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Imagine spending good money, effort and frustration to obtain a judgment only to realize it will cost even more good money, effort and frustration to collect the judgment.
Sometime back I obtained a judgment on behalf of a client against a “serial” restaurateur. I say “serial” because, although he was good at partnering with the right chef, choosing a key location and creating a terrific vibe, the restaurant business is about as fickle as it gets. Inevitably, the chef quits, the location becomes unfashionable and some other joint creates a better vibe. This was the case with our defendant–let’s call him “Tony.”
As soon as we got our judgment against Tony, I recorded an abstract in every county in California, hired an investigator to profile his assets and set a judgment debtor examination. The investigator identified a couple of bank accounts, nothing else. I had to practically hire Jason Bourne to stake out Tony and serve him with the summons for the judgment debtor examination.* I did the exam (at the end of which I had the judge order Tony to give me the contents of his pockets, $128 in wrinkled bills). The judge also granted my request to levy Tony’s Omega watch and Vespa scooter.
I then started the form-and-delay-laden process of trying to levy his bank accounts. Being in the restaurant business, Tony habitually drained his checking account and had no savings. When I subpoenaed him to bring his bank records to the judgment debtor examination (a practice I HIGHLY recommend), the records revealed that Tony almost constantly maintains a negative balance . We tried a couple of times just the same, and collected less than nothing on each try.
I sat down and had a heart-to-heart with our client. Fortunately, it had not been particularly difficult or expensive to obtain the judgment. Tony had failed to make payments on a promissory note and did not contest the lawsuit, leading to a simple default judgment. The problem was, it looked like it was going to cost our client a lot to collect. Tony was not anyone’s “employee,” so garnishing his wages was not an option. He had “arrangements’ with investors who could loosely be called partners, but no partnership agreements exist, so we could not get a charging order. A till tap was another option but, again, expensive. There are ways to get to Tony** but, again, it wasn’t going to be easy or, more importantly, cheap. So, with the client, we explored a third option: patience.
Time is on our client’s side. Simple interest on a judgment accrues at a rate of 10%. Finding an investment with a constant 10% return is challenging. If Tony was not broke our client might have collected right away. But, assuming he did not immediately spend the money, could our client find an investment with a 10% return? Tony might have a bright future. He does have a knack for creating a hip vibe, which can carry a restaurant pretty far in Los Angeles. Even if he never kicks ass, though, he might in five years or so get a steady job where he collects a regular paycheck that we can garnish his wages. If it takes 10 or more years, the client simply needs to renew the judgment. It’s not immediate and it’s not sexy, but it might just get our client his money back with some decent post-judgment interest.
*Yes, I do occasionally resort to hyperbole.
**Broken kneecaps being one.
This is a cautionary tale. I now get so many Nigerian scam invitations by email that it’s hard to remember a time when they weren’t so common. I get one or two every day. But a while back, before they were so ubiquitous, I came pretty close to falling for one.
Any lawyer who is or has been a junior partner at a BigLaw firm knows what it’s like to be hungry for business. The prospect of single-handedly bagging a big institutional client is just too attractive to pass up. It can cloud your judgment. I woke up one morning and checked my Blackberry or iPhone (can’t remember which at the time) and saw that I had an email from a company headquartered in China. I couldn’t tell from the email what their business was, but the email was professionally, if stiffly, written and devoid of obvious grammatical defects.
With some variation, most of us are now familiar with the fictional come on: they’re a foreign company that is owed a sizeable, but not unreasonable, amount of money by an American customer. They’re looking for counsel to assist in collecting the sum. It is anticipated the customer will ultimately pay what’s owed, but litigation may be required and, besides, they need to have counsel in the United States to handle commercial issues which arise from time to time. Most important for my purposes, the email said right up front that they were prepared to pay a retainer. Would I please contact them?
Looking back, the “it’s too good to be true” light was blinking all along, but, remember, I was hungry for a big institutional client. Of course I responded, asking for details, trying to set a call, etc. I looked up the company on the internet and the website looked legit and exactly like what I expected the website of an Asian fabricator and exporter of miscellaneous nuts and screws and other parts would look like. The kind of solid, reliable, bill-paying institutional client every young commercial litigation partner wants in his or her book of business.
Within a day, I had an exchange of correspondence, scheduled a call and agreed upon rates and terms of engagement, including a $10,000 or $15,000 retainer (can’t remember now). I had also performed an internet search on the American customer/defendant. Here, again, the website looked like the legitimate website of a legitimate middle market American company that purchases metal nuts and screws and other parts from a Chinese supplier and incorporates them into shelving and dividers that are sold to other larger companies for use in their warehouse facilities. Nothing sexy, but by all accounts a legitimate, going concern.
