Ten things you didn't know about lawyers (and may not want to know)

While 9/11 stands as the single most ominous day in their lifetime for most Americans, for this laddie 9/12 is as significant. Yes, that was the day I was sworn in as a lawyer in the State of New York, 25 years ago.

What was I thinking?

Leave aside that I could of, should of, would of done other things. That ship has long sailed. But, I flash back to 1979 or early 1980 – the crystal ball is foggy – to when I was speaking to my mother and my then wife about my future career (or lack thereof). My mother said, why don’t you go to law school? My wife agreed?

I looked at both of them with what I imagine now was puzzlement and said “I don’t even want to be in a room with a lawyer.”

In the movie version of this story, the next scene shows me seated on the right side of a large lecture hall listening to some professor drone on about law and I am thinking Three years. I’m never going to get out of here.

And in the next scene, I am in the same lecture hall, except where everyone else is looking at the professor, I have swiveled my chair and was staring out the back windows. At least, this is what I am told I was doing by someone who was there. I have only the vaguest memory of it, but it sounds like me.

My law school career was perhaps even less stellar than my college career, but at least in college I could get decent grades with a minimum of effort (we won’t even discuss my high school career, but to sum it up, I got a 4 on the last math final I ever took). Actually, I put some effort into my first year of law, or I would have drowned, and did well enough to get on Law Review, the goal of almost all law students. Of course, they had ambition.

But Law Review did not go well for me. We had to do two things. Edit an article supposedly written by a scholar and also write our own article.

The editing process was difficult for me, but that wasn’t really my fault. The scholar I was editing had written on the constitutionality of the party primary and caucus election system. Now, of course, I would devour such an assignment, perhaps even re-write it for the guy (which it needed). To this day, I still don’t understand his points and his research was so bad that I remember vividly one case to which he cited that turned out not to be about party primaries, but fish hatcheries.

Now, I was lucky in a sense. I was teamed up with a young woman who was number one in our class, and real sweet. Despite the fact that she desperately did not want to be a lawyer (just a mommy – wonder how that worked out), she was as hard-working as I was lazy. However, when we were going on our 11th week of work on it and most of the other reviewers had long finished their easy projects, I quit.

I didn’t just quit because of the editing. I also quit because I couldn’t figure out what to write about myself. Hard to believe if you are a reader of this blog, I’m sure, as the complaint is never that I don’t write enough, but write too much. I knew very little about politics and was only a student of law. What did I know?

I had no idea what to write about. I knew very little about the constitution, less about politics, and was filled with the notion that you shouldn’t write about something unless you were an expert. I now realize that 95% or so of what passes for expertise is just prattle and almost no one knows what they are talking about on any given subject, but I was still years away from that revelation. I came up with – don’t laugh – I was a super liberal – a constitutional right to a good environment. I said don’t laugh. Of course, I couldn’t find much to support my proposition. A couple of newspaper articles, I believe, although my memory is not so good. Of course, my editor should have said (as one co-worker did) that I had no clue what I was talking about and pick something else.

My quitting Law Review caused quite a stir. A few editors begged me not to quit, and many people in the school were aghast, but I didn’t want to work for a big firm when I got out of school anyway – the thought left me quite cold. I made my mind up.

I can’t say whether that was a big mistake or not, looking over my shoulder at the years gone by. I may have found law even more unfortunate of a profession than I sometimes did later on had I gone on to big firm world. But, the truth was, although I have made law my career, it was not what I should have done - period.

But, law in the abstract is fun. I love the case law, I love the constitutional debate, I love writing. What I do now, write, research, edit for other lawyers, is great. Because it is not the law which ruins being a lawyer – it is the clients, and the judges and the other lawyers.

Here are ten things you didn’t know about being a lawyer.

1. Lawyering can be very funny.

Sometimes it can be downright hysterical. Like the time I was doing a deposition in a car accident case and an elderly attorney, questioning a young woman passenger, asked her if just before the impact she “ejaculated anything?” Of course, I knew exactly what he meant and his usage of the word was fine, if a little archaic, but the sexual double entendre was too much for me and after locking eyes with the reporter, I asked for a brief adjournment, went out of the room followed by the reporter and another lawyer and proceeded to dissolve into laughter or tears. That one I sent off to a reporting company which collected incidents like it for a year end volume. Another one which made it into print was a dog case. The lawyer, trying to get a defendant to acknowledge that her friendly dog, Lucky, may have been overly rambunctious, asked her if Lucky liked to lick people. She said yes. And then, for some reason that I can’t conceive, he asked her “Does Lucky like to lick people in special places?”

