Three Things Lawyers Should Avoid
I recall February 1960, when I worked for Alan Mackay as a law clerk after graduating from high school. He took me to the local Supreme Court registry in Christchurch. He had the staff pull out the leather-bound books of the enrollment of barristers and solicitors who had been admitted at the same time as he had been. Numerous names had lines through them—those lawyers having been struck off the rolls for various reasons.
His advice, as best I remember: “Martin, there are three things that you need to avoid as a lawyer: fast women, slow horses, and booze.”
The same applies today: Avoid parlous relations with the opposite sex, especially clients; don’t gamble; don’t do drugs.
—Martin D. Brown, Littleton
Resist the temptation to take advantage of your opponent’s errors and omissions
It was 1958. I was practicing in a firm with ten other attorneys, and given responsibility in accordance with my limited one-year of experience. A particular assignment was to acquire twenty acres of land from a rural school district, unneeded by the district, but coveted by our developer client who instructed me to offer $570 per acre. I was somewhat apprehensive, knowing that I would have to negotiate with the school board’s attorney, Mr. L, an elderly gentleman, well known in the county for his ”no prisoners“ approach to the representation of his clients.
I called Mr. L on the telephone, identified myself, and told him our client was interested in acquiring the School Board’s surplus twenty acres. Before I could mention the price, Mr. L took charge of the conversation (somewhat gruffly, I thought) and told me to submit an offer in writing, and send it to him. I thanked him and told him I would.
Without delay, I wrote an offering letter, as our client’s attorney and agent, carefully attaching a metes and bounds surveyed description of the twenty acres. The letter was addressed to the School Board, in care of Mr. L, as its attorney.
The client was anxious, and when I received no response to the offer after a week, asked me to telephone the Board’s attorney and speed up the process. This I did, but had to leave a message with his secretary, because Mr. L was at that very moment attending a meeting of the Board.
Several hours later, I received a call from Mr. L, a call I remember to this day. He said, in his very formal tone, “Mr. Carpenter, I have received your client’s offer of $750 an acre. I discussed it with the Board this afternoon, and the Board has accepted the offer. However, I wonder if you have made a mistake. The Board, of course, is required to obtain an appraisal before it can sell school land and its appraisal, furnished several weeks ago, values the property at a somewhat lower figure.”
I was stunned. I had made a mistake, transposing $570 to $750, a difference of $3,600—which just happened to be the exact amount of my annual salary at the firm.
I stammered a response over the telephone that the $750 price was an error on my part, and $570 was my authority.
“I thought so,” came the reply. “I will go back to the Board and get permission to sell the property to your client for $570 per acre.” He did, and the Board accepted $570 without the usual counter at half the difference.
I was Mr. L’s prisoner, and he set me free. I will be eternally grateful for his benevolent concern for a very junior colleague.
The lesson: resist the temptation to take advantage of your opponent’s errors and omissions, even though it might benefit your client.
—Willis V. Carpenter, Denver
The Speechless Oral Argument
For four years during the early 1960s, I was an Assistant State Attorney General assigned as counsel for the Colorado Public Utilities Commission. One of my assignments was to represent the Commission in its judicial cases–usually appeals to a state district court or to the Colorado Supreme Court. In the Supreme Court, each side (not each party) was limited to thirty minutes in presenting its argument. In one Supreme Court case, I was joined by two other attorneys, each representing a separate party and each of whom wanted to present an argument, as I also did. So, we decided that they would go before me and take no more than ten minutes each and that I would present the final ten-minute argument for our side. At the beginning, the justices were informed of how the three of us had decided to present our arguments.
Well, the justices interrupted my first colleague a number of times and thus it took him more than fifteen minutes to present his argument, and then the justices did the same with my second colleague, who eventually ran out of time. Thus, for the first time in my life, I was rendered speechless. However, as the justices left the bench, Justice Albert Frantz, who I had come to know a little bit by reason of my frequent appearances before the Court, smiled at me and commented, “Mr. Conway, this may have been one of your better days.” I smiled back and commented, “Justice Frantz, it may well have been,” which drew a laugh from him.
What I learned from this experience was, “Never divide a thirty-minute oral argument into three presentations”–and I never did thereafter.
—John J. Conway, Denver
It’s the Client’s Problem
I remember in the 1960s when practicing with Dale Tooley as a partner, Dale used to come into the office every morning and proceed down the hallway announcing, “Remember everyone, it’s the client’s problem.“ Dale’s comments were good for some chuckles but there was a great deal of wisdom in his remark. A great many of the problems encountered in the practice of law are caused by lawyers internalizing the client’s problem, along with the client’s frustrations and even animosity.
A lawyer who does this loses objectivity and diminishes his or her value to the client. Remember, it’s the client’s problem.
—Richard Eason, Denver
Five Pointers to Pass On
Here are a few of my tips:
[Felter, Jr., “Five Pointers to Pass On,” Pass It On 5 (ABA Government and Public Sector Lawyers Division, Spring 2010), available at www.governmentlawyer.org. Reprinted with permission.]
Always keep your word. Once your trust is broken, the damage to your reputation will be difficult to repair.
Prioritize: First, do what’s necessary to keep your job. Second, complete the most difficult and unpleasant tasks. Last, do the enjoyable things.
Never, never try to con the court. Don’t try to hide facts or arguments that hurt your client. Refer to the authority against your position and distinguish and defuse it.
Remain civil at all times, even to your most unpleasant adversary. This doesn’t mean you have to be phony; just be professional.
A great general counsel cannot win the battle alone. Remember that the foot soldiers hold the fortress. Frequently voice your appreciation for those who support your efforts. Treat your support staff as equals. You are not better than they are. Their work and wisdom are key to your success and the success of the office.
—Edwin L. Felter, Jr., Denver
The Golden Rule
In my private practice, and in my capacity as full-time City Attorney, I have followed the Golden Rule: In my work with others, including partners, court staff, and other attorneys, I should respect others and always follow a practice that treats others the way I want to be treated.
With that thought in mind, I have always been proud to be a member of the legal profession.
