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Billing A Young Lawyer's Tale of Greed, Sex, Lies, and the Pursuit of a Swivel Chair Cameron Stracher New York, William Morrow and Company, Inc., 1998 reprinted by permission of the author Discovery Another day, a new case. I review the twenty-two-page Request for Production of Documents that Charlie has handed me. It appears to be a command from a plaintiff in an antitrust and racketeering lawsuit to produce seventy-eight categories of documents relating to its claim that our client has conspired to artificially inflate the prices of automotive parts. Charlie explains that the plaintiff is an auto- maker that believes our client secretly agreed with other manufac- turers of auto parts--its competitors--to raise prices for the parts in violation of the laws meant to foster open competition. "Fifty million door handles," Charlie continues. "Let them figure it out." I nod encouragingly. Perhaps if they figure it out I won't have to. "When can you go to Detroit?" "Detroit?" I ask dazedly, an animal blinded by headlights. He flips through a calendar on his crowded and disheveled desk. "Thursday? I'm free on Thursday." The traffic will not stop; it rushes right past me, thundering in my ears like cascading water. Am I going to Detroit with Charlie? Squeezed in next to him on an airplane? Thin and airless conver- sation at thirty thousand feet? "You won't have to spend the weekend," he assures me. "We'll scope it out. Two days, max. You can bring a paralegal back, if you need one." The plot thickens like a B-grade horror movie. Two of us are going, but only one of us is coming back. They will find my body beneath a mountain of door handles. Another associate lost in the wild reaches west of the Hudson. Charlie buzzes his secretary and arranges for two tickets to De- troit, a rental car, and a hotel. Separate rooms, he reminds her. I laugh nervously, avoiding his eyes. I don't want to learn too much about him. "It's a pit, Detroit," he says. "And the client's a jerk." "Sounds like fun," I joke. He looks at me as if I've just praised National Socialism. "Fun?" he repeats. Could I be that starved for amusement? Perhaps they need to give me more work. Or maybe less work and more mileage. "I remember when I thought traveling was fun," he says without humor. And darkness was upon the earth. "Detroit," I say to Julia. "At least it's not Des Moines," she says, and she should know. "Don't knock Iowa," says Tom to his wife. "My wife is from Iowa." "No, I'm not." Julia says. "Not that Iowa, anyway. I'm from Iowa City. The People's Republic." "I thought Cambridge was the People's Republic," says Kate. "It's the same joke for every college town," Tom reassures her. I signal the bartender and order another round of drinks. We are downtown, a happy foursome, while the river, dark and poisonous, coils blackly a hundred feet away. The bartender sports a veritable chain-link fence along one ear; a metal ball glints in his tongue. He delivers my drink with a sneer at my tie. It's not one of my favorites. "I don't know why I feel so lousy," I say, suddenly feeling lousy. "Detroit," Julia says succinctly. I'm about to protest, to tell her I don't mind a trip, there are worse things than leaving the office for a week, when I understand the metaphor: Detroit, not as city, but as state of mind. Detroit as the place I will return to over and over again in my legal career. Detroit as an option foreclosed. "Next time they'll send you to San Francisco," she says. "You'll be much happier." Julia is one of my closest friends but she couldn't construct a metaphor with the teacher's manual. For her, San Francisco is, lit- erally, heaven; Des Moines, hell; Detroit, somewhere in between. American cities range across a topography of distinction. For me, the entire country is one big plain on which to practice law. "Do you like your job?" I ask Julia. "Sure. Sometimes. Don't you?" "I'm not sure," I say. Long days, late nights, my labors chewed up arid spit out by senior associates without comment. It's an ap- prenticeship, to be sure, but so far no one's taken much time to teach me anything. The work I've done feels superfluous: databases that aren't used, research memos that disappear into someone's file drawer, briefs that are reconstructed from whole cloth. Hard work is one thing, make-work an entirely different matter. "Maybe I'm not cut out for full employment," I say. Tom laughs. He has smoker's teeth, though he doesn't smoke; thinning, wispy hair; and a drinker's belly. He is also the only person I know on whom these flaws combine attractively. It helps that he's tall, with strong features; but mostly, I think, it's because his physical imperfections grace him with the body of someone who laughs a lot and lives lavishly, which he does. He's the perfect antidote to Julia's caution. "Who wants to work?" he asks. "Julia does," I say. "You do. So does Kate." "I hate my job," Kate protests. "Kat, you love it," I remind her. "They call me an editorial assistant so they can pay me half of what they pay the secretaries. They think I'm too dumb to notice." "The only reason I became a journalist is I was too lazy to go to law school," says Tom. "That's not true," says Julia, rushing to her husband's defense. "I signed up for the LSATs and overslept." "But now you work all the time," I say. "See what a stupid decision I made," says Tom. "All my roommates went to law school," says Kate. "I'm the only one without a real career." "Publishing is a career," I say. "Publishing is dead. Don't you know that? No one reads anymore. They just buy the movie rights. We're the minor leagues for Holly- wood