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Washington Lawyer

Legal Spectator: A Forensic Fable

From Washington Lawyer, November 2000

By Jacob A. Stein

spectator

. . . perfectly at ease with himself, and everyone around him, he managed at the same time to suggest the proximity of an abyss of scandal and bankruptcy threatening at any moment to engulf himself, and anyone else unfortunate to be within his immediate vicinity when the crash came. The charm he exercised over people was perhaps largely due to this ability to juggle with two contrasting apparently contradictory attributes; the one, an underlying implication of sinister disturbing undercurrents; the other, a soothing power to reassure and entertain.

I have encountered in the trial practice this special type of person Anthony Powell, the novelist, describes so well. On occasion I have even represented such persons. When I have, I was treated to flattery, lots of flattery, but slow pay. If it was a criminal case, he would tell me he must suspend a lucrative transaction until I persuade the prosecutor that the case against him is based on a vast misunderstanding of the documents and the incorrigible greed of the complaining witnesses. He would mention the names of prominent lawyers he knew. He would ask—when the present matter was over—whether I would be willing to represent some very wealthy friends of his in a complicated international arbitration. Would I object to traveling to Paris, Rome, London, and Geneva?

I had a lawyer friend who represented many real estate speculators and investors. This brought him in touch with the type Anthony Powell described. My friend often complained that his clients did little work, made big money, and some were not very smart. The clients used him more or less as a well-paid messenger boy. My friend’s greed got the best of him. He decided to leave the practice and join up with one of the special types in various financial schemes operating as a real estate trust.

My friend sent me an announcement of the formation of the venture. His picture adorned the announcement. When next we met I noticed that he had dropped the cautious vocabulary of a man whose vocabulary was made up of fine print. Now his sentences began with the words “Roughly speaking.” Those words were followed by optimistic predictions.

Occasionally I received a call from my friend asking about one of the local rules of court. He said he represented the trust in its litigation. He liked getting into court now and then and seeing the old courthouse crowd.

Months later when I spoke to my friend, the sentences no longer commenced with the words “Roughly speaking.” He wanted me to refer him to a lawyer concerning some out-of-state litigation. The trust had been sued. I asked why he did not represent the trust. This case was different. He was named a defendant. And his partner and he could not use the same lawyer because of conflicts that had arisen between them. The case against his partner was serious. There were allegations of fraud.

This special type person I write about often gets drawn into litigation that commences with a complaint alleging fraud stated with the particularity required in accordance with Rule 9(b) of the Federal Rules of Civil Procedure. If the special type can muddy the waters, he may get away with all or part of his scheme. But there are cases where the special type does not do so well. One such case is Sankin v. 5410 Connecticut Ave. Corp., 281 F. Supp. 525 (1968). Here is the trial judge’s reaction to the special type person’s winning ways on the witness stand:

The hallmark of his testimony was evasion flavored with contradiction. Time after time he had to be directed to answer the question and not evade. And when he would be compelled to give an answer, it was usually an exercise in circumlocution. His appearance, manner, demeanor and conduct as a witness was that of a person unworthy of belief. He did not look nor did he act as a witness who was telling the truth fully, frankly and freely what he knew to be so.

     Back to my lawyer friend. A year later I received an announcement that he resumed the practice of law. I dropped in on him and we had an interesting conversation. I learned that the trust was in Chapter 11 and soon would be in Chapter 7. My friend had attended hearings and status calls in the Bankruptcy Court. His former partner, so it appeared, had made transfers to avoid creditors. My friend had gotten himself out of the civil suit. His partner was still litigating and had been through three lawyers.

My friend gave me some advice. Anyone who has the patience to read and understand a big-deal real estate transactional document from beginning to end would never sign it. He learned that his former partner, as was said of a Louisiana governor, would sign a leaf if it came across his desk. In addition, his partner would sign a partner’s name to anything.

Then how explain the success of these people? My friend said they have something unique. The dramatically successful ones have an unerring, almost mediumlike sensibility to those around them. They have six or seven senses denied to most people. Right away they know how to make the correct argument or appeal best suited to the vanity, weakness, or self-interest of those they wish to manipulate.

My friend’s law practice taught him to be careful, orderly, and responsible, just the qualities that disqualified him from commencing sentences with “Roughly speaking.”

The lesson: The shoemaker must stick to his last.

Jacob A. Stein may be reached by e-mail at jstein@steinmitchell.com.