—Robert R. Gehler, Commerce City
Closing Argument: Short May be Best
I had the good fortune to litigate products liability cases in many parts of the country and team up with high-caliber local counsel. Very often,we would leave selection of the jury and closing argument to local counsel who could relate best to the local folks. One of the most effective closings I have heard occurred in the defense of an asbestosis claim in Oklahoma. Mention of the word “asbestos” seemed to cast a pall over the courtroom and generate antagonistic looks from the jury during the trial.
“Ladies and gentlemen,” counsel began in traditional fashion, “as you have probably suspected, my grandfather homesteaded not far from here. He came west in a Conestoga. My daddy was a baby in my grandmother’s arms as they bounced and lurched along the trail. The air was heavy, hot, and dusty. The Katydids’ shrill song could barely slice through it. At noon, they stopped under the shade of a lone cottonwood tree. My daddy was placed in the back of the wagon to sleep and was given his rattle to hold.
“Sleep didn’t come easily and my daddy shook the rattle violently several times. The ears on the mules jerked upright, probably in remembrance of a painful stab in the leg from a creature found occasionally on the trail making a similar sound. Off they went, terrified, with my grandfather pulling desperately on the reins and finally bringing the wagon to a stop.
“When you hear plaintiff’s attorney snarl the word ‘asbestos!’ as the scourge of all mankind, don’t, my friends, let your emotions stampede you into a verdict, based not on fact, but on fear!”
He sat down. Verdict for the defense.
—Harmon S. Graves, Littleton
When you have Won, Don’t Linger!
I was present on Motion day in Pueblo District Court, when Paul Renner, Esq. successfully argued a motion to dismiss. No sooner had the court concluded his ruling, Paul jammed his papers into his briefcase and ran for the door. We had driven to Pueblo from Denver together and following my presentation, I searched for him in the court lobby, wondering whether I still had a passenger for the ride home. I found him in the courthouse coffee shop and when he waved me over, his explanation was simple: “On a previous matter before this judge I remained in the courtroom to chat briefly, and to my horror, His Honor, with a frown on his face, reached for the file in my case, noted that counsel for both sides were still in the courtroom, and reversed the ruling in my opponent’s favor. No further argument altered his reconsidered decision. When you have won, don’t linger!”
—Harmon S. Graves, Littleton
Where the Action Really Is
A wealthy client of mine, who wanted to change his lifestyle from urbanite to rancher, armed me with sufficient funds to make a hefty deposit andauthority for what he had hoped would meet a negotiated purchase price on one of three substantial ranches that were for sale in Huerfano County. As the weeklong evaluation wore on, one ranch stood out from the rest, and only the price per acre had obstructed the deal. The seller–call him Cecil–wanted $250/acre, and on behalf of my client, I had offered $235/acre. Splitting the difference was explored, but rejected. It was 4:30 Friday afternoon when I announced, “I don’t see us going further in this deal, so I’ll be heading back to Denver.” Cecil sized me up and said, “Let’s approach this from another angle. All this negotiatin’ has made me thirsty.” Off we went to a local tavern. Soon a pitcher of beer arrived along with two glasses, and Cecil put his elbow on the table with his hand outstretched. “Let’s arm wrestle for it. You win, it’s $235; I win, it’s $250.”
I took a sip or two of the beer in front of me, acknowledged to myself that I probably had sufficient discretionary authority for $250, and while Cecil’s pals gathered around, I put my hand in his and my left hand under the table for support. This was not a new event for either of us. I immediately sensed in his grip what a lifetime on a working ranch will do in preparation for a contest like this. Although he was thirty years older, I recognized that Cecil could outlast me in a prolonged wrestle and my only hope was that one, all-out twist and push might do it. I heard something snap in my shoulder, but the gambit worked. Down he went. Then, with a broad smile, he stood up and ordered drinks all around to celebrate the sale of his ranch! We shook hands and he honored the deal at closing.
I tell this story to fellow lawyers from the east coast and they get all misty-eyed, recognizing that the real action in the practice of law is not always found in the courtroom or corporate boardroom.
—Harmon S. Graves, Littleton
Four attorneys appeared in federal court for a pretrial conference. The judge asked the attorneys how much time would be needed for discovery matters. The first attorney launched into a recitation of what he wanted to pursue by way of discovery. The second attorney concurred with the first attorney and added a couple more things to be done in discovery. The third attorney advised the court that he thought the first two attorneys had covered the necessary discovery. The judge then nodded to the fourth attorney for his comment. The fourth attorney said: “Sixty days.” The judge said, “So ordered.”
The moral of this story is that it is better to reply directly to a question rather than indirectly, particularly if appearing before a judge that the courthouse is named after.
—Mike Hilgers, Arvada
Clerks are Smarter Than You
The most useful advice I received as a starting lawyer was from my father, who said, “If you are going to be a trial lawyer, you need to know that the most important people in the courthouse are the judge’s clerks. First, never tell them what they should do, only ask what you should do. They are all smarter than you. Second, always treat them well. They can make or break you.”
As a deputy district attorney, I was assigned to one judge and his clerk for several months. I worked hard to follow my dad’s advice, and became good friends with the clerk. Two or three years later, I was standing in line to ask this same clerk, now assigned to a civil division, to set a case for trial. The lawyer in front of me was told that the first available date on the judge’s calendar for a three-day trial was eleven months away. When I asked for a first setting for a two-week trial for my plaintiff-client, she gave me a first setting three months away. The trial was held starting that day, because the clerk made sure thereafter that nothing older was set for that day. Wisdom confirmed–and followed religiously ever since. (And the clerks are still smarter than me.)
—Richard P. Holme, Denver
Advice Re Drinking at Lunch
While I was working as a summer clerk, I had a beer at lunch one day. Coming out of the bar/restaurant, I ran into a senior lawyer who knew me well. He asked whether I had had anything to drink, and I told him, “One beer.” He said, “My advice is that you should never drink beer, even one, at lunch. The client you run into in the afternoon will smell it, but will have no way of knowing whether it was one or five.” That was my last beer at lunch (at least on a workday).
Another new lawyer friend of mine asked his supervising partner whether he could have a drink at lunch. The partner said, “Sure. Just don’t make it vodka or gin.“ The new lawyer asked why not those two drinks. “Because,” replied the partner, “when you meet our client this afternoon, I want him to smell it and think you are drunk, not stupid.” To my knowledge, that friend, now a senior lawyer, understood and heeded the message.
