Why Campbell Doesn’t Necessarily Mean We’re In The Soup
A. Introduction.
On April 7, 2003, the U.S. Supreme Court published State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. ___ (2003), its latest pronouncement on punitive damages as viewed through the lens of the Due Process Clause of the Fourteenth Amendment of the United States Constitution.
Campbell reversed a jury’s $145 million punitive damage award that had previously been upheld by the Utah Supreme Court. The punitive award was based in large part upon evidence of State Farm’s misconduct in not just Utah, but also across the entire United States.
Observing that the $1 million compensatory component of the jury verdict (reduced from $2.6 million by Utah’s intermediate appellate court) resulted in a compensatory/punitive damage ratio of 145-to-1, the high court applied a three-pronged analysis first announced in BMW of North America v. Gore, 517 U.S. 559 (1996).
The test required examining: (1) the degree of reprehensibility of the defendant’s misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases. Slip Op. at 7.
Writing for the 5-3 majority, Justice Kennedy found infirmities under all three Gore “guideposts.” What’s more, in reaching its holding, the majority announced, “We decline again to impose a bright-line ratio which a punitive damage award cannot exceed. Our jurisprudence and the principles it has now established demonstrate, however, that, in practice, few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process.” Slip Op. at 14.
So the question presents itself. What practical effect does Campbell present for a California product liability practitioner?
To learn the answer, we probably need delve no further than Romo v. Ford Motor Co., 99 Cal. App. 4th 1115, 122 Cal. Rptr. 2d 139 (2002).
The Romo opinion upholds a $290 million punitive damage award against Ford in a Bronco II rollover case, where the compensatory damages were $4,935,709.10 (reduced from just over $6.2 million by the trial court), a roughly 58-to-1 ratio. Finding that the punitive award squared with federal due process under Gore, the Fifth District of the California Court of Appeal engaged in an analysis similar to that in Campbell, excepting of course, the result.
After failing in efforts for hearing by the California Supreme Court or for de-publication of Romo, Ford filed a petition for certiorari to the U.S. Supreme Court, which is currently pending. 71 U.S.L.W. 3519 (Jan. 21, 2003).
Since Campbell discusses punitive damages in an insurance bad faith context involving essentially pure emotional distress damages, while Romo involved both death and serious personal injuries, we may well see the high court weighing in yet again on punitive damages in the near term, only this time in the product liability arena. Even so, using the Campbell rationale as our guide, practitioners should not lose heart. At least from an initial vantage point, it may well be safe to say that all in all, not that much has changed.
B. Fourteen Years of Punitive Damage Jurisprudence.
During the past fourteen years or so, the U.S. Supreme Court has busied itself in reexamining punitive damages and how they apply in civil cases. The high court’s interest was fueled by a conservative concern that juries acting out of “arbitrariness, caprice, passion, bias, and even malice” were responsible for punitive damage verdicts that had “run wild.” See, TXO Production Corp. v. Alliance Resources Corp., 509 U.S. 443, 474-476 (1993) (J.O’Connor, dissenting).
The critical journey began with Browning-Ferris Industries of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257 (1989), which held that neither the Excessive Fines Clause of the Eighth Amendment nor federal common law circumscribe punitive damage awards in civil cases between private parties.
Following were Pacific Mutual Life Ins. Co. v. Haslip, 499 U.S. 1 (1991), TXO Production Corp. v. Alliance Resources Corp., 509 U.S. 443 (1993), Honda Motor Co., Ltd. v. Oberg, 512 U.S. 415 (1994), BMW of North America., Inc. v. Gore, 517 U.S. 559 (1996) and Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424 (2001).
In each, the high court has continually reexamined how punitive damages apply in civil actions and what, if any limits, the U.S. Constitution places on punitive awards.
While the detailed parameters of each decision leading up to Campbell are beyond the scope of this article, in each opinion, the majority declined to announce any specific formula for what constituted an upper limit of a punitive award under the Federal Constitution. Indeed, one important constraint over the years was the healthy conservative notion that, so far as punitive damages represent legitimate exercise of state police power, any potential limitations on such awards are properly reserved to the several states.
Then came Campbell.
The decision caused something of a stir upon publication, largely because it seemed as if the high court was applying some sort of fixed arithmetic formula for the first time to impose due process limits on punitive awards. As Justice Kennedy wrote:
We decline again to impose a bright-line ratio which a punitive damages award cannot exceed. Our jurisprudence and the principles it has now established demonstrate, however, that in practice, few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process.
Slip Op. at 14.
So, where does Campbell leave the practitioner evaluating an action involving dangerous products?
More on this tomorrow….
