Attack of the oxygen suckers

They're everywhere, you know. We lawyers seem to attract them, but they can be found in every walk of life, every nook and cranny of our daily existence.

An oxygen sucker is any person who demands -- and requires -- everyone's attention.

Every lawyer who's been in practice for more than a few weeks has a story of the client who provides maybe 1% of the lawyer's fee income -- and takes up 99% of his or her time.

No amount of hand-holding or reassurance is ever enough. Not only does the oxygen-sucking client sap the lawyer of energy and strength, he or she costs the lawyer money. Other clients, anyone who needs any attention, drift away, miffed.

Sometimes lawyers are the oxygen suckers.

Last week, while a colleague was on vacation, I agreed to be 'on call' for her office. My colleague had done her best to schedule all matters out of the week she planned to be out but she's a real estate attorney -- and emergencies crop up.

Sometimes the emergencies aren't.

Aren't emergencies, that is.

My colleague had a matter where the buyer's financing fell through at the last moment (this happens in 100% of real estate closings as far as I can tell, but my colleague assures me that the true number is much lower -- maybe only 90%). Anyway, my colleague and her client took the bad news in stride and rescheduled the closing -- with everyone's agreement, you understand, including the buyer's attorney -- to this Monday, when my colleague would be back in her office.

Somehow, though, the buyer's attorney decided, late last Wednesday, that this matter would have to close on Friday, before my client returned.

Now, it's true, banks can stall forever on approving a loan -- but then, when they fund the loan, insist -- demand -- that the closing come together in 24 hours. Banks are institutional oxygen suckers.

But, in this case, the bank still had not funded the loan. There was no "clear to close." The buyer's lawyer insisted, however, that he would have funding by Friday and that the sale must close by that date. His client was a single mother, he said, and prone to breaking down in tears because of the delay.

The delay caused by her bank, but whatever.

Here's the way this works: The real estate lawyers schedule closings when -- and only when -- the bank says it has money. When the bank puts that in writing. When the bank gives the "clear to close." In a disturbingly large number of these cases, even after the bank has said, in writing, that it has the money it "pulls the package" or the loan "gets questioned by the underwriter" and the money isn't there when all the lawyers and clients and Realtors (the only ones who actually make money from real estate closings) show up.

The buyer's attorney didn't have anything in writing. One of the Realtors -- his, undoubtedly -- understood that there was a "clear to close," but she also had seen nothing in writing.

That did not stop this man from calling my colleague's office five, six, seven times on Wednesday afternoon and another 25 times on Thursday morning, demanding that the closing proceed on Friday. After trying to move mountains to accommodate him -- the uncertainties of his financing notwithstanding -- my colleague's office had finally concluded that there was no way they could get an attorney to the closing and they told him that the closing would have to take place, as scheduled, as scheduled by contract amendment, on Monday. (I was covering another closing downtown, supposedly -- it ultimately fell through -- isn't that a surprise?) But he wouldn't take 'no' for an answer. He kept calling. He successfully sucked all the oxygen from my colleague's office -- her staff was actually feeling harassed -- and I was asked to intervene.

I said, sure, have him call me. I'd put him right. But my colleague's staff was so rattled, they couldn't find my office number -- even though I call over there nearly every day. Instead they gave out my cell phone number.

Now, perhaps, you're the sort of person who answers their cell phone no matter who calls. Me? I'll talk to my wife. Or one of my kids. Or if I've specifically told someone to call that number (because I'm not in my office). Otherwise, no. If I don't recognize the number, I don't pick up. I have voice mail on the cell phone -- I couldn't find a way to disable it -- which says, "Please don't leave me a message here. I won't listen to it. Call my office instead. I'll listen to the voice mail there. If you don't know my office number, you shouldn't be calling this number anyway, so just hang up." (That may not be the message verbatim, but it's close. My kids can't decide if that's hilarious or horrifying.)

Anyway, I ignored the unknown call when it came in -- and then I figured out who it must have been. A quick bit of snooping on the Internet gave me the attorney's email and I sent him a very nice, polite we're-closing-on-Monday-so-stop-calling note. I put my office number on the email.

Sure enough, he called me. Pouty. Put out. Hurt. "I'm sorry," I began, but he interrupted. "Don't say you're sorry because you're not. You don't care." OK, I said, I won't say I'm sorry. But we'll close Monday. And -- wonder of wonders -- the calls stopped. Mostly. He insisted that the closing be set first thing Monday (that would have been my first guess) but then he had to call to reschedule it to later in the afternoon.

