable class. The corporation, knowing class certification can be a challenge which, if lost, tends to shake out meritless individual claims, might not be particularly cowed by the prospective of a weak class action.

On balance, I would probably not reveal this BATNA to the opposition, even if the plaintiff and her lawyer believe a class action is a viable alternative. What’s important is the actual balance of power, not just the corporation’s perception of the balance of power. Going into the mediation with the knowledge that she has a decent BATNA should give the plaintiff and her lawyer the resolve not to cave too easily.

Here are some ideas, courtesy of Professors McElhaney and Mauet, on effectively cross-examining your opponent’s expert witness at trial.

1. Make Him or Her Your Own Expert. Professor McElhaney suggests you look for places where your opponent’s expert agrees with your theories in the case. For example, if, in a personal injury case, both experts mostly agree on the severity of the damages and future treatment, but differ on causation, focus on where there is agreement. He says:

“Note that the defendant’s own doctor admits that the plaintiff will be subject to sudden seizures for the rest of his life; that this form of epilepsy can only be treated, not cured; and that the plaintiff’s condition can put him out of work as a machinist and means he can never drive again.

If you have a strong case on causation, you may decide it is better to make this witness your own on the issue of damages than to try to beat him down on the subject of cause.” (Litigation (ABA 1995) 165.)

2. Attack His or Her Qualifications. “No matter how well-qualified the witness,” McElhaney reminds us, “there is always a higher level he has not reached.” (Id.) Used subtly, this can also serve to bolster your expert’s credibility if he/she has better credentials.

3. Narrow His or Her Expertise. Professor Mauet  points out that, “[o]ften an expert will appear to be highly qualified, yet his actual expertise and experience are in areas different from those involved in the case. The cross-examination technique is to build up the witness’ real expertise, then show that this particular expertise is not directly applicable to the type of case on trial.” (Fundamentals of Trial Techniques (3rd Ed. 1992) at 266.)

4. Attack His or Her Facts. I see two possibilities here. One is if you can establish an opinion rests on a faulty or controversial factual premise, such as a date, measurement or time. The other, highlighted by McElhaney, capitalizes on the fact the expert did not do factual investigation himself, but is relying instead on the reports of others. He gives an example of an effective examination:

“Q. Doctor, can we agree that your opinion can be no better than the information on which it is based?

A. Well, yes, I guess so.

Q. If the information you have is not accurate, then the opinion would have to suffer too?

A. Of course.

Q. Which is why you would rather gather the information yourself than have to trust some source you have not worked with before?

A. Absolutely.

Q. But you were not given an opportunity to do that in this case?

A. Well, not exactly. No, I wasn’t.” (Litigation, 167.)

5. Vary The Hypothetical. McElhaney explains this approach as follows:

“You are permitted to change the facts around to see at which point they alter the expert’s opinion — depending on whether the question on direct examination originally was asked as a hypothetical.

You can insert facts you feel were left out on direct, or take out facts you feel should not have been included.” (Id.)

Let me go on record here that I view this as an advanced technique, and an opportunity to ruin an otherwise solid cross-examination. Ideally, you would have covered this ground with the witness in a pre-trial deposition, so you know what the answer should be and can hold the witness accountable if he/she strays. Otherwise, an experienced expert might hand you your head on a stick if you are not meticulously prepared.

6. Use The Expert To Bolster Your Own Credibility. Mauet suggest it can be “useful to cross-examine an expert to establish your own expertise in the subject. You can do this by defining technical terms or describing technical procedures and having the expert agree that you have defined or described them correctly. Use a treatise to obtain accurate definitions and descriptions. If this expert disagrees, you can impeach him with the treatises.” (Fundamentals, 267.)

7. Establish His or Her Compensation Bias. Mauet writes: “Inquire into professional fees charged and whether they have already been paid.” But he reminds us to “[k]eep in mind . . . that trials are a two-way street. Your opponent can do to you what you contemplate doing to him. Before pursuing this approach, make sure your own experts are less vulnerable than your opponent’s.” (Id., 266.)

