Thursday, May 30, 2013

Curmudgeon 'briefly' explains his recent absence

I have been engaged for at least two weeks now (it might be three when I put my time together) working on an appellate brief. I haven't had one of those for awhile.

And this is a good case -- a big case -- the kind of case that, should it come to pass that I am associated with the winning side, will almost certainly result in more business.

In law -- in everything, sadly -- you're perceived to be only as good as your last result.

That's a load of road apples, of course, but it's all too true.

Anyway, it's a big case, nearly 70 volumes of appellate record, a trial record over a week long (not counting the in limine motions and other flurry of last-minute motions that preceded this big case, as happens in most big cases). I was not trial counsel. So I've read everything new and fresh -- and for the first time.

There are horrible injuries in this case, horrible enough that the jury's verdict of over $25 million is not being challenged by the losers as excessive (except in one small particular, amounting to less than one million of the total). There is not really a question of liability; the defendants who argued against liability at trial put on a 'sudden stop' defense, the kind of silly defense that juries see through every day in the First Municipal District in soft tissue, low-impact rear-end cases. (In our case the collision was on the Interstate and involved a very big truck... and a pretty small car.) But the problem is that the jury found four entities jointly responsible and only one of them -- the one which is at least arguably the most remotely connected to the accident -- has the wherewithal to satisfy the judgment. And that entity is (unsurprisingly) fighting like the dickens to persuade the reviewing court that the jury's verdict was wrong.

But that's not the challenge for the appellate lawyer; that's just the set-up. The challenge is that this accident took place over a decade ago. The case has been in court ever since (including a trip to the Appellate Court on a forum non conveniens issue. There's over 10 years of stuff that must be adequately reviewed and condensed and summarized in only 50 pages. Oh, and we also have to rebut the other sides' arguments in those same 50 pages.

We could ask for a waiver of the page limitation, of course. But you can imagine how excited the Appellate Court will be about that. Each appellate justice in Cook County must account for roughly a disposition a day to keep up with the workload. True, most cases will not be this complicated. Many, perhaps. But some are definitely more complicated.

So I'm working on the brief at home yesterday, and I started from a spot where I'd gotten snagged the day before: I'd done my research and still hadn't come up with a clear idea of how to refute the other side's contention on this point. If I thought it would get me nominated for the ABA's Blawg 100, I'd explain the issue a little more. But it won't. Suffice it, then, to say that, with a fresh approach in the morning I saw a way through the problem. I looked up a couple of more cases relied upon by the other side and decided that the other side had really goofed in citing one of them: It made my point for me. I wrote. By noon I had about a page and a half of new material, but I think it was good.

Just not good enough.

My co-counsel really wanted me to have a largely completed draft brief by today, when she meets with the trial attorneys to discuss our progress. They were mad at her, she told me, when she asked for another 35 days to prepare this brief. She got me involved because, even with 35 extra days, because of the press of other matters, she would be unlikely to get this project done by herself.

I have to tell you: Appellate lawyers here almost always ask for one extension. It is routinely granted. It is almost never controversial. I once had a case where my opponent asked for seven extensions (each time asking for 35 more days). On big cases like this one, two or three extensions are not unusual. Indeed, the process of getting the record together and getting the opening briefs on file took opposing counsel in this case about a year (according to the rules, they were expected to get this done within 98 days of filing the Notice of Appeal).

I am probably out of practice. My workload has dwindled, as readers know, and perhaps I take longer now to write because (unfortunately) I have more time to write. Parkinson's Law: Work expands to fill the time allotted for its completion.

I've tried to prevent rust by writing more blog stuff. I managed to do over an entire year's worth of posts on The Blog of Days (a streak broken only this week) and keep up this blog and keep up my posting on my two 'public' blogs as well. But it's not the same kind of writing as in an appellate brief. And, besides, no one ever seems to practice with the same intensity as one needs for a game. Drill and routine may help the soldier facing battle, but it will not be the same.

So my co-counsel was disappointed with me, I think. She'd hoped I'd have more done. Well, I'd hoped to have more done, too.

But, though we know what we want to do here, it takes longer to execute properly.

She was going to add 15 or so pages from her post-trial response to my draft brief in the hopes that it would look more like a 'working brief' for her concerned trial counsel at their meeting today. She was just going to slap it on at the end.

"They've waited so long," she told me yesterday. "They're hungry."

If this brief carries the day (after the other side attempts to interest the Illinois Supreme Court in taking the case -- an exercise that has no greater than a 1 to 4% chance of success, but will delay matters as long as another six months) the trial attorneys in this case stand to make millions.

The trial attorneys have agreed to pay my co-counsel mere thousands, but even this payment is contingent on the trial attorneys getting their millions. My co-counsel has agreed to give me a third of what she gets. (Her extra third comes from the inarguable fact that the trial attorneys came to her with this business, not to me.) If we win, but only if we win, the few crumbs that make their way to my level (roughly just a week's worth of statutory interest on the judgment) will nevertheless be my biggest single fee in years and years. It will actually amount to more than I grossed from the practice of law in all of 2012. (This is why I have $50,000 in credit card debt.) But I don't get a penny, not a sou, if we lose, because my co-counsel won't get a dime.

Yes, I suppose I am taking my time on this. I want to do a great job, not just a good one.

The trial attorneys may be hungry, as my co-counsel says. But I'm starving.

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