studios." "And all the studios are run by lawyers who hated practicing law," Tom adds. A sobering silence creeps over the table. "I'm sorry I started this," I say. "Is anybody happy?" "Julia," says Tom. As one we turn to Julia, her pale face like an echo in the darkened room. "It's not a crime," she says. "You're old-fashioned," says Tom with the confidence of long acquaintance. "You think people should work for a living. "I like learning a client s dusmess, Julia says. I like the respon- sibility. I like solving problems." She takes a long sip from her Tan- queray and tonic, then turns to me. "Isn't that what it's all about?" I tell her about the hours spent preparing the database that was never used, researching case law for invisible memoranda, writing a motion that became fodder for a senior associate. "You can't worry about that stuff," she says, waving a lime wedge. "They're paying you to do it. Somebody thinks it's worthwhile." "But what if it isn't?" Julia sets down her drink. This is serious business. I have called her legal being into question. She will not allow herself an existential crisis. v"You represent a client," she begins. "The client has been sued. If you think the suit is frivolous you can't choose not to defend it. Blame the people who brought the lawsuit, or blame the system. But the client needs your help. That's your job." I have had too much to drink. We all have. Julia's patriotic stir- rings only make me feel morose. Once upon a time she shared a healthy cynicism for big firms. Get their name on your resume, she advised, then take the money and run when you have to. Now she sounds like roots are growing where her feet once were. "You have an ethical obligation to represent that client zealously," she continues. "If you don't, you can bet your adversary will. Your client wants to win. That's the bottom line. Can you look your client in the eye and tell him you did everything you could to win?" "Even if you've destroyed the rain forest?" Tom asks. "What is the rain forest? Have you ever seen it? The lawyers on the other side would mow it down to get to you." It's late. I'm tired. I lack the energy to debate ethics and the proper allocation of resources with Julia. The world is a finite place with a limited amount of time for zealousness. Scientists have yet to discover a cure. "Damn the rain forest," Tom agrees. "Let's drink." Kate says she's already drunk. "Somebody should take advantage of me," she adds. "That's what makes America great," says Tom. "Everyone gets screwed." "Please, save the conspiracy theories for your newspaper bud- dies," Julia says. "You'll see," says Tom, waving a finger at me. "You become one of them or they kill you." "Thanks, Tom," I say. "You're cut off," says Julia. She signals the bartender for our check. Tom protests, but Julia has spoken, and he accepts his fate like a man used to accommodating someone else's schedule. We pay our tab. Tom leaves an extravagant tip. The bartender sweeps the loot into a can with the back of a tattooed hand. He does not look at us. The night air off the Hudson is heavy with the smell of rotting piers and dead fish. Two men in leather chaps breeze past. Julia hugs me while Tom hugs Kate. Then Julia hugs Kate while I hug Tom. We promise to call. We hardly see enough of each other. A ball's arc across the park and yet we practically live in different cities. We wave good-bye as the lights of their cab blink off into the dis- tance. Kate and I shuffle up the avenue past the tavern where, Kate points out, Dylan Thomas drank himself to death. Scott Turow's shadow looms over any account of Harvard Law School. His book One L has served two decades of law students, not just at Harvard, as a bible of the first-year law school experience. It's time to read another book. It's not that Turow's report from the front lines is inaccurate, but his observations are dated by a generation. The law students I met at Harvard were a much more ambivalent and cynical bunch than Turow's contemporaries. Turow expressed few misgivings about the wisdom of a career in law. To him, the question was not why go to law school (although in the depths of finals he allowed himself some small rumblings), but how to get through it. His book reads like the notes of a hardy, plucky survivor, a boot-camp memoir. Today, law students have nothing but doubts: about the nobility of their chosen profession, about their interest in it, and about its interest in them. It's no coincidence that so many law students want to write screen- plays or legal thrillers: anything but practice law. Many of them see law as a good background for a career in the entertainment industry; others hope the background will provide a foreground for something else. Few are capitalists. Fewer still are idealists. Almost none want to change the world. Keep your options open, my parents said. Keep your options open, the career counseling center said. Keep your options open, we told each other. Can you open a door without stepping through it? Once you've stepped through, can you really go back? Though I know lawyers who., finally living out their college fantasies, became Broadway lyricists, screenwriters, television producers, writers, and poets, they didn't go through the door so much as sidestep it. Law was an expensive detour through which they traveled to reach their happy resting place. They could have, and probably should have, avoided law school entirely. As one of them put it, she was meant to have a lawyer, not be one. But they were the exceptions. Most of my classmates, once they went through that door, found it was im- possible to turn around. For three years I ignored my own doubts. I