Nancy and I used to play a lot of tennis together. Playing on Whidbey Island when we came out here from a sweltering Delaware summer put us in mind of moving to Seattle. I realized that I wasn’t sweating down my forehead and forearms and losing the grip on my racket. “Hey, there’s no humidity!” I called out.
Playing tennis somewhere that didn’t require a concession to heat stroke sounded like a good deal. Nancy and I were both self-taught, which is a little like being your own lawyer. Once I told her, “I’m no tennis coach, but I can tell that you’re doing something wrong, and it’s only through sheer athletic ability that you’re getting the ball over the net.”
It wasn’t in revenge that a few years later, she shot back, “You are spiritually, emotionally, and intellectually unsuited to the practice of law, and it’s only through persistence and sheer intelligence that you’ve been a success.” Define “intelligence” and “success.”
Early in the history of this blog, I mentioned some of the most egregious mistakes I made in my first three years out of law school, and I’ve also detailed the worst mistake of my career. But we don’t know the WHYs of all of those mistakes. Let’s break it down. Now I’m getting revenge on myself.
1. Attention to Detail.
I barely remember the details of this gaffe, which is appropriate. We provided services to a bunch of property developers who packaged and sold real estate limited partnerships to rich people—shares in the profits of real estate developments, essentially.
The investors gave us money, and we gave them shares. To make a long story short, they had to sign a notice that the developer had a security interest in their shares until the investors paid for them fully. But they were all living in their home states and not available to sign the forms. So we had them give us a power of attorney to sign for them—is this complicated and yet silly enough? Do I even have it right?
The punchline is that I forgot to get one of the clients to use his power of attorney to sign the forms, and I mailed off tens of them unsigned to the various state offices. Soon enough, they came flooding back in.
The partner in charge, a smug southern preppie whose second middle name was “Stewart” but who was known as “Stewie”, smirked at me and pronounced, “Malpractice per se,” before turning and waddling off.
So as punishment I spent an evening retyping all of the forms. The general partner duly signed them, and I mailed them off.
A lingering question: How much attention to detail do you need to have to have a form signed? Zero.
2. There’s a legislature?
My first job was at a firm in North Carolina, yet I had a tragic lack of understanding of how NC’s state legislature worked—as we now know, it doesn’t work at all except in the service of Evil. One day, an ancient partner, a General in the Marine Reserves whom we were encouraged to call Gen’l, called me in to report that a client who dealt in alcohol reported that he’d heard that a new law had passed regulating alcohol. He wanted me to go find it.
Directly I shuffled off to our law library and found the NC statutes relating to alcohol regulation. The laws always have the date that they were enacted at the end, and I found nothing remotely recent.
I reported this important information to the Gen’l. He frowned at his desk, brow heavily furrowed (which it still would have been if he hadn’t frowned), and asked, “Did you check the short session?”
The short session. What the fuck was a short session? To this day, I have no idea. The Gen’l, with his leathery reptile skin, was placid to the point of death until he was disappointed at which point he erupted in fury and spat poison. I was too afraid of that fury to admit that I had no idea what a short session was. Wildly I answered, “Yes.”
This answer elicited another Gen’l-like frown, and he dismissed me with a wave. I hope not too many people went to jail; in any event, that I never heard about it again probably just meant that the Gen’l forgot he’d asked me to look at it.
3. Distraction (see attention to detail)
As I’m writing this right now, I’m watching a preseason baseball game involving my favorite team, the New York Mets. I have always needed to have something going on in the background when I worked. Weirdly, I have no idea what’s going on in the game, so I must be concentrating. Sort of?
Nancy can’t have anything going on when she’s working. You can’t even speak to her; it’s like a Cone of Silence descends over her brilliant head. Me, I beg to be distracted.
Legal reasoning can be complicated. But my old colleague Michael Gioffre recently praised my ability to see through everything to the bottom line. Forsooth, my talent in writing our two books was to simplify the complicated and boil it down for the layperson. Who could not have been less interested, as it turned out.
I think this ability arose perversely out of my perpetual distraction, by baseball, girls (before marriage!) the drink, and, ironically the intellectual seduction of the law. But I enjoyed it too much, apparently, to think about it without distraction.
The problem is that some things are simply inherently complicated and can’t be boiled down. Notice that in our books we never addressed any antitrust disputes. Whatever those are about.
I think I had an idea for an ending to this section, but there were a couple of doubles and a hit batsman and I got...distracted.
4. Lack of self-confidence + not really liking the work.
My mother’s destruction of my self-esteem has been well chronicled in these posts. To summarize, she was mean-spirited, self-centered, and brutally cutting. Nancy has said it wasn’t fair, for as an adult she always had the upper hand.
Her damage manifested itself in so many contexts: school, where I always gave up rather than confront my shortcomings (hi, math and science!); social situations, where I always felt insecure, at a loss, inferior, and just clueless; that includes dealing with women, for when they said yes, I heard no; and authority figures, before whom I conceded without question.
So imagine me in court, in front of a grumpy, all-powerful judge, with someone at the other table ready to jump on absolutely anything I said that could remotely be challenged. My law firm was completely stupid in trying to make me into a trial lawyer. Didn’t they sense that my general kindness and fairness coupled with my timidity would doom me in court? What they didn’t know was that I couldn’t then and now work to the point of perspiration to engage in an adversarial context without either conceding or blowing up inappropriately.
But geez, in court: for a time a lot of my work involved representing a bank in bankruptcy court who foreclosed on people who had bought and then couldn’t afford mobile homes. I mainly stood up and let the bankruptcy trustee present my case to the court, and I got to go home. One family was supposed to be evicted over Christmas, but I just couldn’t; I delayed till the crocuses came up.
Once, in despair over the idea of a bank repo-ing someone’s mobile home, I flew into bed when I got home, screaming, “I hate this redneck litigation!” I had a good cry for a half hour but felt no better.
5. I was bewildered by the protocols.
One of our younger partners was married to a woman who became very prominent in NC politics, like, a U.S. Senator. He said that she told him that he should hand out a box of business cards a month!
Not long after, I was a speaker at a retirement function for a noted poet at UNC-Greensboro. (For more details, see the post dated November 1, 2019.) After my surprisingly well-received speech, a prominent member of the business community, who happened to be married (temporarily) to a novelist from our program, asked me where I was working. Pleased to be handing out a business card, I tried to hand him one, but he put both hands up and, grimacing, backed off: “Don’t give me a business card!” So that was wrong somehow? But but but I was supposed to! The partner said so!
6. General lack of enthusiasm for the work.
Too often a big piece of work would come into the office: a huge lawsuit involving firms from all over the region; a very complicated agreement, requiring drafting of enormous, hundred-page documents; or acquisitions, which could go on for years and involve lawsuits as well.
OMG, the excitement in the firm when one of these monsters burst in the doors. We were considered mid-sized in those days, three dozen lawyers, so everyone knew everything about the business coming in, and there would be general exultation and praise for whoever brought it in.
Everyone knew that it would take many lawyers, huge fees that this particular client would have no qualm paying, maybe late nights, tense confrontations in courts, 24 hour-long negotiations in airless conference rooms, and FEES, oh boy oh boy OH BOY and we could even jack up our pathetic hourly rate, because city folk!
My reaction? Oh geez, do we have to? I just want to go home and fix dinner for my wife.
Conclusion.
Nancy was right, as always, that I was unsuited to practicing law. The only mystery is how I didn’t get sued, over and over again. The day I surrendered my license, I thought, I’m free! It’s too bad I wasted so much of my life on it, but, as one of our partners used to say, Everyone has to be somewhere.
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