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25 Lessons in 25 Years- Part IV
As we march forward towards number 1, we continue to get great feedback and comments on the first three installments in this series. I was recently approached by a colleague who offered this bit of wisdom based upon his own experience (which is a few more years than mine): “The older I get, the easier it is to say ‘I don’t know’”. I love that, and it is very true. I wish I had thought of it!
Remember that these are not in any particular order, except for number 1, which will be revealed in next week’s post. Here are lessons 6-10 from 25 years of practice:
- Shades of Gray. Some people like to talk in terms of things being black and white. In my experience there are no such things, and everything is simply some shade of gray. Almost always the “truth” will lie somewhere between the two extremes: sometimes closer to one than the other, but never lining up exactly on all points on one of those extremes. As a recently retired bankruptcy judge loved to remind people in his court, no matter how thin you make a pancake, it always has two sides. That is very true in all aspects of the law, and it is good to keep in mind and to remind clients of as we work towards resolving whatever the particular issue may be.
- Stop. Just Stop. There is an old saying in the law that “About half the practice of a decent lawyer consists in telling would-be clients they are damned fools and should stop.” I previously talked about how expensive “principle” is. In addition, there are times where a would-be client comes to you and is considering hiring you, and every instinct from your training and experience tells you that the would-be client should walk away from the particular transaction or situation. I can recall one instance in particular where my advice was for this individual not to buy the business from his father, because one of the stipulations from the father was that the stepmother needed to stay employed by the business, and the would-be client did not have a very good relationship with the stepmother. My advice was for the individual to think long and hard about whether or not he actually wanted to buy this business or agree to those particular terms. I never did hear back from the prospect, and suspect that he either did the deal without our involvement, or perhaps he took my advice and walked away. Nevertheless, I felt good about giving the advice that he should not go forward with this proposed transaction. Again, trusting my gut instinct, it was the right advice to give at that time.
- Judges Will Get to the Result That They Want. Often times clients will come to us believing that there is absolutely no way that they could lose the particular lawsuit. We remind them that judges are people too, and are unlikely to see the case exactly the way the client sees it. In addition, a judge is going to want to get to a particular result. The recently retired Hon. Richard Posner of the 7th Circuit, one of the most respected judges in the country, recently stated as much in this interview following his sudden retirement. So before making any proclamations about what a judge “has to do” in a particular case, remember that judges will have their own set of beliefs and experiences, and those will be different from yours and from the client, and all of that will contribute to the ultimate result in the case.
- Nothing Like the Facts . . . . There is nothing like the facts to mess up a really good argument/lawsuit. There have been too many times to count where but for one or two particular facts, there would be a really good lawsuit or at least negotiating position to take. However, all of the facts matter and, because the truth always will come out eventually, those facts will get in the way of what might otherwise be a tremendous result for the client. While lawyers would love to be able to file a “motion to change the facts”, so far in my 25 years no judge has allowed that to happen. You play the cards that you are dealt, and do the best that you can. If only we could change a few of those facts or, stated differently, have a few of those aces up our sleeve, the practice of law would be so much easier.
- You Cannot Make Senior Partner in a Year. We live in a world of instant gratification. Nearly everything we want we can get in just a few keystrokes, a phone call, or the press of a button. As a result, we forget that some things still take time, and learning the things you need to learn to be viewed as that trusted, sage counsel, can only come with time. The point is, I am a much better lawyer now than I was in 1992, not because I am any smarter, but because I have been doing it and experiencing the ups and downs for 25 years. Just like a child does not walk perfectly on the first attempt, but after years of walking will do it automatically and without having to think about it, so too is the law practice. To get where you want to be in life just takes some time and cannot be rushed. Like so many of these lessons, this was a difficult one for my Type A, perfectionist self to accept.
Next week, the Final Five . . . .
25 Lessons in 25 Years- Part III
We continue to get great responses and comments to Parts I and II of my 25 Lessons in 25 Years. It is clear that many of the lessons that I have learned through the practice of law are universal across life in many different occupations. I am pleased to see people actually read these and hopefully they have some meaning to some of you. With that being said, here are the next 5 of my 25 Lessons in 25 Years:
- I Don’t Care . . . . . . . what the truth is. Whatever the truth is, no matter how “bad” it is, so long as I know what it is, I can handle that in order to get the best possible result under the circumstances. What renders me helpless and unable to assist is when I am told things that are not true, or that are not the “whole truth.” I have been in trial when the truth, or at least some new version of the “facts”, finally comes out. At that point I may as well have gone and played golf, because my credibility, and my client’s credibility, was completely lost. If I had known the truth at the beginning, the case would have been handled far differently. This lesson leads to the next, which is
- The Truth Will Come Out. For whatever reason, in 99% of all cases eventually the truth will come out. In my experience trying to dance around or ignore certain facts and circumstances through “sharp practice” does not work, and eventually the full story is told, or a judge or jury sees the situation for what it really is. Again, because the truth is going to come out, let’s deal with it head on right from the beginning.