—Richard P. Holme, Denver
You’re Never too Experienced to Learn
During my first year of practice, a veteran of World War II asked me to represent him in a divorce proceeding. There was no property to be divided and his spouse had no interest in resisting the proceedings. Because he was a veteran, I agreed to represent him.
In due course, we went to court. About halfway through my client’s brief testimony, the judge stopped the proceedings and declared that the case would not proceed because the complaint was not verified. I was stunned; my client questioned his choice of counsel.
On my return to my office, I diligently searched to find a statutory provision or other authority requiring a divorce complaint to be verified. I found none. Later that day, I went back to the court and asked the clerk whether I could speak with the judge. A few minutes later, I was explaining to the judge that I could not find any provision requiring that a divorce complaint be verified. I asked him for his assistance in identifying the source of this requirement. The judge grabbed his copy of his Colorado statutes and began to search. Nearly thirty minutes later, he acknowledged that apparently there was no such requirement. He called his clerk into his office and advised the clerk that with respect to my case, the “divorce was granted.” This was a learning experience, both for me as a beginning lawyer and for the judge, who had been on the bench for many years.
—John W. Low, Denver
Court Personnel Hold Your Life in Their Hands
Be most careful to get along well with court personnel; they really do hold your life in their hands. The same applies to law officers, unless there is a legal reason to resist their efforts.
—Stan Morris, Cortez
The Karma of Civility
When I was a neophyte, I treasured advice from “older and wiser heads.” One such instance involved an experienced attorney who brought to my attention an important legal issue I had missed, even though he was my adversary in a dissolution of marriage action. Together, we achieved a fair result and settled. We spoke after final orders, and I thanked him for his courtesy. He reminded me that he could have let me fall, but at some point, after I became more experienced, he might overlook an essential element, and he hoped for the same civility from me.
[Excerpted from Morris, “The View From Main Street,” 38 Catholic Lawyer 229 (1998).]
—Stan Morris, Cortez
Is a Mr. Foreman in the Court?
The jury had just returned with a verdict in a criminal case I was prosecuting. As we all waited anxiously for the results, the judge asked, “Mr. Foreman, have you reached a verdict?” Receiving no response, the judge again queried, “I said, Mr. Foreman, have you reached a verdict?” To our surprise (and amusement), one of the male jurors, with verdict form in hand, stood and meekly announced, “Err, your honor, my name is Mr. Rhodes.”
—Carroll E. Multz, Grand Junction
We were in the third day of jury selection in a criminal case I was prosecuting. I had waived and accepted the jury early the first day. The defense attorney was very deliberate in his voir dire of each individual juror. Late the third day, the attorney had elicited from a prospective juror the fact that she had sat on a previous jury panel. When asked by the defense attorney, “Is there anything about trials you don’t like?” the woman quickly replied, “Attorneys who talk too much!”
—Carroll E. Multz, Grand Junction
Suggestions for the Novice
The suggestions I have for advice to novice attorneys are as follows:
—Neil Quigley, Littleton
Have the phone answered by a real person in three rings or less. In this day of robot phone answering, where you even select a language and multiple options, this goes a long way to say you're serious about the practice of law.
When trying a jury trial outside the Denver metro area, always secure a jury list at the first chance and have someone speak to the sheriff, the postmaster, the mayor, or some longtime residents. Your client, if from the community, may know of other senior persons to seek out.
If you’re in an office with more than one staff person, allow the staff to interview the prospective employee. You do the interview of only those who are first cleared by the staff.
This is an easy one but very important: always return telephone calls at least the same day even when you’re out of the office. On vacation, have your calls screened by someone with knowledge of your practice so the important ones are forwarded to you.
When trying a jury trial, always watch the jury panel from the time they enter the courtroom. You may pick up some piece of knowledge to aid your selection–two jurors who may appear really friendly, one who is sleepy, one who is mad, etc.
Have clear lines of responsibility for staff. Make sure someone is first in line to do the important tasks and someone is backup when they are unavailable.
Trust Your Intuition and Other Pearls of Wisdom
Here are a few things that were told to me when I started:
&,dash;Ted Radkiewicz, Surprise, AZ
Take a job in the place where you will want to live.
If you have a question, ask another lawyer. Lawyers like to talk and they will be glad you asked; they like to give advice.
If you are in private practice, trust your intuition about taking a case. If it does not feel right or the client does not feel right, do not take the case. Avoid the possible aggravation.
Learn something from every humiliating, embarrassing, uncomfortable court appearance.
Treat all court clerks and staff with respect; they deserve respect (and they can either help you or hinder you)!
The Classiest Question
The classiest question I have ever seen in a deposition was asked by Lauren (Bob) Moran. I don’t recall the case, or the subject of the litigation, but the deponent had stated that he had knowledge of a particular fact by reason of some “vibrations.” Bob’s follow-up question was:
“And from whom did these vibrations emanate?”
—George E. Reeves, Denver
Answering Your Own Phone
I was approached by a client and longtime friend who asked why I answered my own phone when I was in the office rather than, as other attorneys with whom he deals, have their secretary answer and ask, “May I tell him who is calling?” or ask, “What are you calling about?”
I replied that when I got back from the service and started practice, I came back from lunch and my secretary told me I had a call from John Gorsuch, who left his number. As a young attorney, the name John Gorsuch was like being called by God. I dialed the number and the voice on the other end said, “This is John, may I help you?” I explained that I was returning his call and asked if he always answered the phone himself. I will never forget his answer. “You’re damn right I answer it myself if I am in. I am not so important that I have to screen my calls. When a secretary answers and asks, “Who is calling?” it makes the caller feel that if he or she isn’t important enough, they won’t be put through. And that young man is why I answer my own phone when I am in the office.”
I never forgot that message. To this day, I answer my own phone when I am in and tell the receptionist never to ask who is calling if I am on the phone or what it is about if I am unable to answer myself.
