Reflections of a Boston Lawyer

Seeing all the lists of top ten events of 2010 makes me want to come up with a forward-looking list of wishes for 2011.  The risk of creating such a list is not just that it will not come true, but that it will include wishes that have no realistic possibility of coming true.  While my reach may exceed my grasp, I am nevertheless going to limit the list to matters within some reasonable realm of the possible.  I therefore won't include wishes for world peace, an end to terrorism, or that North Korea will become a beneficent state, even though I would love to see all those things come to pass.  Also, some items on the list will focus on matters that are (or, in my opinion, should be) important to lawyers and others in Boston and Massachusetts.  I have limited the list to matters of public policy, and have not included many things I might wish for in areas such as technological advancements or artistic or athletic achievements.  Finally, as with any top ten list, there is a risk of o

This week, a candidate for Massachusetts Lieutenant Governor bolted the Independent ticket and endorsed the Republican candidate for Governor.  His act of public betrayal has been met with disgust among some voters, and could backfire for the Republican campaign.  We will have a better idea after the election next month whether this unusual defection will help propel the Republican ticket to victory or will contribute to its defeat. The danger of such acts is that they create perceptions that bring into stark contrast two very different traits:  gamesmanship and loyalty.  We abhor gamesmanship, which I define as the attempt to outsmart and outmaneuver an opponent with tactics that contravene shared values of fair play and good sportsmanship.  In contrast, we cherish loyalty as fundamental to good citizenship and to our humanity.  While gamesmanship, when successful, may be rewarded by temporary strategic gain, it often sacrifices trust, and can interfere with the game player's cr

During my junior year in high school, I sat in the back of our auditorium listening to our drama teacher, Ruth Bair, attempt to persuade a large group of students to try out for the school play.  With me, at least, she was successful.  I auditioned for a part in Archibald MacLeish's "JB," a modern day drama based on the Book of Job.  All I garnered that time was a walk-on part; better roles awaited me my senior year.  But Mrs. Bair's little speech was enough to get me in the game.  And the experience of  performing in the school plays was the highlight of my high school years. What she said that I remember is this:  "If you don't extend yourself, you haven't lived."  Some memory of biology class made me think that this was both literally and figuratively true, though I'm not sure about the literal part, and it's only the figurative that matters to me.  But through the years and decades that followed, whenever I was unsure about participatin

A friend sent me this article written by a former colleague.  Although its criticisms paint with a broad brush, it nevertheless contains the most concise and cogent survey of the landscape and call for change that I've seen to date.  I highly recommend it.

Remember Vincent Foster , the Clinton confidant who committed suicide after a series of Wall Street Journal editorials criticized his role in the administration?  In a torn-up suicide note, he famously lamented that, in Washington, "ruining people is considered sport." The Obama presidential candidacy elevated the sport of vilification to  new heights.  Opponents branded Obama with all sorts of labels - socialist, communist, fascist, Nazi, Muslim - in an effort to end his Presidential aspirations.  They were, of course, unsuccessful.  (By the way, I include "Muslim" in this list as an example of opposition efforts to damage Obama, even though it is wrongheaded to consider the word derogatory.) The sport of vilification has one goal - taking down an opponent.  It does so by obscuring truth and promoting false and often scandalous information.  Unlike most sports, it has no rules.  And, as the Vincent Foster case so vividly demonstrates, it can be extremely, and i

August has arrived.  If summer is measured as the span of time between the 4th of July and Labor Day holidays, we are, more or less, at the mid-point.  It also marks a divide of sorts.  August is the month of the legislative recess, both in state legislatures (my home state of Massachusetts being one such state) and in Congress.  It is the month when baseball teams still in contention begin their final runs, and the first month when there can be no more "non-waiver" trades.  Football teams in training camps soon will begin exhibition play.  Colleges and universities prepare for the return of their students to campus.  The heat of summer slowly begins its transformation to the cool of fall, summer golfers take their last swings, and vacationers take their final forays to the beach.  And new lawyers take a deep breath as they put the bar exam into their rearview mirrors and look ahead to new jobs and the uncertainty of a wobbly job market. In the past two days I have read rep

Massachusetts Chief Justice Margaret Marshall's unexpected announcement yesterday that she will retire within the next three months, four years earlier than state law requires, stunned many of us in the legal community.  For many years, the Chief Justice has worked steadfastly as a devoted public servant and as the chief executive officer of the state's judicial branch.  Although the public knows her primarily for some of her high profile and controversial decisions, behind the scenes she has been a strong, good-willed and effective manager, laboring tirelessly to improve the delivery of justice and the accessibility of our courts to the sea of humanity that walks through their doors on a daily basis.  When I have time, I hope to post a lengthier blog in tribute to the tremendous work the Chief Justice has done over the years.  For now, though, here is a link to a rare television interview she gave to New England Cable News after her announcement yesterday, and here is a link

