July 2006 | e-Newsletter

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Announcing Billable HourTM Custom Logo Timepieces Feature Article: Dr. Jekyll and Mr. Hyde in the Law Office Cartoon: Stu's Views Humor: Home Office Blues Did you Catch it? Advance Sheet Special Offers Oddservations: Brevity is Soul of Wit, er, Opening Statements Cartoon: Juris Comic Book of the Month: Anonymous Lawyer: A Novel Daily Legal Toon Humor: The "You Call This Living?" Will

Announcing Billable HourTM Custom Logo Timepieces

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Dr. Jekyll and Mr. Hyde in the Law Office by Cheryl Stephens

Lawyers are skilled charmers. They have to be persuasive and diplomatic to get clients, make legal arguments effectively, and network in the community and so on. Whether the face that a lawyer presents outside the office is a genuine expression of true self or a façade developed for business advantage is largely dependent on the individual's personality.

Sometimes when the charming lawyer returns to the office, the ogre comes out. All the negative feelings about the case, the file, the client, and the world are expressed to the closest legal secretary or assistant. Dr. Jekyll, the charming rainmaker becomes Mr. Hyde, the grump and doomsayer. Unfortunately, when a client phones the office to speak to Dr. Jekyll, he may be connected to the legal secretary whose office role model is Mr. Hyde.

Like the "Good Cop/Bad Cop" routine in the police precinct, this split-personality team is tolerated in the law firm. When consultants assess the situation, they suggest client-service or inter-personal communications training for the support staff. No harm can come from that and I think it should be a routine feature of staff training.

But how long can the newly learned behaviors survive when the assistant is still subjected to repeated performances by Mr. Hyde?

The trite warning, "Do unto others as you would have them do unto you," is apparently lost on lawyers. They cannot understand why their secretaries or assistants are SO NEGATIVE, why they COMPLAIN so much, why they harbor RESENTMENT. Well, another trite phrase applies: "It's payback time."

Lawyers should consider the atmosphere they create by unburdening themselves in the law office environment as if there were no consequences to negativism. There are times when the horrendous impact of the lawyer's personality are impossible to ignore: a continuous turn-over in secretaries, associates who will do anything to avoid working with the lawyer, partners who shun the lawyer. But at other times (the more usual situation), a very nice person who happens to be a lawyer will allow himself or herself to use their support staff as virtual punching bags—assaulting with words, evil looks and tirades. These lawyers may fool their clients into believing that the secretary is the one in the office who is lacking in interpersonal skills—but nobody else is fooled.

And the good-guy side of the act will become increasingly difficult to perform, while the grumpy-old-man character will take over. Eventually there will be no new clients coming in the door from this former rainmaker.

So, what to do? Do continue the client-service training for all levels of staff. Do provide training in inter-personal communication skills to everyone. And investigate outlets for the expression of negativism, which are not destructive of the working environment. Do you provide avenues for the expression of healthy humor? Does the lawyer need a mentor or coach to help redirect the anger and frustration into healthy results?

Do any of your partners need interventions: referrals to therapy or addiction services like AA? Are you caring for your lawyers' personal well-being as you purport to care for your clients' legal interests?

Investigate what programs are available in your legal community for these types of assistance to lawyers. A good place to start is the web page of the American Bar Association's Commission on Lawyer Assistance Programs at www.abanet.org/legalservices/colap/.

Cheryl Stephens, Mentor/Muse, is a retired lawyer who can't seem to stop teaching, writing, and bouncing around to speaking engagements. She can be reached at email@cherylstephens.com.

Cartoon: Stu's Views by Stu Rees

Humor: Home Office Blues by Sean Carter

A wise man once said, "Be careful what you wish for, you just might get it." I wish that wise man had been around during the early years of my career when I desperately wanted to go solo. While working at two major law firms and a large corporation, I would lie awake dreaming of the solo life—setting my own hours, choosing my own clients, and not answering to anyone (except, of course, my wife). Well, four years ago, my dream turned into a reality; just not the reality I had envisioned.

Now, don’t get me wrong. I love being on my own and I wouldn’t trade my practice for anything in the world (although I’m willing to listen to any reasonable offer). I particularly enjoy the fact that I work out of my home. You just can’t beat the commute. Besides, there’s nothing like the feeling of winning a heated negotiation against an uptight New York lawyer (as if there are any other kind) while sitting in your pajamas.

Yet, for all of its advantages, there are some definite drawbacks to working from home. In a law firm or the legal department of a corporation, you have help . . . lots of it. There are many people whose sole purpose is to handle the more ministerial aspects of practicing law so that you are freed up to do the legal "heavy lifting."