Time out. Brief break please.

2. Many lawyers have no clue what they are talking about.

Lawyers want you to think that they are smart and know what they are talking about. Some, however, have no idea what they are doing – even in their own specialty. For example, I have done a small amount of real estate work – buying and selling houses for clients. It’s not particularly hard, and took me a few years to get to the point where I can get through them fairly easily (although they have become more tedious). If I have a problem there are a couple of people I trust who do it full time that I can ask. But, about ten years ago, when I was doing maybe ten deals a year (which is very few – some do hundreds) I looked at my secretary after one phone call and said – “Are we the only people in the world who know how to do this?” Don’t get me wrong. I am not Mr. Real Estate, but I was constantly stunned at how many deals would get botched up by the other lawyer, even when it was their livelihood. Now, I’ve never had a deal go wrong at the end, somehow fixed them all (except one for myself, but that’s a long story and I just let the other side out), but the incompetence can be overwhelming.

The level of incompetence is perhaps even more so in litigation. Not that I never make a mistake, I do, but some lawyers will try a case not having the first clue what the law is on it, no idea how to cross-examine someone (which is fun and easy with a little training). Often the law they cite stands for the opposite proposition. When I have ventured into new fields I often found that a couple of days’ research makes me more of an expert than people who have been doing it for years. Me smart? No. Them dumb? Lazy? More likely. Trust me, many lawyers have no clue.

3. You have no idea who is a good lawyer or not.

There is a saying in the law that goes around every once in a while. “Many lawyers wouldn’t know their own reputation if they met it on the street.” If that is too dry to be understandable, it means that lawyers’ actual abilities were not consistent with their reputations. Reputation is about marketing and sometimes media. There are exceptions, of course. My first boss, Dave Dean, is known as a first rate trial lawyer. He was lead counsel on the Agent Orange case (settled before trial) in the 80s and tried the first World Trade Center bombing case a few years ago and got a whopping verdict (which, to me was crazy, but he’s that good). Dave has remarkable people skills that just bowls juries over. I doubt it is teachable. I’ve seen people try and they’ve been pathetic. Big firms are often filled with lawyers who were good students but not so good lawyers (not all, of course). When I see a big firm on the other side of a case, it gives me a good feeling. They are filled up with themselves and often try and rely on “who they are” without doing solid work. A few times in my career, I have literally been asked – “Do you really think you can beat us?” The answer is yes, it happens all the time, although I prefer to play with them and feed their egos.

Many times when I hear some lay person tell me that “so and so” is a great lawyer or, and I love this one, “a big shot lawyer,” I laugh to myself. They aren’t. But, lay people have no ability to tell who is and who is not. Frankly, a lot of lawyers can’t tell either.

4. Hate to tell you – but it’s the same with judges.

I’ve practiced in New York for 25 years. So, I can only tell you about those judges. Some are very good and knowledgeable. But, many are not. In fact, worse, sometimes they are ignoramuses on top of being biased. Some hear trials and don’t even know the most basic rules of evidence. For example, one of the most basic rules in law is that if you call a witness, you can’t lead him/her by giving the answers in the questions. However, when you call the other side as your witness, you can lead them because otherwise they won’t cooperate. Regardless, many judges believe that you can’t lead them either. Here’s another example. I was deposing a party and asked the content of conversations between him, his lawyer and a third party. There is no doubt that the rule of privilege ends when a third party comes into the conversation. The other lawyer objected and we went for a ruling by a notoriously dumb judge (nice, but dumb). She asked me why I wanted to know what this party said the conversation was – why didn’t I just depose the other guy. I answered because when I do depose the other guy, I want to see if he says something different. She said, well, that wouldn’t be fair, would it? What? Not being able to see if witnesses are lying is fair? I guess in that courtroom, witnesses have a right to lie.