Looking back, I should have been more attuned to the little hints along the way. The name of my contact, for example, vacillated between “Kevin” or “Kelvin” in the emails. While it took several tries to have a successful telephone call, I was ultimately passed by a Chinese-sounding receptionist/operator to a man who identified himself as “Kelvin.” He was brief and slightly difficult to understand, but sounded like the real-deal. We advanced the ball and there was good news from the client’s perspective: the American customer had agreed to pay what they owed (around $273,000, I believe), but I would facilitate the transaction, acting as an escrow of sorts. The check would be sent to me. I would deposit it in the firm’s client trust account, retain the retainer amount (again $10,000 or $15,000) and wire the balance to my new client. I would then be “on retainer” and prepared to handle their North American litigation needs which were sure to arise in the future.
I became sure that something was awry about a week after the initial contact, but before the check arrived from the American customer. I received another, completely separate, email from a different Asian company also looking for representation in a similar collections-type situation. I looked this “new” company up on the internet and, you guessed it, they also sold screws and nuts and other little parts. In fact, although the company had a different name and contact information, everything else about the website was identical to my new “client.”
At this point, I just wanted to see how it played out. I never in a million years would have gone through with the scam, but I was curious how these things are done. At what point do they realize their “mark” has caught on and throw in the towel?
At about the expected time, I received a Federal Express envelope from the correct address in New Jersey containing a completely legitimate-looking cover letter, complete with “wet” signature and a check drawn on the corporate account, payable to my law firm, for $273,000. Still curious, I placed a call to New Jersey, to the person who purportedly signed the letter. I was amazed when the call went through and still more amazed when the person who answered was a mature woman with what seemed to be an authentic New Jersey accent who was willing to talk with me, not just about the details of the check, but also about her day and plans for the weekend (it was a Friday afternoon). I sent the “client” an email reporting that I had received the check, was depositing it, and would wire the money as soon as the customer’s check had cleared. (“Kelvin” had suggested I wire the funds as soon as I received the check, but he didn’t press too hard on this point, probably concerned I would smell a rat.)
I asked our office manager to deposit the check in our client trust account. When she came back I asked, “Any problems?” “Nope,” she said (I had not yet told her I suspected a scam). A few minutes before close of business, though, she came back into my office. She was ghost white. She’d received a call from Wells Fargo and, surprise, it turned out the check was fraudulent.
I took her through the details leading to the check, including my phone calls with China and New Jersey. She was intrigued, but looked at me strangely, as if to say, “You weren’t really going through with this?” I also called the local FBI field office. Because it was late on a Friday I had to leave a message. No one called me back.
I’ve since read that lawyers–big firm lawyers and solos–have been stung badly by these scams over the years. They give in to the fictitious client’s request to wire the funds before the incoming check has cleared–only to learn later that the check wasn’t real. What I found most astounding about the experience myself was how coordinated and detailed the props and communications were.
In an August 3rd profile of high-end family law practitioners Daniel Jaffe and Bruce Clemens, the Los Angeles Daily Journal quoted these lawyers as citing five important areas for litigators:
“A lawyer has to know people, know financial issues, know the law, know how to try a case and know how to settle a case. . . It seems obvious, but there are very few lawyers who have high skill levels in all five. If you don’t have all five and the other side does, your client is at a disadvantage.”
Does your lawyer have all five? I like to think I’m solid on four of them, but complex financial issues–for which an accountant would be required anyway–may not be my forte. Of course I don’t practice family law.
In a recent post on My Shingle, legal blogging rock star Carolyn Elefant laments the demise of the solo physician. Among her chief concerns are an anticipated lack of physicians available to care for patients in rural settings and an erosion of physician autonomy. However, she suggests that both the legal profession and legal blogging face similar concerns. She writes:
The same concerns that flow from the gradual extinction-by acquisition of solo doctors in the medical profession are evident in both law-related blogging and broader legal profession.
I’m not sure I agree that this is a valid concern on either front. Is there really a risk of large-scale migration from would-be solo practitioners to law firms? Doubtful. While many students enter law school with an expectation of at least starting their profession at a law firm, the news I read suggests that firms are actually hiring fewer new lawyers, meaning more are, by choice or necessity, opening a solo practice. Those same news reports warn that, even if the economy shows signs of long-term improvement, law firm economics have changed permanently, particularly with respect to the practice of staffing cases with newer, untrained lawyers at high rates. We are unlikely to witness a mass exodus of solos in favor of law firm life any time soon, simply because there is a shrinking demand for them.
