The Quiet Things That No One Ever Knows

“He did what? Oh my God… you just don’t do that” said Jamison Koehler. “Every lawyer should know that,” Jamie quipped on the phone as we laughed about an incident in the Philadelphia Criminal Justice Center.

It’s true. There are some things that every lawyer should just know.

After Jamie said it, I thought to myself, “there is so much stuff you don’t learn in law school. Stuff that only comes with experience… someone ought to write it all down. And why don’t lawyer consultants ever offer to teach the unwritten rules?”

So if you’ve ever wondered why practicing lawyers are so hard on lawyers with no experience teaching people how to open law practices, it’s probably this:

There are the unwritten rules in law. Certain rules every lawyer should know, and they are important. Often they are practice or court specific, and there are tons of them. These rules are not found in a textbook, either. They’re learned from experience, and I’ve come to believe that you spend a lifetime learning them. Learning the unwritten rules is quite possibly the hardest part about practicing law.

Many purported “legal consultants” are selling advice that isn’t all that important. You do not need to know what “the future of law” is, or which iPad to use. No, it’s the unwritten rules that will get you jammed up. But if you have only been practicing law for a minute, or you’ve never practiced at all, you won’t know the unwritten rules. Physically starting a law practice is easy, but doing it right is hard.

Here are some examples of unwritten rules…

1. Do not put it in writing if it is stupid. This includes communications you believe are privileged.

One thing that always struck me as weird about my former boss and seasoned litigator James is how short all his emails were. I thought he was cold and mean, a big bully who wouldn’t make me feel good about myself by responding to my witty banter. A typical James email was “Yup” “Nope” “Fine” or “Call me”.

When I first started to practice, our email exchanges usually looked like this:

To: James
From: Jordan
Re: Jane Client

Hey James: I hope you had a nice weekend. Man, Jane is acting so crazy!!!! Ugh, so annoying! Is she mental?? Anyway, she wants to know if we can file this motion for her. Could I get your thoughts? Oh by the way, opposing counsel is such a jerk. He looked like a total ASS at the hearing wearing a suit that didn’t even fit him. His paralegal was hot, though.

The reply:

To: Jordan
From: James
Re: re: Jane Client

Your email is inappropriate. Lets chat.

Later that day James called me into his office with some advice:

“Jordan, please stop with all the stupid commentary in your emails. First, I don’t really care to read every single stupid thought you have. I don’t. Your emails are already long as boring as is. Second, and more importantly, your private emails can end up being very public if there is a discovery issue. I know you think they are just between us, but what if we have a problem with Jane Client and she sues the firm? Do you want her seeing an email with you calling her crazy? Of course not. Emails should be treated just like letters, even if they are to me or another member of the firm. Use as few words as possible. If you can say it in one word, even better.”

What’s the worst that could happen? Ask Chad Hemmat, who allegedly referred to a client as a “toothless cootie” in a private email to another lawyer. Unfortunately, the client sued Hemmat for allegedly settling her case for too low. The email became discoverable, it was presented at trial, and a Denver jury awarded a verdict of more than $2 million, including $1.5 million in punitive damages.

For the record – I don’t think that email should have been admitted into evidence. But no one cares what I think. However, I bet Mr. Hemmat wishes the email would have said: “I’m concerned about how a jury will perceive the clients. Let’s discuss.”

What’s more, everything you say could be used against you. Even the most benign words can be misconstrued or taken out of context. Treat all correspondence like a letter and limit your written communication in general.

2. Pick up the phone.

Lesson from my Uncle Jim (whose emails are usually about one sentence): “Your generation hates the telephone. I don’t get it. They want everything in writing, where it is possibly discoverable. Plus, the phone is more personal… that’s why I prefer telephone calls instead of emails.”

Yeah, Facebook messages, emails, and instant messages are great. But the telephone should be your primary modicum of communication whenever possible. From a litigation standpoint, you can always say “You took my comments out of context” or “that’s not what I said.” But an email speaks for itself.

In addition, most lawyers are smart enough to know a call means “I’m using the telephone because I want to say stuff I don’t want in writing.” Often a telephone call is an invitation to chat a little more candidly.

That said, just because you’re on the telephone doesn’t give you a license to be stupid, which some people think. A telephone call can always be followed up with a letter “confirming the contents of our telephone conversation.” James used to say “You’d be amazed at the stupid stuff people say on the phone. All kinds of stuff they would never put in a letter. I’m not all that smart, so before any telephone call with counsel or a judge, I make an outline. I don’t deviate from the outline. If they try and push me, I make a humorous remark or tell them I’ll get back to them.” While the phone is preferable, don’t think it’s a carte blanche for stupid, either.