I have often said that class actions make strange bedfellows.  I had my first personal experience of this phenomenon 11 years ago, when I appeared at a six-day, evidentiary fairness hearing involving a proposed limited fund class settlement (months before the Supreme Court decided Ortiz v. Fibreboard ).  I was there on behalf of a group of defendants to present objections to the settlement that would have allowed a co-defendant to avoid any third-party contribution claims.  One group of plaintiffs' lawyers also objected to the settlement negotiated by a different plaintiff group, and led the charge throughout the hearings.  Although I cross-examined one witness, I mostly watched the evidence come in and saved my piece for closing argument.  The hearing had not gone very well for either group of plaintiffs, but it seemed likely that the judge would approve the settlement that was being proposed.  After the evidence was in, the court heard oral argument, and I argued last.  My client

Complex litigation is not what it used to be. There was a time when it consisted mostly of working with rooms filled with file cabinets which in turn were filled with paper documents, marking our places with paper clips before post-its were invented, using hard cover reporters to conduct legal research, and drafting briefs and preparing witness examinations with legal pads, pen and ink. We were hired because of reputations for excellence, and cost was at best a secondary consideration. Not only were we paid for all of our time and expenses, without discounts, but if we got a great result in a particularly important case, we might even get a premium above our hourly rates. While the hours were long, those of us who strive for excellence were in perfect heaven. How things have changed. The raw materials of litigation are now electronic and data-driven. Teams of contract attorneys or paralegals are hired to pour over thousands upon thousands of emails and other electronic document

If anyone out there hasn't seen the film "The Graduate" and still intends to (is that even possible?), I am giving you a spoiler alert, so stop reading.  For the rest of you, please read on. At the end of the film, Dustin Hoffman's and Katharine Ross's characters triumphantly run away from the wedding her parents had planned for her to a man she did not love, only to end up on a bus with the most uncertain, dazed and confused looks on their faces.  To my mind, the change in their expressions as the bus pulls away has always connoted the growing realization that, while they may have struck a blow for their independence from the overbearing generation that came before them, they had no idea where they were going to go, what they were going to do, or why they were going to do it.  You could almost read their thoughts:  "Oh my God, what have I done, and what in the world am I going to do now?"  (Forgive me reader for that clumsy prose.  I need to work on my

For years, lawyers and clients talked about alternatives to traditional hourly billing arrangements, yet little changed.  The financial crisis increased pressure on corporate legal departments to reduce the legal spend, and has led some of them to push for new ways of pricing legal services.  The mantra for this new mindset is "value," and the platform for many "value" adherents is the Association of Corporate Counsel .  The goal of the ACC Value Challenge is to better align the interests of lawyer and client, and better ensure that each partner to the lawyer-client relationship is sharing both in the benefit and in the risks of their work together.  Some lawyers and law firms are rising to the challenge by restructuring the ways they deliver and price their services, and some are not.  Some clients are pressing for new practices, while others are more comfortable with the old way of doing things. Some outside counsel are fearful of the types of structural changes

It is quite an event when the person responsible for our nation's, and much of the world's, money supply tells us that money isn't everything.  Ben Bernanke did just that in his commencement address on May 8th to the University of South Carolina class of 2010.  How does such a speech go so unnoticed? The idea that money can't buy happiness is not new, of course.  As a die-hard Beatles fan in my formative years, I memorized the lyrics to "Can't Buy Me Love" (and just about every other Beatles song before "I Am the Walrus").  Ironically, Hollywood film makers have made fortunes building movies around this theme.  And how many times have we misquoted the Biblical phrase, "money is the root of all evil."  The full phrase in English is:  " The love of money is the root of all evil," a condemnation of greed, not wealth.  Haven't we seen that admonition play out repeatedly in our time, from Milken to Madoff, from organized cr

Thanks to Linda Greenhouse's column in the New York Times, I was alerted to the address Justice Souter delivered at Harvard's commencement.  This is a must read that provides as clear a window to the most important issues at stake in our constitutional form of government as any I know.

