Against our better judgment, my firm pays a significant amount of money to be listed with various attorney directories. When I began practice the primary point of this payment was to be listed in large, dusty, heavy things that were called "books"; companies like Martindale-Hubbell and Thomson-West made you pay though the nose to be included. Now the primary point seems to be getting your name and information into their online directories; I haven't seen one of the physical directories in a decade.

We'd tell these companies to piss off if the only benefit were being listed on directories which people can search to find a lawyer. But, regrettably, there's another lingering purpose: some old-school lawyers, from firms to in-house counsel, believe that you're not a real lawyer if you aren't listed in Martindale or Thomson-Reuters-West-MSNBC-TMZ or whatever the hell it's called this week. Thus even when a case might come in the door through rational channels — like a personal referral — if your name isn't in the blasted proprietary databases, some will conclude you must be a hack with a mail-order degree running your firm out the back of a bait shop.

So we pay the money, and we grit our teeth. It's effectively a guild fee or a payoff to a corrupt local official.

But surely, you might say, having your firm listed in Martindale or Thomson-Disney-Hustler-West-Nickolodeon brings in clients? No. It brings in potential clients, clients who have not heeded my advice that you should never cold-call lawyers picked out of the digital yellow pages if you can possibly avoid it. The vast majority of them are completely unsuitable as clients. Most fall into familiar categories:

1. People who want us to sue someone to get the microchips out of their head;
2. People who want us to sue their last lawyer, who fell down on the job on suing the lawyer before that, who fell down on the job on suing the lawyer before that, who may or may not have been hired to get microchips out of their head;
3. People who want to sue based on things that happened decades ago — like the person who wanted to sue a major metropolitan newspaper for a article printed during the G.H.W. Bush Administration which described an anonymous woman she thinks was meant to be her;
4. People who want us to take, on a contingency basis, plainly meritless cases against people who are on public assistance;
5. People who want to sue for defamation based on nasty things said about them that nobody heard and that did not result in them losing any job, benefits, property, or reputation;
6. People who want to sue doctors because they believe that, if their surgery did not transform their middle-aged bodies into Olympic-quality artworks, their doctor must have been incompetent;
7. People who are convinced of legal propositions that have no place in the law, or reality, and will scream at you if you do not agree with them;
8. People who want pro-bono criminal representation;
9. People who want to pay you $500 to get a twenty-year-old life sentence overturned, because "it's so clear and outrageous that what they did isn't right";
10. People who just want to talk to someone.

That's what Martindale and Thomson deliver. If I counted up the actual, paying clients we've gotten from the Martindale and Thomson listings, I think they've brought in less in gross revenue than those listings have cost.

The cost is not just the annual price of a listing. It's time. I tend to field all cold calls to the firm — at least for criminal and litigation practices. I do that to maintain quality control, to manage the firm's public face, to keep other employees doing real work, and to avoid more expenditure of time down the road (which you get if someone who can't issue-spot takes the call and sets up an in-person consult). I try to be polite, I try to be respectful (even to the assholes who won't let me finish a sentence or think they should be instructing me on what the law is based on what they see on TV), and I try to be constructive when I turn them down ("you might want to look for a smaller firm, or a solo, that could do such a case economically" or "you should rethink the impact the Streisand Effect might have on your proposed defamation case" or "you should try to find a doctor who will give you an opinion about whether or not you've actually gotten improper treatment"), and (as a crazy person myself) I try to be merciful to the crazy people. Often, not always, I succeed in these goals. But I spend an immense amount of non-billable time managing these calls (not to mention the time I spend deflecting legal marketers, who flock to Martindale and Thomson listings like flies to shit). It pisses me off that I have to do that for the privilege of being listed in various directories that some folks still think are essential to credibility.

It would be nice to think that the need for such listings will fade with new technology. But the incessant hum of legal marketing drivel is prolonging the life of the Martindales and Thomsons, not mercifully terminating them. The hype about web sites and social media and blog-marketing and the like continues to promote the idea that lawyers should be found — and judged — not based on the quality of their work and their reputation with people who actually know it, but based on their prominence in Google search results. This bullshit. You're not looking for the cheapest Blu-Ray player. You have to look for lawyers by seeking reliable referrals; if you get a decent lawyer through online searches, it will be by luck.

We'll have to change more attitudes of referral sources before we can stop paying the shakedown money.

Just before leaving the office last night I got a call from Greg, of Greg's Quality Plumbing.  Greg does seem, on the phone anyway, to be a quality plumber: a nice guy running a six employee shop for new construction and homeowners.  Unfortunately one of Greg's employees made a mistake, overtightening a compression nut on the toilet water supply line in a very expensive house insured by BigState Casualty Insurance Company.  The nut eventually fractured,over Christmas vacation with the family out of town, and the water flowed for days.  BigState paid hundreds of thousands of dollars to rehabilitate the waterlogged house, and wants its money back.  From Greg's Quality Plumbing.

And so Greg got my letter, and Greg picked up the phone to sort this all out, and to set me straight.  As I said, I have no doubt Greg is a quality plumber but Greg is an absolute amateur when it comes to dealing with sharks in the water.  He made a number of serious mistakes, feeding me information about his business, the employee who did the work, the general contractor who built the house and will be cross-claiming against Greg in the coming lawsuit, and Greg's business assets.  All while trying to set me straight.

In the end, Greg did not set me straight.  What he accomplished was to give me information I will use against him at his deposition and at trial.  He kneecapped the defense attorney his insurance company will retain, an attorney who won't even hear about the dispute between BigState and Greg's Quality Plumbing for several months.  I almost feel sorry for Greg, who came into the conversation with high hopes that he would frighten me off or convince me that I have no case against him.  All that he did was convince me to write this post, as friendly advice to small businessmen on what to do when they get "the letter".

