If You Lie Down With Dogs You Wake Up With Fleas — Rule #1 for a Satisfying Law Practice

My book on starting your own firm is oh so close to publication, and a call from opposing counsel today reminded me of the ramifications of violating Rule 1 from that book. Rule 1 is a lesson they never teach in law school; one that many attorneys never learn.

In civil litigation, no one is guaranteed representation. In our system of legal advocacy, someone may elect to represent the bad guy, but it doesn’t have to be you. Your practice will be infinitely more enjoyable if you know that all of your efforts are designed to do justice, not to defeat it. Don’t ever allow yourself to rationalize that a party has a “right” to an attorney. Only criminal defendants have such a right. Think of the esteem our profession would gain if parties with frivolous claims or defenses could not find an attorney willing to represent them.

Rule number 1 for satisfying law practiceRule 1, therefore is simple: Only represent the right side of a case. I define the “right” side as the side that should win if justice is done. If you are like a lot of attorneys I have discussed this with, your response might be, “How do I know which side is the right side?” In reality, knowing which side is the right side is hardly ever an issue, but if you need a little wiggle room, then make this your rule number 1: Never knowingly represent the wrong side.

Only representing the side of justice can be a difficult standard to maintain because of the temptation to give into the dark side of the force. You are having a slow month and a defendant comes to you shortly before his answer to the complaint is due, offering a nice retainer. He admits he owes the plaintiff the money in question, but there is at least a plausible claim that the plaintiff did not fully perform under the agreement. The client wants you to mount an aggressive legal defense so that the plaintiff will be more amenable to accepting less than the full amount he is owed. If nothing else, he adds, at least you will be buying him some time to get his finances in order.

The retainer would be nice and the “aggressive defense” demanded by the client would certainly translate to some significant fees during the representation. But ask yourself this: Do you really want to devote time to a case that has as its objective depriving a plaintiff of money that is legitimately owed to him? When your children, your spouse or your friends ask you about the case, will you be proud of the response you give?

In addition to the Karmic cost, when you represent the wrong side you have no friends or allies. If your client doesn’t know it already, he will certainly know at the conclusion of the action that your aggressive advocacy did not do him any favors. You may have bought him some time but, often as not, your fees will exceed any savings you managed to extract in the settlement. Even if you win, your client will know you as nothing other than his partner in crime, assisting him in cheating the other side. So, the opposing party hates you, opposing counsel has no respect for you, your family and friends think your moral compass must be broken and your client ultimately resents you, or at the very least views you as someone with no principles. Is it any wonder so many attorneys do not enjoy the practice of law?

So back to today’s call from opposing counsel.

The case is for breach of contract, and  as is my rule, I represent the right side. It is possible to have a breach of contract case where minds can legitimately differ as to who is in the right if, for example, the terms are ambiguous and the parties can’t agree on the interpretation. This is not one of those cases. My client is owed money. End of discussion.

So, as is my practice, I sent a draft complaint with the demand letter, giving the defendant seven days to respond. Few attorneys follow this practice (I actually don’t know of any), but it is a great way to proceed. Rather than prepare a lengthy demand letter explaining your client’s position, put it all in the complaint. Then the demand letter need only say, “for all the reasons set forth in the complaint provided herewith, we are demanding what is owed.” I then invite the defendant to contact me if any of the facts set forth in the complaint are inaccurate. In this way, I perform due diligence to make sure my client provided an accurate summary, and if the defendant or his attorney never contact me before the complaint is filed, they would be hard pressed to later claim my client acted with malice in filing the complaint. How can there be malice if the defendant was provided the opportunity to provide his input before the complaint was ever filed?

Really, I’m going to get to opposing counsel’s call.

I received no call before the action was filed, I received no answer after the complaint was served, so I took the defendant’s default. Then I received a call from an attorney, telling me he was on the case, that he was sorry his client hadn’t responded, and asking if I would vacate the default. I happily did so, with the only proviso being that defendant had to respond to the complaint within two weeks. I did ask, however, why the attorney wanted to bother to respond to the complaint since there was no defense. Rather than vacate the default, why not just enter into a stipulated judgment, to be held in abeyance pursuant to a payment plan, perhaps?

Well, opposing counsel did indeed respond. He filed an answer and a cross-complaint. Now, remember, there are no grey areas in this case, so how could defendant possibly have a basis for a cross-complaint? Opposing counsel is relatively new to the bar, and no doubt believes, like so many attorneys I have seen, that the best defense is a good offense. Get this. He filed a cross-complaint for negligent infliction of emotional distress, claiming that my demand letter and draft complaint had caused stress to the defendant. You can’t make this stuff up. If I had simply filed the complaint, so the cross-complaint alleged, that would have been fine. But by sending a letter saying that I was going to sue, that gave time for defendant to stress over the pending lawsuit, causing him to suffer emotional distress. The claim was ridiculous. I responded with an anti-SLAPP motion, and won.  Defendant had to pay all my attorney fees.

And that finally takes us to today’s phone call from opposing counsel.

Sad attorney sitting on moneyOpposing counsel was just like many attorneys (sadly) who took the case with no basis for a defense. Just take the money from the client and string the case along for a year, hoping to wear down the plaintiff with the costs so he’ll compromise the amount owed and settle. But shock of all shocks, just as defendant had cheated my client, he cheated the attorney. He never paid the attorney, and the attorney was calling to tell me he was withdrawing as attorney of record. When I asked if the substitution of attorney had been served, he said his client had refused to sign one. Shock number two. The unethical defendant had refused to sign the substitution, knowing that the attorney would therefore be his indentured servant until he could bring a motion to be removed. Because our local budget cuts are forcing this court to push law and motion hearing dates further and further out, the attorney will likely be stuck representing the defendant for three more months until the motion to be relieved can be heard.

There was no reason for the attorney to tell me that his client had stiffed him and that he was having to bring a motion to be relieved, but I think the intended message was that he was hoping I would take it easy on the case until he could extract himself.

At the risk of sounding crass, the attorney got what he deserved. Attempting to cheat someone is fraud, and it doesn’t make it any less fraudulent if you do it with a law license. It’s an unrealistic dream, I know, but I envision the day that when jurors file into the courtroom, they will know which side deserves to win (keeping open minds, of course), because that will be the only side represented by an attorney. The defendant, with no legitimate defense, will have been unable to find an attorney to represent him.

If you lie down with dogs, you will wake up with fleas. Always represent the right side of a case. That simple rule is the difference between hating and loving being an attorney.

Choosing your office spaceIf you’re proceeding through my Starting Your Own Law Firm series, click on the big blue NEXT button to proceed to the next article. I’ll show you how shedding some preconceived notions about the practice of law can easily add six figures to your bottom line. The index for the entire series can be found in the right hand column.

Start Button Law Firm MarketingIf you came to YourOwnLawFirm.com through this article, and want to get the full benefit of the site, then please click on the START button to begin at the beginning. I’ll show you step-by-step how to launch your first niche site. I’ll show you how just one of my static niche sites brings in over $100k per year. Get a few of those up and running, and you have yourself a thriving practice. If you already have a website where you are utilizing content marketing (or want to try something different), then here are some more articles on how to market your law firm.

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