Ask Howard Treesong About Law or Lawyering

[Howard Treesong]

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I'll put a caveat on this. I've had attorneys represent me in a few matters during the course of my life. I'll say that with all the attorneys I've retained (not that many thank goodness) I considered each one at the very least ethical. With that said we hear about crooked lawyers alot, lawyers get disbarred all the time, etc. In your opinion how prevelant are lawyers that cheat their clients by embezzling money, misappropriating funds and such? I'm not talking about stuff that's on the edge but stuff that can clearly get them disbarred and/or a criminal conviction. How hard is it to catch a lawyer that's adept at cheating their clients? What things should we be looking for and/or how might we safeguard ourselves?

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I'd say very few. I've had literally hundreds of litigation opponents and can't think of even one that I thought was corrupt to the bone. Then again, my firm tended only to get involved in serious cases; as one high-school friend of mine who had his own practice said, I practiced "in rarefied air." I think most of the problems with counsel come from guys who overcommit themselves or who have alcohol or drug problems. Just to use an example, I thought Cochran was willing to lie at the drop of a pin --but he was lying on behalf of his clients. At the same time, I thought he was an effective advocate who thought that what he was doing was for the greater good. And I have no reason at all to think he ever stole a dime from his own clients.

I think the sort of thing you're talking about is very hard to detect.

That said, I think there are quite a few lawyers that will misrepresent facts or law to a court, either out of laziness or short-term greed. That's just doing a poor job, though, and is really different from what you're talking about.

For a rather ridiculous example of what I'm taling about, see the link here:
http://online.wsj.com/public/resourc...aw_nycourt.pdf

I applaud anyone who has the fortitude to wade through that entire opinion. The lawyer it discusses at length is just what I'm talking about -- hyperaggressive, disingenuous, unethical. But I have no reason to think she'd embezzle or steal from her clients: it's really just a horrifically twisted sense of advocacy.

[adios]

.....

[olliejen]

HT? no [img]/images/graemlins/heart.gif[/img] for my questions? [img]/images/graemlins/smile.gif[/img]

[Riverman]

Howard,

I am a 2L at a school slightly outside of the T14. If I want to practice commercial law and am not interested in BIGLAW, what would you recommend for the job search?

[FlyWf]

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Yes, although your premise is unrealistic. As prosecutors got even busier than they already are, they'd offer better-quality deals to defendants, giving defendants more incentive to accept pleas.

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I was thinking more about the individual level than the systemic level here. You seemed to be saying before that prosecutors tend to enter into plea agreements in the cases that they are most unlikely to win at trial. Even if the plea deal encompasses very little jail time (or even none), the lifelong stigma of having a criminal conviction on one's record should push toward more defendants "gambling" on a trial. Obviously this doesn't apply to people that already have criminal records (maybe these people constitute a huge portion of criminal defendants?), but it just seems that from a game theory/economic perspective, something is WAY off in the criminal justice system. Somehow, the game is rigged.

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You're ignoring that prosecutors do not randomly indict people off the street. While they could indict ham sandwiches they generally spend their time indicting people who they believe committed crimes. The unusually high conviction percentage can be explained by selective indictment.

You've failed to identify a problem. The cases that prosecutors are truly most unlikely to win at trials are cases where the defendant is clearly innocent. Those people aren't offered plea bargains, they get charges dropped.

[Howard Treesong]

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HT? no [img]/images/graemlins/heart.gif[/img] for my questions? [img]/images/graemlins/smile.gif[/img]

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Not at all: I'm mulling yours over. I didn't like the answer I typed out and want to consider it a little more.

[bobman0330]

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I did not develop my own client base, and I thought my upward track was coming to an end. In my particular situation, the office expanded more rapidly in LA than it should have, and was thus vulnerable. I might have been able to survive long-term, but I was unhappy spending my time spinning wheels trying to generate new clients. My then-firm certainly represented my current company, although I personally did not. There were many close connections, though, and I have (and will continue to) hire my old firm.

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Knowing what you know now, what, if anything, could you have done early in your career to better position yourself later on on the business development front? Or more concretely, what advice would you give to a young lawyer who is concerned about having problems in that area later on?