1. When you get a letter from a lawyer, read it. Read it immediately. Read it more than once. Then take a short break, and read it again.  When Greg called me, he told me he "wanted to find out what all of this was about."  If Greg had bothered to read my letter, which detailed exactly what we think the problem was, what we want from Greg, and how to give us what we want, he wouldn't have needed to call me. And he wouldn't have answered a bunch of my questions as I pretended to search my files and databases to get to the bottom of the problem in BigState v. Greg's Quality Plumbing.
2. Don't be an ostrich. Don't ignore the problem: It won't go away. I've spent most of my career defending clients for insurance companies, so I've ceased being amazed at how people hide their heads in the sand when they get bad news. But they do. They even get a "letter", by certified mail, that says CIVIL SUMMONS with another "letter" titled COMPLAINT attached, and file it away, meaning to get around to responding to it. They violate rule #1, failing to read the Summons which clearly states that they have 30 days to respond, in writing filed with the clerk of court, or something bad will happen to them. After you've read the letter, you need to frame a response. And that response should not come from you.
3. Don't be an internet hero. You read a lot of things on the internet: you read about the day-to-day life of lesbians in Syria. You read about cute women who are just dying to meet lonely men in New York. And you read stories about laypeople who've beaten lawyers at their own game, with nothing but their wits and the righteousness of their cause. Those sure are nice stories, but are they true? All I can judge from is my own experience: I've never "lost" a case, for the plaintiff or the defendant, in which I faced a layperson on the other side. ("Losing" is a relative term: every time I litigate against laypeople, I feel like a loser because it's like beating up a twelve year old.) I've beaten a neurosurgeon who could have afforded counsel but didn't feel the need because it was a small case, he was right, and doggone it he was smart. I've beaten a hyperlitigious crank who's filed so many pro se lawsuits she's been featured in the Wall Street Journal and Forbes. And I've beaten everyone in between. Because while I'm not all that smart, I'm old. And I've been doing this for a long time. You haven't. Which leads to:
4. Shut up. Wise advice, that applies to civil matters as much as criminal cases. Don't call the lawyer who sent you "the letter" to "set him straight". You won't solve the problem on the phone.  But you might hang yourself.
5. Get help. Obviously the person or company on the other side thought the dispute between you was important enough to retain counsel. That's a hint. If you have a business, you probably know a lawyer. Even if you don't, your customers and friends do. Ask around, discreetly (i.e. not blabbing all over town that you're getting sued), for the name of a good lawyer or two. And call the lawyer. Today. If the lawyer doesn't call you back with reasonable promptness (meaning if you call me at 11pm on a Saturday, don't expect a return call before midnight), call another.
6. Get professional help. Bob who pleads out speeding tickets for $250 a pop at the courthouse may be a good negotiator, but he's probably not the best choice to address your bank's demand for you to cover that Nigerian "certified check" that turned out to be fraudulent. The best source of legal referrals is other lawyers. By all means ask the lawyer whether the problem facing you is in one that's in his field. You'd be happy to have an ophthalmogist stop to help you as you lie bleeding on the side of the road, but once you get to the emergency room you'd want a trauma surgeon. If as Robert Heinlein said, specialization is for insects, that explains why lawyers give many people the creeps.
7. Don't be penny-wise but pound-foolish. If you're getting a letter from an attorney because you owe sixty dollars at the video store, just pay the bill. If you're getting a million dollar demand because old Ms. Shuffler broke her neck when she slipped in the banana aisle of your store, get out your checkbook. You're going to need a quality defense.  Which leads to:
8. Are you in good hands? Any claim that could conceivably be covered by your business's insurance policy (you are insured, right?) should be reported to your insurance company. In writing. Immediately. If you don't report a problem to your insurance company because you don't want your rates to increase or you're afraid they'll cancel your policy (as clients have told me when I was asked to get their default judgments set aside), YOU'RE DOING IT WRONG! What do you think you're writing the premium check every month for? If a loss is even arguably covered, your insurer will take over negotiation of the claim, speak for you through an adjuster who's not terrified of lawyers, and hire a lawyer to defend you at its own expense. Don't be Greg of Greg's Quality Plumbing, who should have turned this over to his insurer (in fact that's what I told him to do) and then could have rested easy.
9. Keep your files. It should go without saying, but when you get a notice from an attorney, or for that matter the government, the first thing you should do is not to throw away all records relating to whatever the problem is. Covering up may turn a humdrum civil case into a criminal case. Instead, turn the file over to your lawyer. Let him worry about what to do with it. And lastly,
10. Don't get depressed. And don't panic. The sonofabitch who sent you that obnoxious letter may not love you, but plenty of other people do.

Lawyers should feel free to criticize or supplement this list in comments.  Our lay readers are encouraged to tell us stories of how they fought City Hall and The Man on their own, and won.

Six years ago today, my partner and I — fugitives from BigLaw — opened the doors to our new firm. We had rented desks, lots of boxes, phones that occasionally worked, and a ingrained distaste for big-firm practice.

Six years later, we've got more than a dozen lawyers and enough employees that sometimes I don't recognize them all, and they don't recognize me. Some of that is to the good, some is not.

A few things I've picked up about starting your own law firm in six years:

1. When you're at a big firm, and a partner or associate isn't working out, you can find someone else to work with, either on an emergency basis or in the long term. At a small firm, you're stuck with what you've got, unless you want to go through the unpleasant and sometimes expensive business of firing and re-hiring. So: invest a lot of time in interviewing and vetting the people you hire. Follow up on references. Use connections to get the inside scoop on people. In a small shop, you've got no choice but to rely on them.

2. If BigLaw has infected you with school snobbery, it's time to grow up and get over it when it comes to hiring associates and partners. Plenty of fantastic lawyers didn't go to Harvard, Yale, Stanford, or Chicago. Some of our most standout lawyers have been people who would have a lot of trouble even getting an interview at BigLaw because they didn't to a top-50 school. But their "second-tier" or "third-tier" school taught them more about actually doing competent legal work than the ivy-festooned schools, which tend to focus on training people to teach other people about the philosophy of law. They need jobs, they're just as capable of excellent work, and they won't arrive with the entitled attitudes that some ivy refugees get. That's your competitive advantage over BigLaw. Use it.