Today the oxygen suckers were an out-of-state lawyer and a prospective client. I had talked with this dynamic duo in March -- at the request of my sister-in-law Josephine, really. Her husband, Ferdinand, is best buddies with the PC. I quickly saw why they get along. They both have the same sort of creepy, over-the-top, touchy-feely pseudo-religious patter. The good news for me was that the PC had his own lawyer in Pittsburgh and I talked with the lawyer -- who seemed relatively normal -- and I volunteered some suggestions for how they might proceed in the suit (which was filed here in Chicago).

A brief conversation with the PC was enough to reassure me that he couldn't afford his friend in Pittsburgh, much less the both of us. So I didn't mind that these two dropped off the face of the earth from mid-April until the last day of June. That's when I heard from the PC again. Had the lawyer called me? he wanted to know. Well, we both want to talk to you, the PC said, and we will. Soon.

"Soon" turned out to be yesterday. First the PC called, then the lawyer. Apparently the matter was up in court this morning and, they were wondering, could I wander over and ask for more time for them to do whatever they were going to do?

Well, I can beg and grovel with the best of them -- but I know an out-of-state lawyer can't represent anyone unless he is admitted to practice pro hac vice. Pro hac vice is a Latin phrase which means, roughly, we'll let you in once, but only for this case and don't even think of opening up an office here and competing for business with the rest of us.

Here is how a little knowledge can be a dangerous thing. I knew that motions for admission pro hac vice used to be made to the trial court by local counsel. I knew, too, that the rule had changed so that these motions were no longer to be brought. I hadn't actually read the new rule -- I didn't care about the new rule because no one had hired me on as local counsel. The PC couldn't afford it, remember?

But -- if it would make Noche Buena dinner less awkward because I was helpful to Ferdinand's bestie -- I wouldn't mind being pressed into service to stepping up in court. I like to go over to court.

Still, I needed to know what to say. Did you ever get your pro hac vice appearance straightened out? I asked. Oh, yes, the attorney said. It took longer than expected, but all the paperwork was finally done.

The lawyer had questions, too. Do they really charge for an Appearance in Chicago? the lawyer asked. Is it one fee for all three defendants (the bestie, his wife, and their corporation) or do separate fees have to be paid for each? Just one fee, I said. That's a relief, the attorney said. (If the client can't cover the filing fees, how the heck is he going to cover anybody's bill... no matter how reasonable? But I didn't press the point.) The lawyer had served his Answer, he told me, but the Clerk didn't file it because he hadn't paid for an Appearance. And he was going to call opposing counsel and make sure he had the Answer, and let him know I was coming.

And over I went this morning.

That's when all the oxygen got sucked out of my day.

The case wasn't called. It wasn't called because a default judgment had already been entered against the PC and the other defendants -- a default judgment because nobody had appeared or answered or, apparently, made the arrangements he said he'd made.

And that's when I figured out I'd better look at the new pro hac vice rule. Because I was afraid the Pennsylvania lawyer really hadn't.

Hoo boy.

Yes, the rule has changed so that local counsel doesn't have to bring a motion to the trial judge -- but there still has to be local counsel. To an outsider looking at the situation... well, someone might conclude that I was supposed to be local counsel. And that would make the default my fault.

Oh, brother. I went into full defensive lawyering mode. I disclosed the default judgment to the lawyer and the PC, explained how it can be vacated (if somebody does something in the next 10 days or so it'll be easy -- after that it will be well nigh impossible), and pointed out that the out-of-state lawyer had either not obtained permission to appear in this case or misrepresented himself (and, more important, from my selfish standpoint, misrepresented my involvement) to the Illinois Attorney Registration and Disciplinary Commission. After explaining that he has to hire local counsel under the rule, I told the out-of-state lawyer that I could not be that person.

I gave a couple of reasons. I'm about to start work on another appeal -- this is true -- and it will take up a lot of my time in the coming weeks. And I said I can't afford any 'off the cuff' clients at this time -- I have a full book of non-paying clients already. This, too, is true. Sadly. I said there were other reasons besides, which I chose not to disclose.

But you know one of them: After today, if this lawyer told me it was raining, I'd run to the window and expect to see bright sunshine. I don't need to get teamed up with folks like that. I was diplomatic as hell (I think I was, anyway) but I left no wriggle room. I don't care if dinner is awkward on Christmas Eve. I have a license to protect.