8. Identify Additional Steps The Expert Did not Take. Mauet suggests we “[d]emonstrate that the witness did not do all the things a thorough, careful expert should have done. Demonstrate that a variety of tests could and should have been performed to arrive at a reliable opinion in this case.” (Id., 267-68.)

There. Now go get ’em.

Well, you should.

I’m referring here to rhetorical device of organizing and presenting topics, words or phrases in groups of threes. Sadly, I neither discovered nor perfected the Rule of Three. But I intend to learn it, practice it and perfect it. (See, I did it right there.)

The Rule of Three enjoys a long history. Writing in the November, 2013 issue of Toastmaster, Washington, D.C.-based speaking consultant Denise Graveline reminds us that the Rule of Three “grew out of the ancient oral storytelling tradition. That tradition is the way we shared information before writing it. Over time, storytellers found that they and their listeners could most easily remember stories structured in three parts, which is why so many fairy tales have triads in them (think three little pigs or three blind mice).” (Id. at 16-17.)

Andrew Dlugan has written extensively on using the Rule of Three in his popular blog Six Minutes. He discusses and gives examples of two special “triad” variants: hendiatris and tricolon. “A hendiatris,” Dlugan writes, “is a figure of speech where three successive words are used to express a central idea.” Examples? Consider these:

• “Veni, vidi, vici.” – Julius Caesar (trans: “I came, I saw, I conquered.”
• “Liberté, Égalité, Fraternité.” – French motto
• “Wine, women, and song.” – Anonymous

“A tricolon,” Dlugan tells us, “is a series of three parallel elements (words or phrases). In a strict tricolor, the elements have the same length but this condition is often put aside.” In addition to Caesar’s “Veni, vidi, vici,” Dlugan quotes advice Franklin D. Roosevelt gave to speakers: “Be sincere, be brief, be seated.”

I’m not sure I ever gave the Rule of Three any serious thought before, though I recall my father, teaching me photography as a kid, talked about using patterns of three when composing a photograph. According to Dlugan, we can see examples of the Rule of Three at play throughout history: in religion (Father, Son, and the Holy Spirit), movies (Sex, Lies & Videotape, The Good The Bad And The Ugly), politics (Executive branch, Legislative branch and Judicial branch of government; Declaration of Independence: “Life, liberty, and the pursuit of happiness”); sales or advertising (in real estate: Location, Location, Location). Of course we learn about triads in music theory, as well.

Even though I never gave much conscious thought to the Rule of Three, I think that, like most rhetorical conventions, it penetrated into my thinking and composition through the magical osmosis of reading good writing. Dr. Seuss, for example.

Whatever the source, I unconsciously used the Rule of Three when I created my dreaded “elevator speech.” As much as I think the 30 second elevator speech has no place in a normal conversation between people who have an IQ over, say, 50, you would be surprised how effective it is to have a well-crafted self-advertisement handy when you are at a business or networking event and everyone in the room is asked to introduce themselves and describe what they do. I find myself in these situations about once a week. My elevator speech, I’m not at all embarrassed (well , actually . . . I am a little embarrassed) to recite:

I’m Alex Craigie. I’m a Partner in the Los Angeles office of Dykema. My practice currently focuses on helping Southern California employers [1] prevent, [2] manage and [3] resolve employment disputes as efficiently and cost-effectively as possible.

An example of a hendiatris at work. I might vary parts of this to suit the audience. For example, if I’m working a room that doesn’t have a clue who or what a “Dykema” is, I might throw in that it is a “premiere Mid-West full-service law firm. ” No matter what, though, I always include my core description which centers around three verbs which describe what I do: I prevent, I manage and I resolve.

So think about invoking the Rule of Three.

I have long found much to admire about Keith Lee’s writing in his well-regarded Associate’s Mind blog. His voice is intelligent, but accessible. His tone is informed, but not condescending. His consistent message about the state of our profession is tough, but not without optimism.

I was pleased to find all of these qualities and more in his recently published first book, The Marble And The Sculptor.

What I particularly appreciate about Lee’s thoughts, as expressed in his words, is how they are often infused with precious pearls of Eastern wisdom. It is refreshing, at a time when the business of law threatens to eclipse what was once regarded as a noble profession, to encounter a fellow lawyer who strives to penetrate deeper into what it means to undertake a legal education, to prepare for and pass the bar examination and, finally, to carve out one’s own place within our profession. The decision to commit to this profession is a serious one, and Lee invariably addresses these issues with unflinching candor.