Simplicity and Balance in the Plaintiff Profession
I was building a pump shed with my judge friend, Margie (aka, the Honorable Margaret Oldendorf), when she told me she intended to re-read Walden by Henry David Thoreau. She said her life was getting complicated and she wanted to focus on getting back to basics, especially when it comes to staying better connected with family and friends.
Now, Thoreau, you may recall, is one of our treasured American philosophers. Walden, of course, was his account of living by a pond for two years in Massachusetts under fairly primitive conditions, even for the 1840’s. Most of us know about Thoreau only because we were forced to read him in high school. Depending on how well we followed the assignment, we may or may not remember his admonition:
Simplicity, simplicity, simplicity! I say, let your affairs be as two or three, and not a hundred or a thousand; instead of a million count half a dozen, and keep your accounts on your thumb nail. In the midst of this chopping sea of civilized life, such are the clouds and storms and quick-sands and thousand and-one items to be allowed for, that a man has to live, if he would not founder and go to the bottom and not make his port at all, by dead reckoning, and he must be a great calculator indeed who succeeds. Simplify, simplify. Instead of three meals a day, if it be necessary eat but one; instead of a hundred dishes, five; and reduce other things in proportion.
I think that was the passage Margie wanted to revisit.
To which, I would guess most of us would say, “Yeah, right!” and smirk, because we know that being a plaintiff lawyer in the first part of the 21st Century is anything but simple. It’s one thing to be simple while hanging out by the pond back before the Civil War. It’s another to try the same feat in an era of Blackberries, fast track and malpractice liability exposure.
Then, I ran into a prominent sole practitioner, John Torgeson, at the Loyola Civil Justice Program fundraiser. I asked him how he’s been doing. He smiled at me and it didn’t even looked strained. “There’s a new word in my vocabulary,” he told me enthusiastically. “It’s called, balance.” I was a little taken aback. Simplicity? Balance? Just what is going on here, anyway?
In truth, Judge Oldendorf’s simplicity and John Torgeson’s balance have always been with us, but in our rush to service clients, find new work, get the money in and everything else that goes with a busy law practice, we tend to forget these basics unless something pops up to force them into our awareness.
We all probably know people who are caught up in complexity in their practices. They rush about. They struggle endlessly to find time to attend to everything on their plate. We probably have all been that person from time to time.
As for unbalanced lives, we’ve all seen that defect destroy friends and their families, be it through over-work, drug addiction, alcohol abuse or love lost through neglect.
I once asked a lawyer of humble beginnings who had banked a large fortune if wealth was everything he’d dreamed it would be. “It’s more of a curse, actually,” he told me. He was struggling at the time with one of his children in a rehab program populated exclusively by other children from wealthy families. I felt great compassion for him, but also a certain helplessness. Balance comes from within, I think.
Ralph Waldo Emerson, another great American philosopher who was friends with Thoreau, had an interesting theory about how all this works. He published his notions in an essay called “Compensation.”
Basically, Emerson believed that in life, just as in physics, for every action there is something akin to an equal and opposite reaction. “Polarity, or action and reaction, we meet in every part of nature,” he wrote. “The same dualism underlies the nature and condition of man. Every excess causes a defect; every defect an excess. Every sweet has its sour, every evil its good.”
Emerson had an apt warning for those of us who might envy colleagues that seem more successful, or more prominent, or more powerful than we: “The farmer imagines power and place are fine things. But the President has paid dear for his White House. It has commonly cost him all his peace, and the best of his manly attributes.”
Was Emerson on to something? Or is it all nonsense and are the only things of true value in this world material goods, large mansions and political clout?
I suppose you have to decide the answer to that question for yourself. In truth, it is one of the questions that, when answered honestly, will define you as an individual. I don’t suppose there is any single correct answer to the question. Not that we’ll learn in this life, anyway.
As for me, two years ago, I turned 50 and realized that while my professional and family life seemed in sync, my physical fitness left a lot to be desired. So I rebalanced a little, cut out some volunteering that didn’t seem productive, competed in my first triathlon at 51 and will run my first marathon in February. What I’ve found is, now that I’m no longer neglecting my fitness, my focus at work has improved and I’m having more fun with the family. I think that, for now, my life is simpler and better balanced. It’s a constant struggle, though.
I was discussing all this with my friend, Ed Wallace, as we were cycling over the Sepulveda pass to Santa Monica from the Valley. As I recall, our conversation went something like this . . .
I told Ed I was writing a column and asked him if he thought balance was important in his life and practice. I already knew where he stood on simplicity; he’s told me many times that in his practice, the simpler the better.
