Editor's note: Your ProbateShark finds this concept of attorney aggressiveness  interesting.  The lawyers and judges in the ProbateCourt of Cook County had  disrespect and insensitivity toward the families of the disabled wards down to a science.  Mr. Balestriere could learn much from them.  Lucius Verenus, Schoolmaster, ProbateSharks.com

 

Litigators, Small Law Firms

Shyness Is Not A Litigator Trait

By John G. Balestriere

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/ Oct 23, 2015 at 1:15 PM

John G. Balestriere

Do not be a jerk, but do not be shy or overly concerned about offending others. Litigators need to be comfortable being aggressive.
A few years ago I settled a matter with a large bank and, afterwards, I invited the outside counsel for the bank to lunch. She was personable and professional and, at the lunch, noted that during the settlement talks — the first time she and I had had any really extended communication — she was surprised at, as she put it, how nice I was.
When I asked her why the surprise, she said, “Because that other guy you had on the case was a jerk.” The “other guy” was a lawyer we had to push out of the firm and, after he left, I realized that he frequently was very aggressive — a jerk, in fact — with adversaries. I also realized that the other guy had not done all the work he claimed he had on certain matters. There was a connection there, and I’ve seen it with many lawyers who immediately are obstreperous morons: they put on a face of aggressiveness to the point of jerkiness to fend off discussion of issues or to profess impatience with adversaries as a way of not engaging those adversaries. If you’re not prepared or not doing all you should, and you seem like a jerk, you will put off your adversaries, and others. If you’re a jerk, people do not want to talk to you, including your adversaries, and then you can avoid the nuanced discussions adversaries will frequently have about issues in their matters.
Do not be a jerk (another ATL columnist has thoughts on that). But do not be too nice or shy. I am not talking about courteousness (be courteous to everyone, including jerk adversaries) or professional demeanor (as noted before, we should do the absolute best work for ourselves and our colleagues, and that includes how we hold ourselves). I mean do not be so concerned that someone will think you’re a jerk that you are too quiet or too polite and do not take the aggressive steps necessary to win for the client.
Not only is litigation adversarial, in litigation, you frequently deal with people who do not want to deal with you, but with whom you need to deal, and whom you need to do something so you can win for your clients. While we have the best people at our firm, I find that with younger lawyers and with non-lawyer analysts (who have gone on at our firm to become lawyers) the senior staff need to train new people to be appropriately aggressive.
Witnesses are an obvious example of someone who does not want to deal with you but with whom you may, in the end, need to be forceful. No one enjoys getting a request from an attorney to speak regarding litigation. More sophisticated individuals appreciate that we have a system for resolving disputes that protects them—we all have a right to the courts, if, in a terribly unjust way, in woefully different degrees—and that sometimes means being a witness in someone else’s case. Many potential third-party witnesses, however, will do all they can to avoid a lawyer who has reached out to them. Do not be the shy young (or older) attorney. Do not just email the witness and wait a week hoping she gets back to you. Email first—it gives someone who doesn’t know about your case a heads up. Then email again and suggest a time to talk. But then move things along. Pick up the phone. Call her. Keep trying to speak to her. And if she begs off, then use the subpoena (consistent with applicable rules). Do not be shy.
Even more commonly as a lawyer you need to deal with court and government clerks. Some clerks are great, perhaps sharing with you the means to get through the genuinely byzantine rules of the courts (while thankfully you can file electronically in most parts of the country these days, that doesn’t mean there aren’t 47 different rules you need to follow every time you file a document). But then many clerks are . . . not great. Immediately after law school I was an assistant district attorney in Manhattan. As an Irish and Italian lawyer from Brooklyn with the accent my law school time did not diminish, I had it easier when dealing with the native New Yorkers that make up the support staff in the Manhattan DA’s Office. But I still was sheepish, if for a short while, when dealing with all these clerks barking and criticizing the new lawyers when I first started.
Given that experience, from day one, I should not have been surprised the first time I had to go to the Criminal Court clerk’s office in my first month as an ADA when I saw that there were two signs on the door leading into the clerk’s office.

Federal Judge Sez Judges Are All Too Old To Understand Technology

By Joe Patrice

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/ Jul 21, 2015 at 3:28 PM

Judge Shira A. Scheindlin (S.D.N.Y.)

Is the rise of eDiscovery and the proliferation of relevant social networks getting you down? Not as much as it’s bugging federal judges who have to make decisions about the admissibility of posts on Woo Woo while they’re still struggling to figure out a Speak and Spell.
That may be a bit of an exaggeration, but not much, according to the Southern District of New York’s Judge Shira Scheindlin, one of the more tech-savvy judges in the federal system. Judge Scheindlin told the Big Law Business Summit on VCR tape that “[a]ll of us over 60 are getting nervous. But the rules have changed and require attorneys to be competent in technology.”
Judge Scheindlin could only think of one group with less technological knowhow than federal trial judges: “I can tell you that appellate judges know nothing about it.”
Burn.
Check out the whole video below:

Judge Scheindlin: Appellate Judges Know Nothing About Tech [Big Law Business / Bloomberg BNA]