—Stanton D. Rosenbaum, Denver
Know When to Sit Down and Let the Court Rule
After having given it some thought, I will pass along an anecdote from early in my career that gave me insight into how judges view arguments of counsel.
I had been presenting a motion before the Honorable William E. Rhodes, District Judge in El Paso County District Court. After the presentation of evidence, I argued my client’s position. After closing argument, the judge ruled from the bench and ruled in my client’s favor; however, he stated, “Mr. Torbet, I would like to see you back in chambers.&rdquo I duly went back to see Judge Rhodes, who asked me to sit down and then advised me: “Randy, at the conclusion of the evidence, I was ready to rule for your client, but in your closing argument, you almost talked me out of it.”
I think, because of this, I learned a valuable lesson and became much more conscious of the need, at some point, to sit down and let the court rule.
—John Randolph Torbet, Colorado Springs
Plans to Take the Estate
Several years ago, a prosperous elderly rancher who was in my office on another matter said to me, “I want you to think about planning my estate,” to which I responded, “That is a good idea. Do you want to schedule an appointment?” He answered with a straight face, “No, I have thought about it, and I want you to think about how I can take it with me and then call me.”
—Victor T. Roushar, Montrose
The Conscientious Attorney
My father, who was not a lawyer, gave me sound advice that I never forgot during my forty-one-year career as a lawyer (1967-2008). He strongly urged me to keep a logbook of daily activity, even including such things as attempted phone calls that were not answered. I can’t count the many occasions this proved to be worthwhile advice. He also told me that people would respect me more if I took responsibility for my mistakes and, furthermore, if I didn’t know something, I should admit it and find out the answer.
My uncle, who was a lawyer, surprised me years ago when he stated that half of my time spent in the practice of law would not be billable or collectible. In addition, he said there were two types of clients I had to be more careful with—those with a lot of money and those with no money. More affluent clients can be quite demanding and, of course, you won’t be in business long running a legal aid clinic. Quite a dilemma.
As a solo practitioner with a part-time secretary for more than thirty years, I often answered my own phone calls. I could sense that this surprised many people and might have even impressed a few.
All clients, rich or poor, appreciate timely and regular contact from their lawyer. I always made routine status calls (or letters if advisable) to clients, even if I had nothing to report. Any client can sense easily how conscientious their attorney is, and all clients are important and should be made to feel that way. Clients often enjoy having something in common with their attorney–it helps considerably in the attorney–client relationship.
I kept my office well decorated with items that expressed the wide variety of my interests–my artwork, color photographs such as the ship I served on in the Navy, my family, and a sampling of my arrowhead collection or even one of my guitars, to name a few.
Finally, when I was a law clerk for federal judge Ewing T. Kerr, in Wyoming, he always said a lawyer should be as good a listener as speaker. I found this to be excellent advice, not only for a lawyer, but for life in general.
—Carl Gary Yeager, Loveland
Tips for Remaining Calm in Adversarial Situations
In adversarial situations, it is of paramount importance that you remain calm and able to think clearly. This may be difficult when facing an opposing counsel, deponent, or jurist who is obnoxious to you or who is so offensive to you that you find it difficult to look at or converse with him or her.
One way to maintain your calm is to find something around the face or head of the obnoxious person that you like and focus on that. It may be something small–for example, a tie, a button on a shirt, a pair of glasses, or a hairstyle. No matter how offensive or insulting the person may become, keep a positive focus on the thing you like (nice button, nice haircut). It works and stops you from responding in kind.
This is also something you can offer to help your client remain calm. For example, you can recommend that your client try it when he or she is being deposed or cross-examined by an opposing counsel, or when he or she is required to sit down with the opponent in divorce or employment termination litigation.
Another device to use to release stress in nervous situations is to wiggle your toes in your shoes under the table, while keeping the rest of your body still.
—Hartley Alley, Denver
Rule and Run
As a young associate out of the Korean War, I had a case with my partner, Lou Rovira. I was second chair, defending Mountain Bell in a case with Public Service Co. We had a Motion to Dismiss before Judge Shellenbarger in Fort Morgan. We were ready for trial, with counsel’s desk covered with papers and files. The judge granted our motion to dismiss.
Lou grabbed my hand and pulled me hard up and away. It was a bit of a problem trying to pick up all the papers spread on the table and non-closed briefcases. I rushed by Lou out of the courtroom, down the stairs, and out to the street, trying to rescue the papers.
“What is the hurry?” I asked.
He replied, “We have to get out of there before the judge changes his mind!”
—Carl F. Eiberger, Golden
Keep it Simple My first major international negotiation was with a Japanese nuclear equipment manufacturer. I drafted an agreement that melded a technical services agreement with a technology access agreement, and sent it to the company in Tokyo. When I arrived for the negotiation of the terms and conditions (the essential commercial provisions having been settled by our power division president), my Japanese counterpart held my agreement up distastefully by the corner, and said, “So many words, Mr. Hughes! So many words!”
We spent the next two weeks taking the agreement apart and putting it back together again. All the neo-Victorianisms that U.S. lawyers like to use–“anything to the contrary hereinafter notwithstanding”–had to go. Vocabulary was simplified. Every complex sentence got broken down into simple sentences. Dependent and conditional clauses were separately stated. All cross-references were made exact; no more “unless otherwise stated.” No paragraph was longer than three sentences or five lines; that meant no more seventeen-line sentences in basically unreadable form.
Each article began on a separate page. The order of the articles was presented in the logical and chronological order in which the events in the life of a project would be experienced.
By the time we were finished, and my Japanese counterpart was satisfied with the content of the agreement, it could be read and readily understood by a non-native-English speaker-or by the average project manager with a decent tenth-grade reading level!
I sent the final draft back to my boss in San Francisco. When I arrived back in the office, he held it up and said, “Why, Peter, this is almost elegant!” That’s the highest praise my written work has ever received!
The experience proved to be one of the most valuable of my career. It taught me a great deal about drafting technique. No longer was I drafting in the arcane language of a recent law grad, or in a structural form that could be understood only by a tax lawyer or a secured instruments lawyer. I was now writing for project delivery folks who needed a clear and logical document to guide their project performance. No longer were my contracts dropped in a bottom drawer, to be consulted only when a project disaster occurred. They were now viable guidance documents for intelligent project delivery.
