Chapter 19 - You're Smarter than You Think: Beat this into Yourself
Have you had those moments yet where you tell some lawyer, "Wow! That was smart. How do you come up with these things?" I remember the first time I did. It was back as a new attorney on one of my very first cases.
My boss, who was in his 60's at the time, handed me a personal injury defense file and said, "I want you to take this Thibodeaux file, review it, and draft a motion for summary judgment." I replied, with a blank look (am I supposed to know what he means?), "Ok."
So, I take the file and go over it and over it. It is not very thick. I understand the nature of the claims. The plaintiff was hit by another driver while rounding a turn in the road. The defendant driver was working for Atchison-Topeka Railroad. Our client, Thibodeaux, was the landowner. The plaintiff alleged the other driver was negligent and Thibodeaux was also negligent. Thibodeaux did not keep the brush trimmed and caused driver visibility to be impaired.
I look. Look. Look some more. Finally, I go back. "Craig, I have gone over it backwards and forwards. I understand what the claims are about, but what exactly am I supposed to base a motion for summary judgment on?"
Craig tells me, "My young man (he was Irish). Did you see the grazing lease in there?" I said, "Yes, I saw it." He replies, "Well good. There's your summary judgment. Go prepare it." Craig was a fabulous mentor (he is now deceased).
Honestly, I was clueless. I could not bear to return back to the library table with that file to sit and stare at it blankly while racking my brain aimlessly for another hour. "Craig," I confessed, "I honestly don't see it. I don't even know where to begin."
"My dear boy. They taught you in law school that one of the elements of negligence involves 'duty.' Did they not?" I replied, confidently, "Yes. That, I know." Then, he says, "Well, go do your research. Find out, as between a landlord and his tenant, who has the duty to keep the place up."
"Holy cow! Craig, I have to ask. How do you come up with these brilliant moves?" Craig was great. He could have said he was a genius, but he told me like it was. "As you go through life as a practicing attorney, you are going to get your butt kicked around the block a few times. It's going to hurt, too. Those are the best lessons you will ever learn. It's going to hurt so bad, you will find ways to pass that favor down to the next lawyer."
He was right, too. Not only that, I appeared for my first time in district court ever. I argued the motion for summary judgment, and we won. It was so exhilarating for a baby chicken like me who just barely left the egg shell. Craig talked to me after the ruling.
So, how does it feel to be a 500-pound canary? (He was giggling like a kid and grinning ear to ear) This is just the beginning of your career. You're going to be doing a lot of butt-kicking, my boy. Most attorneys throw their garbage to their baby lawyers and teach them how to get used to losing. That's not a good way to teach a young lawyer how to become successful and expect more of himself. You're going to be expecting a lot of yourself.
Then, he proceeded in front of me to call some attorneys we were working with on another case and brag to them how his baby attorney kicked the tails off of two veteran attorneys. He was proud. I think he honestly loved teaching more than practicing law.
Our next case right after that was a tortious interference case against Tandy Corp. (Radio Shack) by a franchisee who claimed Tandy squelched a deal he had lined up to sell his store. The short story there was it was a successful case which required no more than about three months. I prepared discovery requests asking for, among other things, identities of Radio Shack dealers who complained to Tandy about the new policy of Tandy. Tandy responded, "None have complained." Our clients took issue. They told me I might call the Radio Shack Dealers Association and talk to them. The RSDA was a group of dealers who banded together to try to prod Tandy to be more equitable to franchisees.
I called the RSDA and told them what was going on. The lady who headed the RSDA talked to me. She laughed in amusement. "We have a newsletter we put out every month, and we send a courtesy copy straight to the President in the Ft. Worth tower. I know this topic has been in our newsletter several times with dealers explaining how oppressive and possibly illegal it was. It's widely known."
I said, "You have to be kidding me! Look, we have a mediation Monday (it was Friday). Can you find these articles and fax them to me?" She said, "You'll have them first thing in the morning." I went to the office that Saturday morning, and in the copy office, we had a ream of that old, thermal fax paper rolling all the way to the floor and curled up several times. I made good copies and called Craig and Carl. "We've got it! It's for real. Tandy is going to be treating us to a royal lunch."
It was a good lunch.
Was this genius? Was it luck? No. It was just like life. That one event concerning the RSDA taught me that you build your cases with information. Much of this information is not in the law books. You have to seek it everywhere. This does not require special acumen or intelligence. It is just work and persistence, the same as legal research.
