Life After Litigation

Life After LitigationAuthor(s): Ed LewisSource: Litigation, Vol. 18, No. 4 (Summer 1992), pp. 41-43, 67-68Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/29759560 .Accessed: 16/06/2014 10:27

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life After Litigation

by Ed Lewis

May 29, 1986, 3:15 em. Since morning, I have been "pro? tecting" another hapless deposition witness, ensconced in a

depressing, windowless conference room. Despite my professional guidance, this deponent's concept of the truth is

mystical at best. I signal time out, get up, turn the file over to

my partner, announce that "I'm outta here," and close the door on 17 years of legal practice and litigation. Outside, I take a deep breath, pinch myself, and confirm that this time it's not a dream. I am about to enter the twilight zone of life after litigation.

No more motions to draft, witnesses to cross-examine, interrogatories to answer, documents to produce, exhibits to prepare, cases to settle, stipulations to negotiate, appeals to file, rehearings to seek, clients to protect, judges to curse, delays to request?no more trials or tribulations. After 17 years, with one year off for good behavior, it's over. Why, you ask, and what happened next? That's the

subject of this article.

Writing about life after litigation for Litigation is some? what like doing a piece for Penthouse on why I gave up sex.

Yet, from the reports I've seen, it's clear that the number of

lawyers leaving the profession?litigators in particular? has been increasing dramatically in recent years. And, I

suspect, that's just the tip of the iceberg. My informal survey leads me to conclude that the number who would like to quit is staggering. Perhaps I can shed some personal light on why some of us have pursued this path and what you may find

along the way. I graduated from Northwestern University Law School in

June 1969, at the height of the social consciousness era. Recruited by many fine firms around the country, many of

my generation wanted to know not how much we would be

paid, or even when we would make partner, but what

opportunities we would have to do pro bono work and other

"good deeds."

I joined the Phoenix firm of Lewis and Roca, which then had about 30 lawyers. It was one of the few "general

practice" firms that handled criminal cases and was proud of

it, and pro bono litigation was high on the firm's and its

partners' agendas. The firm had taken the Miranda case to the Supreme Court and won it without collecting a penny in fees. During the first few years I was on board, the firm revisited the Supreme Court several more times on issues of conscience. My colleague Peter Baird, representing his wife, challenged the requirement of a loyalty oath for admission to the Arizona bar and eventually won a 5-to-4 decision in Baird v. State Bar of Arizona. The firm also challenged the state's one-year residency requirement for voting and for

receiving indigent health care. For years we sent two lawyers to work at a legal aid office

one evening each week, eventually generating hundreds of cases for the office. My legal aid caseload included divorces, landlord-tenant disputes, collection actions, guardianships, and wills?a broad range of legal problems.

This was all to the good, because as far as I could recall, I had pursued a legal career in the first place out of a desire to contribute to society. The ample opportunities to handle pro bono matters led me to feel good about my chosen firm and

profession and helped me hone my litigation skills.

Fortunately for me and the firm, most of my practice actually generated some fees, having little to do with broad issues of social or public policy. I was first placed in the commercial litigation section. I represented large and small debtors and creditors, finance companies, real estate firms, mortgage brokers, mobile home dealers, tycoons and

bankrupts, lessors and lessees, contractors and subcon?

tractors, sureties, architects and engineers, and franchisors and franchisees.

Like most litigators, I lived a life of endless complaints, interrogatories, depositions, document productions, motions for summary judgment, oral arguments, settlement nego? tiations, injunction requests, declaratory judgments, pretrial conferences, trials, fee applications, petitions for recon? sideration and rehearing, appeals, and retrials. Early on, I

juggled a large number of small cases, which I settled or tried on my own. I also second- or third-chaired larger matters with my more experienced colleagues.

Over time, I found myself working on a few large cases Mr. Lewis is executive director of the Greater Yellowstone Coalition. He

lives in Bozeman, Montana.

Litigation Summer 1992 Volume 18 Number 4


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that dragged on for years and years and years. These matters were characterized by legions of "experts," war rooms cached with exhibits and documents, reams of written

discovery, files thick with motions and responses, and shelves of deposition transcripts. "Progress" was often

measured in terms of attrition?clients or witnesses who died, judges or lawyers who retired.

