Jason Steed’s short-story, “Committers of Nothing,” is the winner of the second annual Lawyerist Short-Fiction Contest.
On our first day in Hinkley my wife, Cory, accused me of sleeping with a woman she’d seen at The Market Place. I was unpacking a box of kitchen appliances. I stood there for a moment, in mute bewilderment. Then I turned and walked out the front door.
I realize, of course, that this was not much of a reaction. I’m a lawyer, after all. Where was my righteous indignation? My scoffing incredulity? She had no evidence to support her baseless allegations!
But I’m a tax lawyer. I never say stuff like that. Instead, I said nothing. I walked out the door and up the road — past the two churches, past the welcome sign, and out of town. I walked for an hour. Then I turned around and walked back.
I knew immediately — before leaving the kitchen, and long before finding myself in the middle of Oregon farmland — that the accusation was a result of our last night with Karl. But what do you say when your wife accuses you of adultery? Seriously. What do you say?
I came home and Cory had gone to bed, and the next day it was like nothing had happened. Then, a week later, it happened again, this time about a woman she’d seen at the park. She made the accusation as she pressed down on one of those apple slicing tools—the kind with the wagon-wheel blade that you line up over the core. She pressed down and the red apple burst into six perfect slices, the core standing naked in the middle, as she said, “It’d be easier on both of us if you’d just admit it.”
But again I said nothing and walked out the door.
Now my walks are a weekly ritual. Cory’s accusations occur like small talk, and I spend my walks thinking mostly about Karl and Liz, and about my wife. About the four of us. About what must’ve gone wrong.
It’s been three months since we moved to Oregon. Three months of almost-weekly accusations. Today it’s Wednesday, a sunny September, and again I’m walking past the two churches, past the welcome sign — a giant slice of tree trunk sitting under a crabapple tree where the corner of a farmer’s field butts up against the Baptists’ lawn. The sign says “Welcome to Hinkley,” the letters burned deep into the weather-beaten wood. The sky is colorless. The faint smell of cut hay.
Today it was about a jogger, her leggings “pink as lemonade.”
The first time we had Karl and Liz over it was spring in Idaho—my first year of law school. This is what I think about while walking in Oregon.
Liz and Cory sat on one sofa, Karl and I on the other, while Karl told stories about the boys he coached on the little league baseball team. Karl was shorter than Liz, with huge forearms and a sandy brown handlebar mustache. When he smiled his cheekbones grew red and pointed, and the tips of his mustache curled in toward his nose.
Liz was plain and younger than Karl. She stood nearly six feet tall and had lusterless, straight brown hair and meaty red hands. When she spoke she put her chin down and looked at you from under her eyebrows, as though you were meant to understand something behind what she was saying.
Sitting next to Liz, Cory was dainty. Her black bob and bird-like shoulders. I can picture her next to Liz, the way she speaks with her palms down, fingers hyper-extended, as though bracing herself against surprises.
That first evening began simply — a few anecdotes, some laughter. Then Cory asked how the Shepards had met, and Liz lowered her chin and looked over to Karl. And it wasn’t until the last possible second that Karl said, “We met at a bar.”
Had Cory left it at that — well, who knows? But she pressed for details, hoping for something quirky or romantic.
“We met at a bar,” Karl repeated. He spoke with his head back, as though he’d told the story too many times. “This little bar in Spokane,” he said. “We went home together, we dated for about six months or so.” Then he leaned forward, putting his elbows on his knees, and said, “I went and got a divorce and then we got married.”
This sunk in. Then Cory stood up, sat down again, and fidgeted with her shirt hem until Karl started laughing. Cory grew up Mormon in Pocatello. She quit going to church after high school but some of her convictions had intensified instead of fading, as though to compensate for her lack of attendance. She would drink beer but she wouldn’t touch anything with caffeine in it. And curse words were okay, but she wouldn’t take the Lord’s name in vain — nor could anyone else in her house, which was hard for Karl to remember.
In Idaho, most of this wasn’t too big a deal. But lately, since moving to Oregon, Cory’s quit drinking and reactivated herself. (The Mormon church is next to the Baptists — the two churches I pass every week on my walk.) Last month Cory spent a Saturday cleaning the garage to make room for food storage. She goes to church for three hours on Sundays and buys wheat in five-gallon buckets.
That first night after Karl’s revelation, Karl’s laughter faded before it could become cruel, and we all sat in silence till Liz looked up through her eyebrows at Cory and said, with a slight quiver, “We’ve been married about a year.”
Then Cory shot me a look that said, clearly, How dare you. Karl was my friend, after all. We’d met at 1L orientation. It had been my idea to invite them over, and now Cory’s face said, clearly, How dare you bring these adulterers into my home.
I’ve wondered for weeks now about how I should’ve handled that situation. About what I might’ve said, with the Shepards sitting there — or after they left — to demonstrate that I was not complicit in Karl’s flippancy toward fidelity. But of course, I said nothing. I sat in silence, as Cory shot me that look. And I think Karl and Liz saw the look too, because they didn’t stay long.
A month later, Liz called Cory to invite us over, to “redeem” herself, she said. She apologized, Cory forgave her, and during that second meal the two of them were inseparable — a sinner and her saint. The Shepards rented a small yellow house with a large porch, and after dinner Karl took me outside. It was May, and the sun had set. I remember facing Karl as he spoke, and with the light of the kitchen behind him his face was a shadow.
We chatted about gunners in law school. About taking Professor Hu’s tax class together in the fall. Then Karl said, “You know, Jake, I hope you guys don’t look down on us because of all this.”
Karl was the only person who ever called me Jake, and every time he did I felt disoriented.
“I mean,” he said, “I hope you don’t have a negative impression because of — well, whatever.”
It was the first time I’d seen him straight-faced, and it made the tips of his mustache point out sideways.
“See, the thing is,” he said, as he settled his massive forearms on the porch railing, “I don’t really—I mean—I guess you probably believe in adultery, and the thing is, I don’t.”
He looked at me. Then he continued.
“I just don’t want you to think bad of Liz because of it, you know? I just don’t believe in adultery,” he said. “It’s not my thing.”
He smiled. Then, as though struck with the thought that I might not know what he was talking about, he said, “Because of Cory’s reaction that night and everything, I mean.”
I knew what he was referring to, of course, but I asked what he meant about not believing in adultery. I didn’t get it. And he seemed pleased at the opportunity to explain.
“I mean,” he said, “I don’t think there’s any such thing. The whole construct. I don’t believe in adultery like I don’t believe in ghosts.”
Karl explained that adultery was a lot of cultural mumbo-jumbo — that biologically a man wasn’t meant to mate with one woman for the rest of his life. He said he was twenty-eight and Liz was his third wife — and his other two marriages had ended because of affairs. He declared this as though it were a matter of accomplishment. As though he was single-handedly subverting a social paradigm. And I began to think that maybe he wasn’t just rationalizing his behavior.
He asked how long Cory and I had been married and I said, “Two years.”
“Have you ever cheated?”
“No,” I said. And I admitted I’d never even thought about it.
“C’mon,” said Karl. “Everybody thinks about it.”
But I really hadn’t. I told him so, and Karl said, “Jeezom. How can you do that?”
“I don’t know,” I said. “You just do it, I guess. It’s not that big a deal.”
“Jeezom,” Karl said.
“What about you?” I said. “If you believe so much in mating with all these women, then why do you keep getting married?”
Karl smiled as though he’d been hoping for the question all night. His cheekbones grew red and pointed, the tips of his mustache nearly touching his nose. “Taxes,” he said. “It’s better for taxes.”
He burst out laughing and I joined him. Then his smile relaxed and he shook his head. “I don’t know,” he said. “I guess it just seems like the thing to do.”
Then he turned and went inside to get us more drinks.
That was the night Karl discovered my wedding ring. He noticed it just after we talked about adultery. He came back with the drinks and we talked on the porch, in the early dark, and when I set my glass down on the railing Karl cried “Jeezom Crow!” — so loud that a dog started barking.
Karl said it that night and it’s true: my ring’s a monstrosity. Cory’s uncle in Boise is a jeweler — our rings were our wedding gifts. Cory had chosen hers when she was sixteen and it’s a classy little thing. But she was marrying a non-Mormon, so her uncle didn’t travel for the wedding, and I wasn’t given the privilege of input or selection. The rings came special delivery, and mine turned out to be a giant platinum band, three-eighths of an inch wide and covered with tiny baguettes. Clearly Cory’s uncle was purging inventory. The ring is two sizes too big, and we couldn’t get it fitted without doing all sorts of damage. So, for the sake of Holy Matrimony, I quickly formed the habit of keeping a fist or holding the ring on with my thumb.
I told Karl all this as we stood on his porch, and he kept saying, “Jeezom, look at that thing!” Then he said, “Wait—now I get it. That’s why you never think about cheating.”
We laughed and made dumb jokes about balls and chains until we fell into a jovial silence, staring up at the stars. After that night, things were okay between us. Cory and Liz had stayed inside, huddling in whispers. And for the next two years of law school, as though to prove the depth of our friendship, Karl spent every moment coming up with clever ways to thieve my ring from my finger. He waited for me to doze in class. He got me drunk. He came up with crazy handshakes or fine-tuned distractions. Then he would return the ring later, gloating in victory.
In fact, the last night we saw Karl, he was returning my wedding ring.
Out among the Oregon pastures, you can hear a car coming for miles. Huge wheels of hay are spread across the field to my left, and their smell is like an end and a beginning all rolled into one.
I find myself thinking about what these women might look like — the ones I’m supposed to be cheating with. I picture the woman in the park with her smooth brown hair in a ponytail. The woman in pink leggings has short blonde hair, the curls tight against her head as she runs. But imagining these details makes me feel disloyal. So I distract myself with landmarks.
The Chief’s mailbox comes into view as I round the second S-curve. As usual, there’s no sign of the Chief. His mailbox is painted red and stands across the road from a little blue house that is losing its paint. The Chief, so I have heard, is maybe seventy or so. He lectures on Native American history at Hinkley University. He’s not Native American himself, and he isn’t called “the Chief” because of what he teaches. He’s called that because he was the head of the history department — the department “chief” — for 22 years. I’ve never seen him, but his mailbox sits at the top of a hill that leads down into a valley of ongoing pastures, and it is here where I sometimes turn around to go home. On the mailbox, KEN JACKSON is painted in sloppy black lettering.