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Benchslaps, Big Law Business Summit, Bloomberg BNA, Bloomberg Law, Conferences / Symposia, E-Discovery, eDiscovery, Federal Judges, Judge Shira Scheindlin, Litigation, Litigators, Old People, Reverse Benchslap, Shira A. Scheindlin, Shira Scheindlin, Technology

Books, Litigators, Small Law Firms, Solo Practitioners

The 4 Rules Of Warfare (And Litigation)

By Keith Lee

Keith Lee

It has often been observed that litigation is war. The analogy is not perfect, but studying military strategy and tactics can prove fruitful for litigators. While many people often turn to Sun Tzu’s Art of War, for guidance in the applicability of military thought to modern business and litigation, I have a soft spot for von Clausewitz’s Vom Kriege (affiliate links).
Carl Philipp Gottfried von Clausewitz (July 1, 1780 – November 16, 1831) was a Prussian soldier and military theorist who stressed the “moral” (in modern terms, psychological) and political aspects of war. His most notable work, Vom Kriege (On War), was unfinished at his death.
While all of Vom Kriege is worth your time, I wanted to highlight one passage in particular…

From On War:
I. Warfare has three main objects:
(a) To conquer and destroy the armed power of the enemy; 
(b) To take possession of his material and other sources of strength, and
(c) To gain public opinion.
These three main objectives align very closely with litigation. Lawyers engage in an adversarial contest in the context of the legal system in order to best the opposing party. Plaintiffs seek to recover awards; Defendants seek to deny them. And both sides seek to win the opinion of the judge, jury — and if the case is large enough — to spin, brand, and direct the media narrative.
Von Clausewitz also laid out four rules to follow when in pursuit of these objectives:

I. The first and most important rule to observe in order to accomplish these purposes, is to use our entire forces with the utmost energy. Any moderation shown would leave us short of our aim. Even with everything in our favor, we should be unwise not to make the greatest effort in order to make the result perfectly certain. For such effort can never produce negative results.

This rule, often referred to as “Total War,” states that if warfare is to be pursued, it should be pursued with all the weight and power that can be summoned. The same is true for litigation. Organization, preparation, and planning are of the utmost performance. Litigation cannot be “phoned in.” Nor does it follow a nice pre-set path. As has been noted many times at What About Clients:

“Complexity. Ambiguity. A messy problem. A “hard” thing. More and more employees don’t like it. They can’t deal with it. They want a “form”, a template, a program. But great work doesn’t have “forms.” Am terribly sorry about that. You will just have to think, and suffer through this, on your own. We hired you–all of you–to solve problems.”

When going into litigation, one must marshal all their forces to bare. Each argument, motion, and letter must be drafted with the intent to win. There is never room for “good enough.” You might win here and there on small matters and in small venues. But eventually you will come up against a party opponent who has adopted the mindset of “Total War” and you will be crushed. Only if you bring your full attention and effort into each litigation matter will you be able to put up a fight. Instead of being routed, you will engage in a battle of will.

II. The second rule is to concentrate our power as much as possible against that section where the chief blows are to be delivered and to incur disadvantages elsewhere, so that our chances of success may increase at the decisive point. This will compensate for all other disadvantages.

Organize for systematic and continuous exploitation of weaknesses in your opponent’s arguments, experts, and facts. Find where they are weak and concentrate your effort on maximizing your return.

III.The third rule is never to waste time. Unless important advantages are to be gained from hesitation, it is necessary to set to work at once. By this speed a hundred enemy measures are nipped in the bud, and public opinion is won most rapidly.
Surprise plays a much greater role in strategy than in tactics. It is the most important element of victory. Napoleon, Frederick II, Gustavus Adolphus, Caesar, Hannibal, and Alexander owe the brightest rays of their fame to their swiftness.

Strike hard, strike fast. While this is a common practice in the plaintiffs bar, it is equally important for defendants. When a fully formed complaint and extensive discovery lands on your desk — which the client sent to you two weeks after they had been served with them — speed is of the essence. But there are times for repose as well. The plaintiffs bar generally is poor at patience, preferring to file as soon as possible. But careful planning and investigation can yield dividends down the road. And defendants, especially corporate ones, have the advantage of time on their side in drawn out discovery that may weaken a plaintiff.

IV. Finally, the fourth rule is to follow up our successes with the utmost energy. Only pursuit of the beaten enemy gives the fruits of victory.

The trial is done. The jury has reached a verdict. You won! Congratulations! Immediately begin to prepare for an appeal. Don’t wait to get the Notice of Appeal 42 days from now. Even worse, especially don’t wait to prepare until you receive the opposing parties appellate brief.
If you have never read On War, it would be well worth your time to do so. It’s also not something to be read once and put onto the bookshelf to never look at again. As with most of the Classics, repeated readings lend new insight and deeper understanding of the principles within. The Classics are not meant to be read, they are meant to be studied.
You can find the entire book online here. Or you can purchase a hardcopy on Amazon (affiliate link) for $10, or a Kindle edition for $0.99.