For example, in a law office, supplies just seem to magically appear when you need them. One minute, your laser printer is out of toner and the next minute, you could print out the complete works of Shakespeare (including those boring sonnets). That’s not the way things work in a home office. There are no magic toner fairies to get you printing again. You have to go to Staples to get your own toner. Of course, this means that you must first get dressed. Take it from me; Staples has a rather stringent policy against customers showing up in their pajamas. Even worse, Staples won’t let you "borrow" supplies the way an employer would. They insist that you actually pay for them.

As a result, you develop a much different attitude about the personal use of "firm property." You no longer look the other way when you see someone taking a pen or a stapler or a copy machine out of the office. In fact, I’ve become downright fanatical in my efforts to prevent the misappropriation of firm assets. On several occasions, I’ve threatened to call the police on my own children after finding them using firm pencils to do their homework. The only thing that stopped me from following through on this threat was that I knew my wife would insist upon bailing them out (well, at least the baby).

In addition to free supplies, I also miss the efficiency of being able to delegate tasks, like mailing letters. In a law office, if you need to mail a letter, you simply tell your legal assistant and presto, it’s gone. It doesn’t work that way in a home office. Just mailing a simple letter can take up the better part of a day.

First, you must properly load your letterhead into the printer. Depending upon your computer savvy, this task can take anywhere from 3 to 6 hours. Then, you must find the mailing envelopes. You just knew they were in your office somewhere. Finally, you give in and yell to your spouse, "Honey, have you seen my envelopes?" Amazingly, he or she has seen your envelopes. In fact, he or she used them to send out the family’s holiday cards or update everyone on the standings in the latest fantasy sports league. However, he or she believes there is one envelope left on the kitchen table somewhere.

And sure enough, that’s exactly where you find it. Yet, your spouse failed to mention that they used the back of this envelope to write down all of the items on sale at the supermarket this week. Now, you have a choice. You can make yet another trip to Staples (after getting dressed, of course) or you can use this envelope and try to blame it on vandals at the Post Office should the client say anything about it. In the interest of time, I usually opt for the latter option and simply hope that the client either doesn’t notice or, at least, doesn’t shop at my supermarket.

Yet, by far, the thing I miss most is having someone to collect my outstanding bills. As you know, collecting bills is like pulling teeth. In fact, on a few occasions, I’ve been tempted to threaten to do just that to clients who were behind on their bills. Seriously, when I worked for a law firm, I never had to worry about missing a car payment (or selling a kidney on eBay) because of a delinquent client. I’m now faced with this dilemma on the 1st of each month.

As you can see, between daily trips to Staples, marathon mailing sessions and digging through my couches for change to pay the cable bill, my solo existence isn’t as carefree as I imagined it would be. Yet, all in all, if I had it to do all over again, I could choose to go solo any day; except for the 1st of the month, of course.

Sean Carter, Humorist at Law, is a syndicated columnist and popular speaker who presents Comedic Legal Education programs for law firms, in-house legal departments and bar associations across the country. Sean is also the author of If It Does Not Fit, Must You Acquit? Your Humorous Guide to the Law.

Did you Catch it? Advance Sheet Special Offers Last Only for a Few Days

In last month's Timesheet, we let you in on a little secret: some issues of The Advance Sheet, our occasional supplement to The Timsheet featuring a single legal humor or work/life balance article, would contain special limited-time offers on Billable Hour^TM timepieces. In the June 16 issue of The Advance Sheet, we offered 10% off to the first 10 customers to place an order using a special coupon code.

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Oddservations: Brevity is Soul of Wit, er, Opening Statements by Bob Pladek

"If a person feels he can't communicate, the least he can do is shut up about it." ~Tom Lehrer

Judges tend to give lawyers a lot of leeway (ramble time) in constructing and delivering opening statements, as long as they don’t swear the evidence will prove their case (but they can strongly contend it will), don’t engage in personal attacks, and don’t explain the law. If the case is serious and complicated, judges will give even more leeway.

Thus, at least half the bar (or all the bar, half the time) must relish State v. Tilghman, an April 25 Appellate Division decision upholding a trial judge’s decision to limit counsel to 20-minute opening statements. Actually, the judge let the defense go 32 (which by my math is 60 percent more.) But even that wasn’t enough for them. Their appeal claimed, in part, the limitation deprived the defendant of a fair trial. The fact that the defense offered no witnesses, the prosecution only three, and the whole trial lasted two days figured into the appeals court’s decision, as did the fact the trial court set no limit on closing remarks which, presumably, means summation could have been still going on today.