So, my thanks to Mr. Tomotsune for a very valuable lesson!
—Peter Hughes, Denver
Lend a Helping Hand
In my career, I have found that it is important to lend a helping hand to others. Because the source of my success is the “helping hands” of many people, I have tried to give back by extending a helping hand–in the legal arena and in the community. In 1971, eight Black attorneys formed the Sam Cary Bar Association: the Honorable Raymond Dean Jones, who rose through the judiciary to the Colorado Court of Appeals; Norman Early, who became the Denver District Attorney (DA); Dan Muse, who became the Denver City Attorney; the Honorable Alfred Harrell, currently a Denver County Court judge, but nationally known for spearheading the Inns of Court programs; Phillip Jones, a diplomat in the U.S. State Department for more than twenty years in countries across the world; and Marilynn Cason, the first African American lawyer hired on Seventeenth Street at Sherman & Howard in 1969. Two of the founders, Billy Lewis and King Trimble, have passed, but I know they are smiling down and saying, “Way to go, Gary.”
When the Sam Cary Bar was founded, there were only fifteen Black lawyers in Colorado. We came together to expand our influence and to help provide opportunities for Black lawyers and lawyers of color–not through separation, but through inclusiveness. At the time, there were no other specialty bars for lawyers of color or for women. There was one Black district court judge, Judge James Flanigan, and only one Black lawyer on Seventeenth Street. There were no Black professors in the law schools. Our mission was to bring together our talent to make a change in the opportunities available to us and to increase the number of Black law students going to law school and the number of Black attorneys in Colorado. Much was expected of us.
All eight of us were groomed for leadership positions in our various fields of interest. We were a talented group of lawyers who gave one another a hand, and we have extended our hands to many to make a better bar in Colorado. This has resulted in several things, among them: (1) creating great leaders within the specialty bars who have reached beyond themselves and made an impact on the bar at large; (2) leaders raising the level of expectation for themselves and for others with whom they are in contact; (3) diverse individuals bringing people together and enriching the lives of others in profoundly deep and personal ways; and (4) providing opportunities for others.
The first helping hand I received in the practice of law came from Denver DA Mike McKevitt. He hired me, even though I was not in the top 10% of my graduating class. Around the time I was hired, there appeared in the Rocky Mountain News a photograph of me–sporting a four-inch Afro–with several of my colleagues. Some people liked it. Some did not. A Colorado Supreme Court justice commented in an editorial that my appearance did not represent the dignity of the office of the DA. I guess he was talking about my hair and not my color. (In fact, I was the only Black prosecutor in the state.) In rebuttal, my mother wrote the Supreme Court justice a letter praising my abilities. To his credit, he invited Mom and me to lunch. We became friends and I have had the pleasure of representing members of his family.
Mike McKevitt hired me to prosecute DUI cases in Denver County Court, where I met the likes of the great Al Zinn, king of the DUI defense lawyers; Irving Andrews, the great African American lawyer in Colorado for several decades; the Lozow brothers; and Norton Frickey, who became more famous for his production of ads for lawyers than handling traffic cases. Hiring me suggested that I could do the job.
During my early years as a Deputy DA, I received a helping hand from many: Judge Zita Weinsheink, the first woman judge in Colorado; Judge Irving Ettenberg; and Judge Orrelle Weeks, the first woman judge on the Denver Juvenile Court. Each helped me daily with my trial skills–always providing me with constructive comments on how to be a better trial lawyer. I will always appreciate those times after a trial and a verdict when the judge would tell me what I could have done differently or more effectively. But it was not only me; those judges were giving advice to the young public defenders, as well.
Dale Tooley became the DA in Denver in 1972. He provided me the next helping hand by appointing me to be one of his Chief Trial Deputies–at the ripe age of 27. That was a thrill! At 27, I was prosecuting first-degree murder cases against legal legends like Rollie Rogers, John Kane, and Tom May.
On the community side, Dale Tooley was my sponsor to be the first Black member of the Denver Athletic Club (DAC). It is hard to believe now that forty years ago the DAC admitted only white Protestant members. Socially, that membership was the opportunity for me to mingle and socialize with the power brokers of the Denver community. Marshall Fogel, the first Jewish DAC member, and I would sit in the steam room and talk about opportunities available to us.
The helping hands continued to be extended to me. In 1974, U.S. Attorney Jim Treece approached me and offered me a job as an Assistant U.S. Attorney. In 1976, a helping hand came from a group of young supremely talented lawyers in private practice–Michael DiManna, Spike Eklund, and Gene Ciancio. They wanted to have the premier small law firm in Colorado and invited me to be the fourth partner. In 1982, I received a helping hand from the Honorable Sherman Finesilver, the Chief Judge of the U.S. District Court. He appointed me to be on the Committee on Conduct for the District Court.
I know that my life has been enriched by every person with whom I have come into contact in my forty-one years of practicing law. In sharing knowledge and ideas with me, I have grown not just as an attorney, but as a husband, a father, a son, and a human being. This has been a great journey for me!
—Gary M. Jackson, Denver
Difficult Opposing Counsel
One of the most unique challenges I have faced in my twenty-six years as a patent attorney is difficult opposing counsel. More often than one would think, a clever but unscrupulous patent lawyer (UPL) has tricked the U.S. Patent Office into granting a patent. Because a patent is “presumed valid,” even one created by fraud can cost plenty to defend.
When I speak on the phone to these UPLs, I try to bite my tongue. Actions speak louder than words. I try to be polite and simply ask if the UPL objects to my Motion for Entry of an Inequitable Conduct Counterclaim. Of course, if the UPL loses this issue at trial, attorney fees and attorney discipline could result.
Unfortunately, 80% of all patent cases until recently had an inequitable conduct element. In a society of declining moral values, many of these fraud charges might have had a reasonable basis. So, the appeals court raised the barrier for fraud (Therasense, Inc. v. Becton Dickenson and Co.) to something like a smoking gun, which in turn means UPLs can cheat on the government with impunity. Alas, calling your opponent a crook might become your only remedy.
—Rick Martin, Longmont
Random Musings After 40 Years of Practicing Law
Here are random musings after forty years practicing in one of the oldest professions.
