Welcome to another beautiful week here in the wide world of litigation and small firm chicanery. I’m the Boozy Barrister, your guide through the minor hell that is the day-to-day practice of law in the real world, and this is Lawyers & Liquor, the internet’s equivalent of an overflowing septic tank of cynicism and legal ramblings.
You know what I hate? You know what really gets under my fucking skin and makes me see red, white and blue (because even my fuckin’ anger is patriotic as shit)? Those goddamn letters that you get from opposing counsel in a case where they spend the whole goddamn time posturing and pissing on you, blowing themselves up more often than a remedial school for suicide bombers. These letters are the legal equivalent of two pussywillow thin frat boys standing on opposite sides of a room and screaming “Come at me bro” while not struggling very goddamn hard to get out of the grips of Teddy and Chugs (named for his particular skill) because goddamn if that happened there may be a real fight. It’s a lot of chest-pounding with little to no payoff and they are goddamn ridiculous pieces of a puffery that every lawyer sees right through.
At the end of almost everyone of those goddamn letters is a magical term called “CC: Client” and it might as well say “Hey attorney on the other side, ignore all that shit I just sent you in this asswipe of a demand. Seriously, ignore all of it. Absolutely none of it matters, because I don’t really mean any of it. When you call we’re gonna laugh and talk to each other like two reasonable professionals, but I have to send this fucking letter in this manner because otherwise my client will think they aren’t getting their money’s worth and, you know, I sold myself as some sort of tenacious pitbull in my mid-afternoon television commercial between Elderly Female Judge Yells At Stupid People and Overweight Bald But Attractive-to-Grandma Male Judge Is Paternal to People on the CW.”
Years ago when I was doing legal aid shit, there was a custody case that came into the office I was working at. Of course, being the young and idealistic dipshit that I was, I said “Gee, a custody case where one party doesn’t have to pay for an attorney! This will be simple!” So it was with great trepidation the office staff dropped an envelope that was, fairly, burst out of its envelope on my desk one day, and with some confusion that I opened the glue-sealed strip licked by some secretary that made more than I did and could likely afford real food. I may have sniffed the glue as I withdrew what could best be described as a fifteen page manifesto on high quality paper and with some fear that I started to read it.
It was, quite possibly, the most fucking aggressive letter I had ever read, filled with frightening legal precedent properly Bluebooked instead of the typical citations to “that one case from 1913, you know, the one with the guy who dribbled a baby like a basketball and was judged to be a fit parent” and shit. The attorney on the other side threatened to do everything but take my client out behind a woodshed and beat them with a cord of firewood, and they certainly reserved the right to do so.
So it was natural that I would take it, in a veritable panic, to my supervising attorney. Being a veteran of the many custody battles for the indigent, she reviewed it and offered sage advice.
“What, this?” she asked as she flipped through the letter without reading a word, “Don’t fucking worry about this shit.”
“But surely they wouldn’t send a letter of this high caliber and have it licked by someone whose breath doesn’t smell of hot dog water NOT THAT I LICKED THE ENVELOPE TO GET A TASTE OF SOMETHING OTHER THAN OSCAR MAYER IN MY MOUTH OR ANYTHING if they didn’t think they could back this up!”
My supervising attorney leaned across the desk, flipping to the last page, and pointed to a line below the signature.
“They sent it to their client. This is all bullshit to earn their fee. Stop being a little bitch,” she explained as she shoved me out of her office and slammed the door behind her.
It’s All Tactics.
And you know, that’s the goddamn truth. In letters that go to the client there is a type of lawyer (who I have joined the ranks of) that becomes very aggressive no matter how reasonable they are when the client isn’t around. And it’s for the exact reason I gave above – because lawyers love to show off for their clients.