I step into the ditch by the mailbox where the blackberries are overripe. They fall apart on my tongue. Thorns snag at my pant legs. I hear a car coming and I pretend to look for more berries.
A Mustang — late-sixties, faded-gold — rounds the S-curve. I start to wave, but the Mustang slows as if to stop, so I try to shoo it along with a silent “Thanks anyway.” I don’t need a ride.
The Mustang pulls over just ahead, at the crest of the hill. Reverse lights come on, and the car weaves backward. The car stops and a young woman — brittle brown hair, bronze-skinned — sticks an elbow out the window and looks up at me through big white sunglasses.
“Hey,” she says. “Can you help me?”
I’m not sure what to say. I feel the sun on the top of my head.
“Can you tell me where Mistletoe Road is?” she says, the word mistletoe eliciting a slight whistle from her teeth.
“You’re on it,” I say.
She crinkles her nose and looks in both directions. “I thought it was supposed to be dirt,” she says.
She has duffel bags in the backseat. A folded map and empty Pepsi cans in the front. Her tank-top is tight.
“Oh,” I say, “it does. I mean it is. I mean —” and I shake my head. “What I mean is, the road does turn to gravel, up ahead.”
She considers this, thanks me, guns the engine, and is gone — down the hill and into the valley. And I realize my stomach is jumpy. Is it guilt? I hardly said two words to her. Maybe it’s anxiety. I’m worried about what Cory might say if she’d seen us talking. And I realize I forgot to tell the girl in the Mustang that the road up ahead splits in two.
I step out of the ditch and walk to where the road begins its descent. The Mustang is out of sight. I look at the Chief’s mailbox. Then I hear the faint hiss of tires on the asphalt, growing louder. A mass of birds scatters from a telephone wire like a handful of thrown rocks.
From my perch at the top of the hill I see the Mustang returning. I feel a slight panic. I turn and run back toward town — to make it look like I was walking in that direction. Why am I embarrassed? I slow to a race-walker’s pace, spinning my ring on my finger.
She’s going so fast she can’t stop until she’s well past me, her break lights dusty and weak. I approach the passenger window.
“You’re going to think I’m stupid,” she tells me, “but I can’t figure this out.”
There’s a bluntness in her demeanor. She’s almost certainly a college student, but she has the leathery look of a middle-aged factory worker.
“Hang on a sec,” she says. She shifts into gear and the tires spit rocks from the shoulder as she whips the Mustang around to face her original direction. I haven’t moved, but she’s deftly repositioned me at her window.
She looks up at me. “My sister gave me directions for Mistletoe Road but I can’t find a thing.”
“Yeah,” I say, “I forgot to tell you there’re two roads up ahead.”
“Would you mind,” she says — not really listening — “would you mind maybe showing me where I’m going?”
She moves her shoulders as she speaks, in little shrugs.
I raise one arm to point, saying, “I think Mistletoe’s the one—”
“No,” she says, pulling her shoulders up and smiling. “Actually, I was hoping you could show me?”
What’s happening? It’s like one of those fictional encounters — some other man’s fantasy. I raise my left hand to my chin, hoping she sees my ring. I turn to look at the Chief’s mailbox again. There’s that feeling in my stomach, like when you know you shouldn’t do something.
“Take your time,” she says flatly. And I realize she was only trying to get me to help her. I’m a fool to think it was more.
I agree to help. I walk around the front of the car. The vinyl seat is warm. I pick out space on the floor for my feet, between Pepsi cans. When I look up she’s smiling. She has taken off her sunglasses. And before I can stop myself I say, “I really shouldn’t be doing this. My wife would go crazy.”
She raises her eyebrows. She cocks her head and says, “You’re only giving me directions.” I can’t tell if she’s being playful or mocking me.
She puts the Mustang in gear and spins the tires. Her legs are short. She wears cutoffs and boat shoes. Careless white shoestrings dangling around her bronze ankles.
The wind rushes through the open windows and she drives with one wrist hanging over the steering wheel. She raises her voice over the noise of the wind and the engine. “My name’s Larron,” she says.
“Yeah,” she says, crinkling her nose. “Guys usually call me Larry.”
She smiles, her hair whipping around her face. I ride awkwardly, my palms on my thighs.
“What’s your name?” Larron says.
“Oh, Jacob. Sorry,” I say. We course down the hill and through the valley, approaching the end of the pavement — the fork in the road. Larron goes left without asking me, and when the tires hit the gravel the noise erupts in a roar.
“MY SISTER SAYS WE’RE LOOKING FOR A FIELD OF BUFFALO,” says Larron. She is practically screaming.
“BUFFALO?” I yell at her.
She’s nodding. I think she’s laughing. “BUFFALO! YOU DON’T KNOW WHERE THEY ARE?”
Gray dust swirls from under the Mustang. I shake my head and yell, “NO, I LIVE IN TOWN.” But I’m not sure she hears me.
The gravel road runs up, out of the valley, past a herd of cows, past a farmhouse with a trailer in the front yard. Larron presses the Mustang through the corners, forcing fishtails and kicking up waves of gray dust. Then she pulls the emergency break and we slide sideways, coming to a full stop.
The clouds we’ve created overtake us. The sudden silence presses a cottony hum into my ears. Larron looks at me triumphantly. Then a tension seems to go out of her shoulders. She peers through the dust ahead of us, and with a little shrug she says, “So? What should we do?”
On her side of the road there are two sprawling oak trees by the barbed-wire fence. There are no buffalo. I glance at Larron and she’s looking at my legs, at my hands. She’s looking at my ring.
I feel the sweat of my palms on my thighs. I tell her I haven’t seen any buffalo. We sit in silence. I try to imagine what other men might do in this situation. What would Karl do? What am I doing in a Mustang, with a girl in a tank-top?
The Mustang drops into gear and Larron whips a U-turn over the gravel, and the roaring returns. I sneak a look at her, and she’s shaking her head. Is she disappointed? Irritated? I don’t know what’s happening.
We get back to the pavement and the Mustang comes to a stop again — gently this time. We sit in silence again. Then Larron starts tugging at her tank-top, pulling it away from her skin in clutches.
“Gawd!” she says. “I’m all a mucksweat!”
I have no idea what to say. I don’t want to get out of the car, because I’m three or four miles farther from home than where we started. But I really want to get out of the car.
Larron looks at me, and she waits for me to look at her. When I do, she purses her lips. “I’m really sorry,” she says. “This is probably the last thing you wanna do, going around with some dumb girl looking for buffalo.”
She looks out the windshield. And suddenly I feel sorry for her. She’s so haggard and sunbeaten.
“Did you want to try the other road?” I say.
She looks at me and cocks her head. Then she straightens up. “Naw,” she says, wiping hair from her face. “I’ll take you back to town.”
We hum over the asphalt going seventy, eighty. I move my feet among the Pepsi cans. I rub my palms over my thighs. I’m feeling more confident now, more collected. In the plastic tray by the gearshift there’s a pile of trinkets — bracelets, paperclips, coins. A silver ring shaped like a coiled snake, with fake emerald eyes. The snake is way too large for Larron’s fingers.
I spin my own ring with my thumb and I think about Karl.
The last night we saw Karl it was snowing like crazy. It was Idaho, a week or so before Christmas. Outside, the cars were shelling over in ice. Inside, the kitchen light was yellow, making mirrors of the windows. Final exams were over and Karl and Liz were coming for dinner. Cory was bustling near the oven while I tore up some lettuce.
We weren’t expecting the Shepards till six, but Liz came in with a burst of cold air and Cory quickly gathered her into her arms and said, “Hey hey hey — whoa — what is it?”
At first Liz hunched into Cory’s embrace as though it was exactly what she’d come for, with Cory stretching her chin up to accommodate Liz’s height. But then Liz let out a wail and pulled away.
“It’s Karl, it’s Karl,” she lamented, throwing her head back. She went to the counter and pressed against it, doing a small standing pushup. Then she turned around and said, as though she might collapse with shame, “I think he’s having an affair.”
I put my lettuce down and Cory asked if Liz had seen something.
“No — that’s just it! I have no idea,” she said, flinging her red hands in all directions. She stopped and looked at the linoleum. “I just know he is,” she said. “He has to be.”
Then Karl came in with another burst of cold air. He was yelling before the door closed. “Liz, Jeezom Crow! I said I didn’t do anything!”
Liz shuddered. They stood there for a moment, tensed — as though they might rush at each other with claws or kisses — until finally Karl turned away and looked at Cory, then at me.
“Sorry, guys,” he said. He shook his hands at his sides, as though to uncoil his forearms. He looked at the ceiling. “She thinks I’m cheating on her.”
I started to say something, but Liz took a step toward Karl’s back and screamed, “You BASTARD! How the hell am I supposed to know? You’re a cheater! You do it all the time! You’re a regular committer of adultery!”
But Karl was waving her off, his mustache pulled thin with denial. “Liz, Elizabeth,” he was saying, moving toward the door. “You know damn well—”
“How many times, Karl? How many times have you committed—”
“I’M A COMMITTER OF NOTHING!” Karl bellowed. “There’s no such thing,” he said. He held the door open and cold air flooded in, permeating the room with its metallic smell.
“ADULTERY, KARL!” Liz was screaming. “YOU’RE A COMMITTER OF ADULTERY!”
But Karl was outside, the door sucking shut behind him. Then, after Liz went silent, he poked his head back inside and said, “I’m a committer of nothing, Liz. And anyway, hon, so are you.”
And he was gone.
Maybe two hours later, after Liz had left, Cory found my ring on the counter near the door, where Karl must’ve left it. I had noticed earlier that it was missing, but I was so used to Karl stealing it that I hadn’t thought much about it. He must’ve been planning to celebrate another victory over dinner.
Cory handed me the ring without saying anything. And that night in bed she suggested we should leave Idaho. She cried and knelt by the bed and said prayers about it. She wished our lives could be the same as they were before we met the Shepards. She said Idaho had nothing to offer us, and she complained about the cold.