fit so snugly into an academic routine that I barely breathed. Classes, papers, exams, va- cation. Most of my life had been a variation on these themes. Why shouldn't I find comfort in the familiar? Law school was a breezy reincarnation of everything that had come before it, with fewer tests and larger classes where one could dive into anonymity. There was little of the terror described by Tu- row, and certainly nothing like that fictionalized by John Osborn in The Paper Chase. Professors were, for the most part, liberal (more liberal, even, than their students) and, with one or two exceptions, benevolent and easygoing. Even the professors who tried to frighten us, like the Contracts professor who targeted Julia the first day of class, did so more out of obligation, as if they had read the book and were trying to play the part. We soon saw through their terrorist act. By the middle of the second year, when most of us had jobs lined up for the summer, class attendance dropped dramatically, stu- dents avoided the seating chart by "back-benching" it, and profes- sors pleaded with us to do the reading. During my last year in law school, I spent Wednesday nights with a revolving group of friends, including Julia and Tom if he was around, whirling through the carousel of Boston's nightlife to cele- brate the "hump" of the week, 'We partied like high school seniors whose final grades had been submitted and college acceptance letters safely tucked in a desk drawer. Julia, her pale hair cut in an asym- metrical bob, drank without a curfew or a cutoff. Tom, after several rounds, might be cajoled into dancing, shuffling awkwardly to an off-key bar band. I slept through so many Thursday morning classes I should have received a tuition rebate. We were young. The law was benevolent and pure. We didn't know how our lives would turn out, yet we were sure only good things would happen. But sometimes, at the end of the night, as I struggled with my blankets and the sounds of Cambridge street life, the thin notes of doubt would drift into my bed. Three more years of school and I was no closer to discovering whether there was water at the bottom of my leap into law. Soon I would be a lawyer, and though I had very little idea of what that involved, I knew it meant the end of a certain kind of freedom and the luxury of an academic life. Playing lawyer during the summer was fun, but I could only guess what the winter would bring. Give it a chance, I heard my parents say, but the nagging notes remained. I remembered the first days of law school as I struggled to find my classes, to understand the assignments, to overcome my intimi- dation by people like Julia who seemed to have a better grip on the fundamentals. But by Christmas the unfamiliar had become routine, certainly manageable, entertaining at times. And by the end of three years I was tired of comfort and ready for change. Tired of a lifetime spent in school. The working world beckoned, financial indepen- dence, a new profession, a regular paycheck, growing up. I would never know until I tried. We fly coach. Charlie is upset. He always flies business class, but on this short hop to Detroit coach is the only option. He thumbs angrily through the in-flight magazine while I try to read the newspaper. I offer him a section, but he shrugs it off. At thirty thousand feet he calls his secretary on the airphone to check for messages. Apparently, there are none, because he returns to the advertisements for travel luggage and portable computers. I lay the business section on the empty seat between us like an invitation. When we checked in, the travel agent had booked us two adjacent seats. Fortunately, the plane was half empty, sparing me the horror of wedging myself next to Charlie's body. Now the empty seat yawns awkwardly, a reminder that though we are colleagues, we are not friends. Charlie picks up the newspaper and flips through the market news. "TriCom's up a quarter," he notes. I noticed. Though the TriCom securities case had entered a quiet phase following the loss of our motion to dismiss, the case still lurked omnipresently. The plaintiffs' lawyers were, no doubt, gearing up for the next phase of the litigation. Yet if the company's software really were flawed, it was interesting that the stock could still rise. Some- body was making money. "A sucker's born every minute," says Charlie. "You think it's a scam?" I ask naively. "They're clients," he warns. "Maybe we should settle." Charlie looks disdainfully at me. His lip curls and the dried patches of skin along his nose turn white. He explains you can't toss in the towel every time your client gets sued, even if they've done something wrong, which he's not admitting TriCom did. You have to push the parameters, discover the scope of the wrongdoing, let the system determine the appropriate punishment. "Criminal lawyers never ask their clients if they're guilty," I offer, one of the few things I remember from my criminal law class. "Exactly," says Charlie. "That's not your job." In a civil lawsuit, he adds, liability is rarely clear. Settlement may be in the client's best interest, but it may also expose the client to more lawsuits. Until you've examined the strength of your case through litigation, and the weakness in theirs, you can't recommend an appropriate settle- ment. Though I nod my head in earnest agreement, I wonder if it's just a happy coincidence that we're earning six figures while allowing justice to take its long and twisted course. Perhaps if you're going to be a pawn, it's better to be an expensive one. Charlie returns to the paper, signaling the end to our conversation. I am content to stretch my legs