I miss Craig. But he was tough, too. He knew when to shake me up. One time, he told me to subpoena a judgment debtor and get him in and take his deposition. So, I went to the form-books and found a subpoena. I plagiarized it nicely and had it served on the debtor.
About a day or two before the deposition, Craig tells me to grab the file so we can prepare for the deposition. I brought him the file. He opened it up. He looked at me with a stare that just pierced my gut. "Where are the documents?" I knew I was in deep doo, but I did not know what he meant. I asked, "What documents?" He said, "Why didn't you make him bring his documents? Do you know what a subpoena duces tecum is?" This was not going well.
I learned very quickly what a duces tecum was. "How the blank, blankety, blank are you going to find out what this guy has to collect? Are you just going to sit there and hope he remembers and tells the blanking truth? We have to call off the deposition. We can't go forward like this. I have to call the client and tell them we have to reschedule. We billed the client for this and wasted his money." I do not know what dying exactly feels like, but at that time, I felt like I wanted to go dig a hole and fall in it and never come out.
I left his office, and some time later (it might have been the next day), he calls me back in. "I need to ask you a serious question," he said. "Are you sure you want to be a lawyer?" Of course, I was sure, but I felt so bad I honestly wondered for the moment. I anticipated the prospect that this meeting was going to be the last time we saw each other. "Look," he says, "lawyers can't be sloppy like this. Not everyone is cut out for it. It's nothing to be ashamed of if you aren't. Just do yourself a favor and figure it out now. Don't waste your life trying to be something your heart is not into. You have an accounting degree. Maybe you should be an accountant." I was dying all over again. My eyes were watering. Then, Craig tells me:
Look. I am not telling you that you're not good enough or capable enough. If this is what you want to do, you are smart enough to do it. You just need to know that, as a lawyer, you're nobody's friend. The plaintiff hates you. You're representing his defendant. The plaintiff's attorney hates you. You're trying to kick his tail, and you might even get him sued for malpractice by his own client. Your client hates you. You are billing him to death, and he can hardly afford you. Any one of them will sue you if you give them the right opportunity. Law school taught you to be too nice. That's all good and well in academia, but in the real world, you have a bull's eye painted on you. Kill or be killed. Is this the life you want?
Well, I did not go through law school to be anyone's fool, and so, of course, I needed to make some adjustments. Then, he told me, "I don’t know how many times I have to tell you that I pay damn good money for all those books in the library. Your answers are in there. Pretty much anything you ever want to know. Stop acting like you need to know all the answers in your head. I want to see you buried in those books every day." He did. I kept my promise to him on that.
There were three difficulties Craig had trying to teach me. The first was to research. The second was to plagiarize, and the third was to go for the jugular.
So, now, you know why I emphasize research so much. I would very regularly (twice a week, or so) have 25 books from the Southwestern Reporter laid out all over the library on tables and chairs, opened to particular cases in my trail of research. This was my habit for the whole of my career there. Craig's wife, Susan, used to lightly joke about it. In fact, even after I went to another firm later, this remained my habit. It still is. The only thing which has changed is that the days of hardbound books are over. I still always inundate myself in case law - not for the heck of it, but on my clients' cases. I want to know where my case stands and what I can expect to do or not do with it. I hate surprises and being schooled by other lawyers who did better research.
If my client is going to get his tail whipped, I am going to find it out, and I am going to make sure there is no other reasonable conclusion to draw from applying the pertinent laws to the facts. If I find cases supporting my client, I want to make sure my research trail is at an acceptable end. This means more research.
There is a mental process involved which is difficult to describe. The best way I know to describe it is that I research, not to win, but to do my best to not lose. This means not stopping once you find cases which support your point. The other lawyer is finding cases to defeat you. You have to do complete research. After you find cases to support you, you have to find and debunk all the cases which the other side might find and use. Maybe the following quote will resound with better clarity to you:
If you know the enemy and know yourself, you need not fear the result of a hundred battles. If you know yourself but not the enemy, for every victory gained you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle. - Sun Tzu, The Art of War.
After learning the importance of research, the next issue was plagiarism. I would find hoards of cases to cite in my motions and briefs, and I would cite to them abundantly. In my briefs and motions, for example, I would write something like, "An affidavit in support of a motion for summary judgment may be based on the testimony of an interested witness, and summary judgment may be granted if it is uncontroverted. Jenkins v. Jones, 312 S.W.2d 518, 523 (Tex.Civ.App. - Dallas, 1982, no writ)." Then, I would turn my drafts over to Craig.
Typical Craig. This is how it would go:
Is this what the Jenkins case says?