One of the reasons opening statements are so important is they’re made when the jury is at its highest level of attentiveness. And experienced litigators know whatever the length of the statement, the most important parts are the first few minutes, and the last 30 seconds. Much of the rest is filler.

In Instant Replay, Green Bay Packer guard Jerry Kramer recounts the time Vince Lombardi lectured him for blowing a play by jumping offsides. "Kramer!" he said, "The concentration period of a college student is 30 minutes, maybe less. Of a high school student, 15 minutes, maybe less. In junior high, it’s about five minutes, and in kindergarten, it’s about one minute. You can’t remember anything for even one minute! Where in hell does that put you?"

I have never seen a study proving the worth of extended opening statements, except to give the media more shots at good sound bites. Most lawyers who drone on and on are motivated by Foghorn Leghorn-ism: "Talking just to hear yer head roar."

In CA Magazine—a leading Canadian accountants journal—Christina Kaya (www.Kayco.com) notes brain research indicates that as a presentation’s length increases, the percentage of audience absorption time decreases. In a 20-minute presentation, for example, the audience is in a prime-time mode for about 18 minutes. In an 80-minute presentation, 30 minutes are wasted.

"For people with average attention spans, 20 minutes is considered the optimum time frame for one-way delivery of information," says Kaya. Even within these 20 minutes, "Cycles consist of 35 to 55 seconds of uptime, followed by two or three seconds of downtime."

In light of this sort of substantive research, as well as what our guts tell us (recall 15 minutes into "Heaven’s Gate" and "Ishtar"), one could argue any counsel making an opening statement longer than 20 minutes is guilty of ineffective assistance. Such an argument—in such an opening statement—I’d really like to hear. And time.

Bob Pladek is Special Sections Editor for New Jersey Lawyer. This article is reprinted with their permission, which wasn’t overly begrudgingly given. Bob’s views, thankfully, are entirely his own. You can reach him at Robert.pladek@njlnews.com.

Cartoon: Juris Comic

Book of the Month: Anonymous Lawyer: A Novel

Although Anonymous Lawyer : A Novel won't be on the shelves until July 25, it's already garnered a number of reviews by bloggers who received advance copies. Only two well-known bloggers had anything good to say about it. Will Baude from Crescat Sententia called the book "funny, and worth a quick summer read." Addressing critics of the book, he observed: "Of course Anonymous Lawyer is not factually correct about everything that happens at big firms. If it were, it would not be funny. As a satire it only works by evoking certain commonly-held fears and ideas of the big law firm, but that no more requires those fears to be true than a chicken-to-the-other-side-of-the-road joke requires chickens to be motivated actors." In a brief comment on another blog, Mike Cernovich from Crime & Federalism says: "I stayed up late finishing the book the day I received it. I gave it to the wife the next day and she finished it in kind. The book is brilliant. (And I say this as someone who was not a big fan of AL the blog.)"

Most reviewers, though, have panned it. Ted Frank over at Lagniappe: an unserious blog (but better known for his writing at Overlawyered and Point of Law) has written one of the most comprehensive reviews to date (quoted here in its near-entirety):

The Anonymous Lawyer blog was supposedly written by a mythical hiring partner, who made acerbic observations about the hiring process. Some credulous people believed it was written by a real hiring partner, until Blachman outed himself as a Harvard Law student in a New York Times interview.

In the book, the blog is written by a real hiring partner, the character that Blachman created. But printing out the blog does not a book make, so Blachman interlaces a plot of sorts.

And this plot is the first fatal flaw of the book: now the Anonymous Lawyer has an aspiration, to become the managing partner at his law firm. But Blachman, who at least had some sense of how law firm summer programs work, has no sense of how internal law firm politics, or even internal law firm management, works. In the fictional world, the managing partner serves for life and is given dictatorial micromanaging powers by an executive committee, and elevation to managing partner is treated by the protagonist as the natural next step from being elevated to partner. Right down to the frustration the protagonist expresses over the decisions of the executive committee (which raises the question why he doesn't aspire to be a member of the executive committee, much less why the executive committee would grant such power in someone other than one of its own). And as Tung Yin notes, completely absent from the competition between Anonymous Lawyer and his rival is any sense of what competitive law firm partners really care about: shares and draw. (It's astonishing and entertaining how any complaint by a partner about a fellow partner will, within the first few minutes, note the inequity of their draw. No sense of that in this book.) Okay, a satire doesn't have to be realistic, but what precisely is this plotline satirizing? This main story (which I could never bring myself to care about) dominates the book, and its irrelevancy to reality and earnest lack of humor detracts from the elements that are satirical. One mourns the lost opportunity: anyone who has spent time in a law firm committee where micromanaging decisions are actually made has much funnier stories to tell about the battles over office assignments and furniture and coffee service.