into the aisle, count the frequent- flier miles. My first trip on C & C's dime--or, rather, the client's dime. I'm happy, also, to be out of the office and away from the endless stream of research memoranda. I am meeting a client, a real, live, actual client, a privilege more frequently reserved for partners and senior associates. I am gathering facts like a collector of trinkets. When I am finished, I will carry them home for the paralegals to display on the shelves. Detroit is not a metaphor, I think; it's a real city and I am going to it. I close my eyes and enjoy the ride. Our client is not in Detroit, but in one of the sprawling suburbs that ring the city. You could drive for miles and never actually meet a person. The entire country spreads toward Los Angeles while Los Angeles itself falls into the sea. Maybe we are already in Los Angeles. But for the weather, who could tell? Charlie refuses directions, as a result of which I get to see a wide swath of this great land of ours. Strip malls and corporate parks. Apartment complexes and multiplexes. Finally, we arrive at Dekor Industries headquarters. Charlie is in a foul mood when we pull up to the bronzed-windowed building with the phallic logo and stern guard in a booth by the gate. The guard takes forever phoning whomever he needs to phone, and when he finally clears us, Charlie is prepared to admit liability on behalf of Dekor, turn around, and go home. We park in the visitors' lot, not a single foreign-made car in sight. As we walk to the entrance, I catch our reflection in the bronzed windows. We are dressed in nearly identical gray suits, white shirts, and red ties, and carry black briefcases. Though Charlie's suit is pinstriped and rear-vented, and mine is a ventless Italian cut, I re- alize that few people would make a distinction. To the world at large, we are lawyers. We might as well be wearing uniforms with our names stenciled on the front and Crowley & Cavanaugh printed on the back. We Defend. We sign in at the reception desk, where another guard scrutinizes our handwriting to determine whether we are labor agitators. When he's satisifed that we are, instead, management tools, he issues us visitors' badges with our names misspelled and barely legible. There is some kind of metal sensor embedded at the top of the card. I imagine myself, like Karen Silkwood, setting off a radiation detector as I try to leave the building and being forced into a scalding shower where the skin is rubbed from my body. Later I will be trailed by a mysterious car and forced from the road off a steep incline, my body burned beyond recognition. A perky woman in a red suit greets us as we start down a gray corridor. Call her Carrie, she says, as if that were her name. She explains that she is Hamilton Williams's assistant, the man we've come to see, the general counsel and executive vice president. She keeps up a steady chatter as we walk up a flight of stairs and out onto a carpeted hallway. Did we have a good trip? Did we have any trouble at the airport? Do we love Michigan? The walls are lined with posters that urge employees to join the Team, Stay with the Ball, Focus on the Goal. "Coffee, tea, pop?" asks Carrie when she has delivered us into Mr. Williams's waiting room. It takes me a second to realize she's offering us soda, not marijuana. These days, I think, anything is possible. Though it's not yet noon, Charlie asks for a Coke. I choose the mud-flavored coffee. "Charles!" booms Hamilton Williams, I presume, a ruddy man in a steak-colored suit. He strides out of his office like a cavalry officer and pumps Charlie's arm as if mining for water. Charlie smiles weakly, clearly overwhelmed by Williams's enthusiasm. I stand awk- wardly beside Charlie, waiting for him to introduce me. "Hamilton Williams!" says Hamilton Williams, extending one quarrying hand to me. "Hello, Mr. Williams," I say as I vibrate from his handshake. "Ham, please," he says. I'll be damned if I call anybody "Ham," but I nod my head as if acknowledging the reasonableness of his request. Hamilton corrals us into his office. It's the biggest office I've ever seen. If you tossed a football at the opposite wall you could barely reach it. A line of windows opens onto a view of an enormous tin- roofed warehouse. Golf trophies bedeck the counter beneath the windows. Photographs of blond children so perfect that I suspect he's purchased them ring his nearly empty bookshelves. Charlie and I sit on a love seat while Hamilton pulls up a chair. He wants to know about New York, C & C, Eric, everything but the case. We chat for about ten minutes until Carrie interrupts him for a phone call. Charlie and I wait awkwardly as he conducts some transaction. Then he apologizes, returns to his chair, and resumes the conversation. After another five minutes Carrie interrupts again, and again he has another extended phone conversation. Each con- versation is polite, jocular, but clearly business. Americans making deals. Each time he returns to his chair, he apologizes and picks up the thread of our conversation exactly where he left off. In this way, we spend our morning in Hamilton Williams's office, sitting on the love seat, listening to his phone transactions, resuming our conver- sation, until it is time for lunch. Carrie has made reservations in the executive dining room. But when we arrive only one other table is occupied and I wonder why she bothered. A headwaiter directs us to our seats while a busboy quickly pours water. The lunchroom is wood paneled and serene, with watercolors of ducks, geese, and other assorted fowl on the walls. The tables are solid oak, the chairs so heavy I can barely budge mine. Despite