By Mark Levison
It may be fashionable to say lawyers are a bunch of abrasive, rude, arrogant know-it-alls. It may even be true at some point for most of us. But you know lawyers are people, and as a species, none of us are perfect. In fact, we never get close to perfect. We all have pluses and minuses. Still, by my measure, lawyers have more pluses than most others. That’s not all lawyers, that’s just as a group. There may be other groups that are better: perhaps teachers or clergymen or car salesmen, I don’t know. But I still love lawyers, and am not ashamed to admit it.
Early on, I was in a mid-size firm, fighting big-sized battles. My first mentor, Thomas Guilfoil, told me a story I never forgot. Tom had a small firm that he felt was an elite group: kind of the Green Berets of lawyers. We represented sports teams, banks, and Fortune 100 companies. The way Tom tells it, one morning he was in front of a Federal Judge on a case involving a tender offer fight, and he was being opposed by the largest firm in town, and Skadden, Arps, the famed New York firm known for their expertise in tender offer cases. The judge said, “Let’s go to trial” and Skadden, Arps and its local counsel, claiming they hadn’t had enough time to prepare, implored the judge to continue the case. Tom claims he told the judge, “I am sorry that my eleven person firm has our opponents surrounded, but let’s call the first witness.”
While still in Tom’s firm, I won a spot as the fourth man on the trial team fighting AT&T in a federal antitrust trial that spanned six months. We were told that AT&T had 950 in-house lawyers, and their local counsel was one of the city’s largest firms. I was the associate in charge of motion practice, and it was relentless. In order to avoid the three additional days allotted to respond to mailed motions (there was no email in those days), AT&T always hand delivered their motions and memoranda – at about five minutes to five. I remember joking I was going to file a motion with the Court to compel AT&T to use the U.S. Mail, subtitled “Motion to Take it Easy on Levison.” In the end, we survived the onslaught, and when the jury awarded us what was claimed to be the third largest victory in jurisprudential history, I grew so faint that the first thought I had was “[I]f I fall off my chair the lead trial lawyer will never forgive me.”
When you are part of a victory like that, it tends to enhance your credentials (deserved or not), as a lawyer who can deal with large matters. That’s kind of funny, because my favorite current case involves a personal battle between two individuals, and not a lot of money. It is kind of a he said / she said fight that is full of accusation, innuendo and juicy details.
Still, as I sit on my back patio listening to the chirping of the heat bugs of summer, puffing on a cigar, I find myself jousting with big firms in many of my litigation matters. Most recently, I tried a case against Kelly, Hart & Hallman, a big firm even for Texas. My client despised the lawyer on the other side. He was overweight, sweated a lot in court, and was full of braggadocio. Still, he worked hard and he beat me and my team. He often ticked me off, but I understood he was giving his all for his client, and despite his often silly comments, I thought he was a nice enough guy. He even accused me of being a demagogue in court, so I put that on my résumé.
Now, I am preparing a case for trial in Philadelphia against two of Philly’s fine law firms, Fox Rothschild and Dickstein Shapiro. At times some of the counselors have done things I wasn’t particularly fond of, but they are good lawyers. I recently filed a commercial case in my hometown, and the D.C. firm, Crowell & Moring, entered on the other side. I hadn’t heard of that firm, but their website boasts over 500 lawyers and great expertise in the relevant area, so somebody has heard of them. Then just today, LA’s Gibson, Dunn & Crutcher entered against my client in another recently filed matter. Most lawyers are aware of that firm, which boasts over 1,000 lawyers in critical legal sites such as Paris, London, Hong Kong and Dubai. Next week, I plan on filing a case in Chicago, so I will probably run into Kirkland & Ellis, or attorneys of that ilk.
I remember fighting against Chicago’s Baker & McKenzie a while back. It was a case over a defective mold manufactured in Japan. For some reason, my opponent decided it was a good idea to secretly pick up the subject mold from storage and ship it to Tokyo! That wasn’t a very smart move, and after I spent time pounding on the table, the judge ordered the eight ton mold shipped right back.
Sometimes the law can be the great equalizer. The clients can be big and the law firms can be international – but that doesn’t mean they win. Of course, sometimes they believe they can simply outspend their opponents and on occasions that works. My experience tells me that no matter the size of the firm, or where it comes from, most lawyers are pretty darn decent. The name of the game is to win, and there is no denying that. However, most of us play within the rules of ethics and professionalism, and the battles are hard fought and are generally fought fairly.
I conducted a deposition last week in my currently favorite case. I brought along Khalidah, a 16 years old high school intern, and told her that both opposing attorneys were very old friends of mine. As mentioned, it is a heated and personal case, and the deposition was filled with bantering, acrimony, and jockeying for position by the attorneys. Afterwards, she exclaimed, “Wow, did you say they were friends of yours!” I laughed.
After the deposition, the clients left and we all went into Jack’s office. I told opposing counsel how good my case was, and they told me I didn’t scare them a bit. It had been difficult getting their client to attend the deposition. In fact, I noticed it up seven times. Opposing counsel didn’t believe the deposition was appropriate at that time and filed a motion to quash. He was sure the judge would not allow the deposition and I was sure the judge would. We had a side bet of lunch on the decision. Law is not like baseball – in law, you can bet on your own side. I won and am looking forward to lunch. Of course, the big prize is not the deposition, it is the ultimate resolution. Maybe I will win, and maybe not.
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Under Analysis is a nationally syndicated column of the Levison Group. Mark Levison is a member of the law firm of Lashly & Baer. Contact Under Analysis by e-mail at comments@levisongroup.com.
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