Additionally, from my admittedly unschooled understanding of the overhead of running a medical practice, I hold the opinion that it is increasingly easier for lawyers to start and maintain a solo law practice, while it is increasingly difficult to start and maintain a medical practice. While I presently practice in a Big Law environment, replete with layers of infrastructure, there is no question in my mind that technology has made it easier than ever before for a lawyer to open and effectively operate a solo law practice. A computer, printer/scanner, some key software and a place to work is about all that’s really required for a bare bones practice. (Though this presumes the practitioner has both clients and skills.)
I presume that the infrastructure required for even the most spartan medical office (not to mention the cost of purchasing an ongoing practice) has, if anything, become more expensive with advances in technology. I know my own health care providers always have several pieces of squeaky-clean, cutting-edge machinery, each of which probably costs more than my car. As Ms. Elefant correctly points out, while the costs of medical school and other expenses continue to rise, the amount health insurers pay for procedures has remained constant, if not declined, making it more and more expensive to be a solo physician. It’s no mystery solo doctors are fleeing to hospitals and group practices.
I share her view that our profession benefits from solo and independent lawyers, and would definitely lament any sign of their demise. But, unless I misunderstand Ms. Elefant’s argument, I don’t see sufficient similarities between maintaining a solo medical practice and a solo law practice to make me concerned that solo lawyers will become scarce anytime soon.
Are quality independent law bloggers becoming extinct? I’m not sure I share this concern, either. Purely by virtue of her tenure in the blawg community, I trust Ms. Elefant both when she describes the “independent voice” that characterized legal blogs a decade ago and when she suggests that group blogs lack the spark or edge of the early legal blogs. My feeling, however, is that the business of practicing law has changed so substantially due to the explosion of technological tools and the recent turbulent years of the economy (What’s that overused catch phrase? Oh yeah, “the New Normal.”) that what was considered edgy a decade ago really is “normal” now. Perhaps the “New Normal” should morph into “What are we supposed to do now?” or “Where Do We Go From Here?”
I suspect also that, beyond the proliferation of group and corporate-sponsored blogs which might not have the same spark and edge of early solo-written blogs, there is still a strong community of independent voices out there who write what they personally think, without the group dynamic or corporate “dilution” effect. They might just be harder to hear amidst the louder noise around them.
Ms. Elefant’s underlying message is valid. Our profession and clients need solo and independent lawyers, and the legal blogosphere benefits from ample solo and independent voices. The question is, do we really need to worry?
[youtube https://www.youtube.com/watch?v=r2EirLJqghA?rel=0&w=420&h=315]
I wrote last about credibility in the context of preserving one’s reputation for honesty. I doubt many lawyers will argue with the importance of reputation. However, at a more granular level, there are more subtle ways of losing credibility than being untruthful with the opposition, a judge or your client. I’m thinking here about the tendency in our profession to exaggerate or overuse hyperbole in correspondence, briefs or argument.
Yes, “this bag weighs a ton” is more colorful, immediate and powerful, than merely, “this bag is heavy.” But it’s a slippery slope. As I write this, however, it occurs to me that the risk may actually be less about preserving credibility, and more about simply being a better advocate. The goal in our writing and argument should be less about telling a judge, jury or opposition that a course of conduct was malicious or–another good one–heinous. Our goal should be to drive the point home using the facts themselves. Show, don’t tell, as I hear in my sleep from all those fiction workshops. Describe the facts which lead us to conclude on our own that the conduct was malicious or heinous. If done properly, you can leave out the hyperbole and adjectives entirely.*
Back to the heavy bag, saying it “weighed a ton” is more powerful than simply “heavy,” but “the bag weighed 300 lbs.” or “plaintiff could not lift the bag without assistance” is more compelling still. We trust this statement, not because someone else has concluded for us that the bag was “heavy” (a relative term), but because most of us can infer from our own weight that 300 lbs. is heavy. Describe the facts precisely and well; if the bag truly was heavy, we’ll know it.
I know when I receive a letter or a brief with hyperbole or exaggeration my first thought is not, “Wow, we’re in trouble.” Typically the opposite. This is because I know that if my client and I have something to worry about there won’t be any need to cloak the facts in fiery adjectives or other nonesense. Again, if the facts are good or bad enough, they’ll speak for themselves.