the atmosphere, Hamilton does not order a martini; he orders a diet Coke. Charlie orders a regular Coke. I consider completing the holy triumvirate of Coca-Cola products by ordering a cherry Coke, but think better of it and stick with water. We are well into dessert, a frothy concoction that purports to be tiramisu, when the subject of our trip is finally broached. And even then the discussion is waylaid by rounds of hearty handshakes from a trio of executives who enter the dining room just as Charlie clears his throat. They are vice presidents from some division or other, gray men in gray suits, who, when they hear we are lawyers, make the sign of the cross. "I didn't do it," says one. "He did it," says another. Charlie fakes a tense laugh, and I smile as if my face were painted with quick-drying glue. "What do you call a thousand lawyers at the bottom of the ocean?" asks the third, emboldened by his colleagues' riotous sense of humor. We shrug, though I've heard the joke before. "A good start," he concludes. More backslapping and hand-pumping ensues until the men fi- nally snort off to their table. "He didn't mean it," says Hamilton solicitously. "No one does," says Charlie. "A smile is your best defense," Hamilton opines. Charlie slips the document request out of the thick Redweld he's been clutching as if it contained the nuclear codes and lays the re- quest on the table. Hamilton glances at the table of vice presidents and motions for Charlie to keep his voice down. "We're all a little sensitive about this," he explains. Charlie says we don't intend to get into the merits of the allega- tions, or the defense of the case. Right now we're just gathering documents. "Let's go back to my office," says Hamilton. Charlie grimaces at me, his first visible sign of frustration. I wrap a cookie in a napkin and sneak it into my pocket. Though I under- stand Charlie's frustration, this is still more fun than sitting in the library. And it's all billable. When we've safely returned to our love seat, Hamilton invites Carrie into his office so Charlie can explain the nature of our quest. Hamilton hasn't been ``focused," he explains; he's had so many other tasks. Carrie, however, has done a preliminary search for documents and she can point us in the right direction. As he speaks, his eyes drift toward the window and at the enormous warehouse beyond. Charlie withdraws the document request from his Redweld again and begins to describe the broad categories of documents the plain- tiffs have requested. Carrie pulls out her own version, a copy Charlie faxed Hamilton several weeks ago, that has been highlighted and tabbed. She nods along with Charlie's descriptions. Charlie explains that for now we're gathering everything vaguely responsive. Later we'll make a determination as to what, exactly, should be turned over and what should be objected to. Essentially, we want to copy every document that has anything to do with eight different auto parts: contracts, invoices, sales agreements, correspon- dence, everything. These are the documents the plaintiff hopes will prove its case that Dekor secretly agreed with its competitors to raise prices of auto parts to an artificially high level. After about four minutes, Hamilton claps his hands once and turns to Carrie. "If you need anything," he says, either to Carrie or to us, it's hard to tell, "give a holler." Charlie looks stricken, as if he has been cut down in his prime. I understand that we are being dismissed, but where to and in what direction, no one says. "I hope you brought your T-shirts," says Carrie. "It's hotter than a piston in that warehouse." At Crowley & Cavanaugh it was common practice to bill a client for travel time. When I went to Detroit my "clock" started running the minute I left my apartment. Thus, even though I did not arrive in Hamilton Williams's office until 10:30, I had already billed four hours on the case. While some clients did not pay for travel time, most did, and in fact C & C expected it as a cost of doing business. C & C also expected the client to pay for business-class travel on flights longer than five hours. Though clients have become more cost-conscious and the market for law firms more competitive, C & C still managed to dictate most terms of its retainer agree- ment. Sometimes C & C would agree to a ten percent discount, or a capped fee, but those situations were unusual. Because of its rep- utation, C & C could still afford a certain arrogance. From an associate's perspective, billing for travel is a freebie; not billing for travel, a calamity. If you can bill for travel time, then everything you do, even if it's only reading the newspaper on the airplane, is chargeable to the client. When I went to Detroit, I billed twelve hours that first day, but only eight of those hours were real work. If you can't bill for travel, then all your time in a taxi, in traffic, at the airport, on a plane, in transit to your destination is wasted. Instead of billing twelve hours for an eight-hour day, you bill eight hours for a twelve-hour day. Imagine your unhappiness. C & C also billed for lunch and all casual conversation with a client. After all, who should pay for my time if Hamilton Williams decided to chat my ear off in the executive dining room? Should C & C provide Hamilton with a free escort service? Should I have to work late one Friday night in order to make up the lost hours? I was evaluating what kind of witness Hamilton would make if the case went to trial, I told myself as I filled out my time sheet. Ham- ilton had only himself to blame for the bill. Thus, my twelve-hour day in Detroit was really a four-hour day, discounting