August 2000 

What They Didn't Teach Me
About First Year Practice

By Michel Lipman

You did it! Sheepskin in hand, you know that there's no contract unless there's a meeting of the minds. The time to appeal a motion for summary judgment is at your fingertips. And you know where in the courthouse you go to file a complaint.

With a head chock full of legal lore, you are ready to take on the world of defaulters, miscreants and cheats, and with your arm (or head) defend the hapless, the victimized, the disenfranchised. And that's the way it ought to be.

The catch is, you have to deal with people. And at last count, there weren't any people-courses in law schools. You get your training in these arts from the goddess (or imp) of Experience. For there are times when you feel like a driver in a hot car at Indianapolis, motor chortling, ready to screech from your position -- and find that the flagman has gone home.

You will survive. Clients will seek you out. Not in droves, perhaps, but real, live clients. Most of whom will pay you fees, enabling you to dine with decent regularity.

Proof that you can survive and even prosper is suggested by a handful of counselors who recall the First Lessons of that first fractious year.

For example, consider Joseph L. Daly, now professor of law at Hamline University School of Law. But then, he had just opened his office and hung out his shingle on East Lake Street in Minneapolis. A pragmatist, he'd brought along War and Peace, suspecting he might not be overly busy the first few days. But that very afternoon, a business man from next door stopped in.

"Mr. Daly? I'm Bill Hicks. Saw your sign. Got to thinking. Fellow I did some work for months ago owes me $3,000 and hasn't paid a nickel. Think you might collect it for me?"

A client! A beautiful, living, breathing client.

"I'll be glad to see what I can do, Mr. Hicks."

"Good. Well, here's the note and paperwork. Call me or drop in if you have any questions."

Alone once more, he wondered. What do I do now? Sue in assumpsit? Write a demand, cataloging the horrors that would ensue if he doesn't pay forthwith, immediately, and notwithstanding?
How about a phone call?

Gruff voice answers. "Yeah. Fred Farwell here." Gruff. He sounded like he was chewing on an oily cigar.

Lowering his voice to a squeaky tenor, Joseph replied, "Mr. Farwell, this is Joseph Daly, an attorney. I've been retained by Mr. William Hicks to take action if you don't pay the $3,000 you owe him."

Pause. Joseph thought he might be lighting the cigar.

"Yeah. Well, okay; I guess I might as well."

He heard himself say, "Very good, Mr. Farwell. Now I would like you to get a cashier's check from your bank for the money. Make it payable to William Hicks and Joseph L. Daly."

Farwell's office was near by. He picked up the cashier's check, thanked the man, got his client to endorse it, and gave the client $2,000 from his trust account.

So by 4:30 on his first day in practice, he'd made $1,000. Why, if he had $1,000 a day every day for a year, he'd have over $350,000!
What was more, his first and then only client thought Joseph Daly was the greatest lawyer alive.

He didn't know it was the only fee he would earn for at least three months. By that time he'd finished War and Peace, though to this day, he doesn't recall how it came out.

One may wonder at times why anyone wants to be a judge. Though actual hours on the bench are relatively few, there are many, many other hours spent reading briefs, looking up some of the cases cited, handling the paperwork and making decisions in an all-too-heavy case load.
Thus Cervantes could write: "Blest be the man who first identified sleep -- a cloak to cover all human imaginings."

Marshall Tanick smiles about it now, but is too much of a gentleman to name a certain judge -- his first -- in this triple-sided embarrassment.
"At the time," says Marshall, "there was a 'cattle call' procedure in Hennepin County for civil motions. The presiding judge was a respected, if elderly person, who would hear a large number of motions in a single day. Well, my very first appearance in court was to make a motion. This was to ask dismissal of a case in which a contract was entered into, to be performed outside our state. There were 26 items on the calendar; mine was 24.

"Well, the judge ruled on number 23 -- and then called a mid-morning recess, left the bench, and went into chambers. That left only my opposing counsel and me in the courtroom, the clerk and bailiff having discovered urgent need elsewhere.

"So we waited, he and I. And waited. I was particularly anxious to get at it, because this would be my first chance for oral argument in a real court.

"By noon, His Honor had not reappeared. My opponent and I decided we'd better go see what happened. 'He might have taken ill, or had a cardiac,' I suggested. 'Or,'my learned opponent suggested bloomily, 'been spirited away, like Judge Crater.'

"Warily we approached the judicial sanctuary. Opened the door slowly, quietly. His Honor was present. Stretched out on a couch, eyes closed.

"I gulped, 'He's dead.'

"Learned opponent said, 'Dead men don't snore.'

"Good point. Let's knock." We did. The venerable jurist awoke, blinked, and yawned. 'I must have dozed off for a moment,' he said. 'Sorry about that, counselors. Well, as you two are the last today, why don't we just hear your presentations here in chambers?'

"I was disappointed that there were no court officers or audience to hear my well-honed remarks and thrill at my solid grasp of the issues. However, we both poured out our souls to the judge. He nodded, and took the matter under submission.

"A few days later he ruled in my favor. But that did not end the matter. He misidentified the counsel for each side, and we had to appear again for correction.