But, in the meanwhile, all the oxygen got sucked out of my day.

Here's a cranky, curmudgeonly opening for you: I just don't understand these kids today.

And it's true. I really don't. In my day, a girl was married from her parents' church; then, in the fullness of time, if the union should be blessed with issue, the child would be brought to the font at the church where the young family has settled. But these "rules," if they ever really were rules, are increasingly observed only in the breach.

Case in point: Older Daughter was married five years ago this week. In the usual course of things, she'd have been married from the parish where she grew up and attended school, where her mother and I are members. But, no. If you were reading this blog in 2009, you know that Older Daughter and her husband Hank decided right from the get-go that the wedding would be at Hank's family church -- in Indianapolis. (In fairness, I suppose, to Older Daughter, it might be better to say that Hank decided and Older Daughter was brought around to his views.) In any event, the wedding took place in Indiapolis. (It's almost the weekend -- you can browse through the linked posts and back through the other linked posts linked therein and catch right up on your Curmudgeon Family history, even if you're a newcomer to this space.)

And when Older Daughter finally presented us with Granddaughter #2, the child was welcomed into the Christian faith not in Indianapolis, where Older Daughter and Hank continue to reside, but at my parish church. (I've been meaning to write about that, but I've been doing other stuff.)

Well, you say, Curmudgeon, that's your problem, but the rules still hold for most people.

And maybe that's the case -- I can't take a nationwide survey at the moment -- but I offer in response the fact that, at this hour, Hank and Older Daughter and Granddaughter #2 are on their way from Indianapolis to Chicago where Older Daughter will stand up as godmother to a baby boy born to my daughter's high school friend and her husband, a captain in the Air Force.

Those with a military bent may note immediately that there are no major Air Force installations in the Chicago area. There aren't even any minor ones. The reserve unit at O'Hare closed in 1999. My daughter's friend and her husband are, if memory serves, posted to some place in Maryland these days. They used to live in Las Vegas; I remember that much for sure. Bottom line, though, is that here's another case of a kid getting baptized at what is now the church attended by only one set of his grandparents.

And have I mentioned that Middle Son is engaged?

I probably haven't.

That wedding will be next May. His bride is from Michigan. The wedding will be at my home parish.

Which brings me back to the grumbling with which I started this post: I don't understand the kids today. If there's a new etiquette, I haven't yet figured out how it works. Or is it just that there are no longer any rules at all and we do whatever seems like a good idea at the time?

An article on shoe shines and flat fees sets the Curmudgeon off on a rant

The Chicago Daily Law Bulletin was sitting outside my office door as I closed up shop last night. I don't always take it with me on the train home, but I did last night.

There was an interview with the name partner of an insurance defense firm on page three; I won't link to it or mention the firm name. I have nothing against these kinds of puff pieces generally; the firm probably paid a pretty penny to some PR firm to pitch the 'story' about the firm's 25th anniversary. The firm will buy a million reprints (or, I suppose, in this day and age, digital reprint rights) and send it to every client and potential client it can imagine. These kinds of things happen all the time and there is nothing illegal, immoral or fattening about any of it.

And maybe -- I want to be as positive as I can here -- maybe this firm really has evolved from the way I remember it into something actually worthy of this sort of puffery. I try to think the best of everyone.

But when I read about the name partner bragging on providing shoeshines three times a week so that all the attorneys can look their professional best, I saw red.

"We dress up during the week," the name partner bragged. "Saturday is a casual day."

Did you get that? What a great two-sided slam: We're not like these other, sloppy, slovenly firms who have gone "business casual" except when lawyers go to court -- and our galley slaves row on Saturdays, too. But we let them wear khakis then.

Oh, yes, I remember this firm.

They had a handful of lawyers, back in the day, the two name partners and an ever-changing collection of associates, each with a staggering caseload -- or a caseload that would be staggering if the firm had any intention of doing any work on each file.

In MBA-speak, this firm had what are euphemistically called "alternative billing arrangements" with its insurance company clients. Flat fees. Like Earl Scheib painting cars, they'd defend any case, no ups and no extras, for one flat fee. The moment anyone actually did any work on the file, the profit margin on the case was nearly shot to hell. So no one there did any work on any file except when they absolutely had to.

