Document Review

 After several months of idleness, I’m finally back on the road, legally, albeit a slightly different type of legal work:  document review. 

Legal proceedings take various forms, of course.  At the lowest level is small claims court, juvenile court, and General District Court (Virginia) and District Court (Maryland).  Here you have minor civil cases, traffic, and misdemeanors.  Upstairs – both in Maryland and Virginia – is Circuit Court, although Federal circuit courts are actually appellate courts.  In Circuit Court – and Federal district courts – is where the bigger things happen.  Divorces, felonies, and larger civil matters.

At the top of civil matters is litigation between major corporations, between major corporations and the US government, or class action suits.  Class actions usually occur when an Evil Corporation hurts millions of people, but each for a fairly small amount, too small for it to be worthwhile to sue, but taken as an aggregate might mean millions of dollars.  As a class action claimant you might wait 5 years and then receive, out of nowhere, a check in the mail for $5.86, the amount some greedy corporation overcharged you.  

These huge cases involve tons of discovery.  “Discovery” is the process by which opposing parties in litigation exchange information.   “Interrogatories” are questions:  “why do you think my client is liable?”, “What are your legal defenses?” “Which witnesses do you plan to call, and what do they know?” “Who, if any, will be your expert witnesses, and what are their qualifications?”  and so forth.  “Requests for production of documents” (RPDs) simply ask for documents, usually whichever documents the party alleges supports their position or may otherwise be relevant to the proceedings.  In the context of document review, we seem to be reviewing literally every email sent since (a) the company formed or (b) email was invented, whichever came second. 

CACI/Winstar.  In May 1998 the sole proprietor for whom I was working, managed to get himself hired by a fancy divorce firm in Fairfax, which wasn’t interested in his lowly associate.  By September, looking for any work I could find, I went to Manpower.  They were filling a slot for CACI, a government contractor, which in turn was filling a DOJ contract.  It seems there was a huge Court of Federal Claims suit, actually 120 separate savings & loans suing the US government over FIRREA.   That meant tons of documents from S&Ls, the FDIC, the FSLIC, and so forth, which needed to be scanned, indexed, and then someone had to actually review them.  Our group examined privileges.

From September 1998 to March 1999 we worked at CACI on L Street, in the same building as the DOJ.  In March 1999 we moved to a satellite office in Rosslyn, Virginia, three blocks away from where I was living at the time (River Place).  Then I was advised – wrongfully, and blatantly so – that being in close proximity to DOJ would let me get hired by DOJ as an attorney, so I moved back to L Street in january 2000.  Maybe a different unit but the DOJ attorneys treated us like insignificant worms.  Finally in November 2000 I got a job working at a law firm in Woodbridge, so that ended the CACI adventure.  I can’t complain too much, as it paid the bills consistently (though by no means extravagantly) and I met my first girlfriend, Leila, working there.

Crowell & Moring.  In April 2000 I took on a second project, for about 6 weeks.  This concerned litigation about DSL, which was then becoming the state of the art in Internet technology.  The law firm set us up in a small office in Rosslyn – yet again – and I worked every night from 6 to 11.  Mind you, this was in addition to CACI, so I had to get up early, take the Metro to L Street, then immediately take it back at 5 p.m. to be in Rosslyn for the second project.  Fortunately the substance of the projects was completely different so there was no conflict. 

We were mainly reviewing for relevance.  99.9% of the emails we reviewed had nothing to do with the subject matter of the litigation.  However, I did find ONE email where the subject matter actually touched upon the litigation. 

Responsive vs. Privilege.  Sometimes the document is reviewed for responsiveness.  The most basic form of responsiveness is substantive relevance to the subject matter of the litigation.  However, most of these emails have nothing to do with the litigation.  But the opposing firm will have its own reviewers.  You don’t want to miss the ONE “smoking gun” document where someone admits doing something evil, or knows someone else – who is professing ignorance of said evil – in fact is very much aware of it. 

Privilege seems to be more the more common review item.  Communications between attorneys and their clients are protected by attorney-client privilege.  Work product means documents prepared in preparation for litigation.  And there’s common interest/joint defense – ACP/WP between parties on the same side of legal dispute. 

Current Project.  Since it’s ongoing, I will not mention the parties, the nature of the litigation, and certainly nothing of substance, except to say that it’s document review. 

This time around it’s remote.  Not sure if it’s COVID or logistics, but this project is remote, meaning I sign in on my own computer at home, albeit through some appropriately secure portals to avoid hacking.  That saves me the business of driving or taking the Metro.  Theoretically I could do this naked, but I even though I live alone, I still don’t walk around naked outside the shower.  TMI, huh?  Anyhow, you get up, make breakfast, shower, log in to the website, and spend the next few hours deciding whether emails are protected by privilege or not. 

