Winging It

It was a boring Wednesday afternoon at about 3:45pm. I was playing on Twitter, reading the sports news, and happy to have a little downtime. My phone started to ring. I looked at the caller ID and saw it was James’s partner, Chris, my former boss at Wolf Rebman.Β I picked up the phone and to see what was going on.

Chris sounded worried.

“Jordan, are you busy tomorrow?”
“Not really. Office hours. What’s up?”
“Look, I made a mistake. I agreed to take on a zoning hearing for Children Orphan Support but I have a very important hearing in federal court tomorrow. Any chance you can cover the hearing? It’s tomorrow at 11:00am.”
“Dude, not a chance! I’ve never done this type of work before. They’re probably better off without a lawyer who doesn’t know what they’re doing than with me.”
“They need a lawyer because they’re a corporation. Jordan, they’re desperate. I’m desperate. Please can you do this? They’re a good paying client.”
“Can’t you get it continued or something?”
“Long story short… no. Will you do me a favor here?”
“Fine… against my better judgment.”
“Sometimes a blunder for a friend is a sign of character.”
“I’m sure our malpractice carrier will appreciate my character. I’ll call you and let you know how it went.”

It was going to be a long night.

First, I called my wife:

“Hey Steph. I’ll be home for dinner, but then I have to go back to the office. I’ll be home very late. Don’t wait up for me.” She was used to this by now.

Then I called the client:

“Hey, Chris Rebmen of the Wolf Rebmen Firm wanted me to give you a call about a zoning case.”
“Oh, thank you, Mr. Rushie! Thank you so much!” he sounded legit on the phone.
“Look, I know it’s late, but if you want me to help you out, I need you and anyone else who is going to testify at my office sooner rather than later. It’s already late.”
“That’s no problem. We’ll be there. I have your address.”
“And I’m doing this on short notice so I’ll need a check before I can get started.” I decided to do this on a flat fee because I had no idea how much time I was going to put in, except that it was going to be a lot of time, and not a lot of money.
“Oh, the money, that’s no problem at all.”

Then he asked: “You’ve done a lot of these right?”

This is always one of the hardest parts as a young lawyer. When you decide to take on something you’ve never done before and the client asks about your experience level. How do you handle it when a client asks whether you’ve ever handled a matter, and the truth is that you haven’t? Do you finesse it with something vague like “I’ve done several administrative hearings before?” Do you lie?

Good thing they had taught me well at Wolf Rebman. Just be bluntly honest.

“Actually, no. I want to be very up front with you: I have never done any zoning work before. But tonight I’m going to stay up researching the law on it, probably while most of you are asleep. Given that’s the case, are you absolutely certain you want me to help you with this? You could try and get the Zoning Board to continue the matter for lack of counsel.”
“Yes, we’re certain. It will be a first time for both of us! Chris Rebman says you’re good say we trust that you can handle this.” one board member said.

I ate dinner with my wife and then headed back to the office at about 7:30pm to meet with the Board of Directors.

The facts of the case were simple enough: Children Orphan Support on Girard Avenue wanted to put a garden on their lawn to conduct a new series of educational food growing workshops. But theΒ gardenΒ was too big under Philadelphia Zoning Code. The City told them they had to put in smaller garden, but Children’s Support felt that they couldn’t conduct their workshops with a garden that small.

We spent about 3 hours prepping witnesses – explaining Child Support’s mission statement, pouring over all the documents, and coming up with a theory of the case. We were going to tell a story! Children’s Support was a fine organization trying to helpΒ underprivilegedΒ children and the city as a whole. That’s what this was really about — helping underprivileged children. The Zoning Board needed to help Children’s Support help the orphan children. We had several members of Children’s Support ready to testify about what a great organization it is, and how vital this garden project would be. At one point, a member of the Board cheered: “We’re getting that garden!” I responded like I always do: “Tomorrow we come back with our shields or on them! Are you boys ready for war?”

Once the clients left, I delved into black letter zoning law. What was the standard to get a variance? Did it matter this was a non-profit? Was there any case law on point? Did it matter that “gardens” were involved? Was the Code applied to my client correctly?

Now, at about 4:00am, we were ready for war: trial notebook, testimony outlines, and a memorandum of law for the Zoning Board. I fell asleep in my office. Thankfully I keep a backup suit hanging on my door.

I decided to show up to the Zoning Board a few hours early to get a feel for how this worked in practice. As luck would have it, I bumped into a guy I’d seen a few times before, Vince, who does this type of work:

“Hey Jordan. I didn’t know you do zoning. I usually see you in discovery court.”
“I don’t. I’m here as a favor for a friend, against my better judgment.”
“Well, if you need anyone for zoning work, here’s my card. You know this is all I do, right?”
“Hey, it’s still a little early. Do you mind if I buy you a cup of coffee? I’d like to bounce my case off you real quick.”
“Sure man.”

I bought Vince a cup of coffee and told him my plan – I had about 10 witnesses ready to testify if needed. I had prepared an opening, a closing, and had a trial notebook. With all the evidence I had, there’s now way we could lose.

Vince looked at me and laughed:

“Dude, this is not medical malpractice or complex commercial litigation. If you put your case on like that, you’re going to get yourself in a lot of trouble.”
“Okay, why is that?”
“Because that’s not how it works here with a case as simple as yours before this Board. Your case is uncontested. The more you say, the more trouble you’ll get in. This is what you do… give a very brief opening and tell the Board exactly what you want. Tell them you’re prepared to offer testimony if they’re interested. They might ask your client a few questions, but they probably won’t. Then they’ll approve your variance. If you do it your way, it’s not going to go over well. You’ll talk yourself into trouble – trust me.”
“Thanks, Vince. I owe you one.”
“Next time you get a zoning case, just call me.”