Ed was quiet for a long time, at first I wasn’t sure if he had heard me. Then he started talking thoughtfully. I had to strain to hear him over the wind.
“I know there’s been times when I spent too much time on my practice,” he said slowly. I knew he was thinking about his two boys. “But then,” he added, “sometimes, when there could be more business coming in, I think that I’m not spending enough time.”
“So, balance is a moving target?” I asked.
“I suppose so,” he said, as we downshifted to spin up the hill.
“Probably different for everyone,” I mused.
“I suppose,” he answered.
Then we both fell silent as we peddled simply up through the pass. I imagined Thoreau and Emerson looking down at us. I thought I saw them smile.
Checklists, Reading Lists and Connecting the Dots
Connect the dots from planning to success
Last year I wrote about how I was starting my own practice and it seems many of you have lived similar experiences. Thank you so much for your kind emails and for sharing your own experiences with me. I’m truly honored and humbled by your good wishes.
One email that caught my attention came from James Whigham, who wrote:
I read your article in the July 2009 edition of the Advocate with keen interest. I am a newly minted attorney (April 2009) looking to start my own firm. Being new… I am attempting to inform myself on all of the legal, ethical, and business requirements involved in starting my own practice.
I have a book published by the State Bar of California, “The California Guide to Opening and Managing a Law Office.” The book centers on the business aspects of starting a practice. It does not go into detail about the basic requirements like: California Business License or incorporation.
I am wondering if you can recommend a book or a series of articles that contains a complete check list or a series of articles from which I can create a check list of things I must do to start my own practice?
Well, James, the answer is, I don’t really know of any books directly on point I would recommend, though the American Bar Association’s How to Start and Build a Law Practice (5th Ed.) seems highly regarded. For a reading list, I’d suggest searching Amazon.com and the web (I found a useful list by typing “starting a law practice in California into the Bing.com search engine). For some sample checklists, I Googled “law practice start up checklist” and found several that seemed to cover all the basics, including organization, office selection, bank/finance, licensing, etc.
That being said, I believe the most important checklist is the one you create yourself to help connect your passion with your practice.
For many years, the first item on my personal list has been: Make sure you are doing work you love. I fixated on this notion while clerking on the Westside during law school. My then boss, Tony Stuart, introduced me to the works of Deepak Chopra (The Seven Spirtual Laws of Success; The Book of Secrets: Unlocking the Hidden Dimensions of your Life), the pop guru. Chopra said he told his own children, “Don’t worry about success. Just figure out what you love, do that and success will naturally follow.” From my experience, that advice is exactly right on.
To connect the dots from planning to success, there are some time tested tools you can add to your personal checklist:
1. Write a business plan and keep it current.
Before I opened my own shop, I drafted a business plan, which I cobbled together using a format I found for free on the internet. The written plan lay out my strategy going forward and I keep it as a living document, meaning I update it regularly and use it both to check my progress and stay focused on the path that is taking me where I need to be.
2. Create a marketing strategy.
We’re a learned profession and so, as a culture, we tend to look askance at marketing and advertising our services. In my view, that’s foolish prejudice.
We live in a modern economy and provide a necessary service. Within the boundaries of decorum and understanding that as officers of the court, one of our noble privileges is to put a public face on the American civil justice system, your checklist needs to have a section devoted to identifying precisely how you intend to let people know what you do so they will hire you to do it.
3. Find an organizational system that works for you and stick with it.
My sense is, the biggest problem lawyers old and new face every day is how to get organized in their practices and their lives.
Organization is something I struggled with early on. For several years, I managed to mask my own disorganization. Then I began working for a brilliant lawyer who was even more disorganized than I. When I adopted his bad habits on top of my own, the result was pain and misery for those around me (especially my poor staff) and not a lot of happiness on my side as well.
I solved my organizational problem by taking a one day seminar from the Franklin-Covey people (the same ones who produce the famous Franklin planner) and then disciplining myself to follow the system they taught. If you’ve got similar issues, I highly recommend you seek out some training sooner rather than later.
4. Make ongoing education part of your basic plan.
Some folks figure that once they’ve earned their degree and license, it’s okay to coast for the rest of their career. Trust me, it doesn’t work, so let’s just not go there.
Plan for change and keep your tools sharp by planning ahead. Some useful reading for solo practitioners is Free Agent Nation: The Future of Working for Yourself, Daniel H. Pink (2001), which reveals that we’re not just a group, we’re a demographic trend. Art of Cross-Examination, Francis L. Wellman (1903) will give you some time tested tips on how to zero in on a witness, while The Art of War, Sun Tzu (5th Cen. B.C.) and Tao Te Ching, Lao Tzu (6th Cen. B.C.) will help you strategize your cases and balance your life.
