Burnout

Incompetence should be a godsend if found in an opposing counsel. Incompetence should make your life easier–you don’t have to do hours of research and critical analysis to come up with a reply because stupidity speaks for itself. All you have to do is point it out. Really, most of the effort that you spend in dealing with opposing counsel’s incompetence is spent trying to figure out that exactly the jackass is arguing. Demolishing that argument is simple after that. Incompetence manifests itself in blown deadlines, dumb admissions (“well, my client does not dispute it hasn’t paid the money”), logic that smacks of effort (“my corporate client does not owe any money because the high level corporate executive who dealt with day to day operations had no authority to enter into the contract”), misrepresenting the law whether by intention or negligence (“those cases hold that there is no contract even though the court in those cases said that there was a contract in these same circumstances), and just plain poor writing and structure.

And yet invariably, lawyers including myself would rather deal with a whipsmart opposing counsel who can give as good as she gets and will force us to actually do work than the mental midget whose work is the legal equivalent of walking out the bathroom with his fly still unzipped and wet splotches all over his pants. I used to think this was due to professional pride. I don’t want myself associated with Corky the Very Special Lawyer. But that sort of shame by association only exists if you care about clients, and as almost every lawyer will tell you, the worst thing about lawyering are the clients.

No, I think what drives me bugfuck about incompetent opposing counsel is that, more often than not, they get away with it. There are a variety of reasons for this. In state court, most judges come from a pool of attorneys from small to mid-sized firms of the variety that have no lawyers from BigLaw backgrounds. These small to mid-sized firms don’t have the same resources as BigLaw, and their lawyers, by the ratio of lawyers to cases and the lower quality of the cases, do a lot of shit on the fly. The pool of law students they get aren’t exactly creme de la creme (if you’re Order of the Coif, are you going to choose BigLaw willing to pay you $140,000 off the bat to be in a cog in the wheel of multi-million dollar matter, or SmallLaw paying you $40,000 a year to deal with slip and falls?) Though there are idiots in BigLaw (because how good of a law student you were does not necessarily translate into how good a lawyer you will be), the mix of a load of crap ass cases in these smaller firms, the cost benefit analysis making it rationale to be quick and speedy on a low-value case as opposed to rational and smart, make for massive amounts of incompetence. (I should note, I am overgeneralizing, and in this overgeneralization, I am not including a subcategory of small firms whose members came from BigLaw–they tend to carry over that weird feeling from being a BigLaw associate to, you know, spend time on a case, even if it is a low value loser of a case).

ANYWAY, so most of the state court pool of judges come from these small to mid-sized firms where expediency and what necessarily arises from it (bad logic, bad research, bad writing, and bad case management) unfortunately are prevalent. To put it simply, incompetent opposing counsel often get away with their incompetence because state court judges incompetent opposing counsel. On one of the cases I was on, I had opposing counsel admit in court that he blew a court-ordered deadline, but the judge didn’t do squat. Opposing counsel then admitted after the hearing that if he were the judge, he would have sanctioned himself. Other lawyers I’ve spoken with said this particular judge isn’t that bright. Sigh. And I truly got the sense from the hearing that, even though the judge had set the deadline which opposing counsel blew, the judge himself had blown deadlines as an attorney. After I mentioned that opposing counsel was simply using delay tactics, the judge stated, “Well, that’s the risk your client takes when suing someone.” And you wonder why people think the system doesn’t work.

Now, not every judge is an incompetent SmallLaw boob, so that doesn’t explain every single instance of an incompetent lawyer getting away with it. Sometimes, an incompetent counsel is so incompetent, the judge is just in disbelief at first, and when the air clears, the judge just doesn’t want to deal with him.

We’ll call this particular opposing counsel “The Limper.” The Limper has a pronounced limp and a slight hunched back (or at least it looks that way, as his left shoulder noticeably droops). He has dark, slicked back hair with a barely trimmed beard. Think a sleazy version of Daniel Day-Lewis in “My Left Foot” His voice is phlegmatic and slurred. He sounds like Froggy from the Little Rascals coming down from a bad meth trip panhandling for change in the stink of his own urine of a downtown freeway exit.

So when he shows up in court after improperly trying to dismiss the judge or failing to file an opposition brief, what the judge sees is not a professional who has passed the State Bar and thus really has no excuse for disregarding the law, but instead a cripple in a bad suit who apparently has a speech impediment and who looks two days away from being out on the street. And so the judge treats The Limper with the same kid gloves he treats any ignorant Joe Citizen representing himself, gives The Limper an excuse (“oh, you must have been waiting for me to rule on my dismissal before you filed an opposition,” to which The Limper croaks “That’s exactly it, Your Honor”) and an opportunity to file an opposition. And yet the deadline comes and goes, and the Limper via his partner files with the court a request to yet again move the hearing, this time because the Limper is sick.

Now, a lot of attorneys would just roll their eyes, show up at the hearing and simply tell the judge that this is bullshit. But I’m a vindictive bastard with a low tolerance for this crap, so I write a written opposition to this request for a continuance, explaining that the Limper has failed to file opposition and then failed to show up at hearings in three other cases. At least the judge finally gets it, and sanctions The Limper and continuing the hearing on the condition that The Limper provide proof of his illness. And lo and behold, the day before the hearing, The Limper serves the office with a Notice of Non-Appearance claiming that he’s going to be in Hawaii for trial, so he can’t show up at the hearing in Los Angeles. And a quick call to the United States District of Hawaii confirms that actually, there is no such trial. The Limper has perjured himself, which I inform the judge.

Now, if I were the judge, I’d set an Order to Show Cause hearing on why this fucker shouldn’t be sanctioned and reported to the State Bar (and it turns out, the State Bar has already sanctioned the Limper, which would mean another disciplinary report who really fuck up the Limper’s probation). Now attorneys may misrepresent themselves to the court on time to time, but this is a rather egregious example of perjury. Shit, does the Limper not realize a quick phone call to Hawaii would reveal that he was lying?

But I’m not the judge. We prevailed, which was great for the client. I’m not complaining about that. However, I got the feeling that the judge just didn’t want to deal with The Limper’s shenanigans. If he or his clerk made a simple check of the State Bar website though, I’m sure The Limper would have more to worry about than telling his client that he needed to cough up more money.