The Mustang takes the hill up to the Chief’s place without hesitation. And as we pass the Chief’s mailbox I catch a glimpse of something moving in the driveway. I spin to see, out the back window, a little gray man, shirtless and square-chested, crossing the road to check his mail. But as the Mustang enters the first S-curve he is lost behind the landscape.
I face forward again and Larron looks at me with raised eyebrows. She’s been silent since the fork in the road, driving with her hands at ten and two.
We come around the second S-curve, nearing the welcome sign, and I point at it, raising my other hand for the door handle. “You can just drop me here,” I say. I try to act casual but I’m starting to feel panicky and disjointed again.
“Are you sure?” she says.
“Yeah, this is fine. Here by the sign,” I say.
Maybe it’s the car ride after so many weeks of walking. I feel unsettled. Like the world has moved underneath me. I see these people in my life. This sweaty bronze woman sitting next to me. Karl Shepard. The Chief. Liz and my wife, Cory. I know something is wrong with my marriage. And I’m filled with a fulsome sense of urgency. To get home — to gather Cory into my arms. To heal whatever it is that wounds us.
Larron coasts to a stop by the welcome sign. I start to open the door but she says, “Hey, listen.”
I turn and she has shifted. She’s pulled one leg up onto the seat, so she can face me squarely.
“Listen,” she says again. “You’re sweet. Thanks for your help.”
There’s no flirtation, but no bluntness either. It’s like we’re sharing a moment of unaffected reality. And I think maybe she’s apologizing, so I lean forward and say, “It’s okay, don’t worry about it.”
I’m feeling good about myself. I do not believe in adultery. I see how easy it can be — how we’re all just making choices, and how easily choices can be made. And I feel like I’m making the right choice.
Larron takes my hand in both of hers and rests it on her thigh. She says, “You’re really sweet — you tell your wife that.”
She’s smiling. Her hands are smooth around mine, like a pillowcase. I take a moment to feel her touch. Then I slide my hand out from between hers and say, “Thanks.”
The coolness of this new world seeps through me. There was something in her touch — something liquid, like an end and a beginning — and I let it wash over me. I stand up, out of the Mustang. I shut the door. She makes another U-turn and she’s gone.
I feel like I’ve passed a test. I breathe deeply. The welcome sign squats like an altar beneath the crabapple tree. I walk past the two churches, down our street, and through our front door.
There is something new and strange inside of me. Cory meets me in the living room. Her little bird shoulders. She’s been crying. She tells me she doesn’t know what she was thinking. She speaks with her palms down, fingers hyper-extended. “Let’s start over,” she says.
But I know what’s happened, and now it overtakes me like a gray cloud. I want to gather Cory into my arms, but I know that I won’t.
She tells me I won’t ever have to go walking again.
“What?” I say.
There’s a cottony hum in my ears.
She takes me by the hand and leads me to the kitchen. “Jac—” she starts to say. But she stops. All I can do is shake my head. I know what has happened. I made a choice. I knew what I was doing. I try to look at my wife but she’s not looking at me. She’s pulling at my hand, has bent herself over, is saying something from far away.
On the counter I see an apple split into slices, the core exposed.
From far away my wife says — what is she saying?
“Your ring, Jacob. Jacob! Where is your ring?”
But I cannot answer her. I do not believe I will ever know what to say. All of us make choices. And I know now that our lives can never be the same.
Featured image: “a dirt road with mailbox” from Shutterstock.
Committers of Nothing (2015 Short-Fiction Contest Winner) was originally published on Lawyerist.
Greg Walklin’s short-story, “Stare Decisis” is the runner-up in the second annual Lawyerist Short-Fiction Contest.
The judge had already decided on leniency. The defendant’s attorney, perhaps auditioning for the bench herself, sought the briefest possible sentence, concluding with a history of her client, a stick-thin defendant of fourteen, Miguel Ochoa. Lyman Walters, District Court Judge for Lancaster County, had already read the file, so most of the attorney’s speech was redundant.
At trial, Ochoa had fought, and lost, criminal arson and vandalism charges. He had broken storefront windows and damaged cars and scorched an East Lincoln coffee kiosk. His attorney argued that it was retribution for his difficult up- bringing, his shuttling from family member to family member, and his absent father, and thus his sentence should contain a measure of understanding.
Judge Walters used to love these hearings, especially whenever the better criminal defense attorneys—like this one—argued, though now he found them banal, as he generally entered with a fixed idea of the sentence.
“Is there anything else you would like to say for yourself, Mr. Ochoa?”
His attorney gave the boy a gentle pinch on the elbow.
“No sir,” the boy finally said.
This, judging by the attorney’s face, was not according to script. She motioned for him to stand up, but he either didn’t care or didn’t pay attention.
“Do you understand the sentence I am about to give you?” Walters asked, plodding through any confusion. The boy nodded.
“You have to answer verbally for the court reporter,” Walters said, even be- fore Suzy, his dutiful scribe, could speak up.
“‘Yes,’ you understand?”
“Yes, I understand.”
By now Walters had the standard recitations memorized, and all that needed to be appended was a discussion of the factors he considered in determining this sentence. He ordered Ochoa to complete a few hours of community service and pay a portion of restitution. The deputy county attorney stood in a shocked hush; having stuttered through his arguments in his creased suit, he must have been feeling that he had mucked something up—that perhaps it was indeed audacious to charge this kid as an adult.
Later that afternoon, on his way out, Judge Walters found the boy and a young woman standing outside the courthouse, off the front steps, waiting for him.
“Your honor,” the woman said. “We just wanted to say thank you.” It quickly became obvious that this woman, who was compact and authoritative, and likely too young to be Ochoa’s mother, had engineered this encounter—the boy was two steps behind her and still sheepish, head still hanging low. “Miguel,” she said. “I don’t have much more time. I need to start packing.”
Their handshake was clammy. Walters was accustomed to cloying encounters — a brown-nosing attorney, a relieved former victim, irrepressible trial witness, juror, or, as here, a grateful defendant who had been given what amounted to a second chance, so perhaps it should have ratified something in him that he had made the right decision, that this boy was now venturing on a different path. But instead, as he walked to the parking lot, Judge Walters feared his guts had led him astray.
Over the last few years, sentencing had begun to make him uncomfortable — uneasiness crept up over taking a man’s (it was usually a man’s) freedom away, dismissing all of his pleas of mercy, distinguishing whether his excuses were simple manipulations. Interpreting laws and statutes and rules of evidence were the enjoyable parts of his job. There were usually clear answers, or at least intellectual opportunities to find an answer. During sentencing, he needed to think of himself in the same way, as a cog, as a hand doing the work of a machine that was so large you couldn’t see it — that he had to keep fidelity to principles that went beyond the circumstances of an individual case. “The law is not there for any individual person,” the retiring judge whose place he had taken told him. “It’s for everybody.” He tried to tell himself he was just a lever, a pulley, a wedge, the end of a complicated series of functions. But did anyone just want to be a machine?
The governor had appointed him twenty years ago. He had been one of three candidates who passed the judicial nominating commission, composed of a coterie of his peers, who were supposed to select based on merit and qualifications, but ultimately made fairly base political decisions. Lyman Walters, Esq. appealed to conservative sentiments with frightening ease. His interview with the governor had been short and pointless. Near one of the mansion’s four fireplaces, the cross-eyed governor had served decaffeinated coffee in beautiful old buffalo-themed china and asked Walters his thoughts on abortion, the death penalty, and whether he believed adhering to the actual language of the law and the original meaning of the Constitution. Besides guessing that perhaps caffeine made the crossed-eyes worse, Walters surmised in that moment there was nowhere less the governor wanted to be. Walters apparently gave him all the right answers.
A few years after he took the bench, he had attended a bar association event on juvenile justice to obtain the required continuing education credits, but mistook the starting time and arrived too early, just when the cocktails were being served. There he found a few old friends, counsel he used to litigate against, who were evidently already into a second round of cocktails. “Watch out everyone,” Bert Landon had said, the laughter coming before the punch line.“The judge here will give you the chair if you say the wrong thing.” Without intending, Walters had grown a reputation among the bar as a martinet. Soon after, the newspaper published an article about his hardline approach signaling a shift in a second “tough on crime” wave, and the governor called him to compliment his service and indicate that he was the model for future bench appointments.
Nobody told Walters, upon putting on the judicial robes, how all of his friends would change their conversations around him, how they would treat him differently. Even the longtime confidants — the ones he’d had since college, who remembered him passing out at a party, or caught him falling flat on his face going after a girl, or gave him advice when he was dissolutely smoking cigarettes all day and planning his motorcycle trip across the Badlands — all distanced themselves once they knew he had sentenced someone to death. The couples that he and his wife had socialized with would not get drunk around him. The secret meaning to “sober as a judge” was that you were a buzzkill at all parties.
Only his nephew Curtis, who had his own issues, had always consistently been the same, and only Curtis found other things — politics, movies, overdue library books — to talk about over backyard beers. When Curtis got the urge to get in shape and attempt, he said, “to turn his ship around,” he would run the four miles to Walters’ house, stop and say hello, with the intent to run back. But usually Curtis would hanker after a beer or two, and Walters would give in and drive him home. After Walters’ wife died, Curtis stopped by more often; they both knew she had never liked his visits.
Curtis often wanted money, too, though never much, because it hurt his pride to ask for large amounts. Even with the judicial pay cut, Walters still lived comfortably, so he could always give Curtis some consideration. His salary was half of what he had been making as a partner at Bellton Jones, but he no longer had to kowtow to any corporate whims. And anyway, with his current circumstances, he no longer needed much.
When he wasn’t working, he had his gardening. The butterfly garden was coming along; a few had already appeared, about on schedule, a monarch, two queens, and even a mourning cloak. His wife, Willow, had originally built the garden, but after her death he could not shake the responsibility. Anyway, planting and fertilizing and weeding and watering and spreading mulch with his boots were when most of his opinions were actually written.