In my closet hangs a reddish-orange silk tie of excellent quality that subtly bears the logo of The Lawyers Council of Thailand.  The tie was presented to me by a delegation of The Lawyers Council in the fall of 2005.  I was asked by the American Bar Association to speak to the group about American class action practice, which they were studying to help develop Thailand's own class action rules.  I was advised shortly before I made the trip to Washington that it is a Thai custom on such occasions to exchange gifts.  I quickly managed to pull together some small gift items from my law firm (a notepad and a baseball cap bearing my firm's name), and received the tie from the head of the Thai delegation after I delivered my remarks. The ABA had also arranged for the lawyers to get a tour of the Supreme Court and a meeting with the Clerk of the Court.  They invited me to join them, which I gladly did.  Although I was already admitted to the Supreme Court bar, this was my first act

I swore I'd stop writing so many politically charged posts, and then I read t his column by Michael Kinsley in The Atlantic Monthly.  Since it touched so closely on the theme of my last post, I thought I had to share it.  Now, I hope, I will move back to law-related topics and away from politics.  At least, that's the goal.

I have been reading about the Tea Party Movement, and trying to understand the principles of the extreme right.  The problem is, I find it difficult to identify any unifying principles underlying extreme right-wing positions.  They say they oppose big government spending, yet they have supported the largest buildup in military spending in our history, a buildup that is responsible more than any bank bailouts for record national debt.  They want the government not to interfere with their lives, yet they support anti-libertarian legislation like the Arizona immigration law.  They want the federal courts to enforce their right to bear arms, but they want the same courts to deny a woman's right not to bear children.  They say they are pro-life, but support the death penalty.  They complain that our judiciary is anti-majoritarian, yet seek to impose a minority agenda on national policy. I am not criticizing all of these positions, and indeed I respect several of them.  But I suspect t

If you follow my blog, you may suspect (correctly) that I have been too busy to keep it up the way I would like.  Sometimes, however, others say all that needs to be said, as is the case with President Obama and the speech he delivered at the University of Michigan commencement ceremonies yesterday.  So, rather than bore you with my own feeble attempts to pontificate or entertain, I am posting a link to the President's address, which really says it all.  I will make every effort to write again very soon for my readers (who bear a resemblance to the Marines, in that you are not only proud, but also few).  P.S. - Please excuse the transcription's misspelling of "genteel."  I'm sure the President did not mean it the way it came out.

To what standard do we hold our elected officials?  Is it to hold the party line?  To push back on the opposition party at every turn?  To travel in packs and never show the slightest sign of breaking ranks?  To follow party leaders without any independent thought?  To let the public opinion polls decide how they vote on every issue? Our government has important work to do.  It is responsible for trying to solve our biggest problems, like climate change, unemployment, and abuses of the financial system that have led, and could lead again, to economic catastrophe.  Whether the solutions favor a hands-off approach or a strong governmental hand through regulation, we send our elected representatives to Washington with the expectation that they will find and implement the solutions that best protect us, the people whom they serve. In this extreme partisan era, the gap between the vision and the reality should disturb us.  It should bother us when Harry Reid puts immigration ahead of a

Today I read yet another account of a politician telling me what the American people want or, in this case, don't want.  The "don't want" du jour is a Supreme Court justice who believes that the Constitution is subject to judicial interpretation.  A couple of weeks ago, the American people did not want health care reform.  Last year, they didn't want a public option.  I'm sure if I had time to research the issue, I could come up with a long list of public programs and policies that the American people don't want, and maybe even some that they do want.  And this I know, for politicians tell me so. In fairness, Senator Jeff Sessions of Alabama worded his diatribe about constitutional interpretation, quoted in the Huffington Post , more carefully than I have presented it here.  In fact, the exact quote is: "If we have a nominee that evidences a philosophy of judges know best, that they can amend the Constitution by saying it has evolved, and effectua

The level of uncivility in the political rhetoric today is reaching frightening proportions.  Today's Boston Globe includes a timely column by Derrick Jackson , urging Republicans "to find someone with courage to disarm the rhetoric, before someone reloads for real."  Peggy Noonan writes in an excellent column in today's Wall Street Journal  that leaders of both parties need to get everyone to "lower the temperature," before something bad happens.  They are both right. As an experienced litigator, I know how difficult it can be to rein in uncivility once it takes hold.  We fight hard both in and out of court because we believe in our clients' causes and want to win.  All too often, vigorous advocacy crosses the line and becomes personal attack.  Bar associations have adopted aspirational c odes of civility to help prevent inappropriate behavior between opposing counsel.  In one of my cases a few years ago, a Magistrate Judge admonished counsel to &quo