Unfortunately, in New York, judges are nominated by the political parties for their party work and they often cross-endorse, so that there is really no choice. In my humble opinion, if you want to be a judge, you should have to pass a test harder than the bar lawyers pass. You should be as knowledgeable, if not more so, than those practicing before you. The standard shouldn’t be how much time you’ve spent licking stamps for politicians. You might get some good judges that way, but you get a lot of bad ones too.

5. Witnesses do lie all the time.

I hate to say it, but people feel that when they take the stand they have a right to lie. Yes, they take an oath and some people take it seriously, but it seems to me a majority of witnesses feels they have a right to lie under oath if it is in their interest. Even nice people. It has just become the culture. When I was a very young attorney I went out on a deposition where the plaintiff and the defendant were neighbors and they got along despite the lawsuit. They told different versions of the same story. Afterwards I walked past them as they waited for the elevator together. One of them, I no longer recall if it were my client or the other, said “You lied. I lied. We both lied.”

It opened my eyes a little. Lying witnesses actually helps lawyers sometimes. Some people are very good at it and your client can lose their case based on their testimony, but I find as often as not, maybe more so, the lies are provable, and the right thing happens. Usually, it’s because there is some document somewhere that tells a different story.

6. Your lawyer is ripping you off (maybe).

There are good, honest lawyers out there who charge only for what they bill, but, truth be known, many lawyers bill far more time than they spend. That reminds me of a joke. A young lawyer dies and goes to heaven. When he gets there he complains that he is too young. After all, he says, “I’m only thirty-five.” St. Peter looks at him and says, “According to your time sheets, you are eighty-five.”

So often when I’m an adversary on a case and I get to see what the other side billed, or even people I’m friendly with, I’m stunned that the numbers are so high for simple things. A lay person cannot know how long it takes to bill to write a complaint, for example. However, lawyers even over bill other lawyers. One lawyer I frequently worked with hired a “big” firm to do a complaint up state. They billed him and his partners roughly $100,000 just for the first document, large portions of which my friend wrote for them. Not that it wasn’t complicated – it was, but he estimated we could have done it for less than $30,000. The firm’s administrative partner billed 9 hours for administrative time. What administrative time. I’d love to see him defend that in court.

7. Jurors are actually pretty fair.

Jurors sometimes get a bad rap. We know most people don’t want to be jurors. It’s not their problem so they could care less. But, I’ve noticed, once they are on the panel, they do try pretty hard to be fair. I’ve been lucky on trial, but I’ve lost some cases. Yet, only in one case I lost did I feel that a jury was biased, and that was tangentially a race issue (I won the second half of the case anyway with a different jury).

I developed this rap with jurors when I am questioning the panel as to who shall sit on the jury. I mention that we all know that people usually don’t look forward to sitting on a jury, but I tell them that in all the cases I have tried, I notice that once people take the oath, just like the witnesses do, not to mention the oaths lawyers and judges have taken, they take it very seriously (I actually raise my hand as if taking an oath). Studies show that if you talk to people about good qualities or model it for them, they will often mimic that behavior, unless they have strong interests the other way. I think it works. At least some times.

8. Perry Mason moments do happen in court.

I rarely have ever had a trial where there wasn’t some excitement, usually on cross-examination. But, some cases were more exciting than others. I remember one that I still can’t believe. I was defending a little old man who was sued by two 30 somethings. They claimed that they were driving along the parkway when suddenly they were hit in the rear. The driver says he bounced his head off the steering wheel, making him groggy, looked into the rear view mirror and read the license plate, memorizing it. I asked him a few times if he had any problem reading the plate after his head smacked into the interior of the car. He read it just like he read anything else. Except, as I pointed out to the jury on summation, in his rearview mirror, the letters and numbers on the plate would have appeared backwards. Even if it was possible for him to have read it in one second, he sure couldn’t have done it right after the blow to his head. I could see their eyes register that fact, although they remained stone faced. After the verdict, in my clients' favor, they indicated to me that they saw exactly what was going on. It was a Perry Mason moment which seems like something you’d only see on tv. I've had some others, but that will do.

9. Lawyers are nice.

Well, some of us. There are a small percentage of lawyers I hate. But, generally speaking, lawyers are some of the kindest, nicest people I know, despite all the jokes (and I do love those jokes).

10. Lawyers make great lovers.

I have no basis to say this, having been intimate only for a short period of my life with one lawyer, a young woman who soon moved away, but I definitely want people to believe its true for selfish reasons.