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Washington Lawyer

Legal Spectator: The Doctor Needs a Deadline

From Washington Lawyer, May 2005

By Jacob A. Stein

Legal Spectator

Today’s bar publications carry stories about lawyers who leave the profession. They assign a variety of reasons for leaving. These include the time demands, the incivility of the trial practice, and the feeling that the law practice is not what they thought it would be. They say they do not feel guilty about it.

Years ago, when a lawyer left the practice he did feel guilty about it. Even if he was spending most of his time in business ventures, he wanted people to think of him more as a professional rather than as a businessman.

The 1970s real estate bubble enticed lawyers I knew into real estate ventures. One of them remarked that inside every lawyer representing a real estate speculator is a real estate speculator struggling to get out.

Let me tell you the story of a good lawyer with a good practice who took the bait. We will call him Richard Roe. He had a client who jumped from one successful real estate deal to another. Roe decided to put his expertise together with his client’s talent for making money. They would make money beyond the dreams of avarice. One of their schemes was to get investors to put up money for Roe and Doe, Inc. to buy land, develop it, and then sell it at a great profit. Roe’s partner spent weeks preparing the brochures depicting attractive homes in gated communities. These were distributed to the investors.

If Roe had not been inebriated with the exuberance of his own enthusiasm, he would have seen that these brochures would be the key exhibits in the lawsuits that would be filed (and were filed) by the investors who lost their money when the bubble burst.

Inevitably Roe and his partner had a falling out. Lawsuits followed. Roe’s partner left all the problems to Roe. After all, Roe was a lawyer and the lawsuits fell within Roe’s specialty. Roe finally decided he had enough. He tried to rebuild his law practice. It did not work. He ended his career defending the lawsuits and recalling the happy times when he was all lawyer.

Years later Roe gave an account of why lawyers who go into a start-up business often fail. A law school education inclines one to be cautious, to stick to the rules. Malefactors of great wealth see rules as an impediment.

A businessman does not read the transactional documents that lawyers prepare for him to sign. If he studied all the details, the deal would go to someone else. He has in mind some tricky advantage often based on secret knowledge. He takes his chances. He has been lucky in the past relying on his intuition and he will be lucky again.

The skills of a trial lawyer, which is what Roe had, were of little value. He was fluent, logical, and analytical. He was trained to give reasons to explain what he did. None of this gave him an edge in dealing with people who, if asked to explain the reasons for their success, would mumble a few platitudes.

Roe said his bad experience had given him a great respect for those who thrive in a predatory culture. He understood it better because he did not have it. Those who do have it are filled with the quick pulse of gain. They are good at quick mental arithmetic. They see a pecuniary advantage that others are blind to, and they are happiest when they boldly act on the opportunity. They don’t question the irrational tax laws and the mysteries of depreciation. They exploit them.

They would rather gamble with other people’s money than their own. The headline brokerage houses advertise that they know how to make others rich. There is contradiction here. Why would they want to put such a secret up for sale? Where are the customer’s yachts?

Roe said there are exceptions. A good lawyer may find his way to the top of a stable business that has outgrown the need to take great risks. In such a business the conservative approach works well.

One of my friends who had a good practice was enticed into a 1970s real estate deal that did make him wealthy. Despite the fact that he had all the money he would ever need, he continued to maintain his law office. He wanted to be known as a lawyer, a member of an honorable profession.

I often visited Joe at Sibley Hospital during his last illness. On one of the visits Dr. A was being paged. Dr. A appeared in court frequently as an expert witness in personal injury cases. I knew it would cheer up Joe if Dr. A came to his room and made believe that he knew Joe from around the courts. Dr. A agreed to do so. He came to Joe’s room and said, “Joe, I recall you from the cases you tried around the courthouse. You were a pretty good lawyer.” Joe responded to these flattering words with a warm smile. Joe said he had been ill and he had decided to retire from the law practice.

He said to Dr. A, “Do you still appear in court as much as you used to?” Dr. A said he had reached the point where he needed a fixed, unalterable deadline to motivate him to read the file before he testified. Therefore he only appeared in court if he was testifying before a senior judge.

Joe asked why Dr. A would only appear before a senior judge. Dr. A said, “Joe, it’s this way. At my age, as I said, I need that pressing deadline to compel me to read the documents in the case. I know it will take 20 minutes for me to testify about all my qualifications, where I went to school, where I trained, where I have lectured, my board certifications, you know, all of that gold braid. As I said, that takes about 20 minutes. I have learned that a senior judge must take a 10-minute recess every 20 minutes. During that 10-minute recess I use the deadline to read the file. When the judge takes the bench, I am still one of the best around.”

We left Joe’s room. I thanked Dr. A for cheering up Joe. Dr. A said, “Jake, you know there’s not a word of truth in that story, so don’t repeat it.”

Jacob A. Stein can be reached by e-mail at [email protected].