A Lesson Relearned, and How to Defeat an Ex Parte Application

I hate opposing ex parte applications.

It’s a little better than the bad old days. Ex parte means unilateral. Back in the day, we would go to court with no notice to the other side and obtain ex parte relief, as long as we could explain to the court why the other side should not receive notice. That is still an option, such as when you are seeking to grab an asset and don’t want to tip off the other side, but for the most part you have to give the other side notice.

In my jurisdiction, and I imagine most have similar rules, you must notify the other side of the hearing at least 24 hours in advance. Still, that means that opposition can take months to craft a perfect application with supporting declarations, whereas I get a few hours to prepare an opposition. Our rules also provide that the papers must be served “at the earliest possible opportunity” and I take that to me the moment they are filed with the court, which in most courts is the day before the hearing. Most unscrupulous attorneys ignore this rule, and I am lucky if I get the moving papers before the hearing. I can object to the late service, but at best the matter just gets moved to the next day and my client has to pay for another trip to court.

Even in a perfect world, however, here is how it usually plays out. I get notice of the ex parte application, and receive the moving papers that afternoon for a morning hearing the following day. I then have the rest of the day (and night if necessary) to prepare the opposition, but I can’t possibly get the papers filed before the hearing. (Sometimes if the application is for something generic like a motion to continue trial, I can prepare the opposition without ever seeing the moving papers, but I’m talking about applications supported by declarations, where I need to be able to read and oppose those declarations.)

So, ninety percent of the time when I appear at the time of the hearing and file my opposition, the judge has already read the moving papers and has no time to read the opposition. A good judge will take the time before taking the bench, but if he or she happens to be in trial, with jurors waiting in the hall, the opposition will never be read.

My latest ex parte application opposition involved a request for a TRO, seeking to restrain my client from all sorts of things. The case is a standard attempt to keep my client from competing with his former employer, by filing an action and then trying to poison my client as to future employers, while at the same time trying to intimidate him with discovery and ex parte applications.

The ex parte application for a TRO was a sight to behold, running 20 pages and supported by five declarations. I prepared an equally impressive opposition, refuting all the false claims made in the declarations, but I knew there was little or no chance of the court having the time to read my opposition in detail.

You have no doubt learned the wisdom of lots of headings to make your papers easy for the court to scan. I take this to the next level, and in cases such as this create a list with bullet points on the first page of the opposition, explaining why the application should be denied. I sometimes wonder if that is overkill, but this instance showed how effective that technique can be. The hearing was set for 8:30 a.m., and the doors did not open until that time. I checked in and filed my opposition with the court clerk. She turned to take the motion to the judge, and I saw that she met him in the corridor, preparing to enter the courtroom. As I watched, he flipped to the first page of my points and authorities where I had my list, took about 30 seconds to scan it, and then entered the courtroom and took the bench. He used my list as a checklist, asking opposing counsel to respond to each point.

Ex parte application denied.

In a recent trial where I was defending the tenant in a commercial lease dispute, I prepared a trial brief that began with the heading: “Here is how this court should resolve this matter, without the need for trial.”

The judge took the bench and began by stating, “Mr. Morris has proposed a way this matter might be resolved without the need for trial. Let’s explore that before we proceed.” With a minor change or two, the opposition agreed to my proposal and the matter was resolved before the trial. A complete home run for my client.

Be creative. Make life as easy as possible for the judge when you draft your papers, and you will have a far better shot at getting your argument in front of the court.

Sleazy Attorney Technique No. 8: The Phantom Settlement Offer

Yesterday’s post about flat fees made me think of a war story which just happens to illustrate Sleazy Attorney Technique no. 8.

When I first started practicing I had to be hit over the head with this technique a few times before I knew what was happening. I tend to assume the best of people until they give me reason not to, and the first few times this happened I wrote it off as a simple mistake until I finally realized what they were doing.

Here is the scenario. You represent the plaintiff in a breach of contract action, and the opposition is about to take the deposition of your client. You’re all sitting around the conference table ready to begin, and opposing counsel turns to you and says, “Before we go on the record, I don’t want to go through a whole deposition if we don’t have to, so I was just wondering if you got a chance to present our settlement offer to your client?”

There was no settlement offer, as the attorney well knows. His goal is to plant a seed of doubt in your client, hoping it will blossom into conflict. The client will wonder, “why isn’t my attorney communicating settlement offers to me? Is he trying to keep this case going?”

I’ve seen many variations on this technique, so be on your toes whenever the opposing counsel is in a position to indirectly communicate with your client, such as at depositions and settlement conferences.  Some attorneys apply the technique through their clients, instructing their client to contact your client to deliver the message.

Yelling Attorney

So how do you protect against this sleazy attorney technique? Just explain the technique to your client, and tell them to expect it. Explain that you are required to present all settlement offers, no matter how absurd, and that you can get in trouble with the Bar if you fail to do so, so the client never needs to worry that you won’t communicate a settlement offer.  So if opposing counsel ever claims otherwise, he is just employing this tactic.

Back to my war story, a funny example coming from a tragic situation. This attempt to drive a wedge between you and your client is not limited to phantom settlement offers.  I represented a client who had been defrauded out of almost half a million dollars, and the con artist was represented by his attorney daughter. It was truly sad to watch this woman have to defend her con artist father, and you could see that she desperately wanted not to believe what had happened.