I suspect it’s because judges are so inundated with exaggeration on a daily basis that they often seem at their wits-end during law and motion calendar. There’s only so much of it one can take without growing tired and cynical. I’ve never sat as a judge, but I sometimes imagine what they must be thinking, in their black robes presiding over lawyers bickering over interrogatory responses like little children: “Somebody is really paying these people several hundred dollars an hour for this?”
Exaggeration in the courtroom is not dissimilar from crying wolf. The first time we hear a lawyer suggest a defendant was calculating or heartless it might carry some impact. But, like the gun in the first scene of a play, hyperbole and adjectives generate an expectation. If the lawyer doesn’t deliver the goods by the end of the show, the audience is going to want a refund. And they’ll deserve it.
*An exception being adjectives that are specifically drawn from applicable jury instructions. If the instruction requires the jury to conclude conduct was “malicious” to impose punitive damages, then a lawyer should use the term itself. But don’t just conclude the conduct was “malicious,” describe the conduct in such a way, with facts, that no sane person could reach any other conclusion.
It is simply too easy for lawyers to quickly lose credibility within the bar and before the judiciary. It seems we’ve already lost this battle with much of the public, but within the profession I like to think we begin our careers with an undeserved presumption that most of us (at least those without the last name “Madoff”) are straight shooters. This presumption should be nurtured and guarded for the gift it truly is.
A lawyer’s individual reputation for honesty is as important, if not more important, than his or her intelligence or skill set. Why? Most of us quickly learn that if we’re out of our comfort zone skill-wise, we have choices. We can involve another, more experienced practitioner. Or we can double up on our research until we completely understand an issue or area. Skills can be improved. The same is not true for reputation. Once our reputation for honesty is placed at risk, it is nearly impossible to fix.
The easiest way to lose credibility is almost too obvious to mention: to be untruthful, even about the most trivial detail. It’s not necessary to falsify documents or manufacture evidence; a lawyer’s reputation for honesty can be ruined simply by stretching the truth when “memorializing” a telephone conversation. We hang up, I read your letter, realize you’ve mischaracterized our discussion and from that point forward I don’t trust a word you say. Worse, when my law partner mentions ten years from now that he’s got a case against you, the first thought that comes to mind, which I surely share, is that you’re not to be trusted. And just like that, you’re no longer trusted.
Being untruthful with the court is even more dangerous. Setting aside the risks of sanctions, contempt, complaints to the state bar, etc., judges have institutional memory which can follow you your entire career. Just as I’ll tell my law partner that you can’t be trusted, judges do talk, and have lunch together and, I am informed, discuss their cases and the lawyers appearing before them. Let just one judge conclude that you are a lawyer capable of lying to the bench and that alone could devalue any statement you ever make in the same courthouse or even jurisdiction.
Many lawyers believe we only have our time and intelligence to sell on the open market. I would add that neither time nor intelligence have any value at all without a reputation for honesty. Once we lose the trust of our colleagues and judges, everything about the practice of law becomes more difficult, especially winning cases and getting referrals. Don’t risk it.
Even in an age in which instantaneous online communications, remote access and teleconferencing have made it possible to dispense with a good deal of in-person business communications, I continue to practice in a realm which requires I spend (hopefully) quality time communicating face-to-face with my clients and their management. Clients, particularly smaller companies, want to meet and evaluate their lawyer. And they should, since I will be the “face” of the company if a given dispute is tried before a jury.
Equally important, during the investigation and discovery portions of the case, I need to meet and work closely with key management and employees, many of whom may be important witnesses. In all but the most unusual circumstances, these must be done face to face. I like to conduct as many of these meetings as possible at my client’s place of business. While I am aware of the risks that the visit of a strange lawyer to the plant, facility or office can be disruptive (frankly, we’re not really welcome anywhere . . . ), experience has taught me that in-person site visits–even if there isn’t anything at the site for me to particularly see–are useful and even preferred.
Why? First, my job in representing any company invariably requires a strong knowledge of how the industry and the business function. I can’t effectively establish an employee was fired for not doing his or her job (as opposed to discrimination or retaliation) without understanding what that job requires. I’ve found it’s much easier to learn the requirements of most jobs by watching employees in action. If there’s technology or a process involved, there is no substitute for seeing this first hand.
Second, an in-person site visit permits me to understand first hand the culture of the company. Is it a relaxed, constructive environment or a pressure cooker? Does everyone respect, or merely fear, their boss? In certain circumstances, knowing the physical make-up of the work space is important. In a sexual harassment case, for example, where the parties work in relation to one another may have significance. Finally, when the client is looking for documents, a visit to the client’s place of business can sometimes help speed the search and location of key documents, even if I am not doing the actual searching.