[Howard Treesong]

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wrt the MSFT anti-trust case like, 8 or 9 years ago? It was about MSFT bundling IE with Windows versus people having to pay for Netscape. I didn't understand why MSFT lawyers never presented the case as a water company offering water freely available to drink as part of your water bill (IE) versus people buying bottled water to drink (Netscape). No one's ever sued the water company for giving away water that people could buy... That analogy seems apt to me and I don't understand why it wouldn't be applicable...?

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Other than the main allegation you articulate above (which is called a "tying" claim because the downstream product is "tied" to a monopoly in the upstream market), I didn't follow much of the Microsoft antitrust litigation. I always thought that tying claims shouldn't create antitrust liability unless it can be shown that consumers are hurt, as Robert Bork explains in his fine book "The Antitrust Paradox." I don't know why Microsoft didn't pitch it the way you say, although to me that's reflective of a much deeper problem than just their approach to it.

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Frivolous lawsuits (& the costs of defending/settling them) are oftentimes identified as a key driver of insurance premiums. I don't expect that you to be subject-matter-expert in this space, but from your view of the elephant, are they? If so, are there any process/procedural "fixes" you could put in place to curtail them? I've always thought that instead of capping the amount you could win in a lawsuit, you should fix the % that a lawyer can earn off medical claims (tho I think you might create a problem where lawyers will only cherrypick the easiest/most profitable cases) Your thoughts?

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I don't do med mal. But my company certainly makes a number of industrial/household products on which we get sued all the time. I can't of course reveal particular numbers, but I can say that the cost of defending frivolous suits is not a big percentage of our actual COGS -- without looking, it's got to be well under 1%. I suspect the lawsuit defense number is going to be higher in the medical service space, just because the causation is messy and the result of service is death much more often.

The British system seems to cut down on the number of frivolous lawsuits. There, the loser must pay the winner's fees -- and post security in order to proceed with a case to ensure that defendants can recover. Empirically, that system will cut the number of bad lawsuits, but it will also cause some number of meritorious suits to never be filed. I don't know that anyone has tried to do a rigorous study of the impact of that system change on either insurance costs or general efficiency. I also suspect that such a study would be well-nigh impossible.

Caps on punitives and non-economic damages (i.e. pain and suffering, as opposed to actual out of pocket medical costs) seem like reasonable answers. I think many states have contingency-fee caps (my recollection is that California's is 40%, though, so it's not much of a cap) already.

Hope this answers at least part of it.

[Howard Treesong]

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Knowing what you know now, what, if anything, could you have done early in your career to better position yourself later on on the business development front? Or more concretely, what advice would you give to a young lawyer who is concerned about having problems in that area later on?

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Remember that every single professional contact you make is a future potential client, including your opponents. There's no reason to not be aggressive, but stay entirely out of the cheap fouls business. I've had a number of opponents recommend me on cases where they were conflicted: they thought my work was strong and I was personally reasonable.

Second, start working client relationships from day one; not in an over-the-top salesy way, but rather by figuring out what it is that your firm's current clients need. What's important to them? Cost? Clear written product? Instant response time? Careful and articulate budgeting? An effective and inspiring bedside manner? After you've been working on a case for a while and have enough signature, see if you can sit down with a client and ask 'em what they really think about your work: what's strong and what could be improved. Check off on this with your senior people, obviously.

Co-workers, opponents, current clients, law-school classmates, people you meet at conferences -- everyone.

[That Foreign Guy]

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Morally, I'm 100% with you. The guys that did this are total scum. But I don't think animals have rights per se; I think they are property -- and the rights violation here is to the property of the animal's owner.


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So if these guys had bought the dog from a pet store and therefore had full property rights to the dog and then done this you would be OK with that?

I'm not particularly animal-righty, but I think that forbidding cruelty to animals is perhaps a necessary fence at the top of a slippery slope.

If it's OK to set fire to a dog, why not a baby? They have less cognitive function than a dog. If you allow potential value to say that a baby is more valuable of protection than a dog, what about a mentally handicapped person?

Also, if someone can have unrestricted rights over a dog, why not a person?

I may sound like I'm trying to browbeat you with argumentative questions but I am genuinely curious to hear your answers as you seem more intelligent and well adjusted than most people who espouse these views.