Rules of the Road: A Plaintiff Lawyer’s Guide to Proving Liability, Rick Friedman & Patrick Malone (2007) and David Ball on Damages, David Ball, Ph.D. (2005) are required reading for all consumer attorneys. The Mind Map Book, Tony Buzan (1993) will teach you how to organize all that important knowledge so that it is also useful.
Read The Making of a Country Lawyer, Gerry Spence (1996) for inspiration and A History of the English Speaking People, Winston S. Churchill (1956) for perspective.
Finally, don’t forget your Bible, Torah, Koran or other spiritual text to stay connected with your moral roots.
I wish you success in your personal quest to succeed.
Asking for Whom the Statute Tolls: Continuing Representation and the Statute of Limitations
A. Continuing Representation and Tolling.
As a general rule, the statute of limitations for legal malpractice claims is tolled during the time that an attorney continues to represent a client. A recent Court of Appeal decision, Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort, 91 Cal. App. 4th 875, 110 Cal. Rptr. 2d 877 (2001), demonstrates that where there is objective evidence of a continuing attorney-client relationship, tolling becomes an indefinite proposition.
Lockley involved plaintiff Kim David Lockley, a former City of Seal Beach police officer of Korean descent who was subjected to racial taunts and harassment at work. When his brother became involved in legal problems out of state, the City targeted Lockley in an April 1988 internal affairs investigation and terminated him. Lockley appealed the firing to the civil service board, filed a workers’ compensation claim and filed an Equal Employment Opportunity Commission complaint alleging racial discrimination.
Cantrell, Green, Pekich, Cruz & McCort (“Cantrell”) represented Lockley on his workers compensation claim. The City and Lockley entered into a compromise and release agreement (“C&R”) under which Lockley agreed to relinquish all claims against the City. For its part, the City agreed to process an application for retirement benefits for Lockley, treating him as having a non-work related disability and to notify the Public Employees Retirement System (“PERS”) that Lockley was entitled to retirement benefits. With the C&R in hand, Lockley resigned from the force and dropped all his claims.
The City reneged on its agreement. It notified PERS that Lockley was terminated for misconduct and delayed notifying PERS of Lockley’s entitlement to retirement benefits for four months, long enough to disqualify him.
Lockley revived his workers’ compensation claim. After a long episode of legal wrangling, the matter worked its way up to the Fourth District Court of Appeal, where Justice Sonenshine’s concurring opinion wondered aloud why Lockley’s attorney had not pursued a breach of contract claim after the City breached the C&R agreement.
Cantrell filed a petition for rehearing, asking that Justice Sonenshine’s remarks be deleted or clarified. The Court of Appeal ordered a modification of the opinion to add a footnote stating: “Lockley’s attorney on this appeal did not represent him at the time.”
Lockley sued Cantrell for legal malpractice on February 8, 2000. The trial court sustained a demurrer without leave to amend based on the statute of limitations after taking judicial notice of the modified opinion. The Second District Court of Appeal reversed.
B. The Statute of Limitations.
The statute of limitations for legal malpractice is found at Code of Civil Procedure section 340.6, which states:
(a) An action against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of professional services shall be commenced within one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the facts constituting the wrongful act or omission, or four years from the date of the wrongful act or omission, whichever occurs first. In no event shall the time for commencement of legal action exceed four years except that the period shall be tolled during the time that any of the following exist:
(1) The plaintiff has not sustained actual injury;
(2) The attorney continues to represent the plaintiff regarding the specific subject matter in which the alleged wrongful act or omission occurred;
(3) The attorney willfully conceals the facts constituting the wrongful act or omission when such facts are known to the attorney, except that this subdivision shall toll only the four year limitation; and
(4) The plaintiff is under a legal or physical disability which restricts the plaintiff’s ability to commence legal action.
(b) In an action based upon an instrument in writing, the effective date of which depends upon some act or event of the future, the period of limitations provided for by this section shall commence to run upon the occurrence of such act or event.
The statute was adopted in 1997 as the Legislature’s response to the companion cases of Neel v. Magana, Olney, Levy, Catchcart & Gelfand, 6 Cal. 3d 176, 98 Cal. Rptr. 837 (1971) and Budd v. Nixen, 6 Cal. 3d 195, 98 Cal. Rptr. 849 (1971), which established that delayed discovery and lack of actual (called “appreciable”) harm both acted to toll the statute of limitations.