As an undergraduate student of Western philosophy, I occasionally flirted in a superficial way with Eastern thinking on issues of metaphysics, epistemology and religion. But I never let my guard down or did the work necessary to really grasp the Eastern mind. Again, when my wife and I traveled throughout Asia during our sabbatical, I was confronted and tried to learn about the Eastern religions, the teachings of the Buddha, the Hindu belief system and others, including radical Jainism. But regardless of my immersion, those teachings remained essentially foreign to my Western-bred mind.

Lee forces me to revisit the Eastern mind, but to apply that way of thinking to my own chosen profession as a lawyer attempting to practice here, in America. As the rapidly growing blawgosphere demonstrates, pretty much anybody can write about law. The difference in reading Lee is not only that he has something to say, but what he says carries a much larger, often universal import. His how-to manual for newly-minted lawyers would not require much revision to serve as a how-to manual for success in any career, or even in life. I believe it is his Eastern mindset that gives Lee’s words their added wisdom, their depth.

Much of Lee’s advice for succeeding both as a law student and a lawyer comes down to one quality: discipline. It’s not an accident that Lee came to law school, as he puts it, “a bit later in life” at twenty-seven. After college, he spent a year as a runner/project assistant/gopher at a large law firm. Yet, even after this experience cemented his certainty that he wanted to be a lawyer, he did not enter law school right away, but instead moved to Canada to train as an ichi deshi to a shihan (master) for nearly a year. He briefly describes this experience as

” . . . crazy and awesome and painful and beautiful — one of the best and most difficult experiences in my life. It’s the sort of thing that’s hard to encapsulate in words. Sleeping in a storage closet under the stairs in the basement of the dojo on a thin mat. Subsisting primarily on rice, vegetables and PB&Js (okay, and beer on occasion). Training five to eight hours a day, five to six days a week. Bleeding toes and cracked ribs. Scrubbing toilets and washing mats. Friendships gained and lost. Intense spiritual moments of training and camaraderie, intense times of loneliness and introspection. No TV, no movies, no cellphone.” (Id. at 97-98.)

Not exactly Club Med. But perfect training for the mental discipline needed to become a successful professional. Describing the training during this period, Lee writes:

“After the lecture there would be an hour or so breakdown on one technique, perhaps one movement. A pivot or a shift of hips or moving into position against your partner. A single movement could be repeated hundreds of times. Occasionally I would be told the movement was correct. Mostly I would be told that the movement was wrong.

It was aggravating. It was boring. It was difficult. Deliberate, long, tiresome, and trying. After the tenth repetition of a movement I would grow bored. At the thirtieth, my mind started to wander. At the sixtieth I was barely concentrating. At the hundredth, my mind had become still and there was only the movement.” (Id. at 98.)

This focus on discipline as the key to growth as a lawyer is echoed throughout The Marble And The Sculptor. From one’s selection of law school electives, to developing key relationships, to balancing the competing demands of family and law school and, later, law practice, he returns again and again to the notion of discipline. Lee writes:

“Every lawyer, every person you meet, was once young, naive, and ignorant as you are. It is now your personal responsibility–no one else’s–to mature and develop into a competent lawyer who is fit to be trustworthy of a client’s problems.” (Id. at 21.)

Another vein that travels throughout the book is the notion of humility, which I believe also finds its genesis in his Eastern studies. There is a tendency, after you’ve devoted years of your life and a small fortune to finish law school, excelled on law review or moot court or whatever, to take yourself pretty seriously as a brand new lawyer. Lee gently reminds readers that, as new lawyers, you don’t know shit.

But his purpose isn’t to cut baby lawyers down. Rather, Lee is interested in teaching the kind of humility that is found in Eastern thought and easily seen in the martial arts, in the interest of helping you on your path to becoming a professional. He writes:

“After obtaining my black belt, did I consider myself a master? When I received my JD and passed the Bar, did I consider myself an expert lawyer? Of course not. They’re ridiculous propositions.