I began waking in the middle of the night and asking what had happened to my life goal of doing some good in the world. There was less and less time for pro bono work. I handled a few environmental matters when I could?and when we were not conflicted out. Like most lawyers, I wound up on a host of nonprofit boards.

In the fall of 1976, after seven years of practice, I took an

unpaid year's leave of absence and, with my wife, traveled around the world. Among other things, it was an opportunity to evaluate at a distance life as a lawyer and litigator and to ask myself whether and for how long I wished to pursue it. I was beginning to believe that my life did not have much

meaning, that it was passing by quickly, that I would be

seeing more and more of the same, and that only the names of the parties and dollar amounts would change but not the substance of my life work. I returned a year later convinced I was not going to litigate "for the duration." I embarked on a savings plan to afford me the freedom to think seriously about options.

By the fall of 1985, when I announced I would depart the

following spring, I knew I wanted to devote my energies to

protecting the environment, but I did not have another

position lined up. Some three and a half months after

walking out of that last deposition, I was hired (at roughly one-seventh my former income) as the executive director of the Greater Yellowstone Coalition, a regional nonprofit conservation organization based in Bozeman, Montana.

Our mission is to ensure the long-term protection of the 14-million-acre Greater Yellowstone Ecosystem, comprising

Yellowstone and Grand Teton National Parks and the

surrounding millions of acres of national forests and other federal, state, and private lands.

Today, my life revolves around a host of national environ? mental controversies, including massive timber and roading programs, oil and gas leasing schemes, cyanide-leaching gold mine proposals, wilderness and wild and scenic river

campaigns, and public land grazing conflicts. My beat covers two national parks, seven national forests, three national wildlife refuges, BLM and state lands, and millions of acres of private holdings. My "clients" include fragile forests and wildlands; blue-ribbon trout streams; rare, threat? ened, and endangered fauna and flora; critical wildlife habitats; geyser systems; and scenic wonders.

But I am getting ahead of myself. I had decided the only way to quit the practice of law was simply to announce I was

leaving. Once the word was out, it would be difficult to recant and turn back the clock. I also knew I could think more clearly and creatively about what I wanted to do next when I was no

longer living the daily grind of life as a litigator. When it comes to major life changes, there is a fine line

between "doing it" and "not doing it." Once the decision is made, it does not seem nearly as difficult as it did before

you crossed the line. You stop agonizing over your reasons for staying put and begin focusing instead on the

consequences of your decision to move on. That can be both frightening and energizing. As soon as I announced

my imminent departure, a number of my colleagues and friends quietly confessed that they very much wanted to do the same thing. Ultimately, there were a host of reasons for leaving litiga?

tion. It goes without saying that there is a lot of stress in the

job, which has a cumulative impact on your health and

personality?and family life as well. Many litigators I knew were drinking too much, working far too many hours, and

experiencing marital problems. They were physically out of

shape, declining in health, and, frankly, not particularly happy. A thriving community of doctors, counselors, and shrinks was living comfortably off these litigators.

For me, another unfortunate aspect of litigation was the lack of control over my life and calendar. Someone else was

always deciding where I was going to be and when, frequently on very short notice. It's difficult to plan or pursue other life interests when judges are ordering immediate

hearings and opposing counsel are serving multiple motions

requiring instant attention and response or when weeks of

depositions are scheduled in faraway cities or when 200 pages of interrogatories are dropped in your lap on Christmas Eve.

When the litigation community was relatively small in a town like Phoenix, lawyers tended to be courteous and sensitive to one another's schedules and needs. As the

community grew, as new judges were appointed, as that

personal element disappeared, not only were more people controlling your day-to-day existence, but in most cases you did not know these folks. Even when you did, they were

progressively less sympathetic or responsive to your legiti? mate needs and wishes.