The plot creates other problems combined with the blog-structure of the book. Because the book is told entirely from the files of the Anonymous Lawyer, we never see the other characters of the law firm except through his (not especially perceptive) eyes. And, as a result, the plot moves along almost entirely through outside events that just happen, and are never explained adequately. The plot is moved by at least eight deus ex machina events that do not arise organically out of characters' motivations, and the book is about Anonymous Lawyer's reactions (and only occasionally choices of which actions to take) to those events. A charitable interpretation is that Blachman is trying to show that even hiring partners are not in control of their legal careers, but I don't think so: this theme is never developed for anyone, and the book has very little to do with the law. Worse, at least four of those events require outside characters to act in a short-sightedly reckless manner entirely inconsistent with intelligent and experienced attorneys and executives: is a bank vice president really going to commit to paper a step-by-step guide to embezzlement? Is a law firm partner really going to write an e-mail explaining that he fired someone to punish them for reporting on a partner's wrongdoing? Yes, people do make reckless mistakes in real life; one need only point to my marriage and many other of my former relationships. But too many characters doom themselves by foolish actions without any explanation for why they were acting foolish other than to move the plot along in a way that it wouldn't if they hadn't acted foolishly.

And the Anonymous Lawyer protagonist is guilty of that, too. We're to believe that an ambitious attorney with eighteen years experience has started a personal blog that could endanger all he's worked for because... why? One understands why Jeremy Blachman or Melissa Lafsky anonymously blog about their legal careers directly or indirectly: they don't really want to be lawyers, and aren't afraid of the consequences of getting caught blogging. (A recent New York Times piece noted the irony that an intern could make substantially more money from a tell-all blog's book deal than from interning, but a senior law firm partner doesn't have that perverse incentive.) Other lawyers blog to get recognition in their field. Still others do it for attention, but this wouldn't be a problem for a hiring partner who can get associates and law students to genuflect before him. Why would a corporate litigator say such incriminating things in a blog? It's never explored, except in asides where the protagonist says he doesn't know why he's blogging. It's just assumed that Anonymous Lawyer (and numerous other lawyers who e-mail with Anonymous Lawyer) regularly commit to firm internal e-mail things that would be very embarrassing in a deposition, not to mention in the hands of the FBI.

There's a smaller subplot, a Blachman-like summer associate who is a favorite of Anonymous Lawyer (and who is the only character who is more than paper-thin) decides he really doesn't want to be a lawyer. But this doesn't work, either: we never see the progression, only hear it announced in an e-mail and a blog post. (And one suspects that it's a tacked-on response to this Amber Taylor post citing Blachman.) And we never see why the lawyers choose to be lawyers, either; it's not like the summer associates are treated so well that they're fooled or don't know what they're getting into, or that Anonymous Lawyer even pretends to put up a façade of what legal practice is like—summer associates are given dreary warehouse assignments reviewing documents and overnight busywork memos, precisely the kinds of assignments attorneys are forbidden to give summer associates in most law firms.

Blachman never decides who his main character really is. Is he a cynical excuse for a human being who cares about nothing other than money or power? Then why the sudden out-of-character blog posts of self-reflection exhibiting tremendous insecurity? And if the character really feels that everything he does is worthless and thinks his clients are all guilty, why does he try so hard to recruit his beloved niece to the firm? One notes that he does an awful job of selling the firm, but is somehow successful at it. We never see any indication that Anonymous Lawyer is anything other than absurdly incompetent at client relations, human relations, firm politics, Machiavellian manipulation, or recruiting. How did he ever get to be a partner in the first place? He's in a position of power when the book starts; there's a small reference to unhappy days in high school, but no hint of the 25 years in between then and now, and one can't bring oneself to care whether the career path continues upwards or fails to do so.

One could nitpick at other things: why does the cynical hiring partner have a reverence for Yale Law when real-life cynical hiring partners sneer at Yale Law graduates as prima donnas who have never learned anything practical in their Critical Gender Theory classes and have to be trained from scratch? How the heck does a hiring partner have so much time to bill law partner hours, run a recruiting program where he's attending or organizing nearly every event, write lengthy blog posts in the middle of the day (and go through the hundreds of emails those blog posts generate), and still be able to drop references to pop culture as well as any twenty-something? (The fact that we never see the protagonist deal with a client, an opposing counsel, a hiring committee meeting, or a business trip may have something to do with it.)