Traditionally, a black belt has only meant one thing: you were now considered a serious student. Everything before was playtime. Training wheels. Getting a black belt only signifies that you have mastered the basics and are ready to begin dedicated study. The same is true with a JD. Having a JD doesn’t indicate mastery of the law. It’s merely a signifier that you are probably ready to step onto the playing field. What follows is up to you.” (Id. at 102-03 (emphasis in original).)

Readers of Lee’s blog, as well as his new book, quickly learn that his choice of title for the blog, Associate’s Mind, was no accident, but reflects this essentially Eastern attitude of humility toward our profession. He writes:

“So, during my final year of law school, I started a legal blog titled Associate’s Mind, a play on words of a concept in Zen known as shoshin, or ‘beginner’s mind.’ A ‘beginner’s mind’ refers to having an attitude of openness, eagerness, and lack of preconceptions when studying a subject, even when studying at an advanced level, just as a beginner in that subject would.

I wanted to adopt this mindset in my practice of law. The idea that an associate should be flexible and open to new ideas and processes, while being mindful of the guidance of those who have tread the road before them. ” (Id. at xii.)

I encourage you to read Lee’s new book, and to subscribe and follow Associate’s Mind. You will find there pearls of the kind of wisdom our profession desperately needs at this difficult time.

This cautionary tale comes from a case called Mt. Holyoke Homes, L.P., v. Jeffer Mangels Butler & Mitchell, LLP (No. B243912). The facts are straightforward. Mt. Holyoke Homes hired Los Angeles law firm Jeffer Mangels Butler & Mitchell to provide legal services in connection with a real estate development.

When lawyers at the Jeffer firm failed to timely challenge the California Coastal Commission’s exercise of jurisdiction over Mt. Holyoke’s application for a development permit, Mt. Holyoke sued the firm for legal malpractice. Jeffer Mangels petitioned to compel arbitration, which was required under its engagement agreement with Mt. Holyoke. The law firm also sought to recover unpaid legal fees.

The parties jointly selected Retired Judge Eli Chernow to serve as the arbitrator over the malpractice action. According to the case, Judge Chernow made the following disclosures at the outset of his engagement:

“Judge Chernow disclosed that Defendants’ counsel had represented a party to a mediation before him within the past five years, but stated that he was not aware of any relationship with any party or attorney involved in this matter that would impair his ability to act fairly and impartially. Judge Chernow later disclosed that he had known Benjamin Reznik for many years. He also disclosed that he had conducted an arbitration and a mediation involving Adler more than five years earlier. The parties agreed to his appointment as arbitrator despite these disclosures.”

Judge Chernow ultimately issued an award in Jeffer Mangels’ favor on the grounds that its members had not breached the applicable standard of care nor caused Mt. Holyoke’s damages. He awarded the law firm $18,132.81 in unpaid legal fees, $285,000 in attorney fees incurred in connection with the arbitration, and over $150,000 in costs.

Smelling a rat, one of the Mt. Holyoke plaintiffs scoured the internet looking for evidence of bias on the part of the arbitrator. According to the case:

“She discovered for the first time a previously undisclosed resume in which Judge Chernow had named Robert Mangels, a name partner in JMBM, as a reference. She found a link to the resume on the Internet site of the National Academy of Distinguished Neutrals. Mangels was the first of three “References” listed on the resume.”

Reasonable minds will differ on whether this was really smoking gun evidence of bias. Judge Chernow signed a declaration attesting to the fact that the “resume” had been prepared 10 years earlier and that “he had listed Mangels as a reference only because Mangels was a well-known and highly-regarded litigator who was familiar with his abilities as a neutral.”