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Keith Lee practices law at Hamer Law Group, LLC in Birmingham, Alabama. He writes about professional development, the law, the universe, and everything at Associate’s Mind. He is also the author of The Marble and The Sculptor: From Law School To Law Practice (affiliate link), published by the ABA. You can reach him at keith.lee@hamerlawgroup.com or on Twitter at @associatesmind.

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Books, Keith Lee, Litigation, Litigators, Small Law Firms, Solo Practitioners

13 May 2013 at 3:08 PM

Biglaw, Brooklyn Law School, Law Schools, Litigators, Money, Technology

Third-Party Litigation Financing: The Latest Chimerical Lifeline For The Legal Profession

By Joe Patrice

The legal industry has taken its lumps. At the top, growth is modest at best. At the bottom, law school applications have dropped off dramatically. There are scary book titles like Steven Harper’s The Lawyer Bubble: A Profession in Crisis (affiliate link) to spook the industry even more.
But some are pushing back against the gloom and doom and projecting a bright future ahead. The new hope for Professor Bradley T. Borden is third-party litigation financing (“TPLF”), dropping millions into lawsuits in exchange for a hefty cut at the end so they can party like a champ(erty).
Litigation finance is drawing considerable talent and will certainly change the way law firms and clients do business. But it’s no pathway to rekindle the pre-recession boom.

Professor Borden laid out his argument for bringing the unblemished success of the private equity industry to law in a Huffington Post piece last week:

First, the capital infusion will make more lawsuits viable and increase the complexity of lawsuits. The increase in the number and complexity of lawsuits will drive up the demand for more and better litigating attorneys.

Professor Borden’s first point also translates to “it will clog the courts with more frivolous lawsuits” — which is a boon to an ATL writer trawling for content, but that’s about it.
The problem is that “moar lawsuits equals moar lawyers” is just a flawed and dated argument. Borden fails to grasp that lawsuits are no longer litigated that way. Technology and the learned experience of law firms and clients have fundamentally shifted the legal landscape. The document management firms that take on the economies of scale involved in investing in high-end review software and employ temp attorneys at bargain-basement prices in less desirable legal markets (I’m looking in your direction, Detroit), as well as the advances in predictive coding and artificial intelligence, are not going away. Increasing complex litigation no longer requires the firm to bring on more bodies to read hundreds of thousands of pages — it will all be outsourced either to struggling lawyers or the HAL 9000 — keeping the lid on the job market for litigators.

Second, faced with the increased likelihood of having to defend their actions and incur the costs of litigation and the higher costs of losing lawsuits, businesses will take greater care to structure transactions and practices legally. Such efforts will require the skills and expertise of competent transactional and regulatory attorneys, further increasing the demand for attorneys.

For this to make a lick of sense, one must assume that (a) both in-house and outside counsel phone it in when structuring deals in the status quo, and (b) having more lawyers looking at documents alleviates future legal issues. First, I doubt any lawyer will admit to sloughing it, and the hours logged by transactional and regulatory attorneys bear this out. Second, I’m confident every attorney will admit — if only in hushed tones — that bringing more lawyers into the process invariably compounds future legal problems. Too many cooks and what-not.

Third, TPLF, combined with an improving economy (which can’t hold back indefinitely) and the relative dearth of attorneys that will result from the decreasing law school enrollment, portend a perfect storm that will hit the legal market.

But some law firms (and most clients) are realizing that the era of big staffing is over. The “manual labor” of document review and due diligence can be farmed out to the glut of out-of-work attorneys willing to make peanuts to service their loans. An improving economy will drive up the wages they can demand (because they could leave the law entirely to take advantage of better opportunities), but not to the level that once enticed students to law school in droves. If law students aren’t guaranteed of getting boom-era salaries — and the majority of law students never will — there is nothing that will convince students to take on the debt law schools create unless the schools embrace fundamental change.
Professor Borden seems to be holding out for TPLF to rejustify the status quo legal landscape. TPLF may be a lot of things, but a TARDIS is not one of them.
The challenges facing a stagnant legal market cannot be addressed when you begin from the premise, “How can we go back to exactly where we were before?” It’s the kind of “everything’s cyclical” thinking critiqued in Bruce MacEwan’s new book, Growth Is Dead: Now What? (affiliate link).
Or, if you will, the episode of the Simpsons where Homer desperately hopes that the pig he’s roasting will return.
Homer: “It’s just a little airborne, it’s still good, it’s still good!”
Bart: “It’s gone.”
Homer: “I know.”
Third-Party Litigation Financing and the Impending Resurgence of the Legal Profession [Huffington Post]
Law School Applications Are Collapsing (as They Should Be) [The Atlantic]
Earlier: Litigation Finance: The Next Hot Trend?
The 2013 Am Law 100: A Year of ‘Slow Growth’
Calling All Law Firm Partners: The Future of Big Law Reception

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• Tags: Biglaw, Bradley Borden, Bradley T. Borden, Brooklyn Law School, Bruce MacEwen, Law Schools, Litigation, Litigation Finance, Litigators, Steven Harper, Technology, Third party litigation financing, TPLF