The Consciousness of the Litigator

3. The Two Rules of Practice

CHAPTER THREE The Two Rules of Practice One of the witticisms that circulate through the back hallways and private of‹ces of litigation practice upends the standard notion of the lawyer-client relationship: “There are two rules of practice. The ‹rst rule is The Client Is the Enemy. The second rule is Don’t Forget the First Rule.” One litigator, when reminded of the Two Rules, remarked with laughter, “And there’s actually rule number three, Remember the Rules.” Many lawyers recoil instinctively from the Two Rules. Lawyers depend on clients for livelihood and career. This dependence fosters a public face of support for the client. Any suggestion that the client is the enemy is counterintuitive, possibly sinister, and poses survival and public relations problems. Some lawyers internalize the dependence on the client and the requisite public face so completely that “The Client Is the Enemy” is unthinkable. As businesses, law ‹rms must institutionalize the requisite public face, and phenomena like seminars designed to cultivate favorable attitudes toward the client are common. One litigator recalled a series of such sessions at her ‹rst employer, a ‹rm heavily invested in 55  biotech patent litigation, and touched on what she perceived as the motives underlying them: We all had to go to these seminars, where like “Client First,” “Always Be Friendly with the Client.” It was just basically all these seminars on how to kiss client ass. And the secretaries had to do it as well actually, to change their behavior and the way how they spoke with anyone on the phone. Because it could affect, you know, whether a client came into the ‹rm. . . . I think that, especially in the biotech world, if you land one case, you automatically are getting a sixty million dollar case in the door. In [the city where the ‹rm is located], at least at the time I was there, almost every single biotech case you landed was worth a lot. These places, they wouldn’t even litigate it unless they thought there’s a lot of money at stake. And it would be the major, central patent in [the client’s] portfolio, and they would be bringing it out. And so, what was happening, I think, the ‹rm was just really sensitive about continually putting their best foot forward and not losing any clients that the ‹rm already had in its grasp, but at the same time not doing anything to alienate any possible new clients. I think by having this mentality of always think, you know, always have clients—part of it is just the fact that ‹rms needed to make more money. That ties in with billing, with increased billing, so the fact that people were a lot more aware of how they managed their cases, make sure that more money was made. And I think as times changed, especially as middle-sized ‹rms kept on getting phased out in [that region], ‹rms were The Consciousness of the Litigator 56
really worried that they weren’t marketing enough and they weren’t landing the big cases, which would also gain more press coverage. It was getting really competitive for business. Resistance to the Two Rules, however, is not strictly a function of business and professional imperatives. Litigators take to heart their professional identity and take pride in helping clients. I think of us as professionals. And counselors, in every sense of the word. Just like a psychologist or a therapist, or somebody in the clergy, or a doctor. A con‹dante. . . . I think of [clients] as my family, not as my enemy. They’re people that are hiring me because they trust my judgment, and that’s really what they’re looking for. Somebody who has good judgment, who can help guide them through something where they sometimes have real serious problems . Litigators are quick to point out that the client is the one at risk: I think the only way you can survive and be a lawyer is to really understand that. Understand that ultimately it’s the client’s business, life, whatever it is, that’s at stake, and that you may never completely understand the client’s motives or incentives to do whatever it is the client wants to do. It’s just something that you have to understand that’s beyond your control and that things may get settled or not settled, contrary to what you think...