“Fees Fi Fo Fum”: The English Rule and The American Rule, Part 1

Good morning and welcome back to Monday here on Lawyers & Liquor, where I try to recoup all the goodwill I burned through in recovering from an injury and being a general roustabout in anything not case related by redirecting you all away from my flagrant ignoring of my responsibilities on this site and back towards the questions of law, fact, and fun that tend to pop up profanely here.  Isn’t that just one hell of a run-on sentence? Anyhow, I’m your hobbling host the Boozy Barrister, here to pour seething hot rage and recommendations into your eyeholes as we keep trucking on through the dark night of litigation finance.

You may remember that last week, before I disappeared into the netherworld of lazy lawyers in their off time, I spoke about the threats that are coming to bear on the Legal Services Corporation, the federal agency that provides grants to legal aid non-profits and assists them in letting the indigent have their day in court.  The whole reason we have to have organizations like this is because, frankly, if someone hires me to bring a lawsuit or defend one I expect to get fucking paid as a result. Now, some of you out there are saying “Boozy, I thought lawyers only get paid if you win!” To that I say: Do I sound like the type of guy who takes cases on contingency? I like eating my meals. The only gambling I ever do is at the pai gow table, surrounded  by hard-smoking and hard-drinking Chinese businessmen screaming things in Mandarin and Cantonese (neither or which I speak).  I’m not gambling in the office.

I mean, I would if I could, but it’s been hell on wheels trying to get the partners to recognize the need for a pai gow table in the conference room.

No, in most cases us American Attorneys get paid win, lose, or draw.  You may go home with empty pockets and a judgment against you, but I go home with my check or I don’t sally forth into the legal battlefield with you in the first fucking place. And that, for many people out there, is the problem.  But…what if I told you there was another way?  And there may be one, too, if we dig back through the past and examine the alternative method of paying for a lawsuit…which is what we’re doing this week.

But first, let me explain the two historical methods of paying for a lawsuit: The English Rule and the American Rule.

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“The No-Bill Profession” – Legal Aid and Pro Bono

You know what’s nice? Knowing that the practice of law is a profession that places as its benchmark the pursuit of justice and higher school of thought.  We all go into law school thinking that we’re going to change the world through our practice of the law, and some dolent professor with an Ivy League pedigree extols the virtues of the “Noble Savage” that the lawyer is supposed to be.  We are told, in every class, that the law exists to bring justice and that the role of an attorney is a counselor and advocate for the cause of the downtrodden client.  We are, in the words of the administrators and professors, the gatekeepers of justice, the first line of defense against tyranny, and the vindicators of the downtrodden.

And, of course, we then step out into the real world of practice and become made aware of the fact that all that esoteric bullshit and idealism doesn’t make the student loan payment of the rent.  Nobody’s ringing up their landlord and saying “Hey, I stopped a family of five from being evicted today!  They paid me in a big bag of pork rinds!  Will you accept pork rinds in lieu of rent now?”  If your landlord or utility company would ever stop laughing, what they’d choke out is “No, dipshit.”  Idealism doesn’t pay any of the bills.  “Good feels” doesn’t put food on the table.  Advocacy won’t buy avocado toast.

For that, you need money.  And to make money, you have to let go of the concept that you are anything more than a cutthroat mercenary of the legal world.  Because motherfuckers may need justice, but motherfuckers gotta pay to get it.  And yes, there are lawyers out there who provide representation to those people that need it without regard to their ability to pay, and they do some great goddamn work in doing so.  But, and here’s the thing:

They may not be there for much longer, and society has no viable safety net ready and raring to go for those folks.

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The Internet Is Real Life: How A Lawyer Will Track You Down

Years ago I sat in my Dad’s office after email had really just become a thing. I was a kid at the time, but I remember distinctly my father talking to a divorce client who was, as divorce clients normally are, pissed off. However, this divorce client wasn’t only pissed off, they were technologically literate, something that my poor father most definitely was not. You have to understand, up until recently, and even now, lawyers are like the most technologically backwards people in the world by necessity.  Part of this is because the courts are technologically backwards and keep insisting we do things in certain ways, and part of it is the cost of an update is prohibitive because developers of software that’s really only used by the legal field are all like “Lawyers have money! Bleed them dry!”

But I’m getting off track a bit, aren’t I? We were talking about Dad and the fucking Bill Gates of divorce clients. Anyhow, Dad had gone through his normal spiel about not contacting the soon-to-be-ex, you know, “don’t call them,” “don’t ask friends how they’re doing,” “don’t leave nasty notes,” “don’t try to burn down their new lover’s car with lighter fluid while sobbing ‘WHY DENISE? WHY?’ into the night.” The typical stuff. The client, part of the way through, said “What about email?” After a suitable amount of time in which the client explained to Dad that email was “electronic mail” and, assuredly, was becoming all the rage and not at all the work of the Devil, Dad nodded sagely, leaned back, and said words that I’ve never forgotten:

“If you don’t want it read back to you in court, don’t fucking send it. Period.”

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Who Drives The Bus, Part 2 – A Guide to Decision Making for Young Lawyers

On Monday we talked about the Supreme Court case of McCoy v. Louisiana, wherein an attorney decided that a perfectly reasonable trial strategy was to tell the jury that his client had definitely committed murder in an attempt to avoid the death penalty.  The lawyer did this without the permission of his client, and in fact did it explicitly against his client’s wishes.  The client wanted the attorney to present a defense that he didn’t kill anyone, despite the state’s overwhelming evidence, and it brought to the highest court in the land the question of “Who really controls the representation.”

So we’re back today with Part 2, talking about who really gets to careen the bus of bad decisions off the freeway in glorious slow motion: the lawyer or the layperson who hires them. So, because I’m not gonna waste a lot of time or space today on building shit up, let’s just jump straight into this discussion.

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Who Drives the Bus, Part 1: McCoy v. Louisiana

Let’s start with the commonly accepted preposition that our clients are, by and large, incapable of finding their backsides with both hands, a map, and a native guide. Whether the client be the sweet little old lady from down the street or the meth dealer who’s been the scourge of the Shady Acres Mobile Home Community for the last three weeks before he fell behind on his rent, clients are collectively idiots without a single clue as to what’s in their best interests. It isn’t even their fault, really. As a society they’re trained to second guess people by television shows that teach them nice, and ultimately meaningless, phrases like “post hoc ergo propter hoc” that they can parrot back at the nice man or woman in the suit in front of them and make demands.

We live, ladies and gentlemen, in the Golden Age of Dipshittery, where any asshole with access to Google and a cable subscription can fancy themselves a lawyer. All hail King Dipshit, as he wanders into the office and proceeds to immediately second-guess the attorney. And, of course, because we learn the law from folks whose names are preceded by words like “Professor,” we of course have the vitriolic reaction of any learned professional when T-Bone tells us he  totally thinks we should argue he was driving that ATV through the nunnery because aliens told him to: Sit down, shut up, I’m the goddamn lawyer.

And so, today and Wednesday, we’ll talk about the division of decision-making between an attorney and their client, i.e., who has control over what and when in an attorney-client relationship.

Continue reading “Who Drives the Bus, Part 1: McCoy v. Louisiana”