That’s where he was, in the butterfly garden, watering and ruminating on a plaintiff’s novel interpretation of the Administrative Procedures Act, when he noticed a small figure. At first, hearing the noise and sensing a person, he assumed it was probably Curtis, sweating and ready for a Miller Lite. But, looking up, there could be no mistaking Miguel Ochoa.
Ochoa didn’t see Walters striding toward him until it was too late — until he had thrown the rock, with an apparent message attached, through the side living room window. It seemed ridiculous to give chase, but after the judge yelled at Ochoa to stop, and he didn’t, Walters instinctively started running. When he nearly had the boy at arms length, sprinting up the sidewalk past his neighbors (Who would be home? Who would see him?), it occurred to the judge that he very well couldn’t tackle the boy; he couldn’t trip him; he couldn’t attack him. How would he explain it if he had to be in court?
It was so absurd he suddenly stopped. For a few seconds the boy kept up at full speed, and then, just as suddenly, halted himself. They exchanged a moment of silence before he took off again.
Back at his house, Walters took time washing his hands. The rock and the broken glass were in the trash and the folded-up paper on his kitchen table. It was a habit of his during judicial decision-making: hold off for as long as it takes to clear your mind, and once your mind is clear, you can start.
Go back and change my sentence and make me go to prison because if you don’t do it there will be something worse than this rock, and yes that is a threat so write me up.
Walters considered reporting the vandalism to the police. But he knew well the Gordian Knot of papers, phone calls, meetings, and actions this would initiate, the long road of process and protection, of which he was one feature. Because of who he was, the police would investigate, and the county attorney would surely prosecute.
What kind of judge had he become that he knew he wouldn’t report it? He was now too wrapped up in the consequences, too wrapped up in the practicalities, to do anything other than explore the matter — to cut the knot — himself.
Academics and journalists always got mostly everything wrong about judging.
There were clear and wrong answers to the overwhelming majority of decisions he made. Lucid procedural rules, baseless arguments made by inmates, uncontested divorces. The academics and the journalists cared about the sliver that involved something else—and of that, the small portions that led to published appellate opinions. The law, like literature, was Hemingway’s iceberg: the smallest rule was just the hint of a giant machination, a Rube Goldberg machine that spat out rights and evidentiary rules and administrative regulations. Depending on whom you spoke with, the answers to how judges decided things were through genetics, politics, egos, philosophical stances. Oliver Wendall Holmes, that great Solomon from more than a hundred years ago, had decided it was the person’s guts that decided. Dworkin, by and large, agreed with him, at least as far as the Constitutional decisions went, and Posner was the guts theory’s latest lion. Everything followed from the guts: the theories, the justifications, the factual spins, the principles.
And, after reading the note, Judge Walters’ guts told him to look up Miguel Ochoa’s address.
Although it wasn’t far, the neighborhood was entirely different; the houses, more compressed together, lost bedrooms and garages and hedges and yard space. The right address was a house even more dilapidated than its neighbors.
Peering in from the concrete porch, he could see a woman apparently asleep on the couch inside. Even during several rings of the doorbell and a loud knock, she didn’t stir. Walters was heading back down the weedy walk to his car when, from across the street, he saw Ochoa standing on the corner. They stared at each other for a few moments.
“So if prison was what you wanted, why did you fight the charge so hard?” Walter finally asked.
“That was my sister’s idea,” Ochoa replied. “Half-sister, really. She found the lawyer, too, got her to take the case for free. Guess it worked.”
They stood in silence as a minivan passed, on the street, between them. His sister must have been the woman with him outside of court.
“I came to find out if you wanted to see what it was like,” Walters said.
“For what?” asked Ochoa.
“To go to prison.”
The judge nodded. “A sort of tour to see if you really want to spend any time there.”
Ochoa obviously became less impressed the more he thought about it. “I get it,” he said. “You’re lucky I’m bored as shit right now. Otherwise I’d do just about anything else.”
Life is a text, a book to be read after you die, which is how Judge Walters always thought of it and there must be a point, he figured, you can no longer redeem yourself and become a saint. Though he had sentenced, over the course of his career, two men to death — only one had yet been executed — it wasn’t them he thought of often. He thought of the more minor offenders, agonizing over the young ones especially, whose lives were spiraling, the ones who perhaps had things left in them to do, the ones who wouldn’t likely ever murder, but had been unable to extricate themselves from these spirals, from their deranged fathers or their addled mothers, from the lack of any parents, from sexual abuse, from the vagaries of the foster care system, from the sorts of daily hurdles that Walters would never have dreamed about — the boys (and occasional girls) who were at that corner, who could turn, the ones whose direction wasn’t already set. There he wrestled with lenience. Like the boozy attorneys in town knew, he was a stubborn old martinet. If he were interviewed for the judicial appointment now, Walters was convinced, he would answer those questions differently — and he would never get the position.
What would Willow have thought about him, sitting with this juvenile offender in his car?
On the way, Ochoa was fidgeting. “I know where the state pen is,” he said.
“We’re not going to prison,” the judge replied. “At least not at first, and at least not the one you’re familiar with. We’re going to a house.”
“You gonna rape me now or something?”
Walters just shook his head, and held up two fingers. “Scout’s honor.”
The judge pulled up in front of a blue Cape Cod in an old neighborhood lined with mature pin oaks.
“It’s a shitty house,” the boy said.
“It was always a shitty house,” Walters said. “There was a boy who grew up in this house. He got into trouble often. By ‘trouble,’ I mean: fist fighting his teachers, vandalism, drugs and alcohol, getting an ex-girlfriend pregnant. He was suspended from school. He was eventually expelled, in fact. One night, he cut his own sister’s hair in her sleep, snipping her scalp and waking her up. His parents tried everything to discipline him. They tried specialized counseling, medications, anything they could think of.”
“Hold on,” Ochoa said. “I get it. Let me guess, that was you and this was your home when you were a kid. Now you’re a judge and wow, look at you…”
Walters smiled. “Try again.”
Ochoa rubbed his hand over his face. “This must’ve been your dad? Brother?”
“No and no.”
Ochoa just looked out the window.
“In response to the punishment from his sister’s haircut,” Walters continued, “the boy killed the family dog, a beautiful old German Shepard, and left it splayed in the front yard. The parents called the police, and they pressed charges against him. At court he attempted numerous times to represent himself, but eventually he acceded to a public defender. He was convicted, of course, animal cruelty.”
“I’m nice to dogs,” Ochoa said.
“No, no. This is something else—”
“I finally get it,” Ochoa interrupted. “This was your son. This used to be your house.”
Walters shook his head, smiling even more broadly. “Try again.”
“Nah, you’re just making this shit up.”
“The boy spent several years in a juvenile detention facility. Perhaps he had some valid complaints about his mother and father. His dad was a high school teacher, at his son’s own high school — or at least the one he went to for a spell — and coached every manner of sport. He was never home, but he was always at his son’s school. His mother had a significant temper ever since she was a girl, and she was always unhappy. His sister was the only one who always forgave him.”
With that last detail especially, Walters knew he had Ochoa interested. In his litigating days, his jury work, he was able to understand the precise grip he had on an audience, when he was losing them, gaining them, entrancing them. Ochoa was peeved, but he wouldn’t have gotten into the car — or would have already left — if he was totally bored (a luxury most jurors did not possess).
They arrived next at a vine-ridden redbrick building, originally a soldier’s home, which had first been repurposed into a juvenile detention center and then into a substance abuse treatment facility. The old building was the core of the new facility, and was redone years ago in a way that preserved the motifs of the original Georgian architecture. Instead, Walters thought, it looked like the original home had been morphed into something spread out hideous with new wings — a pretty caterpillar turned into an ugly butterfly.
“He’s still here,” Walters said as they pulled into the parking lot. “This is no longer a juvenile center. He was here, he grew up, started drinking vodka and Sunkist every morning, he had to come back here.”
“I bet he was a hard ass,” Ochoa said.
“I wouldn’t say that. He cried a lot. He could be released into family custody on the weekends, sometimes. He was a wreck. It wasn’t stable.”
“Just tell me who the fuck this guy is,” Ochoa said.
“Maybe you want to meet him?” Walters asked.
“Well, I don’t expect he would want to meet you, either.”
By coincidence, a family was exiting the facility, a strung-out-looking mother and her two small blond copies. She had tattoos over her arms; the children had fake ones on their cheeks.
“He is my nephew,” Walters finally said. “My sister had him when she was a very young woman. She married his father, eventually, a few years after Curtis was born. They’ve since divorced, did so not long after Curt was arrested. When he killed the dog, my sister didn’t want him charged but Brett — my brother-in-law — did it without asking her.”
“None of this shit is going to change my mind.”
“It’s only to tell you that you’re like Curt in a way,” Walters said. “He only had a mean soul for a time, but he’s spent the rest of his life paying for it.”
Ochoa didn’t respond.
“So your sister,” Walters said, thinking back on the day she and Ochoa approached him outside of court. “She was packing, I believe. She left town?”
Walters turned off the car stereo. The blond children had been loaded up into a van, driven by a woman whose grey hair was pulled up in a bun, and the mother was walking back into the facility with her arms crossed over her chest.
Before he had ventured to Ochoa’s house, Walters had read, again, the social workers’ case summaries and the doctors’ evaluations. None of them had said anything about Ochoa’s sister, but they had said plenty about his family. His parents were gone but not dead. Of the two, his mother had stuck around a bit longer, being with the boy until he was about 18 months old, before handing him off to her brother. That brother handed him off to another brother and then to his grandmother, who was often ill, and who eventually decided she couldn’t handle the boy and so desperately pawned him off to her missing son-in-law’s semi-functional sister. His aunt was likely addicted to some kind of prescription pills, which made her sleep on-and-off throughout most of the day; she was awake enough that Children and Family Services had never been able to pry custody away from her, despite their best efforts.
“So was this some sort of big show to get me to change my mind?” Ochoa asked.
The judge remembered the last time he visited Curtis here, the last spell Curtis had spent in the facility. It was the visit when he told Curtis that his aunt had died, and though Walters’ wife had never liked the boy and the boy never took to Willow, Curt spontaneously cried and cried about it.
