The Existentialist

"Poppin' Knee" (see here, here, and here for the story of Poppin' Knee, if you haven't read it yet) was enough to make anyone want to leave the firm, but I stuck it out for nearly three years. It was a typical large law firm, with ridiculous billable hours requirements that meant I worked evenings most days and weekends quite often. I was there 50 to 60 hours in a "regular" week, more if we were busy.

I was in the bankruptcy litigation section. We represented trustees, debtors, and creditors in various cases. We did both Chapter 7 liquidations and Chapter 11 business reorganizations.

Being a young associate meant I mostly worked on various motions, responses to emergency motions filed by the other side (because no one else wanted to stay there all night to write them), and fee applications (the debtor's attorneys in reorganization cases must have their requests to get paid from the bankruptcy estate approved by the court), with occasional research projects or assignments to draft a single issue in an appellate brief thrown in for "fun."

I attended trials and depositions with other attorneys to "learn the ropes," and even got to ask a few questions at depositions and examine a couple of witnesses at trials (not the important ones, of course... the supervising attorneys did all of those).

I also handled, on my own, quite a few pro bono civil cases, and one pro bono criminal appeal to the federal Ninth Circuit Court of Appeals. ("Pro bono" is short for "pro bono publico," a latin phrase (lawyers are fond of latin phrases) meaning "for the good of the public," and are cases that the attorneys handle at no charge to the usually indigent client, usually to attempt to help clients with good "causes" or to fight injustice. The State Bar of Arizona asks that each attorney do at least 50 hours of "pro bono" work each year.)

I learned a lot about bankruptcy, about litigation, and about a few civil areas in which the firm liked to take pro bono cases such as guardianships, landlord-tenant disputes, and consumer fraud.

One of my favorite bankruptcy cases involved a client we'll call "C." It is one of my favorites in part because the client was so nice, and in part because of the following story. [FOOTNOTE 1]

The client, C, was a real estate guy. He bought, managed, and sold land and buildings - trailer parks, condominiums, business properties, etc. Some folks who had purchased condominiums in a project he had owned (I can't remember if he built them, or just bought them and then sold them) had sued for construction defects in the condos and had won a very large judgment against C in state court, which C couldn't pay outright. So C filed a Chapter 11 bankruptcy reorganization case (in federal bankruptcy court) to try to figure out how to structure the debt, discharge it, and/or liquidate other assets to pay it.

One of the ways we sought to recover funds to pay the debt was by suing his former attorney ("FA"). You might ask, "Why?"

Well, here is what transpired in the "adversary proceeding" (trial against FA held in bankruptcy court).

The testimony established that C was an older fellow with lots of street smarts, but he was not an educated man. He relied on FA's advice in handling the state court case against him by the condominium purchasers.

Early in the state court trial, the court overruled many of FA's objections to the plaintiffs' evidence. (The objections were ridiculous and had been properly overruled). The state court also refused to allow FA to make arguments out of order. FA therefore believed the court was biased against him. FA therefore advised C to literally walk out of the trial, in the middle of the trial, and not come back. C followed that advice.

I am guessing that even those of you who are not attorneys know that this was a bad idea. Walking out does not stop a trial. Oh, no, to the contrary, it goes on without you. And by walking out, C forfeited the opportunity to present evidence, to cross-examine the plaintiffs' witnesses, to make oral arguments, or otherwise to present any sort of defense to the plaintiffs' claims. It also meant that the court would essentially enter a default judgment based only on the evidence presented by the plaintiffs. So of course the damages were huge - a much larger sum than would have been obtained if C had been properly represented at trial.

So, we helped C sue FA for attorney malpractice in the bankrupcty court adversary proceeding.

There is a saying in the law: "The attorney who represents himself has a fool for a client." FA had a fool for a client in this particular adversary proceeding.

By doing a completely incompetent job of representing himself, FA demonstrated to the bankruptcy court exactly why our malpractice action against him should succeed.

First, he was visibly nervous and unprepared. He seemed to have no clue about the proper court procedures.

Then, he called his only witness, a former summer law clerk at his firm, to testify for him. After a few preliminary questions, he asked her whether she thought he had done the right thing by advising C to walk out of the trial that summer.

She said "no" - leaving us to wonder why the heck he had called her to testify. (Did he think she would say yes? Did he fail to even ask her before the trial what she would say? Clearly incompetent....).

He bumbled around, presenting no effective evidence to show why he shouldn't be found liable for malpractice, and in fact presenting quite a bit of evidence that tended to support our malpractice claim.

But here is my favorite part:

Later, when it was our turn to present evidence, we moved to enter the transcripts from the state court trial to assist in proving the amount of damages C had suffered due to FA's malpractice.

The idea was to show the evidence that had been presented, the damage claim calculations that had been presented, and the amount of damages that had been awarded in the state court trial. Then, we would bring in our own experts in bankruptcy court to show the evidence FA should have presented (if he hadn't walked out of trial) to demonstrate that the construction had been fine, not defective, as well as a more accurate method of calculating damages in the event the court found there were construction defects. This would show that the damage amount would have been either zero, or at least much much lower, if FA had done a competent job. Then, we would get a judgment against FA for the difference between the actual judgment amount and the amount the judgment would have been if FA had done a competent job.

FA objected to the bankruptcy court looking at any of the state court transcripts after the time when he had advised C to walk out of the state court trial.

The Court was a little bewildered and asked why FA thought the transcripts were inadmissible.

FA responded, "Well, your honor, I wasn't there. I don't know that the transcripts show what really happened."

The Court said, "I am thinking these are public records and are relevant to the damage claim. Is there some reason you think they are not, or some reason you think the transcripts are not accurate?"

FA responded, "No, your honor. It's just that, I wasn't there. How can I know that really happened?"

* * * wtf? * * *

The judge's expression clearly said "wtf," too, as he overruled the objection.

We laughed for years about FA's "existential objection" and how that really ought to be added to the rules of evidence. ("If a tree falls in the forest and no one is around to hear it, does it make a sound? But what if the court reporter recorded the event and the sound?") We would joke about using the "existential objection" any time anyone presented unfavorable evidence: "Oh, but that's not admissible. We weren't there! How can we know that really happened?"

Needless to say, we won our malpractice action against FA.

Sadly, we had to get in line along with FA's other creditors and malpractice claimants when he, too, filed bankruptcy....


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FOOTNOTE 1:
I have to tell the story with relatively few details because of attorney-client confidentiality issues. I believe it is ok to tell the story based on non-confidential items that I did not learn from the client, but learned by watching the trial and/or reading public records, so that is what I will do. I've also omitted details and/or changed minor details so that the client's identity is not readily apparent. I'll also add the disclaimer that I don't have a copy of the transcripts, so the quoted material is based on my memory of what transpired and may not be word-for-word accurate. However, the gist of it is completely true.