"But it was my first courtroom appearance, and one I shall ever cherish. It taught me a cardinal feature of advocacy, and one that I am happy to pass along to my younger colleagues: Make sure the jurist you're addressing is awake."

As professionals with a centuries-old tradition of service to the public, we do not always recall the ringing words of that Very First Advocate, "Something from nothing is zip."

If Shaun Floerke, now Assistant St. Louis County Attorney, did recall that, his sense of duty overcame any shred of reluctance. During his first year, he was assistant county attorney in Steele County. The office was a private firm handling prosecutions for the city of Owatonna by contract. Shaun was heavily into prosecuting. One day, though, the managing partner said to him, "Shaun, we've had a new client come in, and everyone else seems to be buried in paper right now. Would you like to take over on this one?"

Aha! A chance to put his civil practice skills to work. The client was a widower. His late wife had lent some of their valuable antique furniture to her mother-in-law, who also died. Her heirs refused to return the furniture.

Shaun wrote a stern letter to the heirs, demanding the property. This led to a series of conferences and negotiations. His efforts resulted in the heirs' relinquishment of his client's property.

"I prepared a very careful and modest bill, and sent it out, eager to see the return on my labor," he says. No response to that billing -- or the next one. Shaun was not left in doubt much longer. He received a notice from the federal district court that the client had filed for bankruptcy.

"I always intended to save the notice and frame it as my first dollar," said Shaun. But I never got around to it.

Has any law school considered teaching its students that at least some "up front" money is a very, very good idea?

That great, never-to-be-forgotten feminist and actress, Mae West, once remarked, "It ain't no sin if you crack a few laws now and then, just so long as you don't break any."

Justices of the Peace have been with us since, it seems, the beginning of time -- give or take a few years. And in our nation's earlier days, they served well in new and sparsely settled areas. And in larger collections of people.

Most JPs were not lettered gentlemen; for the most part they did a good job with ordinary common sense. And with a fine sense of their own importance: for example, one who, just a few years back, remarked to learned counsel, "Down here, counselor, we overrule the Supreme Court every day."

Billy Green, who formerly practiced in Fargo, North Dakota, didn't have a course in JPs at his law school (who does?). So he wasn't prepared for the legal ruling in his very first court case, in the small town of Kindred, N.D.

Billy was representing a defendant. He did his homework well, had his witnesses well in hand, his points and authorities carefully prepared.
". . . And in conclusion, Your Honor, I would like to point out that there are these two North Dakota Supreme Court decisions directly supporting our defendant's position . . .."

We can imagine the Justice's brows knitting, and his gruff comment, "Mr. Green, that may be the law in Bismarck, but it's not the law in Kindred. Judgment for plaintiff."

Ruth Harvey, who practices in Mankato, fresh out of law school had as one of her first cases a criminal matter. When it was called, she and the young man defendant stood up. She reports:

"The judge looked at us both, and then spoke to my client. 'You're Mr. Blankus?"

"Yes sir."

"And do you know what you are charged with?"

"Yes sir."

"And have you sought the advice of an attorney?"

By this time, Ruth says, "I'd regathered my wits and spoke up. 'Your Honor,' I said, 'I am Mr. Blankus's attorney.'

"I think," she says, "I saw the judge's face turn pink. Clearly embarrassed, he said, 'Oh! I beg your pardon, Counsel. I thought you were his wife . . . .'"

Questions. Ah, questions! When do you ask? When do you not? The greats of the bar all say, "F'gawdsake, when you've made your point, STOP."

The collector of these moral tales has his own unforgettable first-year story.

I considered myself lucky to become an "associate," more or less, in an office consisting of two partners. This simple little contract case came up because neither of them wanted to bother.

It seems the plaintiff client was an out-of-state publisher. It published an impressive 40- or so volume set of The Western World's Great, Great Classics. Sales were by representatives who called personally on individuals. In this case, the purchaser -- now defendant -- apparently lost heart early in Volume One and wanted to return the set and stop his payments.

But the contract, firmly attached to client's deposition said no, positively, absolutely, in no way cancelable. A policy from which the publisher never deviated or it would have gone broke.

So, a bit nervously, since this was my third week of practice, with barely a tremor, I approached the defendant on the stand. "Now, Mr. Uh." I said with my best Perry Mason scowl, "is this not your signature at the bottom of this contract?"

"No, it isn't."

Bulp. "You didn't write your name here? This isn't your signature?"
"Absolutely not."

I reached for the water glass and sipped. A long sip. When the water was gone, I kept sipping.

The defendant sat quietly and not unjustifiably sneering at me for a muddled idiot. But he couldn't resist the coup de grace. Turning to the judge, "Y'see, Your Honor, when the salesman was there, I was in the kitchen making coffee. And my wife calls through the door, 'Edgar, the gentleman here wants your signature on this paper.' So I call back, 'I'm busy right now, Sweetums. You sign it for me.' So that's why it's not my signature."

The laws of agency still prevailing, judgment for plaintiff.
Which is why I always make sure there's a glass of water on the attorney's table. Right next to the glass of hemlock.
And that's what they don't teach you in law school.