As lawyering goes, it’s extremely easy but also extremely dull.   I will say that private practice can be extremely stressful.  Showing up at court on time, wearing a suit and tie.  You have to meet deadlines, satisfy discovery requests, haggle with opposing counsel, satisfy clients who often have unrealistic expectations or change their stories or forget how to speak English when it’s “showtime”, and of course, appear in front of judges.  The client may or may not pay you, even if you do everything perfectly.  There’s all sorts of “manure occurs” issues which make it more interesting but also more stressful. Apparently being paid top dollar at a huge law firm – not that I’ve ever been in that situation, just going off of what I’ve heard – means the standards are that much higher.  Burp or fart at the wrong partner, or make any mistakes (because lawyers aren’t really human, are we?) and out you go.  And judges sometimes have a habit of ruling however the hell they want to, but fortunately it seems most of the time they behave like they belong on the bench.  So the very things which make an active legal practice interesting also make it that much more stressful – as I noted above.  But it pays, and it keeps me busy as an attorney, so I will not complain.

Does anyone actually go to law school and pass the bar exam with the express expectation of doing document review?  I doubt.  Then again, my goal in law school was to be a corporate lawyer, and the closest I got to that was forming LLCs and C corps for small businesses.  I never imagined doing divorce law, but I have to say that it’s not that bad.  Again, so long as I’m paid for document review I will remain satisfied.   

More Lawyers....

By now I’ve been to court dozens of times and seen dozens of lawyers.

 Standard Issue.  Myself and 95% of the other lawyers: we wear the “uniform” of a conservative suit – not too old or worn, not too fancy – with a standard tie and standard shoes.  Black, dark blue, dark grey, brown, grey, light grey, or camel.  We’re indistinguishable from each other – perhaps we should wear names and numbers like athletes.

 Slob.  Every now and then you see this type, more often than not overweight.  His tie is loose, he may be wearing sneakers with his suit, or just a blazer and Dockers.  He has an arrogant casualness, but that doesn’t mean he necessarily knows what he’s doing.  Most of us have a healthy concern for messing with things we don’t understand: we don’t pull our carburetor apart, we don’t try our hand at surgery, and we don’t try to fix the sink – in each case we call the professional.  But even some of these professionals aren’t necessarily experts in their field, they’re simply people who lack this idea of only doing things we know how to do.  This is why you find cab drivers from God-knows-where, who barely speak English and know the roads less than you do, who somehow decided that this was an appropriate job and simply had the shameless moxie to get behind the wheel of a cab and go at it.  There are clueless mechanics who are the same (and are also often from the Middle East).  And unfortunately there are lawyers who fit this description.  Usually, but not always, their disheveled appearance is a warning that they are as careless and sloppy as lawyers as they are when it comes to dressing themselves before going out in public – and into a courtroom.

 CSA/General Lee.  This type is probably less common in New York and L.A. than he is in Virginia and other southern states.  He affects either seersucker suits, bow ties, or string ties and cowboy boots.  He may have a beard/goatee and try to emulate Nathaniel Bedford Forrest (the KKK founder and namesake of Forrest Gump) – had Forrest himself been a lawyer and not a Confederate cavalry general.  His office motif is Civil War prints.  I’ve also noticed that 2/3 of “Civil War” buffs tend to be of the Confederate persuasion.  Given that, even in Virginia, blacks are well represented not only among the bar, but also on the bench, the CSA theme is not particularly calculated to win the hearts and minds of these other lawyers and judges.

 L.A. Law.  I haven’t practiced law in L.A., so I can’t say for certain how lawyers there dress, aside from having watched that show.  Every now and then you see lawyers here who affect the egregiously expensive suits and GQ style.  They’re thin on the ground, mostly because there is a perception here in Virginia that both the judges and the juries are turned off by ostentatious displays of wealth by attorneys and that any such appearance will doom the client’s case: plaintiffs with such attorneys will be deemed “already have more than enough, if he can afford Mr. Cochran here,” and defendants will be deemed to have “deep pockets” and subject to a higher plaintiff’s award than if they simply had a less fancy attorney. 

 Female Lawyers.  Funny, I could have sworn that half the students at George Mason law school when I went back in ’90-93 were female, yet when I go to court it seems that only 25-33% of the attorneys are female.  That number only jumps to 50% if we’re talking about domestic or juvenile cases – though I’ve seen wives represented by male attorneys opposed by their husbands with female attorneys, so the sex of the client has no bearing on the sex of the lawyer representing him/her.

 Since we have no reason to believe that female attorneys have substantially less inclination than their non-lawyer sisters to marry and have families, and the stay-at-home parent is usually (though not always) the mother, a likely explanation for the under-representation of female lawyers among the active trial bar is this very phenomenon.  I know at least two of my GMUSL alumni who stopped practicing law in order to stay at home with the kids, so it’s probably more common than I see. 

