So, yesterday I gave a bit of a primer on how to commit malpractice by taking on a case when you have absolutely no knowledge of the underlying law. While I wish that was the only time recently that I’ve seen opposing counsel do something completely fucking stupid that turns their case into an automatic loser, unfortunately this shit happens all the time. In fact, I’d say the second biggest common mistake an attorney can make, outside of not knowing the fucking law in the first place and having no desire to put forth the bare minimum of effort, is one each and every one of us is guilty of.
Lawyers trust their clients. This is a mistake. Because clients are fucking liars.
For instance, most recently I had this arise when I received a counterclaim that read “Defendant is from a foreign country and does not speak English as her primary language.” Alright, it’s a contract case, and she’s trying to get out of it by claiming there is some legal disability or situation that makes the contract unconscionable. This isn’t an uncommon tactic, and it’s used a lot when you live and practice in an area with a high immigrant population. It happens so often that I call it a “pity plea,” the Hail Mary that gets used when you’re out of real defenses.
But, see above: Clients are fucking liars.
Alright, before I continue this let me give you a quick caveat. In case you aren’t aware, a good portion of pleading and motion practice is to frame the case in the way you want the court to view it. So, sometimes, we toss in stuff like that because it starts to paint the picture and subtly direct the court towards how you want the matter to be framed. It should not be “a dispute between two long-established businesses,” but rather “this big company against this poor little immigrant.” The case shouldn’t be “a simple case of contractual obligations,” but rather a case where “a national, multi-million dollar company is bringing its full weight down on an honest, locally owned small business.” So much of how your case proceeds depends on how you frame it up at the start, so this is important.
So it never surprises me when I get a pleading or a brief from some opposing counsel, normally older than my father, who used this time-honored tactic of framing the facts. Nine times out of ten, it’s based on things his client has told him, and, as we’re really just better dressed hype men for our clients, Attorney Elder places the information in his brief or pleading. While the statement may not hold up under a deposition, that’s a “down the road” concern, and by that time the judge has already seen how you want to present the case. Attorney Elder, used to the time-honored practice of “repeating the client’s bullshit,” then files his pleading or brief and serves it on opposing counsel.
Which in this day and age is a big fucking mistake, because, first, clients lie, and second, lying clients use social media. Third, I’m the sort of asshole who, when you present your client as a “poor immigrant,” I will definitely locate their social media. Once I locate your client’s social media accounts, I will fucking destroy your credibility and make both you and your client look like fucking liars.
For example, there’s the guy who stated his client was “on the verge of bankruptcy and left destitute by a divorce.” I may have attached his client’s Instagram pictures showing her with the brand new horse she bought two days after that pleading was filed in my response.
There’s the “immigrant whose first language wasn’t English.” I may have attached her LinkedIn profile, which stated she had a bachelor’s degree and a Masters from an Ivy League institution. And her high school social media accounts showing that she “immigrated” at the age of three.
There’s the dude who openly tweeted about defrauding the car dealership when his case was that they “took advantage of his inexperience and lack of education” in selling him the car without verifying his income. Those tweets got blown up and marked as exhibits in my response.
Each of those cases resulted in the attorney, and the client, losing credibility with the court. More importantly, though, they lost credibility with me. If you think during settlement I didn’t bring up a lack of trust because of the “provably misleading way in which the case was presented” to the court, you’re crazy. I would use that as leverage to get certain guaranties signed, or an agreement to a Confessed Judgment, or a waiver of actual fucking claims, and it would work because once you’ve exposed a misleading representation, you have the moral high ground.
Now, let me be clear again, I’m not dinging lawyers for presenting their case through the lense most favorable to their clients. That’s our job, goddammit.
What I’m dinging lawyers for is trusting their fucking clients to not be complete retards online.
See, in this new information age the people that are most likely to come to you with legal trouble are also the people most likely to Facebook, Tweet, Instagram, or advise LinkedIn of everything that happens in their lives. Yet many older attorneys don’t bother googling their own clients to see what’s out there to be discovered. A lot of lawyers have no idea how much information is available on the internet for opposing counsel to find if they have half a brain, and so they don’t look, they simply plead. That’s dangerous, because the new generation of attorneys are aware of how much information people willingly stick up online with no content restrictions.
Shit, prosecutors devote actual fucking time to combing through a defendant’s Facebook and that of their family and friends just looking at the public posts because people post shit they shouldn’t. Still, out of the criminal arena many civil lawyers just…haven’t…grasped the fact that their clients are posting potentially damaging information.
Also, as the availability of information changes, you may have a personal stake in reasonably investigating a claim. Almost every jurisdiction allows an attorney to be sued for bringing a case they know, or should have known, was not tenable. I know, from personal experience, that a failure to locate easily available information that would be discovered in a reasonable inquiry prior to taking the case can be used to make you liable:
Years ago my father took on a case. He took it on as a favor for the estate of a lawyer he knew that had died. I was assisting him in getting some documents together, and in the process I searched for the client’s name. It turns out the client was a notorious fraudster with multiple SEC issues. I reported this to Dad, who dropped the client faster than a hot coal. Another attorney picked the case up and didn’t do this. That attorney ended up getting sued by the opposing party, and had to pay out, because the proof was online that the claim wasn’t tenable, and he could have located it with a simple search.
So what can you do? Well, you should vet your client’s social media accounts. Google your client, search for them on Facebook, look up their LinkedIn. Have this information and a working knowledge of what they’ve posted, because if opposing counsel is tech-savvy at all (and believe me, that’s an assumption in the world of Luddite Law), they will find it. Do not blindly trust a client’s presentation, verify there’s nothing out there which directly contradicts that information before you plead.
If you don’t some asshole like me will find it, and will use it to paint you and your client as dishonest and duplicitous. We will turn it into a liability. “The Defendant, in begging this Honorable Court to forgive their blatant disregard for the law, has revealed a blatant disregard for the truth” is a line I’ve typed in many, many documents now.
Plus, you have to assume that if it exists out there, the opposing party will find it. It’s just good practice to use Google and social media posts to assess the value of your case and the credibility of your claim, and to question your client on those posts, because your opposing counsel definitely will do so.
People are idiots and clients are liars, and at the end of the day it’s your reputation that’s on the line, not that of the lying shitbird who has retained you. Don’t burn it up. Vet your clients online life.