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Tuesday, August 30, 2011

The most important part of being a good lawyer = not being a dick

When I worked at BIG FIRM back in Fake Austin, do you know how many times I worked on a case where we requested the other side pay our attorney's fees?

Once.

In general, two parties in litigation pay their own attorney's fees.  It's part of the adversarial system.  More times than not, both sides are right some of the time--or at least pretty close to right.  The case where one side is RIGHT and the other side is WRONG is super rare.  Therefore, in the interest of fairness, everyone who comes to the fight has to carry their own gloves, water bottles and towels.

There are some exceptions to this general rule, and I won't get into all of them here.  But one big exception is the "frivolous" exception.

(Note: people throw around the term "frivolous lawsuit" a lot.  Those people watch too much TV.)

When someone is straight up harassing you -- when there is no logical way to explain what they are doing other than sheer maliciousness or idiocy -- when they have pursued their position beyond the point where they could have possibly won anything -- then you have grounds to demand that they pay all the lawyers.

So you can see why my hoity toity firm only asked on rare occasions -- because it's a rare exception.  Proving that someone has been a complete idiot is actually pretty tough.  (Of course, you're not going to say they're an idiot.  You're going to go through the case and point out every time they took a position that was indefensible, and it better have been nearly all the time.)  More importantly, accusing someone -- a fellow member of your profession -- of harassment, maliciousness, idiocy or irrationality is not something one should do lightly. (Again -- you won't say all those things.  But the implication reads loud and clear = YOU, SIR, HAVE BEEN A DUMBASS.)

Which is why I was stunned to find out that in other people's practices, it's "standard" to ask for attorney's fees. Every time.

Friends, country men, fellow members of the various bar associations of Fake Austin and New Denver -- are you kidding me?  I mean, it's rare that you can say this with a straight face, but when BIG EVIL LAW FIRM looks at something, wrinkles their collective forehead and says, "Well, that is just distasteful," we have a problem. 

Do not do your colleagues the disservice of asking for attorneys fees every single time they file a motion, or get into an area of law not called "litigation," because guess what -- it involves filing a lot of motions.

Debunch your panties. Grow up a little.

And remember that we call this a "profession" for a reason.

5 comments:

  1. Ah...you hit upon the most important thing with that last sentence "And remember that we call this a "profession" for a reason."

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  2. this post ws mostly for lawyers so i didnt understand some of it.
    BUT, as a writer, I got some better ways to say dumbass =)
    thanks!

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  3. My husband's an attorney, and he comes home all the time and some of the first words out of his mouth most days are - I hate attorneys.
    Fortunately, he can laugh while he says this . . .

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  4. Yesterday I read the most awful "Motion" filed by an attorney in my state--in which he called the judge an incompetent idiot. But he wasn't that nice about it. I'll have to forward it to you as a morality tale.

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