Monday, January 25, 2010

Terminal Self-Importance

Part of being an effective lawyer, and an effective client advocate, is understanding the forum where your case will be heard. The Court system is not just "the Judge" or "the jury", it is also law clerks, court attorneys, and other court personnel who are the gatekeepers for all the cases trying to be heard. If you can't get past the gatekeepers, you will not be heard.

To be an effective lawyer, and an effective client advocate, I have to ask my new clients lots of questions. I have to find out all the pertinent facts, and I have to figure out what is motivating the bad people to do the things they are doing. Yes, sometimes they are just bad and greedy, but even the bad and greedy have reasons (or at least, reasons they think they can get away with it), and I want to figure this out.

Sometimes I take a big risk and play "devils-advocate" with my new clients, and speculate on the opponents arguments (Warning to young lawyers - while this may make perfect sense from your perspective, it can be a very dangerous technique). When I speculate on the opponents arguments, I always use a big disclaimer, something like "THIS DOESN'T MEAN I AM AGAINST YOU". Most clients understand this, but some will respond with "Hey, whose side are you on?" These discussions ARE helpful in understanding your own clients, and how well they grasp the realities of the legal world.

Sometimes it seems that clients think what I do is.....I listen to their side of their claim......I become inspired by the righteousness of it.......I run over to the courthouse and tell "the Judge" about it......and the Judge stops all other business so he can extract the money being withheld from my clients by the wrong-doers........and for this little bit of "work" I want to be paid exorbitant fees.........(oh - and I do this every day, to insure my extravagant lifestyle).

I call this type of thought process "terminal self-importance". In the course of interviewing a client on a new matter, and in deciding whether I want to get involved in it, (note: if you don't realize that during the interview I am deciding whether I want to get involved, and it isn't only about probably have some TSI going on) I try to assess whether the client has a realistic understanding of what actually happens in Court. Things like:

- There are so many cases in most courts, that the Judge CANNOT recall the details of each case when it is before the Court. Usually, if I have a pre-trial conference, attended by my adversaries and the Judge, the first thing the Judge will say is "What's this about?"

- When a motion is made regarding some aspect of a case, there are generally MANY other motions being heard that day. The motion is usually conferenced with the Judge's Clerk, who puts a lot of pressure on the attorneys to resolve the issues without the Court having to do it. This doesn't mean the Judge or the clerks are lazy or indifferent (though some are), the reality is there are many cases with serious issues, and one (yours) may not particularly stand out.

- You usually cannot proceed in Court without all the interested parties being notified, and without the interested parties being heard. Most Courts and Judges go out of their way to adhere to this one, often to the frustration of the terminally self-important, who need to win NOW.

- As outrageous as the issues in your case may be, they are surely not the most outrageous thing the Court has heard......that week. As an attorney I know this, because they are also generally not the most outrageous thing I have heard (that week) either. This does not mean I don't care, or that I will not give my all towards solving the problem. By having perspective, and knowing the Court's perspective, I will know how to have the case heard (and resolved) in the best way possible.

Terminal self-importance can, and should, be addressed early in the attorney-client relationship. My advice to fellow attorneys is: If you see it and can't at least discuss it, BEWARE. And....make a clear fee agreement and stick to it, clients with TSI will make you earn it!

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