3. The time you invest in your associates — showing them how to do things right, giving them lots of feedback on their work, and explaining why you are doing what you are doing — pays back tenfold in the long run. If I spend 100 hours this year painstakingly training up an associate, that's about 500 fewer hours I have to spend next year on writing first drafts of stuff myself, because that associate is going to be trained to do things right the first time, and is going to develop into someone whose work I can trust.

4. Turnover is killer, and retention is key. Unless you're in extraordinary circumstances, you're not going to be able to match BigLaw salaries. Don't pretend to try — particularly in this economy. People will stay with you at a fraction of the salary that BigLaw pays if you give them what they can't get at BigLaw: decent and respectful treatment, no bureaucratic bullshit, more reasonable and honest billable hours requirements, and access to significant work. Let them wear jeans, for God's sake. Make it clear that as long as they get the work done and they're available by email and return client calls, you don't care what time they come in or leave. Order in lunch a lot and have the whole firm eat together. Handle minor legal matters for their family and friends for free — because you take care of your people. That sort of decent treatment gets a type of loyalty that BigLaw's ludicrous salaries never will.

5. Small firms and new firms tend to be very nervous about bringing in business. Never lose sight of the fact that the most important way to keep business coming in is keeping your clients happy through quality work and responsiveness. If your economic model depends on high volume rather than satisfied customers, you're running a mill, not a firm.

6. As soon as you can afford it, hire someone to handle HR and office-management crap. You'll be amazed at the number of hours you get back, how much of a relief it will be, and what you can accomplish in those hours.

7. Find friends and colleagues who have opened small firms and take them to lunch to pick their brains for pricing information. The first few times you make a flat-fee offer, you may either price yourself out of the market or take a bath. Ask for help learning the economics of it.

8. Sometimes you'll make more money turning a case down than taking it. Listen to your gut when it tells you a prospective client is a crank, a nut, or a con-artist. If they've cycled through three or four sets of lawyers, and they're bad-mouthing them all, the problem might be with the client.

9. If you can't have drinks in the conference room at 4:30, or close the office and take everyone bowling, or take a pro-bono case just because you want to, why did you start your own shop in the first place?

Let me start by saying this: you shouldn't be cold-calling a lawyer in the first place.

By that I mean you shouldn't be calling a lawyer because you found him in the Yellow Pages, or because her web site was on the first page of Google results, or because the firm has a bitchin' Twitter feed.

If you need a lawyer, you should be calling one based on the recommendation of someone you trust.

You should be asking friends, and relatives, and co-workers, and your doctor, and your accountant, and your pastor, and your neighbor who is a lawyer, if they can recommend a lawyer with the specialty you need. If they can't, see if they can recommend any lawyer, and then ask that lawyer for a referral to someone with the specialty you need. When people are recommending a lawyer based on their own experience, ask them these questions: was the lawyer honest? Was she responsive to calls and emails? Did he charge [what the client saw as] a reasonable fee? Did the lawyer produce results? Did those results bear any relation to what the lawyer promised? If the person you are asking says that their friend or relative had a good experience with a lawyer, ask if you can talk directly to that friend or relative about their experience.

In short, get a referral from a human being with experience with the lawyer. If possible, if that person had a good experience with the lawyer in question, ask them to make a call to introduce you and tell the lawyer you will be calling, and then call the lawyer yourself.

However, on occasion, you'll need a lawyer with an obscure specialty, or in a remote area where you don't know anyone, or you won't have time to seek a recommendation, or you'll be a reclusive misfit with no friends like me, and you'll not be able to six-degrees-of-Kevin-Bacon your way into a connection with the sort of lawyer you need. In these circumstances, you might find one online, through a Google search or a lawyer search site or in the Yellow Pages. You might even call the local Bar Association — though in my experience you might as well ask the cat.

So — you have a name. Either it's the name of someone who has been recommended to you, and they are expecting your call, or it's someone who was on the first page of Google results for +oh +shit +need +lawyer +Pismo Beach +dwarf +public +indecency +hedge-clippers or something.

What do you need to do?

Prepare for the call: Oh, sweet Jesus, please prepare for the call. Here's what that means:

1. If you've been sued, or subpoenaed, or searched, or arrested, you've almost certainly received some papers. Look at them. What court is this in? Is it civil or criminal (that means are you being charged with a crime by the government or sued by someone for money?) Does it say "Superior Court" or "United States District Court" or what? Be as familiar as you possibly can with the papers, and have them in front of you when you call. If you don't have the ability to fax or scan documents to get them to the lawyer, figure out ahead of time how you will do so, by going to Kinkos or a friend's house or something. If you have trouble understanding it, ask a friend to go over it with you. If you call a lawyer and don't know whether the case is criminal or civil and don't know what court it is in, the lawyer will suspect that representing you will frequently involve gritting his teeth to stop from screaming at you.

2. Especially if you are calling a lawyer to talk about suing someone rather than facing criminal charges or a lawsuit against you, think about how to explain what you want. If you can't summarize what the problem is and what you want in four sentences, keep thinking until you can. This is especially a problem if you are one of those people, bless their hearts, who cannot explain a straightforward situation in less time it would take James Joyce fully to explore the tension between autonomy and religion. Here's a good example of a summary to start a conversation with a lawyer: "I think I want to sue someone for defamation. My coworker went around telling people that I peed in the coffee pot again, and people have been making fun of me and they put me on the night shift." Or maybe "I want to sue my business partner because we had a contract to split profits from a business and I think he's been cooking the books to hide profits." Rule of thumb: a summary does not have supporting cast, characterization, multiple settings, chapters, or leitmotifs.