 I have found, though, that female attorneys tend to be well-dressed and are never slobs – nor do any of them affect the Scarlett O’Hara look (no CSA equivalent for women).  They can probably get away with overdressing – unlike the male “L.A.” type attorneys mentioned above – as we naturally expect women to pay more attention to fashion and appearance, so it doesn’t count against them the way it would for male attorneys.  For the most part they’re just as competent and skillful as male attorneys.  I haven’t met any who appear to be intimidated by the environment, and I have found a few who are even more arrogant and aggressive than most male attorneys, myself included.

 Judges.  Justice-o-Tron 2000.  Fortunately this type of judge is rare: the one who believes that a rigid adherence to legal principles, beyond all compassion and logic, is the most important standard a judge can have.  I can’t recall encountering any judge who appeared to not take the job seriously, although some judges are more laid back and casual than others – Maryland judges seem to be far more casual than Virginia judges, and Federal judges tend to be more serious than state judges.   Generally, the lower court traffic docket, where most of the defendants are pro se (not represented by attorneys) tend to be the most casual – guilty, minimum sentence, move on – NEXT!  Again, I find that most judges are capable of “seeing the forest for the trees” and recognizing the spirit, rather than simply the letter of the law, and acting accordingly.  I can’t say I always agree with their decisions, but I can respect their reasoning.

 Hurry Up And Wait.  One thing you’ll never see in “Boston Legal”, “L.A. Law”, or any other lawyer show or movie is what 80% of lawyering seems to be: waiting.  Even more so than legal research – which I do for briefs and the rare appeal – waiting is that unglamorous, boring, but ubiquitous part of being a lawyer.  You hurry up to make it to court on time, only to wait while the docket is called – because if your case is first, damn well that will be the day you get there late.  You wait for your client to be processed into the jail so you can see him – or to be processed out when you get him released.  You wait for the prosecutor to talk to the cop, then wait to talk to the prosecutor, to plead bargain on a traffic or criminal case.  You wait for the judge’s law clerks to approve your divorce decrees, and for judges to sign them in publication cases.  Immigration cases are the worst, with such a huge backlog the INS has a bulletin which tells you how far behind they are.

 Paper pushing.  Real estate lawyers, who do closings and settlements, practically never see a courtroom.  Government attorneys are more likely to draft memos and advise bureaucrats than spend time in court.  Junior associates at major law firms are more likely to be stuffed in law libraries than off to court – except for status hearings and collections return dates, the most basic, routine, and uncontested matters.  Even personal injury lawyers, who are supposedly the most visible of trial lawyers – and I should know, because I am one – spend far more time settling cases on the phone with insurance companies, without ever leaving the office, than in court.  And many court appearances are routine: return dates on Warrants in Debt, scheduling conferences, Master Calendar hearings for immigration attorneys, term dates, etc. where all you’re really doing is setting a trial date or informing the court of the current status of a case.  Hardly anything dramatic or exciting which would lend itself to TV or movies.

 Even trials can be quite dull.  We have to put on evidence, certify exhibits and witnesses, make arcane and obtuse objections on minor points of law, and methodically extract testimony from various witnesses which may be dull and repetitive – but necessary.  As dull as it gets sometimes, you have to stay awake and alert, object when necessary, take notes for cross examination or to rehabilitate your own witnesses on redirect, and know when to shut up, because asking the wrong question can sometimes be more harmful than simply saying nothing at all.  On the other hand, witnesses can be difficult, forgetful, argumentative, evasive, arrogant, sarcastic, emotional, long-winded, angry, burst out in tears, contradict earlier testimony, blurt out amazingly harmful, surprising, or idiotic statements, shoot themselves in the foot, or come up with something brilliant on their own.  You never know what’s going to happen. 

 On the other hand, it always feels good to win a case, even if all you did is what I call “judicial discretion management” – avoiding mistakes and guiding the judge to a favorable decision.  Of course the jackpot is winning a case which was almost unwinnable, but that is rare.  Usually you win the cases you should win, lose the cases where you really didn’t have a chance, and break even. 

Sleazy Lawyers Part I

Recalling "Serpico" and "And Justice For All", two great Al Pacino movies, I’m drawn back into this issue of sleazy lawyers, more so from the latter than the former. I have a number of thoughts on this.

 #1. Sleazy, dishonest lawyers are much rarer in the circles I practice in than the public seems to believe. Most lawyers I’ve dealt with can be trusted to honor their word. Recognizing that they are on the other side, and represent adverse interests to your client’s position, you can still work amicably with them. Indeed, frequently the clients are wrapped up emotionally in the case and take everything personally, so the lawyers act as rational parties to throttle their clients and moderate their behavior, expectations, and demands. In the case of criminal matters, the state prosecutors (called Commonwealth’s Attorneys) vary from laid back to uptight, and some of the female ones – sorry, ladies – can be especially difficult and arrogant, like they have something to prove. However, the Federal (US) prosecutors, aka US Attorneys, with whom I’ve dealt, have been remarkably polite and "velvet glove" – to the point where you might forget they’re on the other side of the case.