The trial court, unimpressed with the internet revelations, granted Jeffer’s petition to confirm the arbitration award and denied Mt. Holyoke’s petition to vacate the award. But—you guessed it—Mt. Holyoke appealed, and the California Court of Appeal held that it was error for the trial court to deny the petition to vacate the award based on the revelations of Judge Chernow’s . . . er . . . sordid past with Robert Mangles. The Court said:

“ . . . the connection between the undisclosed fact of the arbitrator’s naming an attorney as a reference on his resume and the subject matter of the arbitration, a legal malpractice action against the law firm in which the same attorney is a partner, is sufficiently close that a person reasonably could entertain a doubt that the arbitrator could be impartial. We conclude that Judge Chernow was required to disclose the fact that he had listed Mangels as a reference on his resume. Judge Chernow did not state in his declaration that at the time of his required disclosures he was not aware that he had listed Mangels as a reference on his resume, and there appears to be no reasonable dispute that he was aware of that fact at that time. His failure to timely disclose this ground for disqualification of which he was then aware compels the vacation of the arbitrator’s award.”

The real loser here is Jeffer Mangels or its malpractice carrier, who now have to re-try and, presumably, re-win the malpractice case. Perhaps there really was bias, though I doubt it. Judge Chernow is a pretty well-respected neutral. However, this case highlights the risks if you don’t know your arbitrator really, really well (or if you actually do know your arbitrator really, really well). I never said arbitration wasn’t risky, expensive and unpredictable.

” . . . and a donut without a hole, is a Danish.”

–Caddyshack

In a media dialogue between two minds I greatly admire, Scott Adams, the creator of Dilbert, and Associate’s Mind blogger and newly-published book author Keith Lee, the notion of setting goals recently took a severe beating.

Adams kicked off the goal-bashing in an entertaining Wall Street Journal piece, “What’s the best way to climb to the top? Be a failure.” Waxing autobiographically about the twists and turns that ultimately led to his huge success as a cartoonist, Adams suggests that goals, like diets, are basically a recipe for failure or disappointment, or both. He says:

“To put it bluntly, goals are for losers. That’s literally true most of the time. For example, if your goal is to lose 10 pounds, you will spend every moment until you reach the goal—if you reach it at all—feeling as if you were short of your goal. In other words, goal-oriented people exist in a state of nearly continuous failure that they hope will be temporary.

If you achieve your goal, you celebrate and feel terrific, but only until you realize that you just lost the thing that gave you purpose and direction. Your options are to feel empty and useless, perhaps enjoying the spoils of your success until they bore you, or to set new goals and re-enter the cycle of permanent presuccess failure.”

So, since “goals are for losers,” Adams suggests we settle into a comfortable couch and spark some high-resin Bob Hope, right? Sadly, no. Instead, he suggests the recipe for success is found in developing “systems.” Unlike goals, systems are not only durable but evolutionary. He writes:

“Throughout my career I’ve had my antennae up, looking for examples of people who use systems as opposed to goals. In most cases, as far as I can tell, the people who use systems do better. The systems-driven people have found a way to look at the familiar in new and more useful ways.”

For his part, in a post entitled “Goals Are For Losers,” Lee embraces Adams’ mantra hook, line and sinker. Because Lee tends to focus on our development as lawyers, he suggests that systems are the path to success as a lawyer. He says:

“This focus on systems – and systematic improvement – can apply to almost every aspect of being a lawyer. Want to improve your writing? Develop a system in which you consistently write and receive feedback. Want to improve oral argument skills? Get together with other lawyers and set up an informal meeting/group devoted to affording lawyer the opportunity to engage in oral arguments and receive feedback. Think mock trial team from law school. Hell get your firm or the local bar to sponsor/support it. You can’t just skate by and hope to succeed as a lawyer. You have to work at it.”

I’m here to say that I haven’t heard so much empty linguistic sophistry about “systems” from intelligent minds since I finished that awful Hegel seminar my last quarter at UC San Diego. Both Adams and Lee are spot on that systems are indeed the path to success. And Adams is absolutely right that all of us are going to encounter failure along that road. After all, failure and adversity are what teach us resilience and build our character.

Where both go wrong, however, is in the suggestion that we abandon goals. Whaaaa?

What is a system without a goal? It’s just an exercise. We wouldn’t “consistently write and receive feedback,” as Lee suggests, for the sake of writing and receiving feedback. We use this system to help reach the GOAL of becoming a better writer. If you were going to take time out of your otherwise busy life to “set up an informal meeting/group devoted to affording . . . the opportunity to engage in oral arguments and receive feedback,” you would do so in order to reach the GOAL of becoming a better oral advocate. (Brief aside: don’t bother “setting up” any such thing, just join Toastmasters.)