Why is that important? Because lawyers are irritated by people who can't convey information succinctly. Lawyers want to go back to screaming at associates and billing current clients, not listen to someone who can't get to the point. Lawyers think, probably correctly, that if you can't discipline yourself to start with a brief summary, then their entire experience with you will be miserable. Every call will be a marathon, and you'll be impossible to prepare for deposition or trial testimony. Are you worried that you only have one shot at telling the lawyer every single fact they will ever need to know? That's not right. Lawyers will ask pertinent follow-up questions to get more detail necessary to evaluate your case. In fact, the lawyer is waiting impatiently to do that right now while you natter on about what someone said to someone else on an occasion entirely irrelevant to the legal issue presented. If you're someone who simply cannot cut to the chase, even when gently encouraged, the lawyer may well decide she doesn't want this case and check out mentally, waiting for a lull in your life story to say this isn't her practice area.

So: prepare for the call the way you would for a wedding toast at a wedding where the mother of the bride is sitting next to you and is notoriously violent and has personally informed you that if you speak for more than forty-five seconds she will be jabbing you in the crotch with an oyster fork.

3. Think about what you want. If you haven't thought up front about whether you are interested in suing or not, and whether or not you are willing to pay any money for legal services, then you're wasting time. Of course you'll want the lawyer's advice, and want to know what the lawyer would charge, and so forth. But don't go into a call like a blank slate without reflecting on what your goals are. The lawyer is not a therapist.

Don't be a know-it-all:

Look. Do you go to the doctor with an unpleasant discharge and argue with the doctor's diagnosis of the clap because you think based on your extensive familiarity with the first three seasons of House that the symptoms seem more like syphilis? Probably not. So, if you need a lawyer to advise you, why the fuckity fuckity fuck are you arguing with the lawyer based on an understanding of the law cultivated by CSI and your aunt Bernice who reads lots of detective novels? Nothing will turn off a lawyer faster than a potential client who must win every conversation, even if the conversation is one in which the client is seeking important advice about an issue on which he is abjectly ignorant. This is in part because lawyers themselves are mostly people who must win conversations and resent you treading on their patch.

This doesn't mean that you're dumb and the lawyer is smart. But you don't necessarily need a lawyer who is smart; you need one who is honest, knowledgeable, and experienced. Albert Einstein or Doogie Howser can get you lethally injected just as fast as a dumb guy if they decide to try their hand at criminal defense; the guy who got Cs all through high school and college can get you off because he's done it hundreds of times and is frankly too jaded to bother lying to you about it.

So: go into the conversation that you are consulting a subject-matter-expert to learn something. Don't be the guy who has never figured out how to replace the batteries in his mouse but still argues with tech support on principle. If what the lawyer says sounds wrong to you, then call a different lawyer and get another opinion. And if you truly do have some specialized legal knowledge, like you know that general legal principles do not apply to your case under the Special Snowflake Act of 2011, and this lawyer doesn't seem to share that specialized legal knowledge, then he's not the right lawyer for you anyway. Go into the discussion to learn and evaluate, not to argue or persuade. Be prepared for the possibility that the law might be something other than what you expect based on your life experiences. A lawyer is not there to tell you what you want to hear. If you insist on a lawyer who will only tell you what you want to hear, you will eventually wind up with one who is (1) meek, and therefore a shitty lawyer, (2) dishonest, and therefore a shitty lawyer, or (3) so desperate for work that they will put up with your bullshit, and therefore a shitty lawyer.

Also, when you're talking to the lawyer, would it really kill you to let the lawyer finish a sentence now and then?

Give a little thought to timing:

On the one hand, if you hear you've been sued or charged or wronged or something, don't start calling lawyers in a panic before you've learned anything. If you're going to be telling the lawyer "my husband says we've been served with legal papers, but I haven't driven home to see them yet and I haven't called him back so I don't know anything, but can you take my case?", then you're wasting time. If you are calling to say "somebody said something bad about me in a newspaper article that I haven't read yet," then you're wasting time.

On the other hand, don't procrastinate. Don't wait to call until the day before that hearing or trial or briefing due-date. If the judge gave you 30 days to do something, don't start calling on day 25. Lawyering is not rocket science, but it's usually not like replacing the toner in the printer either. It can take time to be prepared to do the job right, and the lawyer probably isn't sitting there playing minesweeper waiting for your call; she's got other clients.

Bear in Mind That Lawyers Are Sort of Like People Too, In A Way:

Do you deal with "the public," or "clients," or with strangers asking you for things, in your life? Then you have a sense of what it's like. Lawyers can be insufferable, sure. But you're not talking to a lawyer because he's asking you for a favor. You're asking the lawyer to work for you. And lawyers are human, at least in the bundle-of-flaws sense. So if you are curt and abrupt, if you are openly incredulous at what the lawyer says, if you treat the lawyer openly like someone who is out to cheat you (as opposed to doing so subtly, which is perfectly sensible), if you can't let the lawyer speak a complete sentence without interrupting, if you negotiate in a contemptuous manner as if you are buying a fake Rolex off a guy in an alley, then the lawyer is not going to be enthused about you, and his vestigial humanity is going to lead him to turn you down or charge you more or resent you and work less hard for you. He can't spit in your food the way waiters will if you act like bad consumers, but he can do stuff that's far, far worse. Pretend that the lawyer is a human being with feelings, and things will go much smoother. (But note: do not carry this too far. Get second opinions, exercise skepticism, and do not under any circumstances attempt to have sexual intercourse with the lawyer, or make sudden movements in his presence, particularly while he is eating.)

This is merely a guide for how to handle the initial call with a lawyer when you are seeking counsel. Look for a future guide on sealing the deal with a lawyer and the care and feeding of your lawyer.

Note: if you are saying "I can't believe he thinks he has to tell people these things," then you do not deal with the public on a regular basis.