In Neel, the Supreme Court acknowledged that introducing tolling into the limitations equation came with a cost. We recognize that the instant ruling will impose an increased burden upon the legal profession. An attorney’s error may not work damage or achieve discovery for many years after the act, and the extension of liability into the future poses a disturbing prospect. On the other hand, when an attorney raises the statute of limitations to occlude a client’s action before that client has had a reasonable opportunity to bring suit, the resulting band of the action not only starkly works an injustice upon the client but partially impugns the very integrity of the legal profession. The solution, the high court suggested, was for the Legislature to provide a limitation period for legal malpractice similar to that found in Section 340.5, the medical malpractice statute, which has a one year from date of discovery, four year absolute limit. Section 340.6 adopted the one year/four year scheme as suggested in Neel. However, along with the notion of defined time limits are specific tolling mechanisms designed to extend the time frames in (1) absence of actual damage, (2) during continuing representation, (3) where there is misrepresentation by the attorney and (4) where physical or legal disability restricts the client. An attorney’s special fiducial relationship with the client, combined with the reality that defective legal work will not always cause appreciable harm for sometime are the primary reasons why tolling is specifically incorporated in Section 340.6.
C. Continuing Representation is Interpreted Broadly The purpose of the “continuous representation” rule is to avoid disrupting the attorney-client relationship by a lawsuit and to enable an attorney to correct or minimize an apparent error, while at the same time preventing lawyers from defeating malpractice claims by continuing to represent the client until the statute has run. Laird v. Blacker, 2 Cal. 4th 606, 618, 7 Cal. Rptr. 2d 550 (1992). The Court of Appeal in Lockley applied an objective standard in analyzing whether Cantrell’s representation of Lockley met the standard for tolling. “Continuity of representation ultimately depends, not on the client’s subjective beliefs, but rather on evidence of an ongoing mutual relationship and of activities in furtherance of the relationship.” The general rule is that the attorney’s representation does not end “until the agreed tasks or events have occurred, the client consents to termination or a court grants an application by counsel for withdrawal.” [Emphasis in original.]Lockley, supra, 91 Cal. App. 4th at 887-888, 110 Cal. Rptr. 2d 877. Using the objective standard, the Court held that Lockley’s complaint stated a claim that avoided the statute of limitations by virtue of its allegations that Cantrell had continued to represent him until within one year of filing. “On appeal, Lockley contends that statute of limitations governing attorney malpractice claims was tolled while [Cantrell] continued to represent him. This is a correct statement of the law.” 91 Cal. App. 4th at 887. In reaching its holding, the Second District panel decided it was not bound by the Fourth District’s earlier footnote implying that Cantrell’s representation of Lockley was not continuous. In a lengthy discussion of judicial notice doctrine, the Second District concluded that the additional footnote added to Justice Sonenshine’s concurring opinion did not meet the standard of being based on an adversary proceeding adjudicating a fact question and found no substantial evidence in the record to support the conclusion. The question of whether or not Cantrell’s representation was continuous, the Second District determined, remained in dispute. Cantrell, for its part, argued that during the relevant period, it represented Lockley only on his workers’ compensation claim, not the C&R agreement. Since the two items were not the same specific subject matter, the continuing representation doctrine did not apply. The Court of Appeal rejected that argument without difficulty. Distinguishing Foxborough v. Van Atta, 26 Cal. App. 4th 217, 229, 31 Cal. Rptr. 2d 525 (1994) (“the limitations period is not tolled when an attorney’s subsequent role is only tangentially related to the legal representation the attorney provided to the plaintiff”), in which a continuing representation was held as not occurring where the attorney was discharged, then rehired as an expert witness, the court found that Cantrell’s argument attempted to draw too fine a line in defining the limits of representation. On its face, Lockley’s complaint alleges [Cantrell] continuously represented appellant’s legal interests on the same specific matter of “claim for worker’s compensation from 1988 until March 1999.” We may reasonably infer from the amended complaint that Lockley hired [Cantrell] in only one capacity, that of legal representative. [Emphasis in original.] Lockley, supra, 91 Cal. App. 4th at 889, 110 Cal. Rptr. 2d 877.