Another reason for leaving litigation was that I was tired of

seeing the world through someone else's eyes. As a lawyer, you are not your own person; in a sense, you belong to some? one else?your client. On issues I cared about, I wanted to be able to say what I felt and do what I wanted. Once you brush

away the euphemisms, a litigator is a mouthpiece for anoth? er's thoughts, positions, and values. Even in the best of cir? cumstances, when you are advancing programs and positions




you care passionately about, they are the client's programs and positions, not yours.

Litigation has been burgeoning in this country, and society is getting tired of it. I wanted to be more involved in efforts to generate consensus, or at least some closure, on important

public policy issues rather than spurring on the polarization and discord. I wanted to be part of the solution rather than at the heart of the problem. That's not to say that all situations can be "win-wins" or that litigation doesn't have an impor? tant role to play in resolving societal disputes. It certainly does. And I recognize that litigation often forces parties to

focus, "get real," and resolve matters they would not other? wise address. The underlying thesis of litigation, however, is that one party is right, the other wrong; one party must be the winner, the other the loser; one side is telling the truth, the other is a perjurer?a framework not well calculated to lead to agreement and progress.

Meaningless Battles There were other reasons for leaving litigation. I grew

weary of the endless discovery, which mostly signified addi? tional delay and expense and nothing more. I felt compassion for decent individuals in deep trouble because they were not

being well represented. I was frustrated that my life revolved around the question of which of two large corporations was

going to beat the other out of several million dollars. These

ultimately meaningless battles were draining the creative talents and energies of many fine lawyers, leaving them little in reserve to devote to the rest of their lives, their com?

munities, or society. I was appalled at how expensive litigation had become for

everyone involved?so expensive that most of us could never represent "real people" anymore. We represented either large corporate interests for a substantial fee or poor folks on a pro bono basis but not the vast mass of humanity in between. I was losing faith in a system that didn't seem calculated to lead to an early, equitable, and just resolution of

controversy. I grew more and more disillusioned with the loss of civility and fair play and the increase of games?

manship in the profession. I had heard one too many lawyer jokes, and I was begin?

ning to believe them. I gradually concluded that I didn't have to continue down

the same professional path for my entire working career? not if I wanted to keep myself fresh, creative, challenged, and alive. Fortunately, despite what you may believe, being a litigator truly does prepare you for other worthwhile endeavors. More on that later.

While preparing this article, I scanned some recent issues of Litigation to see what had transpired in the profession over the past five years. Paul J. Bschorr's "Beyond the Bottom Line" in the Fall 1990 issue struck a particularly responsive chord. It graphically depicts the challenges, prob? lems, and shrinking opportunities facing young litigators these days and helps explain why a growing number of liti?

gators are contemplating leaving the profession. As the author points out, young litigation associates no longer have the opportunity to analyze and think and be creative advo? cates. Rather, their lives are mired in drafting and answering unfathomable, unending interrogatories and producing freightcar loads of documents, which in many cases are never read, reviewed, or used.

According to Bschorr, very few firms still handle the small

cases for paying clients that historically provided young lawyers with firsthand courtroom experience. Only pro bono

matters give young litigators the entree to experience, and all the economic pressures are against doing the kind of pro bono work I was fortunate to have when I started out. Because of the pressure to put in longer and longer hours, today's young litigators don't have the time to pursue the

reading, outside interests and activities, and community service that would make them well-rounded, sensitive, complete lawyers and human beings. With the growth of technology, the article notes, trial

lawyers are not necessarily improving the way they do busi? ness; they are just getting more efficient at producing less substance and killing off more forests. The article also cites the loss of civility in the way lawyers deal with one another. In sum, "The cost of litigation increases, the quality of life in our profession decreases, and there is no noticeable improve? ment in the administration of justice." Well said. The article

captures many of the reasons I decided to get out.

Although many litigators have entertained the notion of

leaving the profession, most don't think they can, because

they "don't know how to do anything else." Remarkably, experienced litigators, who daily dream up creative and

compelling theories, strategies, and solutions for their clients, believe they are incapable of doing anything with their lives other than filing and defending lawsuits.

Nonsense.

I had heard one too many lawyer jokes, and I was beginning to believe them.