Edited to add: RL Mullen asked a question that he may have meant ironically, but bears addressing seriously: if you get arrested, should you ask your bail bondsman for an attorney recommendation?

My answer is the Platonic ideal of an attorney response: maybe yes, maybe no; it could work out great, or you could get utterly shafted. Some bail bondsmen take kickbacks for referrals, or have cross-referral agreements, and send clients to similarly seedy and questionable lawyers. They're in it for the one-time-customer volume. On the other hand, some bail bondsmen are reputable and recommend lawyers they think are trustworthy and reasonably priced. They're in it for repeat business and word-of-mouth — they want their clients to have a good experience with their lawyers, because they want their clients to come back if they get arrested again, and because they don't want to develop a reputation for being associated with crappy lawyers.

In general, if you select a quality, reputable bail bonds company, you can at least consider their recommendation of an attorney. When you contact that attorney, carefully evaluate whether the attorney gives you individualized attention and seems interested in your case; if the lawyer has a secretary or paralegal interview you, or seems sleazy or fly-by-night, run the other way.

Every litigator has encountered the theatrical, slightly crazy opponent. Their papers are filled with bizarre accusations and wild unsupported legal theories. They dress oddly. Their affect is off. They act out in court.

Some lawyers and pro se litigants act that way because they are genuinely crazy. But some do it because it puts their opponents off their game. If their inexorable oddness makes you lose your cool in writing, or in court, they win, and suddenly the focus of the proceeding becomes not the merits but their oddness and your reaction to it. Suddenly, it's you — rather than the crazy guy — who is the laughingstock, because you've been trolled successfully. If the troll is sufficiently epic, you become infamous. Take Bill Bone, a Florida defense attorney who was so irate at plaintiff attorney Michael Robb's look-at-me-in-my-humble-old-shoes-fighting-for-the-people routine that he filed a motion demanding that the judge order Robb to wear nice shoes in court.

Or, this week, take Illinois attorney Thomas W. Gooch III, who allowed himself to become seriously discomboobulated. Gooch, who was defending his client Exotic Motors from a lemon-law claim, believed that his opponent Dmitry Feofanov had seated his paralegal at counsel table solely to distract the court with her voluptuousness, and saw fit to file a motion in limine demanding that she be exiled:

Defendant's counsel is anecdotally familiar with the tactics and theatrics of Plaintiff's counsel . . . . Such behavior includes having a large breasted woman sit next to him at counsel's table during the course of the trial. There is no evidence whatsoever that this woman has any legal training whatsoever, and the sole purpose of her presence at Plaintiff's Counsel's table is to draw the attention of the jury away from the relevant proceedings before this court, obviously prejudicing the Defendant's in this or any other cause. Until it is shown that this woman has any sort of legal background, she should be required to sit in the gallery with the rest of the spectators and be barred from sitting at counsel's table during the course of this trial.

You know, the judiciary in this country is made up of a Mos Eisley array of misfits, but I can still confidently say that 95% of judges would read that motion and say "wow, what an entitled dick. I'm going to find ways to humiliate him and screw his client." A smarter and more self-possessed lawyer would recognize that. Thomas W. Gooch III may be smart and self-possessed in other circumstances, but in this circumstance, the most charitable interpretation is that he got trolled in epic fashion. Even if he's right in his accusation, he looks like an ass and his Google results are now 75% boob-related. The harm he's caused to his own reputation, and to his client's interests, is worse by several cup sizes than the hypothetical harm they could have faced from Feofanov's alleged stunt. He got rope-a-doped.

And that's the nicest interpretation. Feofanov says his paralegal is qualified and necessary. Gooch may well just be one of those sexist, narcissistic choads who thinks that all the women in the world get dressed every day specifically to allure men like him — like the guy who gets angry because a woman doesn't wear her wedding ring while working out at the gym.

Either way, don't be Thomas W. Gooch III. Protip: if your conduct of your client's affairs requires you to make a statement reassuring the media that you are not per se opposed to large breasts, you're doing it wrong.

As we speak, a woman — a potential client I turned down — is pestering the receptionists trying to speak to someone "in authority" in the firm to complain about me. They'll probably send her to the HR person, who is very sensible and worth her weight in gold and will soothe her. (I asked our HR person to say, if the woman asks for the name of my superior, to respond "there's some theological dispute about that," but she's too sensible to do so.)

The woman cold-called looking for someone to sue on her behalf. After a long backstory (only 2% of cold-call clients can explain what they want in a paragraph), I figured out that she wanted to sue a major metropolitan newspaper for a story that they ran in 1991 that described an unnamed person that she believes was based on her and that she believes was unflattering. I declined and warned her that under California's vigorous anti-SLAPP laws she might well wind up paying the other side's attorney fees if she sues, inasmuch as the statute of limitations on defamation is a year, not a generation.

Apparently I was insufficiently solicitous of her feelings in the matter and did not spend enough time expressing my empathy for how the 1991 article about an unnamed person makes her feel. I am reminded by colleagues that I am capable of diplomacy and ought to exercise it.

Sorry. None left today.

I remember my first trial nearly 20 years ago.

I was still in law school, working as a student prosecutor in a failed and dingy industrial town in Suffolk County, trying a misdemeanor marijuana possession bench trial against a 70-year-old-man with no criminal record who had a nine-inch marijuana plant in a ceramic pot in his back yard. Under the ridiculous rules of the People's Republic of Massachusetts at the time, even if I won the bench trial, the defendant was entitled to ask for a second trial, this time in front of a jury. It's hard to imagine how a real-life trial could have gotten more pointless or free of potential consequences to anyone. The whole sad thing took about an hour and a half. The judge listened respectfully to my earnest opening statement while the defense lawyer rolled his eyes. Then the cop got on the stand and talked about finding the marijuana. He had written in his report that when confronted the defendant said "my ex-wife told you it was there; she ratted me out." On the stand, the cop remembered the statement as "my ex-wife put it there; she set me up." The judge found the defendant not guilty. The deputy DAs who were supervising me — barely out of law school themselves — bought me shots of awful tequila at a dive bar and bundled me through the snow onto the T, on which I threw up into a sack several times and missed my change of trains.

