To Kill A Mockingbird

My complaint on behalf of Harper Lee continues to generate great press coverage.  I've never before had one of my pleadings quoted so extensively, and I give good pleading.  Check out the stories on ABC News/Good Morning America, the Los Angeles Times, the ABA Journal, the Hollywood Reporter, Law360 (paywall), Chronicle of Philanthropy, and Courthouse News Service.  Blogs too, of course, such as AL.com and others.  Certainly more to come, this list will be updated.

Being In Court Is Not A Life-Affirming Experience

Courthouses are messy places.  Mostly they're emotionally messy.  You go to a courthouse because either (a) you feel wronged and haven't found another way to solve your problems, (b) someone else feels wronged, hasn't found another way and drags you there or (c) you just enjoy conflict.  If you just enjoy conflict, you're a bad client: very little good will come of this relationship.  If someone feels wronged and nobody's been able to work things out, we're looking for next-best outcomes, and not best outcomes.

At the end of a civil case, the most that a judge can do is to tell one party to either pay or not pay money to another party, or to do or not do a particular act.  (The judge can't even guarantee that the money actually gets paid or that the action is actually taken.)  The judge can't tell one party to make the other feel better.  The judge can't compensate anyone for the emotional energy that they've expended in a multi-year fight.  In most instances, the judge can't order the losing party to pay the winning party's attorney's fees expended during those years.  Win or lose, nobody walks out of a courtroom feeling like they've spent a week at a relaxation spa.

I always tell this to potential clients, but plenty of lawyers don't.  Most lawyers are "yes men"; they'll take the client's money and keep telling the client how right he is without ever disclosing the harsh realities of the process.  Is the process broken?  A little.  But more broken is the mindset that does not disclose the reality of the process so that intelligent decisions can be made.

Check Your Insurance

Many businesses carry one or more kinds of insurance. General liability policies are commonplace and cover things like claims for bodily injury, property damage, personal injury and advertising injury.  (Fun fact: depending upon circumstances, you may be able to get coverage for various types of unfair competition claims under "advertising injury", including trademark and copyright infringement claims.)  "Errors and omissions (E&O)" policies -- also known as "professional liability" policies -- cover claims for negligence in the way you perform your services, even if you're not a licensed "professional" such as a lawyer, doctor, engineer or architect.  "Directors and officers (D&O)" policies cover claims against your officers and directors.  All policies have something to say about how the costs of defending a lawsuit will be covered.

For commercial disputes, I have never, ever seen a lawyer (except for me) tell a client at the outset of a case that the client ought to check its insurance policies for possible coverage. Why? My guess is that they're not on the list of insurers' approved counsel, and insurance companies are notorious cheapskates when it comes to paying the full freight of outside legal fees. These lawyers fear that the client will accept whatever law firm the insurer sends them to on the theory that both the legal fees and the loss are covered (assuming the coverage is sufficient in amount), and that the regular lawyer won't get the business. That kind of thinking is not in the client's best interest.

Clients deserve to know what the various choices are: what will be both the benefits and costs of any proposed defense strategy, and the strategy includes picking the lawyer and making a claim against the insurance policy.  It may well be true that making a claim against the policy will raise the client's  future premiums and may even impair its ability to get coverage in the future. But that's the client's choice to make, not the lawyer's.

The client also ought to know that they don't necessarily have to take the insurer's choice of lawyer.  Many policies simply include defense costs as part of the overall policy limit; the client can decide (within reason, and with the insurer's consent) whether to spend on legal fees (reducing the amount available to pay in a possible settlement) or vice versa.  The decision is going to turn on an assessment of what the likely course of the litigation is, the probabilities of the various outcomes, and the downside/upside of the various outcomes.  Again, it's the client's informed choice that matters.

I'm straightforward with clients when it comes to insurance.  I tell them to check their coverage.  They don't have to hire me and they appreciate knowing the full landscape.  I hope that they'll be back when they need me.

Calendar Call

I'm headed down to court today. Going to court often involves the use of the skill that many lawyers did not develop in elementary school: waiting on a bench outside the principal's office. Fifty or sixty lawyers show up somewhere around 9:30 in the morning and look for their names on a long list pinned to the wall. That list, generally in alphabetical order of case names, shows the order in which the cases will be called for argument. (When you're thinking of a name for your company, you would be wise to choose something that starts with "A" if you want to wait less.)  You rarely know in advance how many names are on the list or whether your adversary will show up on time. When your case is called is determined both by placement and by the diligence of all of the lawyers. If everyone shows up ready and on time, then you may be called early. When you actually argue is determined by the least diligent lawyer in the case. Nevertheless, intentionally showing up late is risky, especially if you are representing the defendant. Plaintiffs seem to get much more leeway. The net result is that lawyers who represent defendants and who are being paid by the hour have to sit around watching client money bleed away while contingent-fee plaintiffs wander in when they please.  Multiply the hourly rates of all of those lawyers by the waiting time and you've got a colossal waste of time and money.

This Is Not A Do-It-Yourself Project

Have you ever tried to do a do-it-yourself plumbing project when you don't have much experience doing plumbing?  If things turn out great, you save some money and your floor is dry.   If things turn out okay, then you spend 8 hours doing a 2 hour job and your floor is dry.  Things go south from that point: your floor gets wetter and your pocket gets emptier.  Some people love to do DIY legal projects.  There are many things that you can easily do on your own without a lawyer's help.  For example, you can file a copyright registration form, you can file a simple certificate of incorporation and you can file a request for an employer identification number.

What happens, though, when you venture beyond the simple into the slightly more complex?  Olivia came to her lawyer because she had a falling-out with Priscilla, the co-owner of her business.  "I guess my first mistake," she said, "was doing our agreement using FormsCo".  (FormsCo is my invented name for any company engaged in the business of selling legal forms.  There are plenty of them; you can buy legal forms online, in hard copy at the stationery store, in lawyer-in-a-box software and so forth.)  Olivia and Priscilla owner had created a company that split everything 50-50, and now they were at odds with one another.

FormsCo actually wasn't their first mistake.  Their first mistake was agreeing in principle to a 50-50 split of money and authority without considering how disputes would be settled.  The FormsCo mistake came later, when the judgmental error was committed to paper.  These two were obviously trying to save on the expenses of forming a business.  They were friends and they got along well, so what would have been the point of spending some lawyer money up front?  The point would have been to remind them that the agreement isn't for when the two of them are getting along; it's for when they're not getting along.  Indeed, a good lawyer would have told them to spend a bunch of money up front, with each of the co-owners getting separate advice on how to create this entity and how to conduct its business.

The do-it-yourself plan resulted in a big mess down the road.  Whatever money saved at the front end was more than made up in losses at the back end, both because the lawyer has to sort through the legal, financial and psychological mess as a precursor to solving the problem and because the options become more limited the deeper we are into the mess. 

My examples are illustrative and modified for public consumption.  No real names are used; no real conversations are quoted; no confidences are revealed.  I will sometimes tell stories about the experiences of others that I have learned over the years.  Give me the latitude to teach by example.