There are perpetual students who obtain multiple degrees and never really leave school. But they have a system–just no goal. Goals are the key to success, as the authors’ own success aptly–but perhaps unwillingly–illustrate. Keith Lee would never have become a lawyer without setting the GOALS of graduating from college, getting into law school, then completing law school. He wouldn’t have built a wildly successful and influential blawg without the GOAL of building a quality law blog. And, he would not have a new book worth reading if he had not set the GOAL of finishing a book worth reading.

The key here is not to abandon goal-setting. Rather, once you set a goal, develop a system to reach that goal. And be flexible about adjusting that goal if it begins to seem unrealistic or you suffer a major set back, which is reasonably likely.

On the other side of the coin, when you achieve a goal, don’t spiral into depression, feeling “empty and useless, perhaps enjoying the spoils of your success until they bore you.” Set a new goal! Reach higher and farther.

And read Dilbert. Often.

I’ve been reading Malcolm Gladwell’s Blink. Actually, I’ve been listening to the book on CD during my long commutes between Santa Barbara, where I live, and Los Angeles, where I mostly work.

I really like Gladwell, because he seems to dwell in the world of irony. In Blink, he capitalizes on how we often make more accurate decisions quickly, based on less information, than we do if we take more time and are weighed down with more information.

In one part of the book, Gladwell focuses on spontaneity. He discusses the improvisational comedy group, “Mother,” which performed at the Upright Citizens Brigade Theatre in New York city. He points out that, while the actors acted spontaneously on stage, reacting to what other actors said without any prearranged script, they were only able to perform so seamlessly because they spent a great deal of time both practicing and conducting post-performance analysis of each show.

Gladwell likened the actors’ level of pre- and post-performance effort to the preparation an army or navy undergoes in advance of an actual battle. Soldiers train, practice and even participate in highly elaborate war games to prepare for what they might encounter on the battlefield. Gladwell refers to this preparation as “creating the conditions [necessary] for successful spontaneity.”

It occurred to me that creating the conditions necessary for successful spontaneity in the courtroom can be viewed the same way. In other words, while the improvisational actors do not work off of a script, and soldiers cannot anticipate exactly what they will encounter on the battlefield, it is through meticulous preparation in advance of the performance or battle that both the actors and the soldiers are able to successfully respond spontaneously to whatever is thrown their way.

That same level of preparation is necessary in advance of trial in order for the lawyer to successfully respond spontaneously to whatever is thrown his or her way at trial. While most of us will craft an outline for direct or cross-examination, it is only by being thoroughly prepared that we can effectively deal with surprises, such as an unexpected evidentiary ruling, a witness who forgets or gets confused, or a judge who cuts our examination short.

Legendary trial lawyer Edward Bennett Williams took this level of preparation a step further. His preparation included “devil’s advocate research” which prepared him for surprises his opponent might hurl at him during trial. In an interview published in the Winter, 1986 issue of Litigation, he said:

“I believe that a lawyer should always have the devil’s advocate. In my office, the devil’s advocate researches each of our cases as we prepare it, persistently finding the holes and forcing us to prepare specifically against each of them. Whenever I go into court, I have completely prepared both sides of the case.

Some trial lawyers do not want to do this. They say, ‘My opponent is skillful. He will find all the law on his side. I am going to prepare only my side.’ But I don’t like it that way, and I don’t think it can be done that way.

I believe a lawyer must prepare both sides so that he will not be surprised by whatever may be hurled at him. After he is prepared in this way, even if his opponent does come up with some detail that may have escaped him, it cannot be so far from the facts already known that it will completely surprise him or put him at a total disadvantage.” (Litigation, Vol. 12, No. 2 (Winter 1986), p. 37.)

So prepare for trial like you’re taking the stage or walking onto the battlefield.

Much of my approach to marketing my law practice derives from the two years I had one-on-one business development coaching sessions with Bob Kohn of Kohn Communications. First and foremost, he helped me get past the discomfort I had with asking for business (though I’ll confess this is still tough for me). In particular, he helped me appreciate that offering my services as a lawyer is quite different from trying to recruit a friend into Amway.

