Tuesday, December 23, 2014

Just a Little TIme Off for the Holidays

To all of my readers out there, you may have noticed a dearth of postings lately.  Christmas cookie season, then my annual post-Christmas cookie flu have keep my head too cloggy for blogging.  I've used all of the available braincells to serve clients in my office.  I feel very guilty for not keeping up with you.   Fear not, however, I am not done with blogging.  Officially, I am taking time off from the Trenches and blogging until the first of the year.  I'll be back in January with more for you.

Have a happy holiday season and stay safe.

Monday, December 8, 2014

First Thing We Do, Let's Kill All The Lawyers

Are you one of those people who sees people running alongside the edge of the road, and think "Jerk, get back up on the sidewalk!"?  You can't understand why people would run in the road.  Well, I'm a runner.  I run on the edge of the road.  Let me tell you why.  First. asphalt is easier on the knees than concrete.  That's not why I don't run on the sidewalk.  Let me tell you why.  When I reach an area without a parking shoulder, I jump over to the sidewalk. Since daylight savings time ended, I have fallen on the sidewalk 3 times.  I have gotten road rash on my shoulder, my chin, my hands and my knees.  I have ripped my running gloves.  I've been lucky I haven't broken something. Why?  Because roads in my area are fairly well maintained, they are smooth and even. Sidewalks are not.  They have cracks every 30 inches.  The sidewalk squares heave and buckle and crack.   I've tripped on the uneven surface.  Three times.  Context.

A judge in one of the courts in which I practice lost their young adult child suddenly and tragically at the end of last week.  This was the Christmas cookie weekend for that courthouse, with the delivery set for today.  I struggled with going ahead with cookie deliveries.  Today, I delivered the cookies.  To some, that might feel a bit callous, celebrating the holidays at a place that has felt such deep tragedy so recently.  What if I were to tell you that this particular judge loves my cookies?  The judge looks forward to cookie deliveries with excitement and has, on occasion, chased me down the hall to thank me for them.  The judge's administrative assistant is taking the cookies I delivered to the judge at home.  Does that change how you view my going ahead with deliveries today?  I bet it does.  Context is everything.

My favorite example of context is the infamous Shakespeare quotation:  "First, let's kill all the lawyers."  It is often cited to show that Shakespeare hated lawyers and thought they were corrupt and unethical.  If you read Henry VI, Part II, Act IV, you will see that those lines were uttered by someone who thought that killing all the lawyers was a way to disturb law and order by removing its protectors, and in that way, could seize power.  Context sure makes a difference.

We know a lot about context here in the Trenches.  A purely innocent act, in the right context, can be sinister.  A woman having dinner with a man is innocent.  That dinner, but at a candlelit restaurant, not so innocent.  Oh wait, they're holding hands.  An affair?  He texts his wife about the children.  A concerned parent.  He texts her 50 times a day - something entirely different.  What if he texts her when the child's school is in lock down and they are anxiously texting updates back and forth?  We're back to normal again.  Context is in everything we do here in the Trenches.  Putting things in the right or wrong context can make or break a case.  Here in the Trenches.

Thursday, December 4, 2014

The Good Old Days

My father used to lament the loss of the good old days of personal injury work.  In the good old days, the injured person's attorney and the insurance company's attorney would exchange necessary documents, and then they would pick up the phone or meet in person and discuss the case.  They would talk about the injured person's injuries and medical bills.  They would discuss the permanency of the injuries and the effect of those injuries on the injured person's life.  Then, they would talk numbers.  The numbers they would talk would be remarkably similar.  They were within a reasonable range.  The range was not because the two attorneys colluded to fix the amount the injured person could recover.  Rather, the range came about because both attorneys had tried a goodly number of similar cases and knew what a jury would likely award.  The attorneys would rather not waste everyone's time asking for the sun and the moon and the stars, if there's no prayer they would get it.  They haggled over a figure everyone knew was reasonable under the circumstances.  That was the good old days.  In the not so good new days, the insurance company's attorney would offer a ridiculous pittance and play hardball with it.  Not my dad, but many injured people's attorneys would ask for a ridiculously large amount of money and play hardball with it.  The reasonable range hadn't changed, but the reasonableness of those negotiating had.  What was the result?  Besides hard feelings all around,  there was a lot of wasted time and money to get to the same place.  Game playing took precedence over getting the matter resolved so the injured person could go on with their life.

I just started a case with a colleague I've known for years.  The first thing we did was get on the phone together.  We shared some information about our respective clients, and about their financial situations.  We talked about our clients' needs and goals.  We compared where we thought our clients were in terms of a financial settlement (there are no children).  We found out that we were pretty much on the same page about what it would take to settle the case, and the range of financial options available to us.  We agreed on what difficulties might exist that would impede a full settlement.  We agreed on what documents were really necessary for us to advise our respective clients and agreed to provide them.  Then we hung up.  Even though agreeing on the exact number for settlement may take some time and effort, it will take far less time, money, and effort than if we just came out swinging.  This is not the only attorney with whom I can engage in such a process.  Contrast that with another case I have in which the other attorney says one thing and does another.  This attorney has filed pleading after pleading, saying the same things, none of which are appropriate for relief.  Unfortunately for my client, I have to respond to each and every one of them.  The sad part is that we have one fairly tiny issue left to resolve, and instead of putting the effort into wrapping that up, this attorney continues to file motions.  It's miserable for all involved, and is costing my client a lot of money she really shouldn't have to spend.

The moral of this story is that is usually a good thing for attorneys on opposing sides to know each other, get along and trust each other.  It's not a good old boy kind of thing; it's a case management issue.  Trust and respect take you further in a shorter period of time than distrust.  It also saves you money.  Am I fighting for my client?  You bet I am.  Am I looking out more for what they need than in preserving my relationship with the other attorney?  Yes, but the two things are not mutually exclusive.  We can and do advocate strongly for our client's goals.  That doesn't change with who is the opposing attorney.  What does change is the tenor of the case.  Changing the tenor models the behavior of everyone in the case, which means emotions cool faster, and goals, instead of hurt feelings, take precedence.  Here in the Trenches.