The firm profiled in last evening's article wasn't the first to invent the flat fee concept. I was young then so I don't know all the details, but I think, at least in Chicago, that honor goes to another outfit, the one that the named partner not interviewed came from.

Judges hated both of those firms.

Around the time that this firm now celebrating its 25th anniversary was set up, the Illinois Supreme Court decided to impose "case management" on cases. Before these rule changes, some cases could linger nearly forever on the Law Division docket. Eventually, cases would be called, in desultory fashion, for trial. Sometimes a case made it out to trial because no one remembered to show up and ask for another continuance. Oh, these lingering cases were meat and cheese for flat fee lawyers. They might even "win" when the plaintiff could not be found or the doctor was no longer in practice or the witnesses had vanished like the villagers in Brigadoon. Most cases weren't like this. Many plaintiff attorneys pushed their cases diligently to trial; some defense attorneys pushed plaintiff's attorneys to push their cases.

But the Supreme Court was embarrassed that the average months-to-disposition time for Cook County Law Division cases (and cases in other Illinois counties) grossly exceeded the ABA 'standards.' And so case management was imposed.

That meant that every 60 to 90 days or so (the intervals are shorter now, and the scrutiny more intense), all the attorneys would have to show up and tell the judge what they were doing and how soon they'd be done doing it. For outside hourly insurance defense firms this was a boon -- a billable hour that even the skin-flintiest claim adjuster couldn't question (the court made us do it!) -- and for most everyone else it was just a nuisance. But for the flat feesters, like this law firm profiled yesterday, it was nothing less than a judicial assault on their profit margin.

A lot of times, in the early days, the flat fee firms blew off these 'progress calls.' They just didn't show up. This worked for awhile. But then the judges were told to take these 'progress calls' seriously. When judges began entering orders requiring counsel for all parties to appear on pain of default, we saw the beaten dogs these flat fee firms sent over.

To be honest, I never noticed if lawyers from this firm had shiny shoes. I don't think anyone else did either. You generally never saw the same associate twice. The burnout rate was astounding -- and entirely predictable, given that these poor mopes spent their days getting lambasted by judges for (a) not knowing their files and (b) not having done anything on their files. I never once heard a judge excuse a flat fee attorney's complete ignorance of the case being called because s/he had shiny shoes.

Answering interrogatories is a pain in the tochus in the best of circumstances. The kids at the flat fee firms were doing their discovery responses under threat of default, on a final 7 or 14-day extension, producing insureds for deposition in other cases in similar straits, and, of course, going back to court on still more cases and getting judicially reamed once again. And they had to do it fast, because they had a million other cases in similar shape. And they weren't supposed to spend time on any of them.

Sometimes plaintiffs or even co-defendants sought sanctions against these flat fee firms, and sometimes the court would decide to impose sanctions sua sponte (that's Latin for 'you don't even have to ask, I'm so pissed I'll do it myself'). That's when the flat fee firm celebrated in the current edition of the Law Bulletin would roll out the heavy artillery: The other name partner in the firm profiled yesterday would come over to court on a pacification mission. She would tell the judge that the lazy dog associate who had messed this case up -- it was always the fault of the associate, never the fault of the business model -- would be beaten severely or had already been fired or will have his dripping, bloody head erected on a pike in the firm lunchroom as a warning to any other associates in our firm to never, ever miss one of your deadlines again. If you had so much as a molecule of empathy in your bloodstream, you couldn't help but feel sorry for the poor schlub who was being thrown under the bus by this partner. Judges should possess more than a molecule of empathy; they often backed down. Some would even offer counsel -- you know, you really need to hire more people to handle all this work, they'd say -- and the other partner would say, yes, judge, we're a new firm and we're having some growing pains, but we hired three new people just this week. The judge would beam and the other partner wouldn't be obliged to acknowledge that these three new bodies replaced three others who had been kicked to the curb or who had fled in terror.

I don't believe I've ever met the partner who was interviewed in the Law Bulletin last evening. So maybe he had no part of any of this.

Maybe.

But, in the same interview, in addition to shiny shoes, the partner bragged about alternate billing arrangements with insurance clients. Maybe he and his other name partner have come up with some more realistic business models, or more realistic pricing at least, in the last 25 years. They probably have because they're still in business.

All I know is that, back in the day, firms like this created unreasonable expectations among insurance companies about how little it would cost to defend a case. In other words, they hurt all the other insurance defense firms' business even as they were angering judges, opponents and co-defendants alike with the way they weren't handling the business they had.