3. “Paper the file.”

How the telephone conversation actually went down:

“Hey Joe Client, it’s me Larry Lawyer. It’s very important that you show up to this hearing, otherwise the judge is going to issue a warrant. We’ve already continued the matter three times. She is not going to continue it again. I know you have vacation plans that day, but the judge isn’t going to care. I know, it’s so unfair, it sucks, you didn’t do anything wrong…. but you have to cancel.”

What the client heard:

“Enjoy your vacation!”

Unsurprisingly, Joe Client goes on vacation, comes home, and finds out he’s going to jail. His stupid lawyer is to blame, because the lawyer said he could go on vacation.

What to do? Paper the file to avoid problems. “Dear Joe: Please allow my letter to confirm our telephone conversation today. I stressed to you how important it was to show up to the hearing. You indicated that you will be on vacation and will not show up. I urge you to reconsider this choice. If you do not show up for the hearing, the judge may put you in jail.”

If there is a dispute, you want to be able to produce a letter reflecting the truth. You don’t want to tell the court “I told him on the phone!” Courts will expect that you know the “unwritten rules”, so lack of a letter confirming stupidity will speak volumes.

4. Being a blustering jerk hurts your clients. It also makes you look like an amateur.

This is especially important in scenarios where you will be dealing with the same few people on a regular basis.

Example:

“Hey Joe, this is Tom. I know we have a status hearing scheduled for the 14th, but do you mind continuing it? I have plans with my wife that day.”
“I will not continue it. My client feels your client is bad, and therefore I am going to make your life unreasonably difficult without a good reason.”

How this can bite you in the ass…

“Hey Tom, it’s Joe. Look, my client really wants to settle this case. Can we discuss it?”
“No.”
“Can you at least give me an extension to file my Answer?”
“No.”
“What’s your problem?”
“…it’s my client. Sorry.”

This is even more important if you practice in an area where you’re dealing with the same few people over and over again. They will remember you. They may hold your bad conduct in one case against your client in a different case.

I’m not saying to play with the gloves on and to pat everyone on the head to make them feel special. I’m not saying you shouldn’t fight tooth and nail, and I’m not saying you should take “This is just the way things are” as an answer. You should fight like hell if it’s the right thing to do.

But try and be courteous and reasonable. You don’t want attorneys taking your bad behavior out on your client. According to James: “Being an unreasonable jerk to opposing counsel just alienates them. You don’t want to do that, because it won’t help your client.”

It’s also true in communication. After awhile, the words “outrageous, willful, wanton, and egregious” tend to read “bullshit fluff.” Using big blustery words either signals that you have no case, or that you’re an amateur who think big words will impress and scare opposing counsel. (hint: they won’t).

[Update]: Don’t act like you’re opposing counsel’s best friend in front of your client, either. If you’re close with opposing counsel, that’s great. A good relationship can help your clients get the result they want. However, you don’t want your client getting the impression you’re too close with opposing counsel. The system is adversarial.

I once saw an attorney go out to dinner with opposing counsel after a day of trial. Was there anything technically wrong with that? No… but the client wasn’t happy. You’re probably better off going to dinner with the client instead.

5. Even small lies can get you into big trouble. So don’t lie.

“Hi, is James available?”
(oh God, it’s annoying client…)
“No. He’s uh, in a deposition…”
(Sweet! James is gonna love me for helping him duck this client.)

“Hey James, Cindy Client called, but I told her you were in a deposition.”
“What? Why did you tell her that? I was here in my office.”
“She’s annoying and she is a time waster. I figured you didn’t want to talk to her.”
“I didn’t, but why did you lie to her?”
“C’mon James…”
“You know what the most important quality in an associate is?”
“…no.”
“Honesty. And not just in court pleadings. In everything you do. You just lied to a client. If she calls, and I don’t want to talk to her, all you had to tell her is that I’m not taking her call right now. Hell, I would have rather you told her that I don’t want to talk to her than lied to her. That would have impressed me. What if she asks how the deposition went? The way you handled this was unacceptable. Tell the truth all the time, no matter what!”

There is no reason not to tell the truth. Even if it’s unpleasant or it might make someone mad. You forgot to send something? Just say “I forgot” not “Oh, we sent it, the post office must have lost it!” That’s lying. Don’t do it. Ever.

In closing…

There are many, many, many unwritten rules in law. You won’t know any of them fresh out of law school, and many will be learned by trial and experience.

And for some reason, the “law practice consultants” aren’t teaching the important rules.

Perhaps it’s because they don’t know them.

2 Responses to The Quiet Things That No One Ever Knows

  1. Good rules. I like the amiguous response of “He’s not available right now….” I enjoy your blog.

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