I went back into the hearing room, watched a few of the proceedings, and saw Vince was probably right. The hearings usually lasted about 10 minutes if they were uncontested.

When my clients arrived, I pulled them aside and said “Look, change in plans. I know we prepped a lot of testimony last night, but I don’t think it will be necessary. I want you all to come up to the podium when we get called, but only speak if they ask you questions. Got it?” I felt a little stupid for pumping them up last night, only to say “We didn’t need to go through all that.”

Our case got called quickly. My clients stepped up and I made my opening: “Members of the Board, my clients applied to put a garden on their property. It got denied for being too big, which violates City Code, but we think there’s a good reason for making the garden that big. My clients are doing educational workshops, and small gardens won’t accomodate enough people. Also, here are some pictures of the property and what we’re proposing. Thank you.”

The chair looked at us and smiled: “Oh, I’m quite familiar with that part of Girard Avenue and your client’s work.” He looked at the pictures for about two minutes, turned to the rest of the Board, and said, “Approved. Anyone disagree? No. Good. I’m sure your gardens will be very lovely. Have a nice day.” And just like that it was done. The hearing probably lasted about 5 minutes in total.

After the hearing, I pulled everyone aside and apologized for wasting so much of their time in what turned out to be only a three minute hearing, mostly because I wasn’t familiar with the local process. One of the Board members replied, “Jordan, I go to these things all the time. They don’t always go this smoothly. Trust me – sometimes the Board wants a full blown evidentiary hearing. This one happened to be easy but it could have easily blown up. I thought you did a nice job. By the way, we have a bunch more of these coming up within the month, would you be interesting in handling them?”

“You’d have to ask Chris. He’s your lawyer, and he knows more about zoning than I ever will. I’m just here to help him out.”

I left, still happy with our victory, knowing it could have been a disaster if I hadn’t run into Vince. Plus, I had a funny story for Chris about how I stayed up all night preparing for what was a three minute hearing.

And such is life.

I think I’ll go back back to my policy of not taking stuff I’m unfamiliar with on short notice…

6 Responses to Winging It

  1. Bruce Godfrey says:

    Jordan this is a good story about how to prepare and how to disclose a lack of specific experience ethically – and I respect you for it.

    At first I thought that this might be a breach of attorney-client confidentiality (ID-ing the location and potential counterparty possibly ID’s your client and therefore your client communications) but you have anonymized the time enough probably to cover your tracks. I mention it only in light of the fail-tastic career-damaging seppuku committed today by George Zimmerman’s Florida attorneys at a press conference. Of course, you may also have permission from the client (not explicit in your post.)

    All the best to you and your practice.

  2. Bruce: Glad you enjoyed. However, it’s “real fiction.” All details, areas of law, names, places, etc. that could resemble any real client have been changed. I also mixed several different characters and events, loosely based on real life stuff, to create a different story in order to make a point. That’s why I tagged it “real fiction.” I’m a huge fan of Jim McElhaney’s style of writing and using vignettes to make a point. (Truth be told, I’ve done zoning work).

    All my “stories” take place in Philadelphia, because, well, this is the Philly Law Blog. I would be bad at writing about Chicago.

  3. Josh Camson says:

    Very well done. In your experience is this how referrals usually work in Philly? Out here in southwest PA I haven’t gotten any referrals yet, but my understanding is that the attorney who needs coverage usually cuts the check, not the client.

  4. That’s actually a good question.

    You should always ask this question – who is my client?

    The answer? It all comes down to the engagement agreement. Is the firm engaging you or is the client engaging you? It’s very important to identify who you’re being engaged by, what the scope of your services are, who is paying for it, and putting it down on in writing so everyone (most importantly the client) knows what’s going on. For instance, in insurance defense, the lawyer is being paid by the insurance carrier but the client is insured – not the carrier. This means that the lawyer has to act in the best interest of the client as opposed to the carrier. It can create a problem when the interests of the client become adverse to the interest of the carrier.

    In practice, if someone calls you and says “I can’t take on this client, can you?” then it usually becomes your client. Since you’re required to do so under the RPC, you’ll have a written engagement agreement with the client saying “I am your lawyer, you are my client, this is the scope of our engagement, you are going to pay me, (or your parents or whoever are going to pay me), this is how much you’re going to pay me, and I am paying a referral fee to the lawyer who sent you my way (if you are).”

    But if another lawyer calls you and says “Hey, can you cover a hearing for me?” You’re usually engaged on a limited basis by that attorney. You should then have a written agreement with the attorney saying “I’m working for the firm on a limited basis, the firm agrees to pay me (not the client), this is how much the firm is going to pay me, this is the scope of my services, and my involvement in the case has been disclosed to the client and they’re okay with it.” (There’s a whole book on contract lawyering called “Contract Lawyering” by Deborah Guyol. If you’re doing a lot of contract lawyer work, you should definitely read it. I’d be happy to lend you my copy.)

    Brian Tannebaum also wrote a nice piece about engagement agreements on Above The Law.

    His entire series called “The Practice” is awesome.

  5. […] may need to find a mentor willing to help out. Otherwise, the best you can do is get lucky and waste a lot of time β€” if you don’t miss […]

  6. […] about your inexperience. Or fudge. Or avoid the issue. Instead, read Jordan Rushie’s post, Winging It, in which he describes the right way to respond to a client who wants to know how much experience […]

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