You know the letters I’m talking about, the one where you know the attorney writing it chucked out the regular thesaurus and went for the one that had 17 pages dedicated to polite ways to call someone a scum-sucking piece of uneducated shit. They range from one page of succinct, smartass paragraphs where you can read the goddamn smirk of the bastard on the paper and hear the wheedling, bullshit, bloviating, Trumpesque boasting ringing in your head as you work your way through it all the way to four or five pages of “you forget to consider” and “advise your client accordingly” bullshit. And at the end of the day, when we write them, we fucking know they don’t matter at all. Nobody expects opposing counsel to get one of these letters and say “Oh hell, looks like somebody bought old Tommy Dipshit at Law an outdated Nutshell on Torts, better withdraw our claim and refund the balance of the retainer!” So why, for the love of fuck and everything holy, do we keep sending these letters that in legal terms brag about the size, girth, and attractiveness of our metaphorical genitalia?
Clients Want To See You Stick Up For Them.
Any lawyer on the face of the earth can tell you that a most cases where the parties hate each other never get remotely close to a courtroom. The majority of those matters are handled in phone calls, letters, and emails between two lawyers that don’t really hate each other that much and instead know that the job requires them to give the appearance of hating each other. It can get fucking awkward, especially when you and opposing counsel do not hate each other at all! You probably even like each other a little bit, in that special way that lawyers like anyone who understands the sorrows of the profession.
Clients assume that all lawyers hate each other when they’re on separate sides of the case, or at least that we should, and don’t tend to accept that their case is one of dozens we’ve handled with each other and we’re mostly capable of compartmentalizing the ill-will of the courtroom away from our personal and professional relationships with each other. To overcome this corruption by collegiality, we send out these sorts of bombastic letters regularly that call the other attorney, and their clients, everything short of Hitler. We posture and preen, and generally cite irrelevant or arguable law, so that the client can see we’re totally not friends or associates and instead absolutely hate each other and look, the proof is right there in that letter we copied you on! For the most part, this means the client is satisfied when, down the road, we actually appear collegial to each other in public or in negotiations, because the bar has been set that we really hate this guy in particular.
It’s a way to build trust by calling the other lawyer an asshole right off the bat.
We All Know The Truth, Though.
I mean, sometimes we really do fucking hate each other. I know a couple attorneys that I absolutely despise and the feeling is entirely mutual on their end. In those cases we take this opportunity to tweak each others noses and act like schoolyard rivals because goddamn is it fun to have a good reason to imply opposing counsel may enjoy fornicating with dead mules and shit. But for the most part? The phrase “CC: Client” is actually an indication that the attorney receiving the missive from hell shouldn’t really take any of it to heart. It’s an indicator that the letter is written more for the benefit of the client than the case, and a way for us to get on the phone and say the magic phrase:
“Look, I copied my client on that letter. So now let’s really talk.”
There are risks, though.
Remember up at the beginning when I said I hate those letters? There’s a reason for that, despite the attorney understanding that they’re nothing but bullshit and bombast. The primary reason? Sometimes the other guy is totally serious and it can be hard as fuck to tell those situations from other ones. If you run into an attorney who truly believes everything in the client-copied letter, you run the risk of assuming they’re following the time honored traditions of litigious chest-beating and posturing and then running into the obstinate denial of even an inch of common ground. And that shit is frustrating as hell.
On the same token, going into the case and first communications that aren’t letters with opposing counsel assuming they’re dead serious about you being a Satan worshipping cult member is dangerous. Because if they’re expecting you to be all “Hale and well met good fellow” about it and you instead threaten to burn down their house with their families trapped inside as retribution, shit gets awkward (and sanctionable) real fucking fast. So you can’t take them at face value when the client is cc’d on the bottom, but you may need to take them at face value, and you won’t know if your expectations are going to be dashed like those of the guy who’s been “such a good friend for so long and now she’s single!” until afterwards!
So what can you do?
Go By The Next Communication.
Litigation is poker. That’s just how it is. It’s a game of poker played by toddlers in nice suits or, alternatively, by dead eyed pros that give nothing away – and you never know who you’re dealing with until you’re actually dealing with them directly. So how do you determine if the letter is bullshit? How do you know what step to take next? How do you know if you need to be threatening nuclear war or laughing at their attempts to assure a client that we “totally hate each other?”
Well, we’ll talk about that next time in a piece on Assessing Opposing Counsel: Drunk Toddler or Card Shark.