“I forgot to finish telling you about Curt’s sister,” Walters replied. Maybe this was what he had wanted to seize upon. “She ended up moving away, having her own family. Four children. Works as an advertising executive, and lives in Scottsdale, Arizona. She couldn’t take custody of him. She was always going to have to live her own life.”
The blond children had been loaded up into a van, driven by a woman whose grey hair was pulled up in a bun, and the mother was walking back into the facility with her arms crossed over her chest.
In silence, they drove to the state penitentiary, and found a parking spot from which they could see the yard. Men in khaki suits were milling about in the afternoon sun, some sitting on benches. Two caught sight of Walters and Ochoa and stared at them for a while before walking off.
“What makes you think this guy was anything like me? What makes you really understand anything about me?” Ochoa asked.
They were great questions, Walters thought.
She went by Willow because she hated both of her names, bestowed to her in honor of her female ancestors, who were all, Willow had said, “Wet rags.” Women who stayed home and made pies every afternoon and were disinterested in voting, women who headed Edith Roosevelt’s advice that “a woman’s name should appear in print but twice—when she is married and when she is buried.” Pie-making, or staying home were not anathema to Willow, at least as long as the path was actually chosen. But she knew enough about her great-grandmother Vera (first name) and her grandmother Louise (middle name) that she couldn’t shake the conviction that neither had wanted to become masters of the kitchen. Vera was a painter; her great-grandfather converted their attic into her atelier, and in their house, and now in Walters’ chambers, were many of her paintings, almost always seascapes. The woman could capture the swell of an ocean, a lake on a windy day, with striking precision. But she lacked the time and drive, Willow had always thought, to be professional; she only completed two or three paintings a year. Louise was a writer, and even closer to Willow’s heart. Louise had typed novels in her dresser, in her nightstand, in her desk.
The novels were nice stories, and the paintings beautiful. Willow loved all of them. What Willow couldn’t forgive was the fact that neither Vera nor Louise had ever even tried to sell one. Maybe it was their fault or maybe it was the world. Either way, Willow was going to be different.
A voracious tree-climber as a girl, Vera Louise hardly ever came down. She went by “Bough” for a few months after her older brother found it amusing, but it was “Willow”—she was fond of a particular weeping willow tree, the only one she wouldn’t climb—that stuck. Her long story on their first date, the way she apologized for her own name but explained her reasons, was what made Walters fall in love with her.
When she eventually told him she didn’t want children, Walters readily agreed. A young associate at Bellton Jones at the time when they were engaged, he hadn’t anticipated his life opening enough for a wife, let alone a child. Married, he still made partner, mostly thanks to winning a giant employment case that took him up to the 8th Circuit and back. Her evenings alone, Willow had worked on her own pursuits—criticism and freelance journalism, profiles for some of the bigger general interest magazines and book reviews and essays on middle 20th century women writers, everyone whom Cather inspired.
Not long after her 50th birthday, doctors found a tumor swelling on her spine.
The tumor was impossible to remove; no surgeon would let them contemplate a miracle procedure, and anyway Willow would have died over and over rather than end up paralyzed. She was a climber, after all.
They spent many of the final evenings drinking bottles of good Shiraz, talking around the fire pit, paper lanterns swaying in the breeze, when it was warm enough to get by with a pullover or just a blanket. Enough Shiraz caused enough forgetfulness. But soon came her apologies, strange behavior for Willow. Some- times they were general apologies for not liking a book Walters enjoyed, a cute neighborhood dog or cat, or a place they had vacationed, but eventually Willow began apologizing for everything she thought she had ever done wrong. There was more wine, and more apologies each night, then apologies for bigger things, more serious faults, even if they were old and already apologized for: the boy she briefly saw while Walters and her were dating. And he was busy studying for the bar; the times she lied about a girls’ night out because she simply wanted nights alone, in a coffee shop or a bar; how she never particularly liked Walters’ father and thought he had an illicit interest in her. Eventually Marla, the home health care nurse, would sit on the porch with them too, helping Willow get out of the deep porch chairs when it was time to come inside. But one night, towards the very end, Willow asked Marla to go inside before them, “not for my sake but for Lyman’s.”
“There was one thing I only recently realized I need to apologize for,” she had begun. “Curtis.” Walters hadn’t understood. “I know what you really think. You don’t have to say it. I shouldn’t have let that dictate our choice not to have children.”
She hasn’t touched her wine, he remembered thinking.
Every time Willow was reconsidering having children, every time she was actively saying she wanted a child, Curtis would do something particularly egregious. Eventually came a lull and a quiet celebratory dinner with Walters’ sister and her husband when Curtis’ medications seemed to have him under control. During that dinner was the only other time in her life Willow refused a glass of Shiraz. But the celebration proved premature. Curtis’ medications weren’t as effective as they thought and his behavior suddenly escalated, culminating in killing the family dog, which a pregnant Willow found when she stopped over to drop off leftovers. The death of the dog, whom Willow had always been fond of, had imprinted itself inextricably on her. It wasn’t due to the dog, of course, at least not entirely, but she miscarried a few weeks later. The night they had returned from the hospital, as Willow and Walters lay in bed, mostly silent with the lights turned off, she said, “It was probably for the best, anyway.”
A few weeks after Walters showed Ochoa the substance abuse treatment facility, he received a late night phone call from the police. Curtis had fallen, or perhaps jumped, from a downtown overpass.
His fellow judges helped as they could, taking cases they could move through quickly. Curtis survived the fall although he suffered significant brain damage, the extent of which it wasn’t yet clear; the doctors had put him in a coma in the hopes of mitigating future harm. Walters volunteered for the job of cleaning out Curtis’ room at the center. He also attempted to get in touch with his niece in Arizona—she and her mother never spoke anymore—but she didn’t answer his calls or emails.
Until he came across a particularly dismaying case, his return was smooth. But when he was assigned one case in particular by lottery, he thought about recusing himself, and he continued to think about it until the prosecutor informed him that the defendant was planning to plead no contest to the charges. The county attorney had, based on the defendant’s record, refused a plea deal. Walters kept intending to recuse himself, and he should have, but something kept him from it. Sitting in his chambers the day before the sentencing, he thought of a study of butterflies, which he’d come across in a magazine a few days before, during an afternoon working in the garden: even after the chrysalis and even after having melted down into goo during their transformation from caterpillars, butterflies showed evidence of remembering their life on the ground. Despite all the transformation, a core memory—in some form—still remained. Would it be the same with Curt, if he ever came out of the coma?
Whatever it was inside him telling him how he should treat this new case, he was bound by it, by what had come before.
On the day of sentencing, Ochoa’s sister wasn’t in the courtroom this time; a public defender was representing him. It was the only time in his career, Walters believed, that a defendant smiled at being sentenced the maximum.
Stare Decisis (2015 Short-Fiction Contest Runner-Up) was originally published on Lawyerist.
From Lawyers, Guns & Money, two charts that are pretty sobering for around 40% of the lawyers in America (and half the lawyers in private practice in America):Inflation-Adjusted Earnings of SolosSolo Earnings Compared to Average American SalariesSolos v. Partners
This one is an unsourced chart I found on Reddit:
Meanwhile, let’s not forget that law school just keeps getting more expensive. It’s tempting to attribute the drops in these charts to the flood of new lawyers, but according to Paul Campos in the comments on LG&M, that’s not the case:
Another thing that’s striking about these income numbers is that they include almost no new graduates. Over the past five years less than 1,000 graduates per year have listed themselves as solos nine months after graduation, so new and recent graduates make up a trivial percentage of the 350,000 or so lawyers who are running solo practices. In other words, these income numbers are for experienced lawyers.
What do you make of these charts? Would you still advise someone to go solo?
3 Charts That Show Solo Practice Doesn’t Pay Like it Used To was originally published on Lawyerist.
Please join me at 8:30 a.m. on Thursday, July 9th, at Coeur Coffeehouse in Spokane, WA, to get fueled up for the WSBA Solo and Small Firm Conference with some high-test caffeinated beverages. It’s hard to judge coffee excellence from Google Maps, but Coeur Coffeehouse looks like a good bet. It’s about a 15-minute walk from the hotel, but you might be able to take one of the hotel’s bikes if you are in a hurry.
The conference doors don’t open until 9:30. and the first sessions don’t get started until 10, so we’ve got plenty of time to sip and chat.
Hope to see you there!
Meetup: Coffee Before the 2015 WSBA #SoloSmallFirm Conference was originally published on Lawyerist.
In today’s show, ABA Law Practice Division chair Bob Young talks about being a plaintiff’s lawyer in a defense firm, and explains what the ABA LPD is doing to help lawyers with marketing, management, finances, and technology.
But first, is solo practice a terrible economic proposition for most people?Is Solo Practice a Terrible Economic Proposition?
That’s certainly what these three charts suggest. So maybe we shouldn’t be encouraging everyone to start solo practices? Aaron and Sam try to find some positives in the charts.Bob Young on Being a Plaintiff’s Lawyer in a Defense Firm
Bob Young is the chair of the ABA Law Practice Division, and he’s also a “plaintiff’s lawyer at a defense firm,” ELPO. In today’s podcast, he talks about how he generates business by developing relationships on Facebook, and the challenges of growing a firm from 11 to 26 lawyers. He also explains what the ABA Law Practice Division is, and gives an overview of the work it’s doing.
To listen to the podcast, just scroll up and hit the play button.
To make sure you don’t miss an episode of the Lawyerist Podcast, subscribe now in iTunes, Stitcher, or any other podcast player. Or find out about new episodes by subscribing to the Lawyerist Insider, our email newsletter. We will announce new episodes in the Insider, and you can listen to them right here on Lawyerist.
Podcast #23: Bob Young on Being a Plaintiff’s Lawyer in a Defense Firm was originally published on Lawyerist.