In any event, I guess the fruit doesn’t fall far from the tree as they say, because during my deposition of her father, she launched into one of the most extreme applications of this technique I have ever seen. Her father was evading all the questions so I had to keep pushing, and his daughter suddenly blurted out the following diatribe:

“Counsel, you told me at the beginning of this case that you were going to turn this case into a cash cow, that you were going to churn the file and run up the attorney fees for your client, and I hoped you were just posturing, but I have never seen an attorney spend so much unnecessary time on a case just to get a big fee out of it.”

There was this moment of stunned silence, I turned and looked into my client’s eyes, and we both burst into almost uncontrollable laughter. What the attorney failed to realize or anticipate when she made up this whopper was that I was handling the case for a flat fee. If, indeed, I was spending a great deal of time on the case, then she had paid me a tremendous compliment, because whether I spent 100 or 500 hours on the case I was going to be make the same amount.

Had I been representing the client on an hourly basis, the trick might have worked. I can imagine it would be hard for any client to believe that an attorney would engage in such theatrics to gain a tactical advantage. Make sure you educate your client on this possibility.

Student Debt? What Student Debt?

With the downturn in the economy and the upturn in law school tuition, the perfect storm was created for a bumper crop of extremely dissatisfied law school grads, saddled with debt and finding only poor job prospects.  On my Internet Defamation Blog, I wrote about the law student from Thomas M. Cooley Law School who was not happy with that institution, and started a blog called Thomas M. Cooley Law School Scam, telling tales of wrongdoing.  (The school is not happy and is attempting to sue the student for defamation.)  Like many newly minted lawyers, he feels the law school lied about the employment opportunities he would find after graduation.  (Resentment toward your school after running up big debt and not being able to do anything with the degree is not limited to law school.  Read the insightful article, How a Dog Walker Paid off a 37K Student Loan in 6 Years, about the author’s “naïve mistake of getting an MFA in creative writing . . . .”)

Today I came across another posting on the topic, although far less vitriolic, on the Above the Law blog, which was in turn reporting on an article in the National Law Journal by Jim Chen.  Chen, Dean of the Louisville School of Law, has come up with a formula for determining whether law school was a wise investment.  Chen uses qualification for a home loan while paying off student debt as his criteria for “financial viability”.  He suggests that your starting salary at your first position after law school should be no less than three times your annual law school tuition if you want “adequate financial viability”. If you want to achieve a “good” level of financial viability, then you need to land a job paying six times the annual tuition.  If your job only pays twice your annual tuition, then you have only “marginal” financial viability, according to Chen.  All of these calculations are based only on your law school debt; if you have undergraduate debt, then you need to adjust accordingly.

I can only chuckle when I read articles such as this, because they are based on what I consider to be false assumptions.  Far too many students base their career aspirations on the Big Firm model – attend an impressive and expensive law school in order to get a job at a big firm that will pay a high enough salary to pay off the staggering debt incurred in pursuing that route.  (Although to his credit, Chen recognizes that financial viability can be achieved with a lower paying job if the tuition is kept low — what a concept!)  Here are the fallacies to that Big Firm mentality:

You don’t need (or want) to work at a big firm.  I went the big firm route, and hated every minute of it.  After six months I was already putting together my escape plan, which was to start my own firm.  But assume for a minute that you would be happy working as a drone at a big firm with a starting salary of $180,000.  (Be sure to read my article Fun With Numbers to understand how that works out to about $37.14 per hour.)  The big firms employ only a tiny fraction of all working attorneys.  For the rest of the working attorneys, the average salary for first year associates is $68,500.  Don’t assume that you will land at a big firm, but even if that is your plan  . . .

You don’t need to go to an expensive law school to land a job at a big firm.  There are many impressive schools that won’t leave you with $250,000 in student loans (the figure that everyone is using to argue why law schools are a scam).  And don’t get caught up in the ivy league mentality.  I imagine there are some career paths that benefit from an ivy league education. It seems to be pretty important if you hope to be POTUS, and some firms only hire from those schools. But if your goal is to practice law, big firm or not, then distinguishing yourself at your school is far more important than being just another student at an expensive school.  My main criteria for choosing a law school was that it had to be relatively close to a beach, and yet I ended up at the biggest law firm in the world.  And finally . . .

You don’t need to pay for law school.  My law partner and I both followed the same law school model.  We got into a law school that met our criteria (for me, close to a beach, for her, close to home, work and family), worked our butts off to excel the first year, and then enjoyed a full ride scholarship.  I was third in my class after the first semester.  Of the top five, two eschewed the scholarships and instead used their success to transfer to ”better” schools.  They graduated with large student debts, while the three of us that stayed graduated with virtually none.  We all went to big firms, and ultimately we all ended up quitting those firms to start our own or to go in-house. In other words, we all ended up in about the same place, the only difference being the cost of getting there. Of course, an even better technique is do really well in your undergraduate studies and start law school with a scholarship.

Maybe the grousing students and graduates were mislead by their schools with overly optomistic employment figures, but I think that the problem first arose from misleading themselves into thinking that a successful law career follows a defined path and requires big debt.

[Update] I was on a news website, and I happened to notice an ad for Ottawa University. The school’s trademarked slogan is “Prepare for a Life of Significance.”

Note to Ottawa University. With all the lawsuits against law schools for making false representations about job opportunities, you may want to rethink that slogan. It’s only a matter of time until one of your graduates realizes his life is not significant and comes after you.