A relatively seasoned DA sat with me throughout that trial, because it would be ridiculous to send a baby lawyer alone into his first trial, even one as pathetic as this. Nobody would ever have let me try a serious case as my very first trial. Even later, when I left the government and became a defense lawyer, with a score of much more complex trials under my belt, I sat second chair as a defense lawyer for a while — because trying a case as a defense lawyer is a very different thing than trying one as a prosecutor. Whatever bad things you can say about my judgment — and you can say many awful things, I'm sure — you can't say that rushed to try cases I wasn't prepared to try.

That brings us to the woeful tale of Joseph Rakofsky.

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If you talk to me, and I agree to look at the materials from your case over the weekend and decide whether I might take it on, and you immediately begin sending argumentative emails to the attorneys on the other side and cc'ing me on them, then I'm not going to take your case. I'm not going to take your case if you now say you'll get money from your parents to pay, I'm not going to take your case if you apologize and promise not to do it any more, I'm not going to take your case even if the papers you sent me suggest you have a good case. If you can't wait over the weekend without picking arguments with the attorneys on the other side (even though you are still represented by another counsel, you dumbass), and can't resist cc'ing me to threaten the other side in juvenile fashion with the prospect attorney you MIGHT hire, then you are an irretrievably twitchy motherfucker. I have learned by bitter experience that twitchy clients are a money-losing proposition and tend to consume ten times the time and stress and grey hairs as other clients. Life's too short. I don't make a BIGLAW salary any more, but I also don't have to take cases I don't want to take. So, like I just told you on the phone: calm down, shut up, and listen to your lawyer — but your lawyer won't be me.

BRIAN TANNEBAUM, through Twitter:

I think I'm going to start a blog called "really bad stupid worthless advice for lawyers I read on the internet." I will blog 5x a day

One could blog thousands of times a day on that topic.

NOBODY TELL ANN ALTHOUSE:  Yet another reason to ditch Blogger in favor of real blogging software. Heavens, you'd think a law professor would have figured that out before the fit hit the shan, but then mere practicing attorneys like Eric Turkewitz pick up all sorts of knowledge that seems scarce atop the ivory tower.

Oh, this is so exactly why I left BIGLAW to start a small firm.

Megafirm King & Spalding could not have made a bigger mess of the DOMA representation if they had set out to do so. It started with a mighty coup — the House majority hiring King & Spalding's Paul Clement, a former solicitor general, to defend the constitutionality of DOMA after the Obama Administration declined to do so. Having high government officials tap one of your partners to litigate a high-stakes and high-profile case is great publicity, and a compliment to the firm, whatever you think of the merits of the case.

Clement was willing and able. But someone — or more probably, many someones — at King & Spalding had not thought the whole thing through. They faced loud and vigorous criticism by various gay rights groups, some of which contacted King & Spalding clients to complain. They undoubtedly pointed out that King & Spalding had marketed itself as gay-friendly and pro-diversity. Worse yet, law schools intimated that King & Spalding might suffer recruitment barriers because of their decision to take on the unpopular matter. As my classmate David French points out, King & Spalding had taken on very unpopular matters before and stuck it out. But not this time.

King & Spalding folded. They filed a remarkably coy and uninformative motion to withdraw. That was a risk — many federal judges I know would have hauled them in and ripped them a new one. Paul Clement promptly jumped ship with an awesome fuck-you letter:

"I resign out of the firmly held belief that a representation should not be abandoned because the client's legal position is extremely unpopular in certain quarters. Defending unpopular clients is what lawyers do," Clement wrote to King & Spalding Chairman Robert Hays. "I recognized from the outset that this statute implicates very sensitive issues that prompt strong views on both sides. But having undertaken the representation, I believe there is no honorable course for me but to complete it."

Damn straight.

Now, it's possible that fear of bad publicity and angry clients and law schools wasn't the only issue that led King & Spalding to drop their shield and run. It also appears that House Republicans snuck in a bizarre gag rule that would have prevented King & Spalding, and its lawyers and non-lawyer employees, from advocacy that the House Republicans didn't like:

The contract, which was entered into with U.S. House of Representatives General Counsel Kerry Kircher on behalf of the House's Bipartisan Legal Advisory Group to defend DOMA in court, contains a provision that prohibits all King & Spalding attorneys and non-attorney employees from any advocacy to "alter or amend" DOMA.

The paragraph in question states that "partners and employees who do not perform services pursuant to this Agreement will not engage in lobbying or advocacy for or against any legislation … that would alter or amend in any way the Defense of Marriage Act and is pending before either the U.S. House of Representatives or the U.S. Senate or any committee of either body during the term of the Agreement."

Moreover, the preceding paragraph, 4(f), contains a similar prohibition on the partners and employees who are participating in the litigation. Paragraph 4(g), thus, clearly is intended to apply to those who do not participate in the litigation.

(Quick advice from a small-firm lawyer: if the client wants to insert "special language" into your standard retainer agreement, show them the door and look for the next case — they're not worth it.) The clause is intolerable (and very probably unenforceable, and very probably a major employment-law problem for King & Spalding), and it's appalling that the Republicans stuck it in there. Clients have no business trying to regulate the outside First Amendment activities of a law firm's employees. But even if that is the actual reason — not the pressure from angry gay rights groups — one must ask why they didn't see the clause before they signed the damned agreement.