I know that some lawyers resist or would prefer to avoid visiting clients at their facilities, but I’m not sure why. One of the attractions of practicing law for me has always been the exposure to the inner workings of a variety of industries. I’ve had the opportunity to learn a great deal about the automotive, aviation, real estate, mortgage lending and other industries through my involvement in various cases. If you’re a curious person, the practice of law can be rewarding for this reason alone.
So, if your lawyer resists visiting you at your place of business ask him or her why. Then give me a call.
I used to think it was a worthy skill unique to litigators: the ability to be harsh and aggressive when it seemed appropriate in the course of representing a client (in a deposition, for instance), but turning immediately friendly and professional as soon as we’d gone off the record and there was no question or objection pending. After all, didn’t it show that, as lawyers, we were in complete control of our emotions when we could turn our temper on and off, like John McEnroe at a Wimbledon final?
I’ve come to think differently now. I just finished a deposition with a crusty older litigator and I found his penchant for blowing hot and cold disconcerting. I was not doing the questioning, but while we were on the record he would make frequent, loud outbursts at the female lawyer conducting the deposition of his client. She, too, was seasoned and seemed unfazed by his temper, though she did ask him a few times not to yell at her. When we took breaks, he would almost instantly turn cordial, asking her where she lived, about her kids, etc. She played along, as though such vacillation of temperament was the most natural thing in the world.
The rules of ethics and most judges expect lawyers on both sides of a case to treat each other with “civility.” Are loud, threatening outbursts transformed into civility just because we change from bad cop into good cop when aggressivity is no longer called for? I don’t think so. Certainly there are going to be times during a deposition, negotiation or even a hearing when zealous representation calls for us to “kick it up a notch,” and establish a line we don’t expect will be crossed. But I doubt the experienced lawyer making the loud outbursts during the deposition would have behaved the same way during a trial–even a bench trial. So, why should he behave any differently just because there’s no judge or jury present?
I’ve been guilty of this in the past, though I always found it more difficult to instantly change from nasty bad cop to friendly good cop. When our communications turned cordial, I usually felt inauthentic. At the end of a full day of this, I was invariably exhausted. I still get riled sometimes, but I try (not always successfully, I admit) to maintain civility even when I feel my opponent is being unreasonable. I suspect, though I have no evidence to back it up, that litigators would live longer, happier lives if we could just cut out the vacillation between hot and cold and just treat each other civilly all the time instead.
I cut my teeth as a young lawyer doing almost exclusively automotive product liability defense. What always amazed me, particularly in cases involving extreme tragedy (death, disfigurement, paralysis), was how the automobile manufacturers took these risky cases to trial–and won! How was it possible to convince a jury to look beyond the tragedy and extreme suffering, consider the evidence about the design of a crucial component, understand that evidence, and return a verdict for the manufacturer? Particularly puzzling for me was the fact that, as we neared trial, even I still did not completely understand the technology, and I was a reasonably educated person who had been living with the case for several months.
A very distinguished trial lawyer answered this question during a pretrial presentation to our client of one particularly challenging case. He said that, in his experience presenting these cases to juries (and mock juries) all across the country, then debriefing the jurors after trial, it is clear that much of the technical nuances escape most jurors. No amount of careful teaching with brilliant demonstrative exhibits can make a person with a high school education or less, who has never worked in the automotive industry and, frankly, doesn’t care much about cars at all, understand a component, and comprehend why a company chose design A over design B.
What does matter to these jurors, he said, is seeing the lengths to which the manufacturer went to understand what occurred and how the plaintiff suffered her injury. If something failed, jurors like to understand how and why it failed, and particularly why a safer alternative design wasn’t available or why the design advocated by the plaintiff’s expert wouldn’t work or would have produced the same (or even worse) result. This is why it’s so extremely expensive to take these kinds of cases to trial, particularly when it takes one or more full-fledged crash tests, using identical automobiles, to understand exactly what happened.
A corollary is that jurors appreciate learning how hard the manufacturer worked, and how carefully the component was tested, to assure that the car was as safe as possible for the driver and her passengers. To the extent this can be woven into a story, with witnesses who do not drone on for days, the chances of keeping jurors awake to hear the ending improves. I like to think this principle can be equally applied to any context in which jurors are going to be asked to evaluate highly technical evidence. It becomes less about how or why something works, and more about how much the defendant cares about learning what really happened in a given case.
You don’t want to “cross” Omar. The fun begins at about 1:22.