Even if one-on-one business development coaching is beyond your means, you can still benefit from the Kohn Communications model, since Bob and his brother Larry distilled their approach into a fine book, Selling in Your Comfort Zone (ABA 2009). One of the strategies Bob taught me, which he discusses in the book is giving “value-in-advance.” To do it justice, I’m going to skip my own description of this concept and simply quote the Kohns:

“‘Value-in-advance’ is the strategy of offering something for free as a way of allowing your targets to experience a sample of the benefits that you offer. If you were selling a product, then ‘value-in-advance’ might be a sample of the product.” (Id. at 71.)

According to the Kohns, value-in-advance serves multiple purposes. Among these–and why it is especially useful for me–is that it creates a reason/opportunity to reach out to one’s targets that is, at its best, positive and, at worst, neutral. In other words, by trying to offer something valuable in advance, you are taking an uncomfortable, potentially negative experience, and making it a hopefully positive one for both you and your target. Even if the “value” you offer in advance is not ultimately useful to your target, the exchange will likely be viewed at worst as neutral.

The Kohns point to how Gillette sent free Mach III razors to potential customers as a simple example of value-in-advance. Because I sell information, advice, strategy and representation rather than razor blades, I prefer to provide information, advice and strategy in advance, whether it is by an alert, a speech/presentation or providing counseling without charging for my time. Further, since I practice in an area–employment law–which experiences almost constant changes in the law, I truly believe that the information I provide for free brings value to my audience, or targets.

Many people I consider business development “targets” are not really potential clients. Rather, they are often folks whom I believe are, or will be, positioned to refer potential clients to me at some point in the future. For some reason I don’t completely understand, I find it much easier to “sell” myself to referral sources than to prospective clients. In any event, another type of value-in-advance which the Kohns discuss, and which I find both easy and valuable, is to bring together–through introductions–people whom I believe will benefit in some meaningful way from knowing one another. One example could be introducing a lawyer or accountant who specializes in the entertainment industry with a contact in the entertainment industry who could benefit from their services.

The Kohns discuss this kind of giving value-in-advance as follows:

“Introducing quality people to each other communicates compatibility and capability. It demonstrates that you know quality people. And, as those people interact with each other, it strengthens their emotional connection to you.” (Id. at 73.)

One would be naive to ignore the potential risks of making introductions, and I don’t make them blindly. The Kohns acknowledge these risks. They say:

“Many people are afraid to make introductions because of the possibility that the people you introduce may not get along. Or worse, they may do a deal that goes badly. It is important that when you make an introduction, you are proud of the people you are introducing. Also, you don’t need to make warranties. Rather, you should state that you are introducing people with the understanding that they get to know each other and decide for themselves if they feel comfortable working together.” (Id. at 75.)

Venture capitalist Mark Suster, who is not only a friend, but also someone I’ve come to view as a kind of “success mentor,” creates an even stronger argument for being “judicious” in deciding whether and to whom to make introductions. In his blog, Both Sides of the Table, he writes:

“Intros. They’re the lifeblood of networking – the currency of mavens. They are your route to angel money. Your entrée to sales meetings.

We couldn’t live without them.

But when misused, overused or abused they can diminish your personal brand, consume your valuable time and waste time of the relationships you value the most.

* * *

[H]ere’s the thing – every time you send an introduction you’re obligating people. At a minimum you’re obligating them to ignore the email and feel like an arse for not responding to your introduction. More likely they either end up finding an excuse not to meet, delaying a meeting indefinitely or in most cases actually taking a meeting.

Over-introducers also consume a lot of personal time in making intros. It is very time consuming doing intros the right way. Ask yourself the tough question about how you might spend that time more productively getting your job done well.”

Suster’s post has some useful thoughts and guidelines on when to make (or not make) introductions, and I recommend it.

The real takeaway here is that giving value-in-advance, whether through free razor blades, alerts about employment law developments or making quality introductions, can be a terrific way to market your product or practice without overtly marketing your product or practice. Check out the Kohns’ book for other ideas.