- Some Clients are Just Not Worth It. As mentioned in lesson #25, practicing law, where you are often being asked to handle or perhaps solve problems that are not of your own making, is stressful enough. There are certain clients who will never be satisfied with anything you do, will complain about the bill (unless you work for free and then they will complain about the quality of the work), and you will live in constant fear that the client will sue you later for malpractice. Life is too short; let them go yell at someone else. And how do you know who these people are? . . .
- Trust Your Gut. Not only when looking at whether or not to represent someone, but in all aspects of your professional life, trust your gut. That instinctual feeling is correct much more often than not. Of course, this lesson applies in all aspects of life. When faced with a difficult choice, take a breath, be silent, and listen to what your gut is telling you. Then follow that advice and do not look back.
- Because You Never Know. I mentioned earlier that cases settle because anything can and usually does happen in court. One of the more consistent patterns I have noticed is how often times those people who you think will make the best witnesses get nervous and flustered or otherwise do not do well as a witness at all. Other people, who you have put on the witness stand only because you feel like you have to, and you are terrified about how they will present, turn out to be wonderful witnesses. When you go to court, you just never know . . . .
Stay tuned for Part IV next week.
25 Lessons in 25 Years- Part II
We received some great feedback to Part I of my 25 Lessons in 25 Years post. As mentioned in that post, 2017 marks my 25th anniversary as a lawyer. I have decided to do a series of posts dedicated to certain lessons I have learned and how I have grown as a lawyer during those 25 years. Some of these lessons are universal across life in many different occupations; other are more specific to the practice of law; and some are even more specific to the practice of law in Indianapolis/Central Indiana. Like everything else in life, some of these will be more applicable to you than others. So, without further delay, and in no particular order except for number 1, here is part 2 of the 25 Lessons in 25 Years.
- Discovery. “Discovery” is the name given to the process for the months and sometimes years that that lawyers spend asking questions of the opposing side about the facts of the particular case. It is often very mundane, time consuming, boring and, unfortunately, very expensive. With all of that being said, it is also critically important, and I did not understand how important it truly was until my first “solo” jury trial when, shortly after opening statements, I realized the number of questions to which I did not have answers that I really wished that I did. Therefore, when you wonder why lawyers spend so much time on discovery, it is so that they can be as prepared as possible to try your case in court to try to get the best possible result, but understand that they do not enjoy the process any more than you do having to wait around for it to be completed.
- “Legalese”. Many contracts go on for pages and pages and even very educated people will look at those and become quickly overwhelmed and complain about all of the “legalese”, which is their term for a lot of words that they claim to not understand. I am here to tell you that the vast majority of those contracts, if you really take a few minutes to read them, actually are written in English and the legalese is something you can understand. I promise.
- Trials are Not TV Shows. Any lawyer who has ever tried a case in court or even taken a deposition will admit that often times you remember certain questions that you wanted to ask, or think of the best questions that you should have asked, on your way home from trial or the deposition. These are not like a TV show with an army of writers who can collaborate on a perfect script for you, and you do not get multiple “takes” to try to make everything perfect. You get one shot. It is a live performance and so things get forgotten; mistakes are made; and you just do the best you can on that particular day.
- Experienced Judgment. Successful lawyers have great judgment and intuition about what advice to give; great judgment comes from years of making the wrong choices or the wrong advice. Enough said.
- Trust. When people do not trust each other, it is almost impossible to negotiate a contract, settlement agreement, or get much of anything done. It is also incredibly more expensive to try to work through a situation, even if it is litigation, when the two sides do not have any level of trust for each other.
So that is 10 lessons down with 15 more to go. If you have any of your own suggestions to add, please feel free to comment.
25 Lessons in 25 Years – Part I
2017 marks my 25th anniversary as a lawyer. I have decided to do a series of posts dedicated to certain lessons I have learned and how I have grown as a lawyer during those 25 years. Some of these lessons are universal across life in many different occupations; other are more specific to the practice of law; and some are even more specific to the practice of law in Indianapolis/Central Indiana. Like everything else in life, some of these will be more applicable to you than others. So, without further delay, and in no particular order except for number 1, here is part 1 of the 25 Lessons in 25 Years.
- Practicing Law is Stressful. Lawyers often are hired by clients who have a problem and want the lawyer to fix it. Of course, the lawyer had nothing to do with creating the problem, but now the client wants it fixed by the lawyer. For type “A” perfectionists, which many lawyers are, this creates stress because many of these problems never will be fixed. I personally tend to internalize these problems and make them my own, and while experience has taught me that I cannot do that, that is something I always struggle with because I want to make everything right for the client.