Lawyering and litigation prepare you for a broad range of

personal and professional options. As a litigator, you have

developed skills and acquired knowledge and expertise in

many subjects and fields that transfer readily to other pro? fessional pursuits.

You know how to organize your thoughts effectively; you have honed your powers of analysis and synthesis. You are a

persuasive and compelling writer and speaker. You are adept at dealing with conflict, controversy, and adversarial situations, without getting emotionally involved. You know how to make sense out of complex and techni?

cally difficult factual situations and documents, how to

wring order out of chaos. You can work comfortably with individuals of diverse backgrounds. You are a quick study, yet patient, curious, and used to working hard. You are

persistent. You never let interim setbacks deter you from

charging down the field toward the goal line. You brim with confidence; you are a leader.

Seasoned litigators can understand and interpret arcane and abstruse laws and regulations, contracts, and other docu? ments. No matter how compelling a scenario may first

appear, you can always articulate and defend the other side.

Decisively, and to take a firm stand without being offen

(please turn to page 67)




Preparing a Witness

(continued from page 40)

maintain poise. And although you will want to show that you, too, can dish it out, your objections should be made in a calm, deliberate manner. Avoid sarcastic comments?particularly those aimed at the examiner.

Sometimes the examiner overlooks ? or intentionally avoids?topics about which your witness may have in? formation helpful to your case. You

may be tempted to let the incomplete record stand, reasoning that you do not want to expose a strong point so that your adversary is forewarned. Or, you may simply want to see the examina? tion terminated, thinking that you can tell your side of the story at trial.

Think carefully about holding your fire for trial. The witness may not be within subpoena range and may choose not to attend trial voluntarily. Even if the witness agrees to testify at trial,

memories fade and emotions calm over time. Moreover, deposition testimony strongly supporting your trial strategy can be used in drafting requests for admission and pretrial motions and can be powerful in settlement negotiations. Finally, under Rule 32(a)(4) of the Federal Rules of Civil Procedure, your adversary may be required at trial to

bring out important elements of your case by reading those parts of the depo? sition "which ought in fairness to be considered with the part introduced." If the deposition has abundant evidence favorable to your client, your adversary may think better of offering it at all.

At bottom, defending a deposition successfully depends on your grasp of the facts and your ability to focus the witness's attention on the importance of the exercise. Chances are that you and the witness will know each other better when the questioning is completed.

If you have done your job well before the deposition, preparing the witness for trial should not be complicated, because you will follow mechanical steps similar to those involved in

preparing for the deposition. Let the witness know well in advance that

testimony is required. Send her a copy of the deposition transcript and key exhibits, pointing out any material that is no longer relevant.

Before appearance at trial, bring the witness up-to-date about developments after the deposition. Again, give her a chance to express personal views and concerns. Explain how her testimony will fit into the larger picture. Identify the witnesses who have already testi? fied, the topics covered, and the topics anticipated. Explain how direct, cross, and redirect are conducted and how

objections are handled. Again empha? size the importance of the oath and the need for precision. Unless the testi? mony is to purely formal matters, convey the sense that each witness's

testimony is important to a successful outcome and that each witness's efforts are appreciated.

Explain the basic difference between direct and cross-examination. For

direct testimony, the examining lawyer should have a detailed outline of facts and exhibits to be covered. A practice session or two will help ensure that the witness will bring out the key details without leading questions or will tell you how much help she will need.

Asking the witness to identify and

testify regarding documents is often an effective way not to overlook details. The risk is that the overly conscientious witness's testimony may seem con?

trived and unbelievable.

Anticipate lines of attack the cross examiner might use. The witness must not be surprised by any document or line of questioning. If circumstances

permit and if a difficult cross is

expected, practice a cross?or better, have someone else familiar with the case play the heavy?before the witness testifies.

There are not many ways to protect a witness from a skillful cross-examiner.

Thorough preparation for direct testi? mony, however, can avoid some of the

traps that can be sprung. Obviously, the witness who stays closest to objective facts is the least vulnerable. The witness who is prone to exaggeration, self-serving asides, or role-playing is

likely to get into trouble. Even worse is the witness who turns hostile on cross or whose memory suddenly fades.