There's a lot to be said against hourly billing. Hourly fees can be terribly abused. But hourly fees are like representative democracy. Representative democracy is the worst form of government ever -- until you compare it against every other form of government ever tried by humankind. The hourly fee model is the worst legal business model ever -- until you compare it with flat fees. Even with flat fees and shiny shoes.

Pausing to catch my breath at the rim of the abyss -- and yet, there's reason to hope

Oh, sure, you say -- tongue firmly in cheek -- poor Curmudgeon, you've been blogging yourself to a nub.

Well, no, I reply, perhaps a bit sheepishly. I have a life offline... sort of... and things have been a tad busy.

We got Granddaughter #2 baptized a week ago Sunday. That looks so recent when I write it, but -- trust me on this -- June 29 feels already like ancient history.

I just finished an appellate brief -- a few days after the promised delivery date. Nothing ever seems to get done as fast as I think it will.

The delay in delivery does not diminish my sense of accomplishment in finishing a task like this. I get so narrowly focused -- I got at least a couple hours work in each day on the holiday weekend, family obligations notwithstanding -- and I felt almost like a lawyer. Almost like a real, serious person.

And then I sent the brief off to my co-counsel, who is vacationing in Europe at the moment, with her husband and family. She probably won't read it until next week, when she gets back. We'll see what she thinks of it then. (What she thinks will, in large part, be dictated by what her referring attorney -- trial counsel -- thinks of the brief. If he likes it, she'll like it, too. If he hates it, well....)

Either way, by next week I hope to be getting into the next brief -- I have another in the hopper -- and I'm looking forward to getting this one done because it will have a blue cover.

No, I haven't developed a fashion sense in my dotage; that just means that, in this next case, I will be the appellee. In Illinois, an appellant's opening brief has a white cover, an appellee's response has a blue cover, and the appellant's reply has a yellow cover. I've done waaaaaaaay too many white and yellow covers in recent years. But this blue cover on my brief-to-be means I'll be the lawyer telling the Appellate Court how smart the jury and the trial judge were to see things my client's way. Statistics show that I have a 2 in 3 chance of success as appellee, whatever cockamamie drivel I concoct. And, you can bet the rent -- I am -- that's what one does in taking contingent fee cases -- that I will be writing my heart out, not driveling at all. See... if we win on that appeal, I'll get paid.

These things don't happen overnight, unfortunately.

The Appellate Court decided a big case in my favor a month or so ago. I worked on it last spring. But it too had a blue cover. If my colleague now in Europe had been able to negotiate the traditional fee for our appellate representation in that case, I'd be looking at a seven figure payday. The case was that big.

But... alas. She did not. She could not. I will still get, from that one case, more money than I grossed last year. Five figures is not seven -- decimal points do matter -- but, all by itself, it will make a healthy dent in my $60,000 credit card debt. But first will come the Petition for Leave to Appeal to the Illinois Supreme Court. There's only a 1% chance that the court will take it -- and, assuming it does not, I should see that money during the fourth quarter of this year.

I just have to live that long.

The brief I just finished will have a white cover. And while there was the momentary satisfaction of a job well done -- I liked it, whether anyone else does or not -- there was also the sad reality yesterday that I was $300 short on the July rent. And the Lexis bill -- you know, the electronic research service I need in order to find the cases to discern the law to quote in these masterpieces, white cover or blue -- is about to become two months overdue.

My remaining partner in the office suite was able to advance me the $300. What a heel I am. He's been short the last couple of months and I haven't been in a position to reciprocate. So he's gotten socked with the late fees -- and now he saves me from one.

The American Express bill was due yesterday, too. I couldn't pay the balance (even though, just a couple of months ago, I moved the really big balance on that card to one of those way-too-short-term 0% deals from the Soulless Megabank). For some reason, we keep buying groceries. And gasoline. Still, I paid what I could. Now I have less than $50 in my personal checking account and my business checking account.

I really am at the rim of the abyss.

This morning I went to court for a matter where I expected a final order to be entered -- a final order that would allow me to bill and close my file.

Alas.

The attorney was unable to accomplish, in the last 30 days or so, what he was supposed to. We now wait to mid-August.

I have bills out.

They're just not getting paid.

That gets very old, I assure you. Meanwhile, I should be doing time sheets. But I did this instead. And, now, I think, I will go home. I will do better tomorrow.