travel, meals, inane conversation. Four hours in which Charlie and I roamed the aisles in a gigantic overheated warehouse searching for documents. Four hours that felt like twelve. Four hours that could have been twelve but, mercifully, were not. That's why I loved travel: the hours were like frequent-flier miles, they accumu- lated while I sat on my ass. There's a treadmill in the hotel health club. Who needs metaphor when the real thing stares you in the eye like a medieval torture instrument? It's too dark to run outside in a strange city where the murder rate makes New York seem like Disneyland. Even in the suburbs children kill each other for sneakers. I would love to exercise, to walk more than fifty feet from the car to an office to a warehouse to a car. Instead, I have to meet Charlie in the lobby for dinner. I check into my room, where I take a hot shower, using all the ablutions left for me on the bathroom sink: soap, shampoo, conditioner, rinse, body bath, hair gel. Then I put the same clothes back on: same underwear, socks, shirt, suit, and tie, as if I never wore anything else. I shine my shoes with the shoe-mitt hanging in the closet. It is still early, so I take a minute to poke through the pamphlets left near my bedside. Visit Detroit. Excur- sions on the Lake. White Flight from the Urban Core. I am happy in this hotel room: large and luxurious, with a separate alcove con- taining a desk, chairs, fax machine, and two telephones. Everything a lawyer could want for an extended visit. I leave all the lights burn- ing and head downstairs. Charlie reads a magazine in the fern-and-wood-chip lobby. He has gotten directions to one of the suburb's finest dining establishments. We retrieve the rental car from an underground attendant and drive silently past buildings with numbers in the tens of thousands. Have we traveled that far from the center or are the addresses an illusion of distance, two zeros added for comfort? We pull into a shopping mall. The usual stores greet us. The bland homogeneity of America like pasteurization: a forced removal of for- eign objects. The restaurant turns out to have been recently reviewed by The New York Times, which makes Charlie happy, and he spends a good twenty minutes scrutinizing the menu before settling back to order dinner and a Coke, his sixth or eighth of the day. Sitting there, listening to Charlie praise the food and criticize Hamilton Williams, I wish I were eating a sandwich in my hotel bed rather than making forced conversation with a co-worker. The thought of room service, an old movie on television, a drink from the mini-bar, telephone calls to long-distant friends, seems much more appealing than the finest dining experience the Detroit suburbs have to offer. Who is this man? I wonder. Why are we forced to socialize? We break bread, raise our glasses, and I don't even like him. I share the large majority of my meals with strangers, a charter member of C & C's breakfast, lunch, and dinner club. Charlie's face is flushed. He speaks about law like a man enrap- tured. He tells me his theory of this case, how the laws against rack- eteering are being perverted by civil plaintiffs seeking treble damages. There's a difference between organized-crime activity and price-fixing, he insists. Besides, sharing information about prices is smart business, not an antitrust violation. I wonder if he has read a book, seen a movie, listened to any good music lately. Is he as un- happy to be with me as I am with him? What if we dispensed with the facade and admitted we'd rather eat takeout alone in our rooms? You're a bore, I'd say, and you're nasty; I don't give a shit about your stupid case or your chances of making partner. I'm going back to my room to watch The African Queen. And he'd say, I feel the same way. You're whiny and self-involved; I couldn't care less about your career angst and search for self-fulfillment. Then we'd shake hands and agree that we didn't like each other and that socializing with co-workers was a dumb idea to begin with. In this way the world would become a better place. Under the rules of federal and state procedure, each side in a civil lawsuit is required to turn over information requested by the other side relating to all claims and defenses. The information may consist of documents, or testimony from witnesses, or the bases for certain allegations, or anything else that could "lead to the discovery of admissible evidence." Only on television can lawyers summon a sur- prise witness into the courtroom. In a real trial they would be sanc- tioned for failing to reveal the identity of the witness in the pretrial "discovery" process and the witness would not be permitted to tes- tify. If only it were that simple! Because, as in any system of rules, the rules are merely the parameters around which lawyers may sneak, manipulate, obfuscate, and delay. With the noble sentiment of "lev- eling the playing field" so that no party has an undue informational advantage, the writers of the discovery rules created a multilevel playing field where the information-rich can kick the information- poor in the head and escape unscathed. "Discovery" is anything but. For example, if you represent a Very Large Corporation, and you receive a Request for Production of Documents from a plaintiff suing the corporation for antitrust violations, and the request seeks "all documents relating to pricing agreements," something that could easily lead the plaintiff to admissible evidence if, let's say, those agreements showed that your client shared information about prices with its competitors in order to monopolize a market, you will do everything within the rules to resist