King & Spalding's retreat is a public humiliation for them, and should be treated like one. Look: in general lawyers don't have to take cases they don't like. There are some people some people so vile that I wouldn't defend them. It's not because I think they don't deserve a defense, it's because I think that my feelings about them could render me less than effective. Since I'm no longer on the indigent defense panel, I haven't agreed to take on all and sundry. There are civil clients I wouldn't take, and some legal positions I'd never defend. If somebody tried to enact the PACE Amendment, I wouldn't defend it, in part because my feelings would prevent me from being a good advocate. And it's perfectly reasonable for lawyers and law firms to decline to take cases that would cripple them economically because they are repugnant to their normal clients. Lawyers who represent big banks need not take on clients who want to lobby for anti-big-bank regulations. Lawyers who defend doctors need not take on high-profile plaintiff-side malpractice cases. When it comes to taking on cases, a bar card is not a suicide pact. Further, a lawyer who lacks the spine to deal with bad press or angry clients is a bad choice for a hard case.

But once a lawyer does take on a cause, he shouldn't abandon it because it's unpopular with the public or the press or other clients. That's cowardly, emboldens people who want to prevent unpopular people and causes from finding lawyers, and conveys that it's OK for the justice system to be a beauty contest.

How do you reconcile the right to refuse a representation and the obligation to stick with one once you have it? We'll, you've got to have a competent, professional screening process. No sane or competent law firm would forget to run a conflict check. Why would a sane or competent law firm take on a politically incendiary case without considering the interpersonal, economic, and political conflicts that would result?

Clement comes out of this looking principled, and King & Spalding comes out looking awful. Moreover, the anti-DOMA advocacy groups that attacked King & Spalding — and the law schools that had made noises about sanctioning King & Spalding — come out looking thuggish and un-American. I have no problem with vigorous attacks on evil legal positions. I make them. But I do have a problem with attacks on advocates for taking on unpopular clients and causes and for making unpopular, if legally colorable, arguments. That's an attack on the structure of the justice system — an assertion that not only should a particular legal position fail, it ought not even be heard. It was loathsome when it came from conservative political opportunists attacking lawyers for representing Gitmo detainees, and it's loathsome when it comes from liberal political opportunists attacking lawyers for defending a federal statute. It's amazing how closely the arguments of the two loathsome groups coincide: the conservatives argued that the Gitmo detainees were not criminal defendants, and were not entitled to a legal defense, so that lawyers representing them were doing so gratuitously and ought to be judged; the liberals argue that civil litigants and are not automatically entitled to counsel, nor must statutes be defended, thus Clement ought to be judged. A pox on both their houses — they might be more comfortable in a system where a legal verdict is governed by political dogma, like China or Cuba. It's particularly galling for gay rights groups to take this stance. If they think that, in the long run, gay rights are advanced by normalizing the concept that unpopular causes ought not be defended, then they're drooling morons.

Are there positions so frivolous, or so vile, that it's fair to say they reflect badly on the attorneys who assert them? Certainly. We criticize or ridicule them all the time. But the notion that DOMA is constitutional isn't one of those cases. I think DOMA is a steaming pile of shit, that it reflects a loathsome spinelessness of the Clinton Administration, and that Obama's refusal to defend it (while raising complex and troublesome separation of powers issues) reflects an unexpected spine and a concern for what's right that I didn't expect to see from him. But get real: if the DOMA challenge gets to SCOTUS as it is presently constituted, then the most optimistic scenario for DOMA foes is a very close call. More probably, SCOTUS would find it constitutional. You may think they're wrong, but it's a very arguable position based on extant caselaw. If the DOMA foes win before SCOTUS — and I would bet they will not — it will be damned close.

In short,though I support King & Spalding's right not to take on the case in the first place, and would not have commented if they had turned it down, I think their conduct has been appalling. They could have stood up and said so: "We cannot accept this representation because it seeks to establish a legal point that we believe to be contrary to the interests of our other clients." But taking it on only to abandon it upon receiving a little public pressure is the worst possible course, and represents indefensible incompetence. Through its course of action, King & Spalding has broadcast the following message to its clients and potential clients: "Our right hand doesn't always know what our left hand is doing. We make important decisions without careful reflection of the relevant factors. We're committed to representing you, unless it becomes more unpopular than we expected, in which case we'll need to bow out. We're committed advocates, within the limits of our financial self-interest."

Who the hell would hire a law firm like that?

Fortunately for them, there is plenty of shame to go around — they can share it with the people who lobbied their clients and pressured them.

I should know.  I've argued with him on the internet.

Away from the internet, he's a just a tiny grain of sand, in the wheels of the Obama Administration, Congress, an "arguably" double-dealing bunch of ambulance chasers, and an attempt to compound 222 years of injustice to the largest group of victims in American history.

Read Frank's objection to the outrageous attorney's fee request by the Plaintiffs' counsel (NOT the Plaintiffs) in Cobell v. Salazar, the class action which purports to sell out settle the claims of every American Indian whose land was stolen by the United States government, whose money was then stolen by the Department of Interior and Bureau of Indian Affairs, and whose settlement fund is … well … by the attorneys who allegedly represent them.

A sample of Frank's objection to the the request for legal fees:

This includes a seven-year stretch where Mr. [Dennis] Gingold billed 28,230 hours—an average of eleven hours a day, every day seven days a week without a single day off.

As anyone who has had to keep billing records knows, it is rare for ten hours of billing to take only ten hours: there are bathroom breaks, coffee breaks, meal breaks, interruptions, and so forth. There are legendary accounts of tireless attorneys who forgo family and leisure; work on little sleep; and are able to regularly bill 3000 hours a year, but they are few and far between. Perhaps Mr. Gingold is one of these exceptional individuals, so far above average that he can routinely bill 4000 hours a year without loss of productivity or health, but this proposition merits scrutiny.

That's only a sample.  Read.

Via the authors of Crime and Federalism and Overlawyered, through Facebook.

A sonnet, with apologies to the bard for the missing pentameter and rhymes.

