Wednesday, November 19, 2008

Speaking ill of the living: business development in the modern age

If you can't say anything good about someone,
sit right here by me.

-- Alice Roosevelt Longworth

"How did the hearing go last Thursday?" My inquiry was more than merely casual. My colleague has a new client, a new client that may someday soon give her a lot of business -- more business than she alone could handle. Since she and I have successfully collaborated on other matters, we have discussed the possibility that I might assist in this business as well. Thus, although my inquiry was much more than casual, I tried my best to sound nonchalant. I don't think I actually squeaked when I asked, but my voice probably cracked.

"We won!" my colleague told me. The learned trial judge (judges are always "learned" when they rule your way) agreed that there was not only a gap in the proof submitted by plaintiff's counsel, there was a "yawning chasm." And the best part, my colleague enthused, was that, of four defense firms in the case, she was the only one to advance this interpretation of the relevant authorities.

"How did the clients take the news?" I asked.

"They were there," she said, "watching everything. And they really are looking for additional counsel. Afterward, at lunch, one of them asked me about Sally Simpson (not her real name -- obviously). I've known her for years. We worked together for awhile."

"What did you say?"

"I said she was a competent attorney, but not imaginative. I didn't want to build her up -- not when we're hoping to land this business for us."

"But that's exactly what you did do!" I cried. "You as much as told the client that Simpson was the living reincarnation of Learned Hand. You really have been out of the business of pitching business for awhile, haven't you?"

You see, claims people and corporate counsel are always looking for new defense lawyers. Not to hire them, necessarily, not right away -- but they want them tagged and tracked, like wolves or sharks, so they can be found when required. They will solicit opinions about prospective attorneys from current attorneys. It is a foolish attorney indeed who says anything positive about any possible competitor, with one possible exception, though it must be played just right.

To understand the ordinary response to such an inquiry, one must quickly review the law of defamation. In Illinois, for example, "four categories of statements are considered actionable per se and give rise to a cause of action for defamation without a showing of special damages. They are: (1) words that impute the commission of a criminal offense; (2) words that impute infection with a loathsome communicable disease; (3) words that impute an inability to perform or want of integrity in the discharge of duties of office or employment; or (4) words that prejudice a party, or impute lack of ability, in his or her trade, profession or business." Additionally, these "common law categories" can be enlarged by statute. For example, in Illinois, under §1 of our Slander and Libel Act, 740 ILCS 145/1, "false accusations of fornication and adultery are actionable as a matter of law." Bryson v. News America Publications, Inc., 174 Ill.2d 77, 672 N.E.2d 1207, 1214-1215 (1996).

When called upon to voice an opinion about a probable competitor, the business-savvy attorney will try and invoke as many of these categories as possible. The really smooth ones will try and leave room for "innocent construction." Thus, when a VP of claims or risk management asks one his attorneys about Harry Niblick (totally made up name -- please!), the smooth defense attorney responds, "Doesn't he look good? I guess the rumors weren't true."
VP: "What rumors?"

Defense counsel (DC): "Well, if you haven't heard them, I'm not going to say anything."

VP: "No, tell me."

DC: "No. It's bad enough to bear the burden of syphilis without having gossips go around talking about it. Especially after somebody has beaten a crystal-meth addiction."

VP: "Are you saying that Niblick's a syphilitic crystal-meth addict?"

DC: "Not me! And, besides, everybody drinks a little."

VP: "You're saying he's a drunk on top of all this?"

DC: "Not me. Still, excessive drinking has been found to be an explanation for embezzlement. And people can be forgiven for that."

VP: "What! He embezzles, too?"

DC: "I don't know anything about it. But his partners didn't throw him out. And I'm not one to repeat rumors. Now, shall we order dessert?"
Of course, most attorneys aren't this smooth. They won't bother leaving room for "innocent construction." There's little fear of getting sued because everyone says the same kind of things: "Oh him? He's really remarkable. Back to work again so soon after the lobotomy. Hasn't seemed to affect his intelligence, not that he had any to begin with, but I hear it's calmed his more violent urges. He hasn't beaten his wife for a couple of weeks, or so I'm told. I think he's nicer, anyway, since he started heroin."

Just once, I'd like to be in the room when two business-providers compare notes re: what Attorney Smith said about Attorney Jones and vice versa. (Not that Smith and Jones will invariably hate each other. They may work effectively together; they may even socialize. But they will stab each other in the back in a nanosecond if it means getting or losing a new file. It's not personal, it's business.)

The fact of the matter is that with so many lawyers bad-mouthing their peers to potential clients, the clients have developed a kind of 'filter' or translation system.

When the lawyer says that a colleague is "riddled with clap and supposedly put himself through school selling pornography," the client hears only "possible competitor."

But, if a lawyer says something neutral or even arguably positive, as my colleague recently did, the client may hear "worth investigating further."

There are a couple of times when a lawyer can say something positive about a colleague to a person who controls business.

You can always say something positive about the plaintiff's attorney to a person handing out defense assignments. Indeed, the plaintiff's attorney is someone you should build up, preferably to gargantuan proportions. Not, you understand, that you say anything nice. No, you don't care if your client thinks that the plaintiff's attorney's hobby is kicking dogs for distance -- in fact that's something to try and work into the conversation -- but you also want your client to believe that your opponent is achingly brilliant and holds all the judges in the county in his pocket. After all, there is always the possibility that you might have to settle or you might even lose this piece of hard-won business... and you'd never want the client to wonder whether he or she might have done better with someone else.

You can say something nice about a potential competitor on very rare occasions: If the person in question is visibly older, you may say that you respect her as a mentor, that she's been like a mother hen to so many, that she's been an inspiration for you. In such a case, if you're terribly clever, the client will hear "too expensive."


Shel said...

Here and I thought APA citations for class were a pain in the ....never mind. At least I'm not having to cite obscure legal cases.
Does this mean that someone can sue me if I imply my boss might have bubonic plague?

Ellee Seymour said...

If I could choose my career path again, I would go for law. I enjoyed reading this. And good luck with your collaboration.

Shelby said...

ah, the words 'moral terpitude' come back to my brain.

and IRAC.

and the thot of exams.

And I miss it.

Patti said...

I am a bit confuzzled, but I had wine with dinner.

And I'm not an attorney.