Monday, September 28, 2009

Curmudgeon comes up for air... but is he about to go down for the third time?

Well, I'll shortly begin writing my third appellate brief in a month starting... tomorrow, probably.

I need a break today.

I worked all weekend on the second brief and sent a draft through the ether to my co-counsel last evening. My weekend lasted for about an hour afterward. Then I fell asleep.

With all this work you might think I'd be wallowing in the green stuff but, sadly, no, such is not the case: The first of these three briefs was a reply brief. The client in the first case still owed a large sum for the opening brief that we (I and my co-counsel -- I'm not putting on airs) did for him.

It wasn't supposed to be that way. With "retail" clients -- meaning people, with all their faults, as opposed to nice, solvent corporations -- I try and work off what are known as "security retainers."

In Illinois, at least, a security retainer is money that the client pays the attorney for work that is going to be done but hasn't been done yet. The money technically belongs to the client, which is why the lawyer must deposit it in a separate client funds account, but when the lawyer actually does the work he or she has the security of knowing that the money will be there to pay for it.

And this was the plan we had dealing with the client for whom we did the first brief in this latest sequence. It's just... well... he fell behind... and then got all indignant that we were pressing him to live up to his end of the bargain. Aren't I paying within 30 days? he would sputter. Actually, no, I would think to myself. As a solo practitioner, I actually look at these things. He was probably used to dealing with lawyers in firms; lawyers in firms usually have office managers who take care of the tawdry financial details.

Anyway, even the pretense of the 30-day plan fell apart when we billed him for the opening brief. Oddly enough, in an appeal, the truly concentrated time is when the brief is actually being prepared. We'd warned him, we'd cajoled him, we'd sweet-talked him... but he hadn't put anything substantial on account and, in the event, he couldn't make good.

Sadly for us, the other side was extremely prompt in filing their responses. They sought no extension. If they'd sought even one extension our client might have had time to catch up on his bill.

Thus, we were faced with the prospect of doing a reply brief when the client had not yet paid his bill for the opening brief. But the real problem was that he has continued to suffer reverses in the trial court (piecemeal appeals happen in the federal courts) and he wanted us to file still another appeal... and file all sorts of emergency motions in connection with same.

My co-counsel and I agreed that our obligation was to complete the original undertaking -- and even if the client had paid ahead as agreed that would still have been our priority -- so I got to work on the reply brief. That brief was filed a week ago Friday. The client got his bill just last Tuesday. After giving him credit for what he'd paid, and adding the new time, he owed us nearly as much as he did when we finished the opening brief.

But the client continued to demand that we get to work immediately on his new project... and I have these other two briefs to write. My co-counsel sent him an email suggesting that one of his trial attorneys could file the notice of appeal and we would join in on the briefing if our schedules permitted -- but we had to do some work for our other clients, long delayed while we were dealing with this client's stuff. This prompted a phone call from one of our client's other attorneys (he has quite a stable) -- a well-respected attorney, too, so I was rather disappointed in his attitude -- who wanted to know why were "refusing" to do work for this client.

So -- there's $22,000 I'll now never see.

But, the odd thing was, it was liberating to move on, secure in the knowledge that I'm going to get stiffed on that bill. I had a clear head to focus on the next brief, the one due yesterday.

This was another complicated monster, a long and tangled 10-year trial record, but not as bitter and vitriolic as the first client's case (which lasted just over a year, never went to trial -- and generated nearly as much paper). I don't think much of our prospects in this second case -- but I'm functioning here as strictly a ghost writer. My name will not appear on the brief, and that's fine with me.

I hope my co-counsel will like it. More than that, though, I hope her client will pay for it. I'll be working on that bill in a few minutes.

Then, tomorrow, the third of these consecutive briefs. But I think I have a handle on this one.

Famous last words?

And I haven't been fully paid for the opening brief in this third case either... but I have a much better feeling about my prospects of receiving compensation in this case than I do on the first one.

I have learned a few lessons from all this -- aside from not taking on individual clients without insisting on much larger security retainers.

One is that I write best in the morning.

I can see the computer screen, which helps. (Well, I can't see too well this morning -- but it's been a loooooong weekend.) But, more importantly, I can focus better. I can concentrate.

So if I'm not posting some mornings in the near future, just suppose that I am trying to use my limited attention span to my best advantage. I can think a little more deeply in the mornings.

In the afternoons, then, I'll think about politics.


Empress Bee (of the high sea) said...

well okay but don't forget to take your vitamin!

smiles, bee

shell said...

Is this the downside of solo practice? How do you best juggle the dual role of a creditor and an attorney?

Dave said...

I came over to berate and cajole and see that's not needed for the moment.

The Curmudgeon said...

Shell, I'll try and have an answer this week. It, too, involves Mr. Lincoln.

Bee, Dave -- thanks for checking up on me!