Law is rarely considered a creative profession. Most of us think of creatives as being poets and artists, not rule-following lawyers. But creativity simply means you have the ability to think of new ideas, and that is something a good lawyer does every day. Whether you are interpreting a case in a novel way, trying to grow the pie in a negotiation, or reframing a bad fact, you need to hone your creativity. The good news is even if you do not consider yourself creative, there are ways you can cultivate creativity.Start by Turning Off Your Inner Critic
To increase the flow of new ideas, you will need to abandon some of your legal training, at least temporarily. Lawyers are taught to be critical and judgmental, but you need to abandon your judging mind when trying to be creative. Instead, you must welcome freewheeling, spontaneous thought. Dr. Betty S. Flowers, the former Director of Creative Writing at the University of Texas at Dallas, developed a paradigm for good writing in which the first step is to let the “madman” run wild. Bryan Garner, notable legal writing teacher, recommends relying on your inner madman in legal writing, too. In order to write persuasively, you must be creative, which requires letting the madman be in charge for a time.
The concept is that the madman generates ideas, however crazy they may be. To find the good ideas, the madman needs freedom to play with whatever comes to mind — good ideas, bad ideas, mediocre ideas. So let the ideas flow, jot them all down, and do not worry about whether they will ultimately be useful.
To let the madman out, you can designate specific times. For example, when devising headings for a brief, you might draft five versions of the same heading, not being concerned with perfection. But do not be surprised if your madman does not respect the appointment you set with him. He may tap you on the shoulder just as you are leaving the office or when you are walking your dog (more on why below). To capture all the possibilities, consider keeping a notebook or a recording device handy. The key to the madman phase is to leave your critical inhibitions aside. You can tap into your lawyerly critic later.Give Your Brain a Real Break
Our brains have two dominant modes of attention:
The task positive network is in charge when you are actively focusing on a task, while the task negative network is in charge when you are daydreaming. Your greatest creative moments will often originate when your brain is in daydreaming mode. That’s because new connections are formed when you let your mind wander. For optimal creativity, you need to vacillate between focused-attention mode and mind-wandering mode. Take walks, listen to music, sleep on it, or exercise. All of those daydreaming activities will help you devise better ideas.Practice Creativity Often
Like any skill, generating creative ideas takes practice. Yet most adults are a bit rusty, largely because we have highly developed inner critics. Not to worry, there are plenty of exercises that can help you flex your creative muscles. If you begin exercising creativity regularly, you are very likely to find that new and better ideas seep into your law practice. Here are some exercises to try.
As you practice, push yourself. The people at Upworthy, the website that reframes news stories to help them go viral, writes twenty-five headlines for each piece of content. The idea is that if you have to draft twenty-five different headlines, you are going to dig deep and come up with something creative and excellent. It is easy to think you have struck gold with your first decent idea, but force yourself to continue. Do not stop when you have one or two respectable ideas.
Pushing yourself to come up with more can help in law, too. Develop twenty-five or more taglines or pitches could be what sets you apart from your competition. Draft multiple headings for briefs or motions. Busy judges and clerks are known to pay special attention to tables of contents, so pushing the creative limits with your headings may be worth the effort. So, too, with introductions or opening statements. You have only a few sentences to capture your audiences, developing a few different sentences can force you to push your creative limits.
The best lawyers are creative. Chief Justice John Roberts wrote in a brief that determining the “best” available technology for controlling air pollution is like asking people to pick the “best” car: “Mario Andretti may select a Ferrari; a college student a Volkswagen beetle; a family of six a mini-van. The choices would turn on how the decisionmaker weighed competing priorities such as cost, mileage, safety, cargo space, speed, handling, and so on.”
You will not come up with a brief like that without regularly exercising your creative muscles.
Featured image: “Creative writing, light bulb and many pencils on the table” from Shutterstock.
Here’s the decision on CaseText. Twitter is the place to be if you want the firehose of reactions as everyone reads the 103-page decision as fast as they can.
Or just head for the nearest downtown this weekend for what will surely be the most joyful Pride ever.
In the past, we have covered some alternatives to Microsoft Word, including Google Docs. For quite some time now, Google Docs has done a lot of things exactly right. Easy collaboration, compatibility with a wide variety of formats, cloud-based, free. However, Docs has also lacked some things that are often necessary for a law practice, like track changes and mail merge. Aiming to increase Docs’ utility and attractiveness, Google recently introduced add-ons for Docs, which lets third-party developers create tools that extend Docs’ functionality.
As with most things Google, getting the add-ons is dead simple. In order to get to the add-on store, you simply call up a Google Doc and go to Add-ons – Get Add-ons in the menu. Once you do, you’ll have access to the whole store. There are many things you likely do not want or need, like the Rhyme Finder (or maybe you do!), but here are several that may make using Docs as your only word processor a bit more viable.
A brief note: almost all of these third-party services will require you to either sign up for that third party or use your Google ID as your login credentials. Forewarned, forearmed, and all that.
Many lawyers need to be in two places at once. Lawyers get over-booked, and handle multiple cases in multiple jurisdictions that require frequent court appearances. It can even happen in the same courthouse: I have had multiple cases at a time be called in front of different judges, and have missed the calling of my case by one judge because I was appearing in front of another across the hall. Typically judges understand the need to be in two places at once. Many, if not most, of these hearings are simply opportunities for the lawyers to ask the judge for another hearing, and to get more time to work on the case. The wheels of justice turn slowly.
A new app called StandIn promises to fix this problem from the comfort of your smartphone. If you’re over-booked and need to be in two places at once, you can hire a stand-in lawyer via the app, pay them whatever fee they are asking for this service, and then post a mandatory review of the stand-in’s services. StandIn takes a $7.50 “transaction fee” out of every transaction.
My verdict on StandIn is still out. It seems like it is a solution in search of a problem. Usually, when I know I have a scheduling conflict, I can solve that problem with a telephone call or email to another attorney to cover for me. When I have missed a judge calling my case because I am across the hall in another courtroom, I can just ask the judge to recall it or wait until the end of the docket. Maybe the best option is to plan ahead.
Featured image: “close up of human hand touching smartphone display” from Shutterstock.
Can’t Make it to Court on Time? There’s an App for That. was originally published on Lawyerist.
Lawyers in all areas of practice need to get out and become known. Whether you are a solo or small firm lawyer, it is unrealistic to hide in your office and expect to toil away on billable work. Rather than paying for advertising, you should take advantage of the abundance of leadership opportunities available in your community. By volunteering your time in organizations with leadership positions, you increase your visibility and also gain valuable skills that will help your practice grow.Volunteering
Most leadership opportunities are going to be volunteer; that does not mean they are a waste of time. You give your time away, but you learn skills you will never learn in a class and gain recognition that could not come from a paid advertisement.Leadership Opportunities
There is always a need for lawyers to stand up and volunteer their time in the community. This translates into countless opportunities for the willing lawyer. You can be a valuable asset to an organization even if you don’t have a ton of practice experience. New graduates and experienced attorneys each bring valuable perspectives to volunteer leadership positions.
An easy way to volunteer is with your local and state bar associations, which are often seeking members for committees. Associations often have sections for substantive practice areas, and they may also have sections for other aspects of practice such as law practice management, technology in law, or solo practice. Associations and sections are governed by committees, and those roles have to be filled. You may soon find yourself the chair of a sub-committee in an association section that focuses on your specialty.
Non-profit groups also need volunteer board members. Look around your city or town for organizations looking to fill board vacancies. Find an organization with work that fuels your passion and see if it could use a lawyer on its board.How to Get Involved
Volunteering is far easier and less intimidating than you may think.
To get involved, just contact the association, section, or non-profit that interests you and find out how to volunteer. Even if it is not time to be appointed to a formal position, you can show your interest by volunteering. Helping set up an event or lending your talents for other tasks can help you get a formal position later.Developing Yourself to Develop Your Business
You give away your time to serve in these leadership roles, but you gain experience that is incredibly valuable. The roles you take on are otherwise lacking in your practice.
In a big firm, it can be difficult to get out in front of people and practice speaking in public. A role on a section committee will force you to speak in front of the rest of the group and can lead to giving CLE presentations to larger audiences.
As a solo, you may have no one to manage; on a board or committee, you will find yourself organizing the efforts of others, scheduling meetings, follow-ups, and managing projects for the group. They may be small at first, but eventually you can move up into more robust management roles.
The biggest benefit from a business development standpoint is that you will acquire and hone skills that will make you a more marketable commodity. Perhaps no one will hire you because you were the chair of the education subcommittee of your local bar association, but they will hire you because you speak with confidence. You may not meet your next client at a fundraiser or bar committee mixer, but you are likely to meet a referral source there — especially if you were on the committee that put on the mixer.Giving Back
If you are missing a sense of personal satisfaction in your practice, volunteer leadership positions are one way to fill that void. In a different way than pro bono work, you give back to the legal community through education (organizing and teaching seminars), outreach (bringing legal services or knowledge to underserved communities) and networking (bringing people together for events). If you are a solo lawyer and your volunteer work brings you in touch with other solos, you can also help get those lawyers out from behind their lonely desks.
Featured image: “Businessman Brainstorming About Leadership” from Shutterstock.
If you will put these suggestions to use, if you will cross-examine in accordance with these suggestions, I can virtually guarantee — not that you will be a brilliant cross-examiner, but that you won’t be ashamed of yourself, you won’t be a buffoon in that courtroom.
Whenever you do not comply with them, you will regret it. Instantly.
Irving Younger’s 10 Commandments Of Cross Examination was originally published on Lawyerist.
A few months ago, we wrote about Casetext, a nifty little platform that seeks to essentially democratize/wiki-fy/open source the law, allowing users to annotate cases and share comments. Casetext recently expanded on that open source idea and launched LegalPad, which is WAY cooler. LegalPad is basically the legal equivalent to Medium. However,where Medium is a publishing platform for everyone about everything, LegalPad is a publishing platform for law-related material only.
If you are not already familiar with using blogging platforms like WordPress and/or you just do not want to set up your own blog, LegalPad provides a relatively robust place for your legal writing. It comes with the usual blogging tools: the ability to use create headers, use basic HTML commands, create hotlinks to other websites, and embed documents and photos. However, where LegalPad excels is in its ability to integrate cases and other legal documents. You can bookmark cases already found in Casetext and import them into your post. While in the middle of a post draft, you can consult cases without hopping out. You can highlight quotes from a case and cut and paste them into your post and they will come complete with pincites – just like Westlaw.