D. Applying Lockley’s Lesson The moral of the story is that in analyzing whether there is a continuing representation that will toll the statute of limitations, look to see if the attorney has continued to represent the client without interruption in the same capacity throughout the relationship. As a practical matter, Lockley means that as long as there are objective facts pointing to the continuation of an attorney-client relationship past what would otherwise be a time barred by the statute of limitations, there will be an argument that the Section 340.6(a)(2) tolling provision applies and a claim is timely. In your own practice, Lockley underlines the importance of documenting precisely the outlines of the attorney-client relationship in a fee agreement and the termination of that relationship in writing. As counselors-at-law who are privileged to represent people in California’s legal system, we carry great responsibility. Section 340.6 and decisional law such as Lockley underline that a breach of that responsibility carries with it a consequence that the prudent lawyer should not ignore. Seven Rules for Picking Cases Okay, so you’ve heard that being able to pick good cases is probably the single most important talent a consumer lawyer can have. Or, you’ve witnessed folks who weren’t so selective in taking on causes and either wound up financially bruised, tied up in knots or a combination of the two. I’ve watched some of the best lawyers around pick and choose from a parade of human hurt and disaster. I’ve seen some incredible successes and some notable flops. My conclusion is that case picking is a skill that can be taught and learned. Seven rules you might keep in mind while you’re building a better practice: 1. First, lead with your heart. Since you’re going to be financing costs and fronting your time, you’d better love what you’re doing. So, in that initial client interview, ask yourself, is this a case I can love? If the answer is a loud “No,” think long and hard before you sign them up. On the other hand, go into that interview prepared to fall in love. In the end, it’s your passion that will give you the focus and drive you need to carry the day. Of course, if there’s big damages, clear liability and plenty of insurance, then your love can be less ardent. But, try to have some anyway, because it couldn’t hurt. 2. Second, ask yourself, “Am I leading with my heart?” We’re a passionate bunch, we consumer lawyers. So, after your heart tells you, “yes,” let your brain argue the contrary. Signing up cases is like buying horses. It’s way easier to take them in than it is to find them a new home. Ask yourself what a jury will think of the potential client. Chances are, if you are uneasy about your prospect, a jury will feel the same. I know of at least one firm that runs criminal and civil background checks on all their potential clients. I don’t think it’s a terrible idea. Bottom line, don’t sign up everything that walks in the door. 3. Take what you know. I know there’s a temptation among lawyers to take on bigger bites than can be chewed, because those cases regularly show up on my doorstep, either looking for replacement counsel, or shopping for legal malpractice representation. People’s claims shouldn’t be handled as lawyer lottery tickets. That’s a basic principle you need to keep in mind. 4. Stretch a little, but ask around first. There isn’t anything wrong with taking on a matter in a new area you find interesting. Still, take some care when you do. The CAALA Listserv is a great sounding board if you find yourself in unfamiliar waters. Consumer attorneys, you will find, are generous with their knowledge and advice. Take advantage of the fact that you are practicing in a supportive community. Ask questions. 5. Ask, “What are you trying to achieve?” I always ask the prospective client what they’re hoping to accomplish with legal representation. I find it helps avoid misunderstanding about what it is I’m doing for them, and also occasionally, keeps me out of trouble. Most folks say something like, “I’m not sure, you’re the expert.” This is a good response. If they start foaming at the mouth or uttering terrorist slogans, you might want to refer them to an acquaintance. 6. Keep an eye on your pocketbook. Whatever you decide to take, make sure you can afford to take it all the way. This doesn’t mean you have to be able to finance the case yourself. These days, there are plenty of heavy-hitting firms that will joint venture, co-finance, or otherwise creatively back a good, significant case. Be that as it may, case costs and economics can sink your legal battleship. So, keep that weather eye out, matey. Finally, unless you are absolutely positively sure you’re signing up a dead-bang winner, count to ten or something before putting the pedal to the metal. My usual practice is to the send the prospective client home with the retainer to read, contemplate and then, if all is well, sign and return. I do it because it gives the client time to think and allows me some thinking time as well. You never know where litigation is going to take you. May as well pause before diving in. You and that new case may be together a long, long time. I’m sitting at a Starbucks on a clear, fall morning, sipping a tall drip coffee and thinking about finding passion.
Finding passion is an art we’ve all heard something about, but most of us won’t ever truly attempt. It’s too risky, too uncertain, takes you to uncomfortable places, eats away at the established order and so threatens chaos, destruction and despair. Yet, for some folks, and I confess to falling in this group, focusing on passion is what brings flavor to living.
Doubting this principle applies to you? Let’s Google and see what the internet world believes. “If you could do one thing to transform your life, I would highly recommend it be to find something you’re passionate about, and do it for a living,” writes blogger Leo Babauto, who describes himself as a “writer, a marathoner, an early riser, a vegan, and a father of six.”
Babauto seems prominent in the passion department. Google “finding your passion” and his monograph pops up as number one, which is something, as Google reports the search term “finding your passion” generates 15,400,000 hits. That’s a lot of passion. It says a great deal about how important finding passion is to a huge number of people and also speaks volumes about how we all struggle to achieve the ideal in our lives and our professions.
My sense is, finding and keeping passion in a law practice is a particularly difficult chore. I believe there are many reasons for this truth.