There are funny moments, such as the scavenger hunt where summer associates have no trouble tracking down a suicide note. But even as a matter of humor, the book doesn't quite work, because the tone isn't consistent. Sometimes the book strives to be a realistic view of law firm life with earnest regrets of sacrifices made; sometimes it's an over-the-top cartoon where paralegals quietly suffer lower-caste status and are given sub-standard food at the same events attorneys attend, and are lucky not to be left for dead in photocopying accidents. (Had Blachman spent more time in a law firm, he'd understand that long-time support staff and paralegals have more power than the junior associates. When I was a counsel, a favorite paralegal's complaint about treatment from a junior associate got a lot more weight than vice versa, because one is more fungible than the other, regardless of pay differentials. As satire goes, opportunity is missed because everything in the book is drawn in such broad strokes.)

I was wrong that this blog couldn't be translated into a novel; Blachman has the clever idea that the blog could be used as an unreliable narrator, something that fully comes into play in the last pages of the book. But Blachman's inexperience with his subject material and inconsistency in tone and characterization means that he ultimately fails to execute.

I'm surprised at the warm reception the book is getting in the blogosphere. I think part of it is aspirational, and part of it is that it's coming from summer associates and law students who don't hear the dissonant notes in the book. Which suggests that Blachman will have some success, and will get a second chance to write. More experienced attorneys, like David Giacalone and Ann Althouse didn't like the book; but the experienced Evan Schaeffer hints that his review will be good, so I look forward to his take. Perhaps if one finds more subjectively funny material in the book than I did, one is willing to forgive the problems with the book's structure and characterizations and dialogue.

Yes, the book is filled with funny, bitter, and (at times, insightful) zingers, just like the weblog. But, there are far too many other aspects that are just like the weblog. The first-person narrator continues to be soullessly cynical, conniving and cruel—there is no background, no depth or growth to the Anonymous Lawyer character. The other characters, with the slightest of exceptions, are not even cardboard cut-outs; they are simply nicknames—e.g., the Jerk, the Guy with the Giant Mole, the Suck-Up, the Bombshell. As for plot, it is so thin as to be virtually transparent. We end up with a hard-copy version of seven weeks of the fictional partner’s weblog.

I get the stark impression that the novel is not written from the perspective of a person who has ever lived such a life or has any desire to understand someone who has, but from the perspective of a young person who has worked as a summer associate in a law firm and hated it and hated people like the Anonymous Lawyer.

I already understand the bad feeling many young people get from working in law firms, and I don't want to spend my time reading what I think is merely projected hatred and not a real character that can be understood.

Daily Legal Toon

Daily Toon Click to enlarge
Lawyer Cartoonsby Andertoons

Humor: The "You Call This Living?" Will by James Rose

Clients have been demanding living wills recently, despite the fact that a living will bit one of them when he took it home. Lawyers who do not wish to reinvent the wheel (because there is already a patent on it, so what’s the point?) can use this handy sample living will, which we call the "You call this living?" Will, to distinguish it from our other living will (which is called "Living Will is the Best Revenge").

I, John Dough, being of temporarily sound mind and body, but cognizant of the vicissitudes of life and the fact that I have excellent health insurance, greedy heirs, and don’t like to use seatbelts, do hereby declare this my living will.

I do not want to be kept alive in a vegetative state (such as Florida). I declare that the legislature of any state and the Congress of the United States shall not make any medical decisions for me (whether or not they are based upon the polls), nor should referenda be held concerning my fate.

No audience participation shows where people call in (such as "America’s Next Living Vegetable") shall conduct polls on whether I should live or die. I further direct that no decisions be made concerning whether to discharge me from the hospital with extreme prejudice by any HMO living or dead (whether or not the HMO has previously permitted me to go into a coma upon my written application). No heroic means shall be used to sustain me even if I have heroic medical coverage.

If I am hospitalized, I direct that tests be performed to determine if I have burned out my cortex, or if my brain has ceased to function. The test shall consist of offering me: (1) A big thick steak; (2) a beer; (3) the remote control to the TV; (4) a sponge bath from a comely nurse; (4) the sports page; (5) a banana split. If I fail to respond to the above named stimuli then you can take it from me—I’m dead.

Under such circumstances someone (other than my sole heir) is directed to pull the plug and settle the bill.

____________________________ (Future deceased signs here)

James M. Rose is an attorney and legal humorist in White Plains, New York. The Supreme Court Jester is a collection of Mr. Rose's articles in book form.

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