Spencer Farris, The Levison Group
The letters came slowly in response to my entreaty last week, perhaps because the forwarding order on our mail from the now defunct Levison Towers is not working well. The Under Analysis group is working from a remote Yurt without air conditioning, which means for short days in the Midwestern mugginess that has settled in. It could always be worse of course, and likely will be soon.
One question from the mailbag caught my interest: Spencer, what do you think of bad lawyers?
I never really think about bad lawyers. For me, a bad lawyer is one who doesn’t improve their craft. I am not speaking about the settlement mill folks — they are business people with law degrees. I mean the lawyers who represent their clients, but do so poorly.
I was pondering the question when Stuart Thomas stopped by. The onset of summer humidity typically puts him in a gruff mood, but today he was practically giddy — someone had referred to the Rule against Perpetuities while he was in court.
I hadn’t heard that rule mentioned since law school. It was in first year Property class, and as near as I can remember, it means that you can’t transfer or restrict an interest in real estate for more than the length of a life in being, plus twenty one years. Since lawyers are not good at math, one can only imagine the finger counting that came up with that one. It was Stuart’s second favorite rule after The Rule in Shelley’s case — he dated Shelley if memory serves.
While he was enjoying himself, I asked for his thoughts on bad lawyers. Instead, he talked about good lawyering — what a bad lawyer doesn’t do.
“Being a good lawyer means putting on your client’s case. You would be surprised how few lawyers know how to get evidence admitted at trial! If you do the things necessary to make a submissible case, you are head and shoulders above most of the profession. Judges compliment good lawyering because they don’t see it as often as they would like.”
“What about winning the case?” I asked.
“Lawyers rarely win or lose a case. Good facts win 90 percent of the time. No lawyer gets around bad facts very often. If you judge a lawyer by his wins and losses, you are missing the point,” he said.
I thought this was endearing humility from a guy who won a lot. Maybe Stuart only got good cases. My friend Trent was unsuccessful with his motion to have egregious facts ignored, and I asked what he would tell his client. He said, “I’ll say what I always say — I have a law degree, not a magic wand.” He is honest and a good lawyer.
While I disagree with his percentages, Stuart is right about winning. A really good lawyer does the research and legwork to develop good facts, but good facts win. Bad lawyers with good facts can still win.
I used to be pretty annoyed by bad lawyers — the ones who don’t work to be better at what we do. We see bad lawyers and roll our eyes when they make ridiculous objections in depositions or to written questions, knowing that no judge in the world will back them up. Now I do my best to try to be patient, and not to be one of “those” guys.
Some of these lawyers are not bad, they just aren’t very smart. I am not picking on inexperienced lawyers because everyone starts out experience-free. I mean the ones old enough to know better but who haven’t figured out that a law degree, as my Torts professor told my class, is a fifteen minute head start on research and learning the law. (Spending three years for a fifteen minute head start is the kind of math that led to the Rule against perpetuities in the first place.)
I remember waking up in a sweat after practicing law for almost a decade, thinking that I didn’t know a thing about my craft. Young me was often in error, seldom in doubt. Until that night. I don’t know if I am a good lawyer yet, but I remember that next morning I resolved not to be bad. The thought of that night keeps me on the path.
A good lawyer may not be the most eloquent or smooth in court. I tried a case against a fellow who was a total buffoon. His documents scattered on the counsel table looked like a paper factory had exploded. One day his socks didn’t match. Another, the gravy spot on his tie was bigger than the knot. His questions to witnesses sounded like they were translated, imperfectly, from ancient Gaelic. He was too smart to be bumbling around like he did, and I was pretty smug about how the trial was going. Until the jury foreperson read the verdict. Ouch.
Good lawyers know the law. They know how trial works and can cut the junk out of a case without losing the good stuff. They know the rules and more importantly, they understand how to tell their client’s story. I think most good lawyers are smart. Sometimes smart means playing dumb, and letting the jury figure things out.
Getting good facts also means having good clients. Some clients aren’t particularly bright, and worse than that, some are not completely candid. A politician once said that there are a lot of mediocre citizens , and they are entitled to a little representation too. He was referring to a judge that he thought was mediocre, but perhaps bad lawyers are the law’s gift to bad clients. Hopefully, with a gift receipt and generous return policy.
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©2016 under analysis llc. under analysis is a nationally syndicated column. Spencer Farris is the founding partner of The S.E. Farris Law Firm in St Louis, Missouri. R.I.P. Ali. Comments or criticisms about this column may be sent c/o this newspaper or directly to Under Analysis via email at farris@farrislaw.net.