—H. Corat Moran, Colorado Springs
New client: “Work with me on this deal, and I will bring you lots of business.” Translation: Cut your fee. Lesson learned: You most likely will never hear from that person again, even if you were to charge nothing.
Beware of taking on the client who is in the middle of a fight with his or her neighbor. A couple days after refusing to handle a boundary dispute, the potential client (whom I declined to represent) shot and killed his neighbor. What if he had become unhappy with me and how I handled his case?
At a social function, when I am asked by another guest if he or she may ask me a legal question, I make a big show of looking at my watch and then say, “Go.” Most people figure I am joking. Darn.
In the middle of arguing my motion in the fourth-floor judge’s chambers, the judge picked up his binoculars and started gazing out the window. Another way of saying, “Motion denied.”
After a well-publicized trial, when asked whether I think some notorious person (for example, O.J. Simpson) is guilty, few people are happy with my standard reply: “I don’t know. I wasn’t on the jury listening to all the evidence.” And they wonder why not hearing the evidence matters.
Although I believe I have a pretty good sense of humor, I have a hard time laughing at most lawyer jokes. Why? The “jokes” are rarely funny and usually are insulting or mean-spirited. But I do enjoy telling other people that 97% of the lawyers give the rest a bad name. They always laugh when I tell a joke on my lawyer self. Why is that?
“The first thing we do, let’s kill all the lawyers.” Shakespeare, King Henry VI, Part II. Lesson learned: On hearing someone recite that quote, it is no use trying to explain the context from which it was taken.
“Why,” people sometimes ask me, “is it called the practice of law?” They usually think that’s funny. I wish it were.
Some time ago, I read about an old trial lawyer reminiscing thus: “When I was a young lawyer, I lost some cases I should have won. As an older lawyer, I won some cases I should have lost. So, on average, justice was done.”
When people, meaning to ask what area of law I practice, instead ask what kind of a lawyer I am, I always reply, “A good one.’ Nervous laughter follows-usually.
At my funeral, I hope and trust that at least a few attendees will be heard to remark, “Well (long pause), he wasn’t all that bad.“
Here are some comments I recall from senior members of the bar, plus a few of my own or that I’ve read.
—Frank P. Slaninger, Aurora
Get a judgment, not a stipulation –Former Denver District Court Judge Warren Martin. Many disputes settle the morning a trial is set to begin. Parties recite the settlement terms as a stipulation on the record and have the case dismissed. That is a mistake. If one side doesn’t comply with those terms, what do you have? You have a breach of contract for which you must sue anew. Instead, require that the settlement terms be made an order of court. If there is noncompliance, you can sue to enforce the judgment.
Offer a higher chair –George Creamer. Opposing counsel also was the plaintiff in a barking dog lawsuit against a neighbor. Both attorneys met walking down the hall toward the courtroom. Opposing counsel said, “Well, George, this is going to be an interesting case.” George replied: “(Name), this is beneath your dignity.” The case settled.
Integrity and reputation –Nathan H. Creamer. I observed Nate and opposing counsel in a Denver District Court proceeding. Opposing counsel had filed a motion, alleged he sent a copy to Creamer, and filed for a default judgment when a response was not timely filed. Creamer appeared, asked for permission to file late, offered to pay the costs for this hearing, and told the court he had never received the motion.
Opposing counsel began to recite law that mail is presumed to be delivered, at which point the judge interrupted and said: “If Nate Creamer says he didn’t get it, he didn't get it!”
Business first; lunch afterward –Nathan H. Creamer. If a client schedules a meeting and offers to take you to lunch, hold the meeting first. Otherwise, the client will seek another hour of consultation for the price of a lunch.
Be polite to court staff –Nathan H. Creamer. Be courteous and polite to persons working in the courthouse. They can make your legal life heaven or hell.
Client perception –Bill Wyatt. If you do a good job for a client and do it quickly, the client will remember that you did it quickly.
Hiring –Frank Slaninger. Hire enthusiasm. You can teach legalese. You can’t teach enthusiasm.
Hiring –Warren Buffet. Hire people with energy, intelligence, and integrity. Be sure they have integrity. If they have only the other two, they will kill you. [Buffet and Clark, The Tao of Warren Buffett (Scribner, 2006).]
Miscellaneous –Frank Slaninger. Many years ago, a part-time legal secretary brought me a file of completed dictation and said: “I finished this tape. The final item was a letter to attorney X. You sounded angry when you dictated it. Why don’t you wait a day and see if you still want to send it.”
Admit a mistake; make changes –Frank Slaninger. We all learn more each day. Words, events, and experience shape our beliefs. Forget the “flip-flop” label in current political jargon. Think of the quotes below:
Events moved him to change his policies. Some were baffled by his transitions. Congressman John B. Alley suddenly found the President differed with him on a matter where they had agreed.
“Mr. President, you have changed your mind entirely within a short time.” “Yes, I have. And I don’t think much of a man who is not wiser today than he was yesterday.”
[Sandburg, Abraham Lincoln 594 (Harcourt Brace and Co., 1942).]
“A man should never be ashamed to own he has been in the wrong–which is to say, that he is wiser today than he was yesterday.”
[Pope, “Thoughts on Various Subjects,” Critical Essays (1741).]
A Perfectly Appropriate and Admissible Question
Many years ago, I was defending one of several corporate defendants in a personal injury products liability case. It was the consensus of opinion among defense counsel that the plaintiff’s claim was not merely exaggerated but outright fraudulent. When the time came to take the plaintiff’s deposition, I was first to begin the questioning. The room was packed with representatives from most of the insurance defense firms in Denver, because the plaintiff’s attorney had chosen a shotgun approach to naming defendants. As the plaintiff wove his tale of woe, he eventually burst into tears and testified that his injuries had caused him such great distress that he actually had been beating his wife. After a suitable pause, I asked, “Well, Mr. –, when did you stop beating your wife?”
The room erupted in laughter, much to the puzzlement and surprise of the plaintiff. I have regretted never having the opportunity to relate these facts to my old law school evidence professor (now deceased) to show that there are times when the “when did you stop beating your wife?” question can be perfectly appropriate and admissible.