When lawyers take advantage of those features, you find posts like this, which offer legal analysis and a wealth of links to past decisions. However, LegalPad can also be used to simply provide a teaser paragraph and link to your own blog (or someone else’s) for the remainder of the post, but frankly that sort of defeats the purpose of such a platform – and, unfortunately, that is much of the content that is currently there.
LegalPad will succeed or fail based on how lawyers leverage the platform. Using LegalPad as a space for vigorous and substantive discussions of the law, grounded in using Casetext’s law library, could create an entirely new space for legal scholarship and dialogue. Making it a glorified collection of links to other material will just be Feedly on steroids.
Featured image: “little cube with paragraph symbol on a keyboard” from Shutterstock.
It seems like nearly every day there’s a steady drip drip drip of lawyer-related stories telling us how terrible we are. Yesterday, we learned that we basically suck at having emotions or understanding that other people have emotions, a failing that can lead to increased malpractice claims, so that’s fun. Today, we find out that we are also really good at being psychopaths.
[R]esearch found lawyers landed second only to CEOs in the number of psychopaths in their ranks, and it certainly makes sense that some lawyers (say, litigators) would benefit from the ability to turn on the charm and lie without conscience.
Dutton also interviewed a successful psychopathic lawyer who, chillingly, said, “Deep inside me there’s a serial killer lurking somewhere. But I keep him amused with cocaine, Formula One, booty calls, and coruscating cross-examination.”
Don’t we all?
It seems unfair, if we are going to be amoral monsters, that we can’t knock CEOs out of that top spot. Given that nice people are leaving the profession in droves while anti-social jerks stick around, we should be able to topple CEOs from their first-place perch quite soon.
You’ll Never Believe How Many Lawyers Are Psychopaths was originally published on Lawyerist.
The “Wine For Lawyers” series is written by sommelier and criminal defense lawyer Brian Tannebaum.
There are few terms that annoy me more than anything that ends with “for lawyers.” So when Sam asked me if I would pen some thoughts on how to not embarrass yourself with a wine list for lawyers, I immediately said, “oh, absolutely.”
Instead of limiting this series to how a lawyer who knows little to nothing about wine can deal with a wine list, I have three areas of wine I’d like to discuss in three separate posts. First, expanding your wine world; second, purchasing wine for yourself or others; third, the “I like a red that’s smooth” wine list advice.My Background
While I realize lawyers don’t really care about the backgrounds of those who sell them the secrets of marketing and practice development, I tend to care whether the person I’m listening to has any clue as to what they are saying.
I’m a full-time lawyer. In 2011, I was certified as a sommelier. There are three levels of sommeliers: certified, advanced, and master; I’m certified. It’s like having a bachelor’s degree. Recently there was an uproar over people like me obtaining certification as a sommelier because the traditional role of the “somm” is to serve wine at a restaurant. Other than having to serve wine, I took the same test. So we’ll leave it at I know something about wine. And I know, you know wine too, and I’m going to be “wrong” about this and that, but that’s the first lesson you will learn about wine: there is little agreement on anything.
I think Pinotage (a South African varietal) is the worst wine ever produced, and I enjoy Portuguese reds. I have only had a couple Bordeaux wines that I like, and I detest oaked Chardonnays (the ones you like because they are “buttery”). I know, you love Bordeaux (because you’re supposed to), and your girlfriend won’t order anything else but a “butter bomb Chardonnay.”
That’s OK, I do not care.
This article isn’t about telling you what to drink; it’s about giving you tips on how to expand your wine knowledge.Developing Your Palate
A routine question I’m asked is, “I want to learn about wine, how do I do that?” Being a sommelier with a law degree, I always give this complicated answer: drink wine.
And I mean it. You learn about wine by drinking more wine. There are still types of wines I haven’t tasted, and I take every opportunity to taste something new. You are cheating yourself in the wine world — and many people do — by finding one wine you like and only drinking that wine. I see this behavior all the time. You find that $10 Cabernet (with the awesome label) and buy a truckload. I ask if you have ever had some other one that’s $2 more (and ten times better), and the answer is “no.”
Explore, spend more — or fewer — dollars and see what’s out there. I’ve recently been serving a $7 Grenache that I bet blows away some of the $15 wines you “swear by.”
Going to the wine shop and buying bottles on the advice of the owner or salesperson is a great way to spend money, but not a real economical way to know what you like. I suggest you find out which local wine shops have weekly or monthly tastings. Usually, they are free or next to nothing to attend — $10 or $20 — and you may even get a free glass or discounted wine purchased at the tasting. It makes for a nice evening with your date as well. This is where you can taste a bunch of wine, as well as talk to people in the industry.
If you like or don’t like something you try at a tasting, the person next to you, or serving you, can suggest another wine you may like. After a few of these tastings, you will realize you like Pinot but not Malbec, or that some of those cheap Spanish Tempranillos for $12 are something to buy by the case. You start to familiarize yourself with different wines, different regions that make the same wines, and that is the key to, as they say, “expanding your palate.”
The best way to find tastings in your community is by checking out the websites of or calling your local wine shops and getting on their mailing lists. There is also a website, The Juice, which has tastings and events all over the country. You can sign up to receive updates for any city. When you go to these tastings, get to know the regulars, and eventually you will find yourself invited to other events. Yes, lawyers, you can network and maybe develop a few good referral relationships; I wouldn’t want you to think there wasn’t a business angle.
One last piece of advice on attending tastings: buy a bottle. Those of you who pay the $10, ask for refills of everything, and buy nothing, everyone else notices you. Just don’t do it. Pony up.
Next, I’ll tell you where to buy your wine.
Featured image: “ Sommelier helping young woman to choose wine in the cellar. Wine degustation” from Shutterstock.
When looking for an accountant for your law firm it is important to find someone who has expertise in the unique needs and regulations that law firms face when it comes to their financial management. Just any accountant simply won’t do. Think about it this way. If you are having chest pains you’re going to go see a doctor. You are, however, going to call a cardiologist and not a podiatrist, because the cardiologist specializes in the heart and not your feet. Take the same approach when choosing an accountant for your law firm –and find someone that specializes in legal accounting.
To make your search a little bit easier, here is a list of 10 questions that your accountant should be able to answer, otherwise you’ll soon be looking for a new one…10 Questions Every Legal Accountant Needs To Be Able To Answer
Question 1: Do you approach a legal client the same as you would a business in another industry?
If your accountant answers “yes” to this question, they are not likely a good choice to handle your law firm. Legal accounting is an entirely different animal from general business accounting. In addition to accuracy, you need to rely on your accountant to provide 100% compliance with little known, legal-specific accounting regulations. Any slip ups on these — and your firm could be disbarred!. That’s why your accountant needs to treat your law firm with more care than he would use with a general business client.
Question 2: Do you have any experience with client funds accounting?
It is common practice for law firms to use retainers with their clients. While the funds may be in the law firm’s possession, they do not belong to the firm until they have been “earned”. Settlement payments (that belong to the clients) are also often handled by the law firm.It is extremely important that one client’s funds aren’t mixed with another client’s, or used to pay the firm’s expenses. If your balance sheets do not clearly distinguish client funds from your firm’s assets and revenue, it could be a recipe for disaster, resulting a in severe ethics violation.
Question 3: How do you track matter costs?
Matter costs may be incurred from the very beginning of working on each case; the client invoices for these expenses may go out weeks, or even months later. Not all matter costs are the same though, so it is important to track “hard” and “soft” matter costs separately for tax purposes.
Question 4: How do you differentiate between different types of matter costs?
Matter cost accounting can be tricky to say the least. While some matter costs are billed to clients, soft matter costs, or overhead for running your firm, need to be accounted for differently. Your accountant must know how to distinguish between hard and soft matter costs. Learn more about legal matter cost accounting software.
Question 5: Do you understand our billing model across different practice areas?
Your law firm may specialize in one practice area, but chances are you work on more than one type of case. Furthermore, law firms typically bill on different fee structures across different practice areas. Your accountant needs to understandsthe your firm’s billing models across all your practice areas, so you can make data-driven decisions about the future of your law firm.
Question 6: Should retainer management live inside my billing or accounting software?
This may be a bit of a trick question, but you want to make sure your accountant is really up to speed when it comes to legal accounting. The answer is both — in the legal billing software AND in the legal accounting software.
Question 7: Why do client costs have to be entered into my billing system?
Client costs have to be entered into your billing system so that your firm can pass those costs along to the client. Otherwise your firm will be footing the bill for expenses that rightfully should be recovered from your clients.
Question 8: Can all invoice payments be recorded as income?
Invoice payments received must be captured in both your billing system and your accounting system. From an accounting perspective, the cost portion of the revenue is not income and must be recorded separately.
Question 9: Have you ever had a legal client disbarred?
If your prospective account answers “yes” to this question, it would probably be a good time to withdraw any consideration of hiring this individual. This is your livelihood. It is imperative that you hire legal accountant and implement practice management software that first and foremost keeps your firm out of trouble.
Question 10: Would you like access to our practice management software?
This answer has to be “yes”. Your legal accounting and legal billing software need to work
hand-in-hand. Sharing and passing data back and forth between the two systems is necessary, and it is essential that they are in lock step with each other. You can save your firm and accountant a great deal of trouble by using an integrated, legal specific software solution that brings legal billing and practice management software together in one place.
CosmoLex does it all — time tracking, billing, business accounting, trust (IOLTA) accounting, calendaring, task & document management – eliminating the frustration of juggling several programs to run your practice. Take the next step towards a more efficient, more profitable practice: Click here schedule a 30 minute consultation with one of our legal specialist to analyze your firm’s current setup or watch a quick video to see how CosmoLex can help you. You’ll be glad you did!
10 Questions Every Legal Accountant Needs To Be Able To Answer (Sponsored) was originally published on Lawyerist.
Law school admissions continue to tank. If this seems like something you have seen before, it is because we have covered it time and time again since 2012. The most recent figures from LSAC show that applicants for Fall 2015 are down 2.5% and law school applications are down 4.6%.
I realize at first glance that graph may look like applications are actually increasing over time or, in the alternative, that it is backwards and puts the most recent year to the left. After much staring, I figured out that what it shows is that by June 2015, law school applications are down significantly over Fall 2014 and Fall 2013.