the request. First, you will write written objections to the request: Overbroad; Vague; Not reasonably calculated to lead to the discovery of ad- missible evidence; Unduly burdensome. You don't want this plaintiff walking around with copies of your client's sensitive financial information. Second, you will call the attorney for the plaintiff and pretend to be reasonable: your request is too broad, you'll say, what are you really looking for? The plaintiff's lawyer, who is information-poor, will tell you he needs everything; he doesn't want you to make the deter- mination as to what is reasonable. Third, after you've failed to reach any accommodation after a long delay, the plaintiff's attorney will file a motion to compel the production of the documents, which you will oppose. He will accuse you of stonewalling and bad faith; you will accuse him of harassment. The court, after sitting on the motion, will split the baby: some documents for you, some docu- ments for him. Fourth, you will go back to the document request and finely parse the language of the request. What is meant by "pric- ing agreements"? Internal agreements? Intrasubsidiary agreements? Agreements reached with the outside world? The court's first order will always leave you some wiggle room. (You know the documents, after all; the court does not.) You will decide to interpret "pricing agreements" in its narrowest possible sense consistent with the court's ruling and give the plaintiff only those publicly available doc- uments relating to prices charged for finished goods. The plaintiff's attorney, if he's smart enough, will notice your selective omission and will repeat steps two through four above. At some point in this process, the plaintiff will be sold or go into bankruptcy, and the trustee will settle the case for much less than it's worth. Or, an alternative scenario: every pricing agreement can't possibly be admissible evidence (your client makes goods, for example, that the plaintiff never purchased). The plaintiff's attorney requests all agreements anyway, knowing that the burden placed upon your cli- ent in having to track down all agreements, and the uneasiness of turning every pricing agreement over to this plaintiff, are battle points in a struggle for economic survival. The plaintiff is no David, after all, but an industrial Goliath who uses the weapons of litigation to force your client to reduce its prices. The parties will fight the scope of the discovery request in court, until your client, concerned that it will have to reveal its internal financial data, or beleaguered by the cost of fighting, or both, will capitulate and pay the plaintiff a large sum of money to go away. The merits of the case--whether, in fact, your client actually fixed prices in violation of the antitrust laws--will never be resolved. The merits will never even be litigated. Instead, the parties will spend all their time, effort, and dollars litigating the scope and type of infor- mation disclosed in the discovery process. At C & C it would not be an exaggeration to say that eighty percent of all dollars billed on a single case were related to discovery. Hundreds of thousands of dollars to maintain the status quo, to preserve the information-rich at the expense of the information-poor. Thousands of lawyer hours to keep the discovery process as unrevealing as possible. The best minds of a generation thinking of new ways to manipulate, distort, and conceal. Charlie wants to call it a day. "We're getting the lay of the land," he explains as we peer down rows and rows of files in the stadium-sized warehouse. When Carrie delivered us here yesterday, she left us to our own devices. The men whose files we needed had departed the company, been fired, were retired, or resigned in the wake of the price-fixing allegations. Dekor Industries, the good corporate citizen, reported their anticompetitive activity to the proper authorities as soon as it became aware of them, or at least within six months. As a reward, it now suffered the indignity of a civil lawsuit. "There's no sense killing ourselves," Charlie continues. "You can take your time next week." I do not miss his subtle shift in personal pronouns. I stare out across the vast landscape; it could be the Sahara. I'm beginning to miss the library. "You've done document production before," says Charlie, less a question than a proclamation. "Once or twice," I lie. "It's easy," he says. "Bury them with junk, withhold the privileged documents, flag anything that looks dangerous." I remember the one "deal" I worked on last summer, the matter that convinced me to avoid the corporate department and stick with litigation. We had spent the night at the client's offices, proofreading prospectuses and eating M&M's. The associate who brought me along had me review certain documents. "Due diligence," he called it, which I later learned is when a law firm involved in a deal has reviewed corporate documents and found them to be in order. The client was a large insurance company that was buying, or being bought by, I never figured it out, another insurer. I went into a small room where someone had gathered ten boxes of documents, from who or where or why I did not know, with the instruction to flag anything that "looked bad." I saw thousands of pages of gobbledy- gook, insurance and business jargon that meant nothing to me. I was looking for documents that said "steal ten million dollars from share- holders" or "defraud investors." Of course, I found no such docu- ments. I was in a panic for much of the night, thinking I might have missed such a document cleverly disguised in business-ese, until I reassured myself that if my