—Ronald C. Hill, Denver
After thirty-nine years of hanging around courts and trials, I have learned one overarching lesson–never panic! This lesson is particularly applicable to jury trials for personal injury damages, where you have sweat blood and cried tears to get the case to court. Also, when there is a lot of money on the line, there is a tendency for most people to allow a last-minute disaster to color the entire case. Here is an example:
I had a week-long jury trial in Boulder involving a wrongful termination of employment. In most cases like this, there are a handful of witnesses, in addition to the plaintiff, who are very important–even critical–to the outcome of the case. In this case, there was one witness whom I considered critical, and I had him lined up for the trial.
The first day involved jury selection, housekeeping, and opening statements. Testimony would take place the next day. I had the important witness set up for testimony on that second morning.
I was in my office at about 7 a.m., working over last-minute preparations for the day. I had just picked up my massive file to leave the office and head to court when I got a call from the important witness. The ominous nature of his call was apparent from the outset, when he asked if he was really that important to our case. I informed him he was. He then asked the name of the presiding judge. I told him. He replied that he feared that was the case.
It seems this witness was a criminal defendant for felony non-payment of child support, and he had appeared before this same judge. The nature of the felony case was such that this witness didn’t want this particular judge to know about his current employment or some item that most certainly would come out in his testimony.
I saw my case evaporate in front of my eyes. I might add here that every big case I have ever tried has had these kinds of incidents–unpredictable, unwanted, and unpleasant. However, I did what I could to save the day. I told the fellow that I would do everything I could to protect him, including preventing his felony from being revealed, because it was a deferred sentence. I told him I would protect him as best I could with respect to the facts as they related to the felony case. I assured him with all the persuasiveness I could muster that the judge, whom I knew very well, would not penalize the fellow in any way for his testimony.
Eventually, I talked the fellow into testifying. I was wrong about the deferred sentence; it came in, because the deferral period was not over. However, nothing came of it and the jury didn’t seem to hold it against the witness–because I won the case.
—Rick Kalamaya, Longmont
The Test of an Honest Person
I once shared offices with a senior colleague with whom I frequently engaged in philosophical discussions. In one of those discussions, I asked him if he was an honest man. He replied with the following story:
I had a client who owned and operated a business through a corporation of which I was secretary. Once, when the business needed to borrow from the bank, we sat at the loan officer’s desk while he signed–and I attested–the loan documents. During that period, the loan officer engaged the client in a conversation during which the loan officer expressed his understanding of the purpose of the loans and the client agreed. I knew that the loan officer’s understanding was not accurate. After leaving the bank, I accosted the client saying, “Never do that to me again.” The client asked, “What?” I responded: “You and I both know the loan proceeds are not going to be used in accordance with the loan officer’s understanding, and I had to remain silent while you misrepresented the purpose.” The client died shortly thereafter and I handled the probate of his estate. The bank was fully paid. However, in the course of probating the estate, I discovered that had the client not had that money on that day, he would have lost everything. I don’t know if I am an honest man; I have never been tested.
Moral: Do not rest comfortable that in speaking the truth when it hurts, is inconvenient, or is even very embarrassing you are an honest person. You have not been tested. An honest person will speak the truth with the certain knowledge that it will destroy him or her.
—Arthur P. Roy, Denver
Never Interrupt a Judge When He is Ruling in Your Favor
I occasionally practiced in Pitkin County District Court before the Honorable George Lohr, who subsequently was appointed to the Colorado Supreme Court. In a district court matter, I participated in a motion hearing in chambers. Following oral argument by the attorneys, Judge Lohr commenced to rule on the matter. I followed along and dutifully scribbled my notes on the ruling. However, at one point, I didn’t understand what the judge had stated, and so I very politely inquired about it. Judge Lohr paused for several seconds, and then stated very slowly and distinctly for maximum effect: “If you ever learn anything at all as a young attorney, never interrupt a judge when he is ruling in your favor.”
—Jeffrey H. Sachs, Greenwood Village
When Angry, Count to Ten Before You Speak
This well-known quotation from Thomas Jefferson has served me well in my practice: “When angry, count to ten before you speak. If very angry, count to one hundred.” Whenever I am upset about another attorney’s communication or some other irritating issue and fire off my forceful reply, I delay sending the draft letter or e-mail message until the next day, if possible. Inevitably, by the following morning, my good sense has returned, and I modify the final message to be more professional and effective. More often than I would like to admit, my original draft was embarrassing.
—Jeffrey H. Sachs, Greenwood Village
Once Lost, Credibility is Hard to Regain
The most important thing you bring to court is your credibility. Once lost, credibility is hard to regain. If you make specious arguments, the judge may miss a valid point you present because you have lost credibility as an advocate. Concede the points you should concede; the judge will appreciate your not wasting the court’s time. The judge will listen carefully when you make your legitimate arguments, because the judge knows you aren’t trying to blow smoke up his or her robes.
—Marshall A. Snider, Denver
When I was a young lawyer, a mentor of mine told me never to blame a staff member for something filed (or not filed) with a court. For example, do not tell a judge you missed a deadline because your paralegal did not get it done. This was excellent advice. You are responsible for your work, and that of your staff. Even if the staff messed up, do not use that as an excuse. Judges will hold you responsible for work performed under your supervision anyway, and don’t want to hear that your secretary/paralegal/law clerk is to blame.
—Marshall A. Snider, Denver
Allow Yourself Plenty of Time
A number of years ago, I needed to go to Breckenridge for the opening of court. The Dillon Dam had not yet been built and there was no ski area at Breckenridge, where the only restaurant in town served family style.
I started down the two-lane road toward my destination and came up behind a four-door sedan driven by a well-dressed man. He was driving placidly—less than the sixty-mile-an-hour speed limit. By some magic process, I refrained from passing him, which was fortunate, because he was the judge.
The advice of the story: always allow yourself plenty of time to get to court.
—Laird S. Campbell, Denver
Befriend Court Staff
After forty years of being a lawyer, the best advice I ever received as a litigator was to make sure that I made friends with the court reporter and court clerk of whatever court I practiced in. On a number of occasions, they saved me from embarrassment because I did not know a local custom or may not have realized that the judge was in a bad mood.