Law school enrollment keeps on dropping like a stone as well. There, we have hit a 41-year low. So what is happening to all the bright young things who used to go to law school? At least some of them are instead going to engineering school, where you can actually get a job that pays you decent money. What a concept.
Featured image: “Business fail. Graph down vector flat illustration” from Shutterstock.`
Related “12 Terrible CLE Attendees”
Video games are fun. Continuing Legal Education, however, is not. What if there was a way to combine the two into something even mildly interesting, instead of just playing Candy Crush on your phone during a CLE lecture.
A company called TransMedia Inc. developed a game several years ago called “Objection!” From the game’s description:
The murder mystery that started it all. The only way to save your client from execution is to get better and faster as you master the rules of Evidence. Variety of play is in the billions. Challenge is unlimited.
You can download a free demo of the game here. After playing the demo, I can personally guarantee that it definitely do one thing: make you nostalgic for Carmen San Diego and Oregon Trail. Playing the game will even give you CLE credit in a number of states. You can buy the “Classic” version of the game for $129.00, or a bundle of games and an evidence lecture mp3 for $399.00.
While it is easy to knock the boring source material, terrible graphics, and rudimentary game play (press H for Hearsay, I for Irrelevant, L for Leading, etc.) the game seems to be the only lawyer-focused, CLE-credit-awarding video game on the market. We are not counting Phoenix Wright: Ace Attorney because it does not get you CLE credit.
This is a shame. It seems that there has to be a better way to make CLE courses fun, especially if most states require lawyers to complete them. Maybe some enterprising game developer can develop something better. It would not compete with Call of Duty, certainly, but it could at least make completing CLE courses more tolerable.
Featured image: “handsome business man with a controller” from Shutterstock.
Lawyers test at low emotional intelligence compared to the general population and other professions. They are particularly low in a critical component of emotional intelligence: emotional perception, or awareness of their own and others’ emotions.
This could be a problem. Ronda Muir reports that in the medical world, lower emotional intelligence (EQ) tends to increase malpractice liability for doctors. In other words, doctors are more likely to get sued if they are out of touch with your emotions.
Muir thinks lawyers with low emotional intelligence probably have the same problem. She even found this quote from the ABA:
At the most elemental level of law practice, emotional intelligence appears to be necessary for attorneys to avoid malpractice liability.
Want to find out your EQ? Take this quiz. According to the Harvard Business Review, emotional intelligence is “firm, but not rigid.” That means you can improve your emotional intelligence if you are willing to work at it.
Muir recommends starting by building your “emotional vocabulary.” You should also exercise, consider meditating, and keep a journal in which you reflect on the emotional situations you face throughout the day. But if you are really serious about improving your emotional intelligence, the HBR says you might want to get a coach:
While no program can get someone from 0 to 100%, a well-designed coaching intervention can easily achieve improvements of 25%.
An effective coach can be expensive, but so is a malpractice claim. Plus, people with higher emotional intelligence tend to be happier people with stronger relationships. Whether you get a coach or work on your EQ on your own, there doesn’t seem to be a downside.
Featured image: “Successful businessmen handshaking after negotiation” from Shutterstock.
Lawyers’ Low Emotional Intelligence Might Increase Malpractice Liability was originally published on Lawyerist.
In today’s show, Allison Shields talks about how to be more productive, also the subject of her new book, How to Do More in Less Time.
But first, Sam and Aaron talk about Lee Rosen’s advice to block your firm website from your firm computer.The Importance of Your Mobile Website
On Divorce Discourse, Lee Rosen wrote that you should block your firm website from your firm computer so you will be forced to see it the way your clients probably do: on your phone. Blocking your website may be extreme, but the point is a really good one: if your website matters to your marketing strategy, it must work well on a phone.
(For more on good website design, get our free guide.)Allison Shields on Doing More in Less Time
Allison Shields (who has also written for Lawyerist) and Daniel Siegel wrote How to Do More in Less Time: The Complete Guide to Increasing Your Productivity and Improving Your Bottom Line, which is also the subject of today’s podcast. Allison teaches a fairly comprehensive approach to productivity for lawyers that incorporates aspects of Getting Things Done and contains many tips and tricks for common situations and software.
To listen to the podcast, just scroll up and hit the play button.
To make sure you don’t miss an episode of the Lawyerist Podcast, subscribe now in iTunes, Stitcher, or any other podcast player. Or find out about new episodes by subscribing to the Lawyerist Insider, our email newsletter. We will announce new episodes in the Insider, and you can listen to them right here on Lawyerist.
Podcast #22: Allison Shields on Doing More in Less Time was originally published on Lawyerist.
Developing a collegial relationship with opposing counsel can be hard work. But if you get along with opposing counsel, you will see the benefits immediately: your cases will go more smoothly, your life as a lawyer will be less stressful, and your reputation will improve immensely.
The tips that follow assume your opposing counsel also wants to develop a collegial relationship. Some lawyers will resist, which is why I have also included a few tips for dealing with lawyers who would rather fight than get along.Say Yes to Common Courtesies
For many lawyers who want a collegial relationship with their opponents, this is where it begins. Common courtesies include saying yes to extensions of time, being reasonable in scheduling around vacations, and consulting with the other side before setting depositions, briefing schedules, and hearings.Get to Know Your Opposing Counsel
Moving past common courtesies might make you nervous. Our system of law is adversarial, after all. For some lawyers, there is a sense that if they make themselves vulnerable in any way — by simply being friendly, for example — the other side might see this as a weakness to be exploited.
You can be a tough litigator while still being friendly. Far from being a new concept, it’s as old as Shakespeare. “Do as adversaries do in law,” said a character in The Taming of the Shrew. “Strive mightily but eat and drink as friends.”
To get to know your opponent, proceed as you would in any social situation. Imagine you are getting to know your neighbor or someone at the gym. It’s like that, only much easier, since you already have something in common with opposing counsel — you are both lawyers.
To find out what else you have in common, make small talk as you would at a party or a bar. You can also go high-tech and use the Internet, which will yield many interesting details about a person’s background if you do a little digging.Find Opportunities for Conversation
Once you have some insight into your opposing counsel, you need to find opportunities for conversation. By talking about the things you have in common, you will make new bonds that will smooth the rough patches you’ll experience as you work together on your case.Talk While Waiting Around
Some opportunities for conversation do not require planning. There are the five minutes before a deposition starts, or the ten minutes you spend waiting for the judge before a motion hearing. Perhaps you are both waiting for the clerk’s office to open. Perhaps you both have layovers at the airport. Any time spent waiting can be used to talk with opposing counsel about something other than your case.Use the Phone
Rather than sending an email, talk on the phone. One lawyer I know makes a phone call to talk to an opponent, especially senior members of the opponent’s team. He is always posturing toward an eventual settlement, and he believes a good working relationship with the other side will help. Rather than diving into the substance of his phone call, he begins with small talk. These calls sometimes evolve into long discussions that completely eclipse the initial purpose of the call.Suggest Breakfast or Lunch
Another idea is to suggest breakfast or lunch. Do it at the beginning of the a case, even when you already know the opposing lawyer. If the opposing lawyer is from another city, suggest lunch when she is in town for the first motion hearing.
Do not worry about age differences. If you are a younger lawyer, it can be intimidating having a conversation with a lawyer who has been practicing for twenty years. But many older lawyers like these exchanges. In fact, since they won’t be suspicious of your motives like younger lawyers can be, older lawyers will be more receptive to your overtures in the first place.Find Other Opportunities to Talk
Seek out the lawyers on the other side of your cases at bar functions, CLEs, and other legal gatherings. If the casework takes you out of town, invite your opponent to dinner or share a taxi to the airport.Allow a Friendship to Develop
You can call me maudlin or naive, but I think the practice of law would be more enjoyable if lawyers regularly developed friendships with their opponents.
In my first job out of law school, a partner asked me to draft a letter to the other side about a discovery dispute. I chose what I thought was an appropriate tone of unabashed rudeness, and wrote the opposing lawyer that I wasn’t going to budge.
The partner scolded me, mostly for my tone. He said something along these lines: “At this firm, we deal with the same lawyers again and again. Find a way to get along. You might be working with those same lawyers for your entire career.”
The partner was right. One lawyer I know has been litigating railroad cases against the same opponent for nearly two decades. These two opposing lawyers now travel together to depositions and settlement meetings, butting heads during the day but socializing at night. While they still represent their clients with the required “zealous advocacy,” the tension and stress that goes along with their cases is eased by their friendship.Don’t Start Fights, and Don’t Fight Back (Very Often)
If you are taking steps to develop good relations with opposing counsel, you probably won’t be starting many fights. The flip side of the coin is a bigger challenge when your opponent throws the first punch. You should pause before giving in to your anger and fighting back.
A fight is almost always nothing but a distraction meant to get you off track, which is one reason some lawyers like to be bullies. To avoid being drawn into a fight, it helps to know your trigger points. For me, it’s not misbehavior during depositions or cheap shots at motion hearings. Instead, it is condescending letters from BigLaw litigators who want to lecture me about the facts of my case or what they think is the applicable law.
When I get a letter like that, I want to respond with one of my own. But if I recognize the letter as a trigger point, I’m able to pause before reacting. Rather than writing a second nasty letter, I call the offender on the phone and say, “Let’s agree to disagree” or “We’ll have to see what the judge thinks.”
With this said, you can’t let the other side’s intimidation guide your litigation strategy. When dealing with difficult opposing counsel, sometimes you have to punch a bully in the mouth. This is where your efforts to be collegial might break down.Some Lawyers Don’t Want to Be Your Friend
Not surprisingly, it’s the type of lawyers who start fights which will be most resistant to having a collegial relationship. For these lawyers, that’s how “litigation” is defined: refusing to say yes to anything you propose. If they ever give you an inch, they consider it nothing less than a personal failure.
It’s easy to feel sorry for lawyers whose only claim to fame is their reputation for being difficult. But you have a reputation too, and a reputation for getting along is a valuable commodity. Continue to work at it, and you will see the benefits.
Featured image: “Group of happy business people discussing papers at meeting ” from Shutterstock.
How to Have a Collegial Relationship with Opposing Counsel was originally published on Lawyerist.