One is that the profession itself is so demanding, it often seems to drain passion rather than produce it. Client needs, court deadlines, keeping current, watching the finances, all seem push us into endless, grinding conflict and stilted, rigid process, and threaten to suck the life out of all us poor practitioners.
I know I’m not alone in feeling this way. Try typing “finding your passion in law” into Google and you’ll find article after article, after blog, after e-zine talking about how law can’t possibly lead to passion, or how avoiding law school was an fortunate escape to passion and all that other nonsense civilians tell themselves when they don’t get how empowering and invigorating a law practice can truly be.
Yet, I know we can be passionate about law, because I’ve found my passion in what I do. Not every time and not every case. But by and large, all and all, given the choices to apply my time and talent to any livelihood on earth, I find myself called to vocation as counselor and advocate for the hurt, the helpless and the just plain confused in that secular cathedral we know as the courthouse.
I know I’m not alone in this, because I see passion in lawyers throughout the community and I’ve found that the most passionate attorneys are generally the best at what they do.
You may have heard of Srully Blotnick, the former Forbes columnist and author who reported studying 1,500 graduate students over 20 years, attempting to see if he could determine what made a person a success. He published his findings in his book, Getting Rick Your Own Way and though his research methods were controversial at the time, his results are widely quoted by those promoting a passion-driven professional lifestyle.
Blotnick grouped his subjects into two categories. Category A was made up of people who wanted money now. They made up 83% of the group, or 1,245 persons.
Category B were people who pursued their true interests first, sure that money would eventually follow. These Category B risk takers made up 17% of the sample, or 255.
After 20 years, there were 101 millionaires in the group. Just 1 came from Category A. The balance, 100, came from Category B.
So, how does this all apply on a practical level?
Back at the internet, my Googling led me to Matt Homann, who blogs at thenonbillablehour.typepad.com. He has an online power point presentation called Ten Ways to Build a Better Firm that in 73 slides has more to say about how to find passion in practice than 73 hours of MCLE.
“Get outside the box” he begins. “Think REAL Big!”
Being a lawyer is hard, Homann acknowledges. “You worry about things you can’t control. Under great pressure to ______ results. Expected to know everything. . . . It is easy to slip up. Lawyers get sh*t upon by everyone.”
Still, despite all the difficulties, pursuing passion is a path of one thousand steps. So, Homann offers:
“Be true to yourself . . . even if you are a little crazy. . . . Get your ducks in a row. Remember, your business comes first. You must fix what needs fixing. Clean up your waiting room. . . . Separate the wheat from the chaff. . . . And just one more thing . . . Remember why you do what you do.” Jurors are usually skeptical. Judges are regularly unsympathetic. Lawyers need to recognize these facts and learn to adapt in the modern courtroom. I did my undergraduate work in communications, specifically radio and television. If there was anything that experience taught me it was that in order to convince people that your cause is the one that should prevail, you have to connect with them so that your message isn’t lost in the courtroom clutter. What do I mean by “courtroom clutter.” Well, it’s part and parcel to the public justice system process, which forces us to pursue claims and seek justice in a rigid, formalistic fashion that is admittedly imperfect but, like American democracy, still represents the best that mankind has come up with to date. The system requires us to pursue our causes according to a formula that applies difference legal processes, known as “civil procedure,” to analyze facts supported by evidence according to legal rules and principals, what are generally referred to as “substantive law.” The formula dictates that we uncover facts through a process called “discovery.” When we need the court to act on our behalf or rule on how the law and facts interact, we submit our requests in the form of written or oral motions. We argue most things in briefs with strict page limits and argue orally at the counsel table with even stricter time limits. In the few cases that go to trial (since 90+ percent of matters settle), we do that traditional dance called “trial,” where everything is rigid and regulated, sometimes for good purpose, sometimes because it’s good for the judge, sometimes because special interests that lobbied the politicians to make sure we do it a certain way and sometimes because that’s how grandpa did it and good enough for him, good enough for us. Each of these processes has its strengths and weaknesses and there are legions of dedicated, creative judges and lawyers continuously tweaking the system. Even so, the justice system is structured in such a way that the process can other get in the way when we’re trying to communicate what’s important about our cases. That’s courtroom clutter. We need to find ways to cut through it. We must learn how to better connect with decision makers in a courtroom setting. Thinking about this reality, I have come to believe that, while there are various advocacy techniques and tricks of the trade taught in classrooms and seminars across the country, lawyers rarely step back and view the justice process in an integrated, holistic fashion. The problem starts in our law schools. The traditional approach to trial practice is to chop up the system into pieces and teach them all separately. So, a lawyer might learn about trial through a moot court or trial