Are you sure of it?
I'm pretty sure (he was making me start to doubt my memory).
Well, why didn't you just quote the exact language in the case so we don't have to guess?
So, I went back to the drawing board. Craig was very patient. He let me spend hours trying to get things right. I came back with the next draft:
Didn't we talk about this already?
I changed it. See? Here, here and here.
But what about these? And those? And those?
If I change everything, there won't be an original thought left.
Nobody wants you to be original, my dear boy. When you're being original, you're going to make mistakes. You're going to raise doubts. Plagiarism is bad in academia. In the law, plagiarism is the name of the game. Bring it back when you're finished.
The biggest tug and pull for Craig was to get me to stop letting people dilly-dally with me. Ours was a small-town practice about an hour outside of Houston. We were working in Brenham as local counsel on the biggest case I will have ever experienced in my life. It was a major pipeline/storage facility explosion that killed people and damaged houses miles away. People felt the seismic tremors as far as 70 miles away. There were over 2,000 plaintiffs spanning a dozen or so lawsuits. We represented the pipeline company.
We had a satellite office in Sealy about 40 miles away. One of the partners there recalled the day of the event vividly: "I was in my usual place that morning (the John) reading the newspaper, and all the sudden: Woooooommmmm!!! What the hell was that? It was like the floor raised up a foot or so. I thought a train must have derailed. 10 seconds later. Wooooommmm!!!! What in the hell was that?"
My charge was to get the county tax appraiser's mapping data under a public records request. I was new in town, and I had made a friend in the tax office. I wrote the records request letter and mailed it. My friend called. He said I had made his boss uneasy with that letter. It asked for the entire county's mapping system. The county had dedicated years to putting that parcel data together, and we were basically trying to scam it from them for free. His boss needed to consider it and talk with the county's attorney. I said fine.
A week goes by. Craig wants to know where his data is. I apprised him I had not yet heard back. He tells me, "Well call them up and stick a deadline on them. Tell them we need this stuff."
I did call, but I was my friendly self. I was just the messenger, but delivering the message a lot more nicely than my principal would have me. The short of it is more time goes by. Nothing. Craig says, "You go over there and tell them we're not jacking around." I went over there, but was nice in saying it. "Hey, guys. Craig is pressuring me."
They dilly-dally. More days go by. "Go to your office right now. You write them a letter saying if they don't give us the data, we are going to sue them. Bring it to me." I was like, "But Craig, we don't need to be ticking these people off." The reply was brief and to the point:
"It's my blanking case. Go do it!" So, I did what he said. Remember, this was a small town. We were getting ready to jack real hard with the county. And this was our county.
I prepared the draft. It was stern and to the point like he liked it. "Send it certified before today's mail comes." It was out that day.
The following day, I get a phone call from my friend: "My boss says you can pick up the discs tomorrow after lunch." We got our data.
Craig was chipper as can be with the news. I brought him the discs the next day. The conversation went:
So, my young attorney. How do you feel now that you got those discs?
Good. (I tried not to blush from pride)
G.D. right, you feel good! People out there will play with you. They don't want you thinking you're more powerful than them just because you’re an attorney. Well, my boy, you are an attorney, and you are more powerful than them. The proof is in the discs! You're going to be a very good lawyer.
From that point on, he called me "Cheep, Cheep" when he praised some part of my work. At first, I did not get it. He was referring to a 500-pound canary. He died only about 2 years into mentoring me. The last several months, he suffered badly with cancer. I remain grateful just to have these memories. To this day, I still have my good friend in the tax office, although I left Brenham to come back to Houston over 15 years ago. I never gloated to my friend about the mapping data tiff and who got their way. What good would gloating have done? I got the data and kept a good friend.
Not everyone is lucky enough to have a "Craig" like I did. The irony of it was that Craig taught me I did not need a Craig. Go figure. I did well on my own. I have had some fun trials. I have done several appeals. I have a good number of published opinions. Although I tried to get before the Texas Supreme Court a few times, the best I got from them was a Memorandum Opinion reversing the court of appeals after it ruled against me. At least I can say I was victorious in the Texas Supreme Court.
So, this is my message to you: There are some great mentors out there. You are very lucky if you find one. But do not feel unlucky or any less for it if you do not find a mentor like that. Great mentors are there to teach you why you do not need them. They are not there to make it easy for you. They are there to make you do your job - and nothing less.
You are smarter than you think. Beat this into yourself if nobody else will do it for you. All you need is to do is keep plugging and never stop learning.
© 2015, Jeff M