Apparently, the universe only hates me sometimes. Due to an unexpected stroke of luck, two female litigation partners at my firm recently sought me out and started using me on all of their cases. In the first instance, it’s been fabulous because they are good human beings who are capable of empathy, consideration, and gratitude. But—perhaps even more importantly—I’ve noticed something happening to me ever since I started working for these two women. Something entirely new that I’ve never experienced before.
Surprisingly, with these new partners, I’ve been winning. In fact, in every single case for which I’ve provided them with research and/or written work product, the judges have ruled in our favor.
This has been remarkable because I’ve never been on the winning side of anything before, and thus I had absolutely no idea how awesome it feels to win. It (almost) makes the practice of law mildly enjoyable.
At first, I was afraid to publicize any of this, lest I jinx myself. But then I realized that these victories weren’t the result of luck or karma. Rather, we keep winning because these two women are good at coming up with arguments that either have a sound basis in existing case law (or which require no more than a non-controversial extension of existing legal principles).
It seems that although the lawyers I worked for in the past were smart and clever and had decent rainmaking skills, they weren’t particularly good at coming up with winning arguments. Those lawyers never said, “Here’s the argument I have in mind, could you see whether there is good case law to support it?” Instead they would say, “I have an argument in mind and I know it’s right, find me a case cite for it.” Then, even if I could prove with near certainty that their argument couldn’t be supported with existing law, they would stubbornly refuse to abandon it. Inevitably, this meant we had to disingenuously cite a case for a proposition it didn’t actually stand for, which pissed off judges and made them distrust us (it also left holes big enough for opposing counsel to drive a Mack truck through in response to our unsound arguments).
Based on the above, I’ve come up with a rudimentary test to determine whether or not a lawyer is a loser. If you answer “Yes” to at least two of the following questions, you’re working for a loser:
1. Does the lawyer refuse to modify or abandon arguments or strategies, even in the face of an overall lack of supporting, favorable precedent?
2. Does the lawyer refuse to compromise or settle, irrespective of the circumstances?
3. Does the lawyer tout him/herself as being good at “thinking outside of the box?”
4. Does the lawyer say things like, “It just sounds right,” or “I know I’ve seen that rule in a case before.”
5. Does the lawyer include case law citations in briefs or motions without grilling you on the facts and outcome of each case?
6. Does it require mental contortions to follow the lawyer’s reasoning for an argument? Related question: Has opposing counsel ever accused the lawyer of “machination?”
7. Does the lawyer often try to come up with ways to put the other side into a “trick box?”
8. Do you dread doing research for the lawyer, because it seems that you’re always spending hours searching for “needle in a haystack”-type cases?
9. Are you often forced to rely on cases from pre-1950 to support the arguments the lawyer adopts?
10. Does the lawyer cite cases that hold the wrong way, simply because they state the rule that he/she wanted to include?