advocacy program, but they won’t learn how to gather the evidence they use at trial. Or, a class might teach basic tools like deposition taking or negotiating towards settlement, but they won’t connect those processes with the trial process. The problem continues when we begin practice. The process of justice is so expensive that most of the training we provide new lawyers is dictated purely by what cases are on the docket that need immediate attention. Depending on the quality of cases a young lawyer work on, they may receive broad training applicable to a wide range of legal problems, or they may only see a narrow sliver of the justice system and find themselves ill-equipped to venture outside their specialized world. Not so good for the clients, since human problems are rarely crafted by cookie cutters. So, I have concluded that the first step in better connecting in the modern courtroom requires adopting an integrated approach to problem solving in a civil justice system. It means considering how to best connect the dots from beginning to end without neglecting any steps. That means beginning with a means of keeping skills current, then case evaluation, selection and intake, investigation and evidence gathering, organizing and interpreting evidence for use in the proceedings, law and motion practice, optimizing mediation and settlement opportunities, trial preparation and advocacy and appellate proceedings. More on this in future entries. Trial lawyers are in the truth-seeking business and any tool we can use to help us in that endeavor are welcome. Researcher Paul Ekman is a pioneer in the field of recognizing emotions from facial expressions. I’m reading his book, Unmasking the Face as a sort of personal introduction into his work. You can find Mr. Ekman on the web at www.paulekman.com. Ekman and his co-author, Wallace Friesen, teach at the University of California Medical School in San Francisco. Ekman writes: “The trial lawyer often can’t trust the words of a witness or client. He needs another source, such as the face, to tell him how the person really feels.” The book focuses on facial expressions that reveal six basic emotions — happiness, sadness, surprise, fear, anger and disgust. Relying on the scientific method and hard research, Ekman documents a wide range of facial expressions that are universal among mankind. He also provides a series of exercises that you can use to help practice recognizing and interpreting the expressions he documents. Just as interesting, Ekman’s work seems to have found its way onto television, in the form of the Fox television show, Lie to Me. I’m going to watch an episode for fun. Can’t be all about work! One element of the complete trial lawyer’s skill set that is often overlooked is simple physical fitness. I think one reason why health and fitness is overlooked in courtroom advocates is because we view the attorneys as members of a learned profession and scholarly pursuits in our minds don’t necessarily blend with athletics. Well, I think that sort of thinking is just plain wrong. Over the years, I’ve had the chance to observe many of the finest trial lawyers in the country, and with very few exceptions (I remember one business litigator who was MORBIDLY obese, yet seemed to get along in the courtroom just fine. I always sort of expected him to keel over during his arguments, but somehow he never did) they are individuals who are not just fit in mind, but also stay fit in body. If you are hiring an advocate, it stands to reason you’d want someone who can go the distance for you in the courtroom, as opposed to a lawyer who when faced with adversity in a legal fight, get red in the face and is out of breath long before the finish line. In my research, I am keeping an eye out for studies that would give me some insight into how physical fitness affects performance in stress situations, since trials are the ultimate stress producers in the peaceful society. In the meantime, I’m sticking with my marathon training and working towards that Ironman Triathlon I’ve promised I would take on. I’ve been working with two tools that I believe all trial lawyers need to master to improve how they organize their arguments in briefs and in the courtroom. The first tool is Mind Mapping using the Mindjet MindManager Pro software. The second is rule based organization, as taught in Rick Friedman’s book, Rules of the Road. My first example is a mind map outline of a conventional negligence analysis. You’ll notice the map documents negligence in the same way it is taught to law school first years in their torts class, that is, duty, breach, causation and damages. This analysis technique works adequately when the fact pattern is simple, such as a traffic accident or an uncomplicated slip and fall. But, I think we can improve on it. Now, see how the analysis looks when you apply the rule-based approach in a mind map: You can see that the rule-based analysis is simpler and more direct. I think it puts the advocate in a better position to communicate their case clearly, because it forces the story into a simpler framework that is easier to understand. Detailed legal analysis is great for attorneys thinking through their cases. But when we try to force a trier of fact, particularly a lay jury, to follow a complex thought process, we are raising barriers to understanding rather than building bridges.
Everything Matters: Secrets of Building a Better Plaintiff Practice
Finding Your Passion
Connecting in the Modern Courtroom
Trial Lawyers should read Unmasking the Face by Paul Ekman and Wallace V. Friesen
Keeping fit is good for personal injury lawyers, too!
As you can tell from my blog, one of my passions is studying courtroom communications, since being able to tell a client’s story effectively is one of the keys to effective trial lawyering.
Using rule based analysis and mindmapping to make a stronger point in personal injury cases