job had any meaning, the corporate as- sociate would not have let a summer associate with no training do it. Or so I hoped. I have a million questions, but each one feels more stupid than the next. Charlie seems to be sneering at me, daring me to ask some- thing ridiculous so he can confirm my incompetence. "What's dangerous?" I finally manage. Charlie laughs, his blotchy face turning all different colors of red. "Everything," he says, as if we're sharing a joke. "Any other ques- tions?" I wonder if the warehouse has an emergency exit. Could I flee through the nearest door and escape into suburban anonymity? Or have the doors been shuttered, nailed shut to prevent premature departures? Decomposing associates molder in the dank and airless corners. I shake my head. "Good," says Charlie. "Then let's get out of this hellhole." Here's what you don't learn in law school: You're in a warehouse. Tin-roofed. Poorly ventilated. Barely lit. You've been deposited here by the enthusiastic assistant of a man with two last names. Good luck, she wished you as she closed the door. You think you heard it lock. You're looking for documents. Specifically, you're responding to a Request for Production of Documents. This is an evil that lawyers do to each other in the name of "discovery." They ask your client to turn over thousands of pages of documents--memos, reports, letters, brochures, books--anything on paper or magnetic tape that might possibly be relevant to their client's claims against your client. Your client is a corporation. It doesn't have only one file. It has thousands of employees and tens of thousands of files. You have to search each one to weed out relevant documents. That's why you're in this warehouse. Your client keeps old files here. The enthusiastic assistant has done some work for you. She's iso- lated rows of files belonging to employees and former employees who might have been involved in the activities leading to the claims in this lawsuit. Most of the employees will soon be under indictment. You didn't ask for specifics. The man with two last names seemed touchy on that subject. You've developed a system. You don't actually read each docu- ment. You scan/flip through folders, looking for words like "Pur- chase ," "Transaction," "Account," "Conspiracy." If you see any of these words you stop and skim the document. If more words jump out, you may actually read the document. If truth be told, you don't actually know what you're doing. No one's explained it to you. You remember reviewing documents that another associate had gathered in another case. But you never saw the gathering process, only the end result, and the associate was gone and forgotten by the time you had your hands in his papers. Now you are that associate. The senior associate who abandoned you in this non- descript and forgotten parcel of the country told you to copy anything remotely relevant and flag the dangerous documents, the ones that discuss secret pacts and hidden arrangments. He told you to call him with any questions. You've tried to be careful, but it's equatorial in this warehouse, and that's when you developed your system. Here's your terrible mistake, the blunder you will carry with you from your law firm without revealing: You've made two piles. On the left, a wall of boxes, remotely relevant and innocuous. On the right, a stack of documents. The wall on the left is what you'll send to the overnight copy service, the people whose job is actually more miserable than yours. They'll copy and do something called "Bates stamping" and deliver three times as many boxes to you a week later in New York. The other pile, the smaller pile, is the documents that implicate your client in crimes, antitrust violations, fraud. You've pulled the documents from folders in the boxes and stacked the pages in the pile. You plan to show them to the senior associate. Let him figure out what's criminal and what's merely uncivil. But here's what you realize at the end of two weeks: you have forgotten where they came from. This is a problem. First, you'll never be able to return the docu- ments to their proper place. Second, the documents, according to the rules for these things, must be copied "as they are kept in the usual course of business." If they are in a folder, the label has to be copied or the folder replicated. If they are in a folder in a box with a label, the same replication must occur. The senior associate will not ask if the folders and boxes were labeled. You will not volunteer this information. The senior associate will eventually produce the documents to the other side and no one will ever suspect what they looked like in their pristine state. Except you. How could you know this? You learned it accidentally, and too late, from a phone call to a friend with mysterious sources of infor- mation. There was no course called Document Production at Har- vard. No one explained "Bates stamping" or making multiple copies or reproducing file labels or sitting in a warehouse sweating your ass off. It turns out you'll spend the greater part of your associate life producing documents, reviewing documents, arguing about docu- ments, but no one has bothered to train you in the art of copying and refiling documents or the intricacies of making multiple replicate folders. Eventually, you'll become an expert. You will command paralegals and associates more junior than you are. You will actually try to teach these skills to the wretched souls who follow in your footsteps. But right now, sitting on a box in that warehouse, the air stinking of mildewed cardboard, miles from another human being, you put your head in your hands and begin to cry. |