 #2. Sleazy lawyer, sleazy client. On the rare occasions I’ve found sleazy lawyers on the other side, 100% of the time it’s because their clients are sleazy. Honest, decent clients seem to want to hire honest, decent attorneys. And the smarter, more devious sleazy clients sometimes hire decent lawyers to make their own case look more honorable. However, an honest attorney will not acquiesce in taking a dishonest or unethical position or tactic, so sleazy clients frequently jump from various lawyers in the course of litigation, stacking up delays while the new attorney gets a continuance... and ultimately withdraws when he/she finds ethical representation impossible. When a client comes to my office after having gone through several prior lawyers, that puts up a red flag. If it looks or smells bad, best to let the client go.

 #3. What is "sleazy"? The bar rules dictate that a lawyer represent his client’s case as zealously as the law and ethics allow. Aggressive lawyering is encouraged – so long as it doesn’t cross certain lines, which can admittedly be quite vague. While blackmail and extortion – and threatening criminal charges to force a settlement in a civil suit, or likewise threatening to make bogus sexual abuse allegations in a child custody dispute – are forbidden, any civil matter which involves various competing claims of varying strength and importance will boil down to negotiating the "cards on the table" and hopefully reaching a mutually acceptable agreement, which may involve waiving certain good faith claims or withdrawing ones which are less genuine but were only raised to "up the ante" and force an outcome on other issues. Ultimately an adult client can knowingly waive certain claims, and bogus claims will ultimately be exposed as such in court should the proponent be foolish enough to insist on bringing them before a trier of fact...at least in theory. ("Legal Myth #1: To succeed, a lawsuit must have merit.").

 #4. I had the bad experience to have to deal with a sleazy lawyer in the context of a lawsuit against me personally. I won’t mention names, but the lawsuit was (A) served on me by a process server I had recommended to the lawyer, (B) on the Wednesday before Thanksgiving; (C) the lawyer threatened bar sanctions against me not because of a good faith belief but merely out of spite; (D) his complaint was full of outright lies and falsehoods; (E) until the very end, and after two years of litigation and countless legal fees, he refused to negotiate in good faith. Had he done so at the beginning, he would have gotten the same thing he ultimately settled for, much quicker and less expensively for both of us. This was, bar none, the worse experience I had with another lawyer, and he surpassed in greed and dishonesty by several degrees of magnitude any other lawyer I’ve ever met. My own attorney was shocked and incredulous at the claims made by this man. Fortunately the nightmare is over.

 #5. In Brazil, lawyers have to take different exams to be federal civil attorneys or prosecutors, or even judges. Supposedly having a rigorous bureaucracy like this will weed out bad lawyers and judges and improve the system, right? Uh-uh. There are plenty of corrupt judges at all levels in Brazil. Unfortunately, passing a series of tough exams is no guarantee the candidate will be morally honest. But at least we know the crooked judges are competent!

 #6. I decided to become a lawyer in high school – I was good at writing, history, and debate, and didn’t want to spend 10 years in school to be a doctor (and was not nearly at good in science as I was at history). I also learned that the majority of politicians were lawyers, so the road to Congress and the White House went through law school. Eventually in college, as a government & politics major, I learned too much about politics: that politics was a nasty business full of moral ambiguities and compromises, best left to the smarmy frat rats and other slimy creatures. And of course the campus politics at the University of Maryland, College Park – with the joke of a Monarchist Party – further convinced me to stay light years away from any political involvement, at least as a candidate myself. But this didn’t discourage me from being a lawyer, per se, it merely killed any interest in personally entering politics.

 As for lawyers vs. politicians in sleaziness: most people would probably think of this as "crocodiles vs. alligators", i.e. hardly distinguishable, morally or otherwise. But I believe that as a practical matter, in the aggregate, politicians tend to be more sleazy than lawyers, by the nature of their business: courting public favor, whichever way the wind blows; telling the voters what they want to hear; and being put into positions of extreme temptation for bribes, kickbacks, and other "perquisites" which come with the job. Of course, I’ll concede that most of the lobbyists responsible for those temptations, bribes, etc. are themselves...attorneys! And lobbyists are all too frequently former politicians, whose value as such – having access to the right people and knowing what to do, how much to pay, whose ass to kiss, etc. - makes them such effective lobbyists. But it’s POLITICS that’s the mess and moral cesspool, not the legal profession itself, however many politicians are or were lawyers.