Much has already been written, mostly disapprovingly, about a group calling itself “Keep America Safe,” that has demanded the identification of  Department of Justice lawyers who once represented Guantanamo detainees.  By calling these lawyers “the Al-Qaeda 7,” this group has not very subtly implied that they are traitors in our midst.  And, by demanding that the lawyers be outed, this right-wing group would appear bent on damaging, if not destroying, the lawyers’ careers. Almost 50 years ago, an extremist Senator from Wisconsin sought to advance his own interests by inflicting similar harm on the career of a young Boston lawyer who had traveled to Washington with the Boston legal team retained to represent the Army, headed by legendary attorney Joseph Welch .  The young lawyer, Fred Fisher, whom I was privileged to know much later in his career, had been a member of the National Lawyers’ Guild while a student at Harvard Law School.  Although Fisher was a good young man with a promis

The big question family and friends ask when you decide to become a lawyer (at least, it was when I started on this journey) is whether you could represent someone you know to be guilty.  A related question many law students face (or did when I was in school) is whether they want to work in big law firms and represent corporations (guilty or not).  These questions, of course, are naively simplistic, and at some point early in one's career, one learns that there is much more complexity, and many more public and private interests at stake, than the questions suggest.  One's answers to the questions evolve over time, adding layers of nuance that take into account some of this complexity as it becomes appreciated through experience. One of the early versions of my answer I learned from my law school professors.  It had to with the adversarial system of justice.  The concept is that every citizen is entitled to representation.  Moreover, ours is a system of truth-seeking and confl

I've often wondered what inspired Van Morrison to write the song, "Professional Jealousy."   Had he encountered another musician who was jealous of his talents?  Was he envious of someone else?  The latter is hard to imagine.  I consider Van Morrison to be one of the most talented musicians in rock, have many of his albums, have been blown away by his powerful voice in concert, and developed my first rule of radio listening several decades ago because of him:  "Thou shalt not change the station when they're playing a Van Morrison song."  I still think "Hard Nose the Highway" is one of the most underrated albums of all time. Unfortunately, professional jealousy is a real, and very destructive, force in law firm practice.  We work in a highly competitive profession.  We compete with hundreds and even thousands of lawyers in other law firms.  We also, all too often, compete with our colleagues in our own firms.  We succeed or fail by the extent to w

When I moved to Boston to begin a judicial clerkship, Jimmy Carter was still President.  A little over a year later, when I entered private practice, Reagan defeated Carter's bid for reelection, and the world seemed destined to change.  As a law clerk, I got to watch some great lawyers try cases.  As a young lawyer in private practice, I was privileged to learn from some of the titans of the Boston bar.  Back then, it was all about the lawyering.  The  billing seemed incidental, at least to a young lawyer like me, and clients were only beginning to expect to receive more information about their legal expenses than the one-line bills that began and ended:  "For legal services rendered . . . ." Today a good lawyer is expected to be a good manager as well.  Not only must we possess superlative skills in the courtroom, but we must know how to staff a case, how to prepare a budget estimate, and how to make sure that the actual cost is more or less in line with the budgeted e

My father was expert at things mechanical.  He could build a road, fix a car, maintain a house, and do them all well.  He had a reputation in his field for high quality work, because he had high standards and a great work ethic.  He would never dream of cutting corners or performing a second rate job.  And if he encountered unexpected difficulties in a project, he would keep at it until it was done right, no matter how long it took. My father owned his own business.  He was paid not by the hour, but by the job.  He paid his employees by the hour, and the more time he and his workers put into a project, the less he made.  Within the constraints of the deadlines for delivering a finished product, he always, always, made sure that enough time was put into a project to do the job right. Clients of large law firms expect and deserve the same attention to quality that drove people like my father.  A lawyer delivers quality when the lawyer returns a client's phone calls and emails pro

At the end of 2009, I took my family on a quick trip to New York City, in large measure to celebrate my daughter's birthday and treat her to a broadway show.  We packed a lot into a two-day trip, including a visit to the I nternational Center of Photography   and a tour of the United Nations.  The ICP included a photographic exhibit of people in different walks of life in Shanghai, as well as a fascinating video montage (four simultaneous projections on four walls of a room) of life in Mumbai.  What was striking about these and other exhibits was the abject poverty of some of the subjects, many of whom seemed to go about their daily routines unfazed by the difficulties they faced, often surrounded by family or friends.  While it is impossible to truly know what the people in the pictures were like, or to fully appreciate their circumstances, the exhibits were a reminder that what is "normal" is relative, and of the endurance and triumph of the human spirit in the most cha