• Don't think that I am ungrateful
• For the clients you send; Clients they are.
• And I know, better than you ever could
• What freaks the people who sue them are:
• I depose those plaintiffs; and I defend
• Against their spurious allegations of whiplash;
• That their manhood was taken away from them
• By injuries sustained when they were hit,
• By a car traveling less than five miles an hour,
• As they sat at the light to turn into Shooter's II,
• The sleaziest bar in a military town.
• But your insureds are almost as bad.
  • What sort of person thinks it's a good idea to buy insurance
  • From a talking lizard and a time-traveling neanderthal?

Another day, another criminal lawyer caught blogspamming on a post about foolish or unethical legal marketing, to no avail.

If you need help with a complex Los Angeles criminal matter, or for that matter if you'd like to explain the html nofollow tag to Mr. Silverstein, click.

I was somewhere around Temecula on the edge of some fire-denuded hills when the drugs began to take hold.

I had dry-swallowed a fistful of something while rushing to check out of my hotel to rescue a client. Advil Sinus? Tylenol Cold & Flu? Plus Extra-Strength Advil? God knows. Faced with driving more than a hundred miles on short notice to make a client's first appearance, and suffering from a thudding headache from a sinus infection, I took more of what I had self-medicated with the night before. Whatever that was. So anyway, around Temecula, the familiar detached surreal too-damn-much-OTC-cold-meds feeling kicked in and a sort of gritty but serene sense of unreality draped itself like a dirty shower curtain over my consciousness.

I wasn't supposed to be driving at all. I was supposed to be at the American Bar Association's White Collar Crime Committee conference in San Diego, an annual event at which defense lawyers kick the shit out of their livers during a lurching parade of cocktail parties and ditch continuing education seminars in order to schmooze. I was looking forward to it. I felt like crap — I'd felt like crap for a week and a half — but I was looking forward to seeing old friends, auditing portions of a few presentations on topics that interested me, and hitting the party circuit. I didn't bring a tie. I didn't even bring anything to shave with, because fuck that.

Fast forward to the first full day of the conference. I wake up to find an email from a partner. One of my clients — let's call him Mr. Client — has been indicted and picked up at 6:00 a.m. by the FBI. He's in custody now, and will be making his first appearance (with a crucial bail hearing) that afternoon more than a hundred miles away. Say, is that the same Mr. Client about whom I spoke with the FBI and the federal prosecutors? The same Mr. Client I offered to surrender immediately if he's ever indicted? The same Mr. Client who is accused of nonviolent, low-dollar-figure crimes, who has lived in the same community all his life, and owns a business there? That's the one the FBI got an arrest warrant for, rather than summonsing him in or calling me and telling me to surrender him? Yep. That Mr. Client. Ratfucking chickenshit feds, you suck.

So I pack my room two days early, very reluctantly cancel lunch with a First Amendment demigod, and check out. I have one suit with me. I go into the gift shop and find the least incandescently hideous tie they sell. It's on the thin line between bright red and pink with weak stripes. I search for something to shave with. All they have left are pink women's disposable razors. That's the sort of thing that passes for funny with God these days. I hurry back to my room to shave. Let me tell you: all that FIVE-BLADES-BITCHES stuff isn't just Gillette puffery. At this point shaving with a forty-cent two-blade pot-metal disposable women's razor turns my face into blood salad.

So I drive, addle-headed and oozing blood onto my collar, to my client's first appearance in another district umpity-ump miles away. I arrive two hours later, pull the indictment, schmooze the pretrial services officer and the clerk, and prep. The FBI and AUSAs are smug. I argue to the magistrate judge — a guy I used to spar with when he was a DFPD and I was an AUSA — that it's ludicrous to require my client to secure his bond with the signature of a third-party surety because (1) the bastard has known he's a target of a federal investigation for almost a year and hasn't gone anywhere, (2) he's like 55 and not cut out for life on the run and his whole life is here and he's got noplace to go, and (3) I offered to surrender his sorry ass if he was indicted but they arrested him so they could get pictures of the perp walk. Black robe fever: he's not a public defender any more, and requires the third party surety. I convince him to give me two business days to get it.

My head's throbbing. My sinuses are making squeaking, screaming noises, like that Ceti eel makes after Kirk phasers it. I depart the courthouse. The press is waiting out front, reporters and video cameras and flash cameras. They regard me skeptically as I walk out. "That's probably one of the FBI agents," one of them says. Motherfucker! The tie isn't that bad. It must be the haircut. I go pick up my car and drive to a credit union parking lot behind the courthouse to wait for them to release my client and his codefendant, who is the reason for the cameras. The U.S. Marshals — reliably some of the most reasonable and decent feds around — are releasing them out the back to avoid the press scrum out front. But a reporter follows me, watching me suspiciously. Shit. The metal gate swings open, and my client, his codefendant, and some poor mope on a probation violation beef get shoved out, blinking, into the light. I execute a credible screech and swerve and swoop, narrowly missing the reporter, throw open the passenger door, pull in the client, and pull out as the fat guy with the video camera waddles around the corner into range. The more sought-after codefendant runs to the safety of his family's car; the probation-violation mope stands dumbstruck wondering what the hell is going on. As I peel out one of the reporters is trying to interview him.

Next I trudge through rush-hour traffic to get the client home. He's working through the usual stages of I-can't-believe-it-happened to me. I calm him. My head is pounding louder. I drop him off, remind him of the basics — don't talk to anyone, dammit! — and head home through more traffic. After about half an hour I have to pull to the side of the road because the headache is making my hands shake. I get a grip and navigate to an urgent-care center in my neighborhood. Let me tell you this about America, friends and neighbors — if you're wearing a suit and tie, even an ass-ugly tie, they give you good drugs without asking questions. The doc nearly throws Vicodin at me. Try that with cargo shorts and an Ed Hardy T-shirt.

Home. Exhausted, doped, woozy, barely-scabbed-over shaving wounds bleeding into the pillow, I'm insensible before ten.

It's all so very, very glam.