A Good Lawyer, Chapter 2

Yesterday, I started reviewing/posting excerpts from Stephen Comiskey’s book “A Good Lawyer.”  It is five chapters long, and I’ll be posting on each chapter over the next week or so.  As I mentioned, I think it’s a must read, and I would encourage all lawyers to try and get their hands on a copy.  It looks like it’s out of print, but three of the five chapters are available online at the Texas Bar Journal website (and I’ll be posting links to those chapters that are available).  If any of you know an online source for the other two chapters, please let me know.  Otherwise, you can order hard copies of the missing chapters from the Texas Bar Journal.

Anyway, on to Chapter 2.  Chapter 2 is devoted to the tools that lawyers have to represent clients.  But Comiskey opens chapter 2 with a couple of paragraphs that are probably more true today than when he wrote the book 11 years ago:

Abraham Lincoln said it nearly 150 years ago and it’s still true today, but for all who seek success: “The leading rule for the lawyer, as for the man of every other calling, is diligence.”  But diligence comes with a price:  Legal Fees.  But lack of diligence often comes with a higher price: Failure.  Therein lies just one of the good lawyer’s consistent dilemmas:  How do you know when you have done enough to be certain of winning?  When should you stop preparing?  It cannot be said any simpler than Benjamin Franklin said it nearly 200 years ago: “Time is money.” Lincoln’s lament that “All a lawyer has is his time and his advice,” only serves to underscore the good lawyer’s problem.

Clients want cost-effective success and they are not usually concerned with the niceties or nuances of lawyering.  Clients hope their lawyers arae spending every waking moment only thinking and working on their case, but only charging them for ultimate success, or at least only charging them for substantial progress towards ultimate success.  From a client’s perspective, it’s a buyer’s market.  The sooner all lawyers recognize that we are in a service business, and, therefore, the sooner all lawyers force ourselves to serve our clients, the sooner all our clients will be receptive to entertaining real discussions on the factual, legal and ethical constraints involved with lawyering.  Right now most just don’t care.

Now, my favorite “Tools” that Comiskey describes in Chapter 2 of his book:

1. Quiet contemplation is not a luxury, but a necessity for a lawyer.

4. Read everything you can. Ideas will come to you while you are reading.

5. When you think of something or get an idea write it down as soon as possible, in a stream of consciousness manner, and write as much of it as possible. Once you have it written down, then you can start rethinking it, revising it, or critically taking it apart.

8. Your reputation wins clients. Your performance wins trials. Like a professional golfer, it’s only how you perform that matters. No one wins a trial, or a golf tournament, on reputation.

9. Your reputation is like your passport. It’s critical that it be accurate and up to date. But once it gets you in the door it serves no further purpose. It’s only what you do once you’re there that counts.

12. Don’t complain and don’t whine. Propose constructive alternatives and argue for their adoption.

16. Understand and be able to use by yourself, if necessary, every single thing in your law offices, e.g., word-processing computers, systems, telecommunications, networks, postage meters and scales, fax machines, etc. Don’t be absolutely dependent upon anyone other than yourself.

17. Don’t wait for things to happen. As soon as you’ve accepted a case, make a plan and then begin executing that plan. Massage and retool it as the case progresses to and through completion.

22. By everything you say and do, ensure that your clients and your staff understand that you have no tolerance for dishonesty.

24. Be thankful that you are in a profession with unlimited possibilities to help individuals and society.

25. Be a responsible steward of your talents and use your persuasive skills appropriately.

26. Leave your mark.

29. Use a tailored Legal Representation and Fee Agreement Letter for each client and for each matter. Spell out in that written letter from you to your client, at the least, what the legal matter is, what the fee arrangement is, how often you will bill, what your expectations and the client’s agreements are concerning timing of payments of your bills, any retainer provisions, including interest on retainers and replenishment of retainers, whether your legal representation includes the filing of a lawsuit and trial representation, and if so, whether it includes the appeal of any trial court rulings or orders, and, finally, the fact that you have made no promises of success to your client. Explain that costs are not included in legal fees, and that under all circumstances, the client will be responsible for all costs. Emphasize that you will keep costs to a minimum. At the conclusion of the letter and after your signature line, have typed in SEEN AND AGREED. Go over the Legal Representation and Fee Agreement Letter with your client and if the client agrees, have them sign as such under SEEN AND AGREED and date their signature. Keep the original in your file and give your client a copy of the letter agreement.  (A BIG “AMEN” ON THIS ONE FROM ALL OF US THAT PRACTICE PLAINTIFF’S LEGAL MALPRACTICE WORK.  BROOKS)

31. As a final check, before you authorize anything that will be passed on to your client as a cost, imagine that your roles are reversed, and that you are now the client: Do you want your money spent this way? If you do, then go ahead. If you have to think about it, then you probably don’t.

34. You do your client a disservice if you cannot maintain your objectivity about their case. Be passionately objective, if you must, but be objective.

37. Develop your theory of the case as soon as possible. Before trial keep fine tuning it so that everything you know about the case is compatible with your theory of the case.

38. Tailor your theory of the case to fit the facts, not the reverse.

46. Don’t expect much more in Answers to Written Interrogatories than names and addresses of the people involved and descriptions of the documents involved. No matter how artful your Written Interrogatories are, opposing counsel will usually try to find ways either to object or to provide nonresponsive answers. Therefore, realistically, their best use is to determine exactly who to depose and what documents to request be produced.

47. Use Requests for Admissions continuously and exhaustively. Write short, simple factual statements that provide no wriggle room for opposing counsel. The more you can get your opponent to admit, the less you will have to prove.

55. Before sending them, proofread your bills from your client’s perspective: Service, Satisfaction, Success.

64. Whenever you take on a new case or matter, don’t put the file down until you’ve satisfied yourself that you know what the statute of limitations is and then make the appropriate tickler file entries including, especially, the date the statute of limitations expires, and prior warnings to yourself that leave enough time for you to do all that needs to be done prior to that statute of limitations’ expiration date. (ANOTHER “AMEN” FROM THE PLAINTIFF’S LEGAL MALPRACTICE BAR.)

68. Checklists are better than standard forms. Collect checklists from every source available and combine them with your own to create master checklists that you can then use, and reuse, to craft the appropriate documents for each situation.

Again, I’d love to hear your thoughts on the writings.

Brooks

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