- There is no Such Thing as Perfect Case. I have won cases that I should have lost, and lost cases I should have won. This is why cases settle. When you go to court, anything can happen, and often does.
- The Strategy That Almost Never Works. “Just sue them, and they will come running to us begging to settle.” The next time this works for me will be the first.
- Principle is the Most Expensive Thing in the World. “Chris, this is not about the money; it is about the principle of the thing . . . .” In my experience, “principle” usually lasts about 2-3 billing cycles, and after receiving a few bills, and realizing that fighting for principle is likely to take several years, suddenly it is not about the principle of the thing.
- It is a Round World. You are likely to need a favor from another lawyer someday. There are several lawyers to whom I likely will forever be indebted because of favors they did for me early in my career when by all rights they could have really stuck it to me. I always remember this when dealing with not only them, but others when determining what is the right thing to do. Even if a line in the sand needs to be drawn and you are required to “be tough” on behalf of your client, this needs to be done in a professional, courteous manner and one in which you maintain the respect of the other lawyer, your client and, perhaps, the other client as well because, someday you may need something from one of those people.
Stay tuned for lessons #20-16 coming soon.
Not So Fast, My Friend
On a television show I particularly enjoy on a certain well-known sports network on Saturday mornings between August – December, one of the long-time stars of the show (who also happens to be a former head football coach at Indiana University), has a line he frequently uses when he disagrees with the opinions of one of the other hosts of the show. That line, “Not so fast, my friend” actually can help us understand what can happen when a legal dispute goes to court and the parties rely on a judge (or jury) to decide who wins and losses.
Clients typically come to us quite confident in their position in a dispute or legal situation in which they find themselves. They see absolutely no way they can lose, and want us as their attorneys to affirm this belief. “You agree with me, right?” is something that is often asked of us. Of course, 25 years of experience, and of winning of cases I should have lost and losing cases I should have won, tells me otherwise. I often need to counsel clients that when it comes to litigation, you never know what can happen.
A recent Indiana Supreme Court case provides yet another illustration and cautionary tale that demonstrates why we are always so cautious about making predictions about litigation. The detailed facts of the particular case are not terribly important for this article. What is important is to understand the relatively straight forward nature of the applicable law and what happened as that case found its way to the Indiana Supreme Court. In Ryan v. TCI, et al., Ryan was injured on a construction job. Ryan was an employee of a subcontractor. In the lawsuit he sued, among others, the general contractor. Under Indiana law, a general contractor does not owe any duty to provide a safe workplace for employees of subcontractors. However, a general contractor can assume that duty by contract. In this case, the general contract filed a motion for summary judgment, asking the court to dismiss the claim as a matter of law, based upon the general rule of no duty/responsibility. Not surprisingly, Ryan disagreed, and argued that the general contractor had in fact assumed that duty through the relevant contract.
This is where the case gets interesting, and is really the point of this post. I have discussed in many other posts on this blog how Indiana courts will enforce contracts and will look at the words chosen by the parties and will try to determine and then enforce the intent of the parties. The Indiana Supreme Court again affirmed these principles when it stated:
In interpreting a contract, we ascertain the intent of the parties at the time the contract was made, as disclosed by the language used to express the parties’ rights and duties. We look at the contract as a whole to determine if a party is charged with a duty of care and we accept an interpretation of the contract that harmonizes all its provisions. A contract’s clear and unambiguous language is given its ordinary meaning. A contract should be construed so as to not render any words, phrases, or terms ineffective or meaningless. (citations omitted)
Easy enough. But in this case, the trial court ruled in favor of the general contractor, therefore, finding that the contract was “clear and unambiguous” that the general contractor had not assumed a duty under the contract to provide a safe workplace for Ryan (or other employees of subcontractors). The case was appealed, and the Indiana Court of Appeals agreed with the general contractor and the trial court in a 2:1 decision. So at that point, the contract had been read by four different judges, three of whom felt that it was “clear and unambiguous” that the general contractor had not assumed any duty to provide a place workplace.
The Indiana Supreme Court then agreed to hear the case, and after reviewing the case said to the trial court and the Court of Appeals, “Not so fast, my friend(s).” The Indiana Supreme Court, in a 5-0 decision, ruled that the general contractor had, pursuant to the contract, in fact assumed a duty to provide a safe workplace. In other words, the Indiana Supreme Court ruled that the contract was “clear and unambiguous” that the general contractor had assumed that duty.
How does this happen? How do nine judges read the same contract, with some finding that it was “clear and unambiguous” that the general contractor had assumed a duty, and others finding it was “clear and unambiguous” that the general contractor did not? The purpose here is not to question any of the judges’ decisions, but to again highlight the uncertainty of any litigation. Regardless of the law or the facts in your particular situation, you never know when a judge will look at you and say “Not so fast, my friend.”
 There are also other exceptions to this general rule of no responsibility, but those other exceptions are not relevant here.