A courteous and respectful witness will offer fewer opportunities for the cross-examiner than will the arrogant proponent of one side of the case. At

bottom, the witness who is prepared properly for direct, with the strictures of sworn testimony in mind, should be able to withstand a rigorous cross, even

gaining credibility in the process. It is often wise to ask the witness to

arrive at court an hour or so before

taking the stand. That provides a chance to absorb the style of the

lawyers and to see how objections and sidebars are handled. If the rule of exclusion has been invoked, describe the layout of the courtroom and the basic mechanics so that the witness does not come into a wholly foreign setting. After being excused, the witness

should leave the courtroom immedi?

ately and?if the testimony has been

lengthy or especially critical?should not return as a spectator. When it is all over, write the witness

a brief note of thanks, avoiding any characterization of the substance of the

testimony. Even if the outcome was not what you wanted, let the witness know how the case was decided.

Preparing a witness to testify in an

important case is a daunting challenge to your personal and professional abilities. Frequently, you must act as the witness's conscience, as well as coach, referee, and advocate. The job is often difficult, but if you do it right, it wins cases, as well as the confidence and even the gratitude of clients. \D

Life After

Litigation

(continued from page 43)

sive, unprofessional, or uncivilized. When conducting an interview, you will take your time, ask the right follow-up questions, listen carefully to the answers, and then get your subject to stipulate to concessions. Litigators know how to do these things; most others don't.

The kinds of skills I developed as a

lawyer and litigator transferred easily and immediately to my new position as the director of an environmental orga? nization. I still must write cogently and

persuasively. I regularly address federal

agencies, the media, legislative panels,




the public at large. I review, interpret, and deal with a phalanx of state and federal laws and the rules, regulations, guidelines, and standards promulgated under them. I negotiate and review

agreements. I draft and edit administra? tive appeals and replies and negotiate with federal agencies and industry representatives. As in my past life, I still marshal and organize facts, deter?

mine which ones are relevant, and match those facts to the law.

As a former litigator, I know how to find, prepare, and use the kinds of

experts we need to make our case in the

press, before Congress and the bureau? crats, in the public forum, or in court.

Because of my litigation experience, I am relatively comfortable in the polar? ized settings that characterize the envi? ronmental debate these days. We fre?

quently participate in highly charged public meetings and hearings involving hostile opposing forces. Several months

ago, for example, more than 500 angry loggers, miners, and ranchers turned out to eviscerate a Park Service and Forest Service process designed to bring some

ecologically sensitive and coordinated

management to the Greater Yellow? stone region. Wearing yellow armbands and waving American flags, they accused our ilk of simultaneously being fascists, communists, elitists, and Saddam Hussein's henchmen. Years of courtroom experience come in handy in these volatile settings.

To Litigate or Not? Although I no longer litigate, I have

not left litigation completely behind. The Greater Yellowstone Coalition

periodically files suit, for example, to

enjoin a massive timber sale on Yellowstone Park's border or an open pit gold mine in prime grizzly bear

country. And prospective lawsuits are

always on the horizon. Thus, I've had the opportunity to work with litigators representing the conservation com?

munity and to observe lawyers for

government and industry. Litigation is but one of a handful of

strategies employed by environmental

groups. In each case we must deter?

mine whether it is the appropriate and

preferred way to proceed. We find that our lawyers are not always useful in

helping us make this call. They tend to see litigation as the only way to go in

most cases, even when a lawsuit may not further our agenda. Frequently the

preferred forum is the press, the politi

cal arena, the administrative process, or

an appeal to the public at large. After

years of Reagan/Bush federal court

appointments, the courts are becoming a less hospitable forum for our environ?

mental battles.

In the litigation process, I am now cast in a new and very different role? as the client. But I can't forget my life as an attorney or resist offering some

pointers to those who sincerely labor on behalf of their clients.