—Al M. Dominguez, Jr., Windsor
One Contest You Don’t Want to Be In...
Early on in my career as a lawyer, when I was making the transition from being a part-time Deputy District Attorney and part-time private lawyer to becoming a full-time private practitioner, I was doing quite a bit of domestic relations work. This put me in contact with a lawyer who specialized in domestic relations matters. He was older and more experienced than I. His conduct bewildered me. He would say one thing and do another, mislead me on facts, present evidence I thought improper, and mislead the judge as to the law and the facts. It appeared his theory was that the ends always justify the means.
This was not the way I thought the law should be practiced, and I was offended by his method and his actions. After a lot of thought, I decided to consult with a district court judge whom I greatly admired. He was an excellent judge, active in the community, and an elder in the church I belonged to. I sought direction from him as to how I could deal with this attorney and still maintain the quality representation and the reputation I wanted to establish for my practice.
One day, I caught the judge in his chambers. He had a few free minutes and invited me in to meet and talk with him. I outlined my woes and concerns, and asked him what I could do. I was expecting some advice on morality and biblical principles, and possibly a lengthy lecture on the practicalities of the practice of law. He leaned back in his chair, chewing on a bit of tobacco as he gave my concerns some thought. After a few moments, he gave me a very short and succinct response. He said, “Jerry, you don’t ever want to get involved in a pissing contest with a skunk.”
That was it. It was the best advice I have ever received as a lawyer!
—Jerry A. Donley, Colorado Springs
The “Six-Inch” Rule
Years ago, when I was young and fearless, I had occasion to defend a client in a discrimination case brought by the Equal Employment Opportunity Commission in the U.S. District Court for the District of Colorado. The case was assigned to Chief Judge Alfred Arraj. During the pre-trial conference, the government attorneys objected to the number of exhibits I had endorsed. Judge Arraj asked me to assemble my exhibits in a stack and then he requested his clerk find a ruler. The judge measured my stack of exhibits and ruled: “Defendant shall not be allowed to offer more than six inches of exhibits at trial.” Ever since then, I’ve strived to follow the “six-inch” rule.
—Michael D. Nosler, Denver
When Clients Question Your Loyalty
I began practicing in Fort Collins in 1972. One of my first cases was a hotly contested, post-decree family law matter. Representing the other side was Arnie Newton, an experienced and well-established Fort Collins attorney. As a rookie, I expected a rough ride and I attacked with guns blazing, facts be damned! Arnie saw what was happening immediately, and never over-reacted. He was calm and entirely reasonable. We were able to settle the case fairly and quickly, much to the benefit of both of our clients.
When we were done, I went to see Arnie and asked him to critique my performance in the case. He had some constructive criticism and finished with a line I have never forgotten. “No one has ever really learned to practice law until the time comes when your client accuses you of representing the other side!” That began a mentor relationship with Arnie that culminated in a lifelong friendship that lasted through his years of practice and through his years as a Larimer County District Court Judge.
In a number of cases over my years of practice, I have had clients question my loyalty to their cause when I have told them something they didn’t want to hear. Every time that happens, I think of Arnie and wonder whether he would have thought that I might have finally learned to practice law.
—John P. Frey, Esq., Fort Collins
Be Nice to Office and Court Staff
I have two stories from my early days of practice. The first follows along with what many other older attorneys have said: Be nice to office staff and court staff.
When I was starting out with a firm in Colorado Springs in the early ‘70s, the firm also had taken on G. Russell Miller as of counsel. Judge Miller had been on the District Court bench for more than thirty years, starting when the Fourth Judicial District extended from Kansas to the Continental Divide and [judges] used to ride circuit to the outlying counties. As a result, he knew all of the court staff in all of those counties. Russ, as he eventually asked me to call him, had very little office work to do and seemed to enjoy my coming in and asking him for advice. Being low man on the totem pole, I often was asked to handle cases that involved out-of-county appearances. Russ asked whether he could come along, and of course I was delighted to have him as a sounding board, and to listen to his reminiscences. He introduced me to the court clerks from Burlington to Fairplay and points in between, asking them to take care of me, and telling me about their likes and dislikes and any hot button issues to avoid, either with courthouse staff or the judge. It was an absolute pleasure to be able to call the clerk in one of those rural courthouses by name, ask for some procedural advice, and be able to use that to smooth the way for subsequent cases. As the older clerks retired, they would put in a kind word for me with their successors—and so it went for forty years.
Thanks, Russ! You made me a better lawyer.
—Michael R. Bromley, Colorado Springs
The Concept of Slowing Down
My other story, also from the early ‘70s, comes from my first argument in front of the Colorado Supreme Court when it was still in the State Capitol Building. The case involved a challenge on behalf of my client to the constitutionality of the new Dissolution of Marriage Act, based on our claim that the petitioner lacked minimum contacts with the State. Heavy stuff for a young lawyer.
In addition to the frightening prospect of having to confront seven of the finest legal minds in the state, it was my first time speaking into a microphone. I introduced myself and launched into my argument. I noticed Chief Justice Pringle looking at his colleagues and throwing up his hands. He interrupted me to say, “Counsel, we can’t understand a word you are saying. Slow down. I know you have a lot to say and only fifteen minutes to say it—and you are not going to get to all of it because we are going to interrupt you with questions. But we all have read the briefs. And for God’s sake, back away from the podium and stop trying to swallow the microphone.” He looked at his colleagues again and said, “We will start your time again,” and punched the button on the timer.
Somehow, that made things much easier. I think it was the concept of slowing down, and the sudden realization that I did not have to try to recapitulate all the points made in thirty or forty pages of written argument, and that oral argument primarily was an opportunity for the Court to ask questions that the justices had within (or, as I subsequently learned, sometimes outside) a framework presented by counsel. The comment about the microphone and the act of starting the time again made me realize that justices on the bench were human beings who had been young lawyers themselves, and they understood my nervousness. And yes, we did succeed in getting the relevant portion of the statute declared unconstitutional and gave the legislature some work to do to rectify it the following year.
—Michael R. Bromley, Colorado Springs