Clients often could use more help, guidance, and support than they are

getting. What kind of help? First, they may need assistance at the critical stage of choosing a lawyer. Most nonlawyers don't understand that not all lawyers are created equal. Nor do they realize how specialized the legal profession has become and how important it is to hire not only a quality lawyer but one who is right for the case. Unfortunately, I have witnessed well-intentioned

attorneys seriously mishandle public interest legal matters simply because

they had never done it before. Second, clients deserve an in-depth

evaluation of their prospective case before the complaint is filed. Getting a critical up-front analysis is sometimes difficult. How can clients intelligently decide whether to sue or settle or what their prospects are, if their lawyers aren't telling them?

Once the representation is under

way, I have watched lawyers play a

mysterious game of hide the ball with their clients. The lawyer's attitude is "I know what is going on; you, the client, do not; trust me." Why should we? The more the lawyer explains about the suit and the strategy, the legal process in general, and the next steps, the better the attorney-client rela?

tionship will be. On the other hand, when clients are confused, ill in? formed, or out of the loop, they can't

participate effectively as critical mem? bers of the litigation team.

This next point may surprise you. Most clients can't distinguish between the facts of the case and the controlling law. They naively believe that if "the law" is on the books and on their side, they are going to win. Clients need to be educated about their key role in factual development and in meshing the facts with the applicable law to

generate a successful result.

In summary, clients need attention, direction, and communication from their attorneys at every stage of the liti

gation process. To you, the case is

simply another professional engage? ment; to the client, it may be a life-and death struggle, a matter of grave and constant concern. Your clients are

unaware of, and frankly not interested in, your 50 other cases; they crave your full attention, understanding, and

support. Put yourself in your clients' shoes from time to time. The world looks very different from where they are standing.

Yes, counselors, there is life after liti?

gation. But whether you choose to stay or leave it behind, litigation is an extra?

ordinary training ground for whatever life throws your way. IS

literary Trials

(continuedfrontpage 72)

Danforth, after a slight pause: While

you worked for Mr. Proctor, did you see poppets in that house?

Abigail: Goody Proctor always kept poppets.

Proctor: Your Honor, my wife never

kept no poppets. Mary Warren con? fesses it was her poppet.

Cheever: Your Excellency. Danforth: Mr. Cheever.

Cheever: When I spoke with Goody Proctor in that house, she said she never kept no poppets. But she said she did keep poppets when she were a girl.

Proctor: She has not been a girl these fifteen years, Your Honor.

Hathorne: But a poppet will keep fif? teen years, will it not?

Proctor: It will keep if it is kept, but

Mary Warren swears she never saw

no poppets in my house, nor anyone else.

Parris: Why could there not have been

poppets hid where no one ever saw them?

Proctor, furious: There might also be a dragon with five legs in my house, but no one has ever seen it.

Parris: We are here, Your Honor, pre? cisely to discover what no one has ever seen.

Proctor: Mr. Danforth, what profit this girl to turn herself about? What




Article Contentsp. 41p. 42p. 43p. 67p. 68

Issue Table of ContentsLitigation, Vol. 18, No. 4 (Summer 1992), pp. 1-72Front MatterOpening Statement: The English Rule from the English Perspective [pp. 1-2, 58-59]From the BenchYes to Mandatory Court-Annexed ADR [pp. 3-4, 59-60]

The Perils of Litigation Practice [pp. 6-11]The Mapplethorpe Obscenity Trial [pp. 12-15, 71]Enduring a Congressional Investigation [pp. 16-19, 60-61]Can Trial Lawyers Be Taught? [pp. 20-23, 64-65]Reasserting Control in Cross-examination [pp. 24-29, 66]Where Were the Lawyers? [pp. 30-35, 65]Preparing a Witness to Testify in a Commercial Case [pp. 36-40, 67]Life After Litigation [pp. 41-43, 67-68]The Small Time [pp. 44-48]Legal LoreThe American Dreyfus [pp. 49-50, 62-64]

Trial NotebookDogs [pp. 51-52]

Advance Sheet [pp. 53-57]Literary TrialsThe Crucible [pp. 72, 68-71]

Back Matter

Life After Litigation

Documents

Transcript of Life After Litigation