The Games Lawyers Play - one of my favorite classes in law school was Civil Procedure, which is about the procedural rules used in lawsuits.  After law school I clerked for a federal trial judge, where I honed my knowledge of procedure.  Then I finally went out into practice.  "Any idiot can win a case on the merits," I would proudly exclaim.  "A real lawyer knows how to win using procedure."  Lately, though, I'm not so enthusiastic about the way that we lawyers use procedure.  To non-lawyers it seems complex, but it's not really.  Often it's just a lot of game-playing.  Here are some concrete examples.

Let's say you are a company facing an employment lawsuit in Birmingham, Alabama.  Your case is assigned to Judge U.W. Clemon, a black federal trial judge, who was a pioneering figure in the Civil Rights movement.  You have reason to believe --let's just assume this-- that he isn't going to give you a fair shake.  So what can you do to get him off of the case?  Well, if he owned stock in your company you could have him recused (recused means "removed from the case").  Unfortunately, he doesn't own your company's stock.  But he has a nephew who is a lawyer in Birmingham, and if you hire him to act as local counsel for you the judge will have to recuse himself.  So, as the Wall St. Journal  describes (paid subscription required), that's what you do.  And apparently you aren't the only one, because this same tactic has been used by other corporate defendants in other employment cases that were alloted to this same judge.   Advantage: defendant.  I'm sure the plaintiff's lawyers don't like it when the judge is removed in that fashion, but it's a perfectly legal tactic.

But let's not weep for the plaintiff lawyers.  They have their own tactics, such as preventing a case from being "removed" to a court that is more favorable for the defendant.  "Removal" is the process by which an out-of-state defendant that is sued in state court can have the case sent up to the local federal court.  Removal was created to keep such defendants from being "home-towned" in a local state court that would likely be more sympathetic to the local plaintiff.  How do you prevent a case from being removed?  Easy.  You add a local defendant.  Plaintiffs lawyers do this all the time, even when the local defendant has almost no chance of being held liable.  It's now an art form to come up with wispy theories of liability to assert against such defendants.  All you need to show is that you might conceivably --even in the most theoretical sense-- have a valid claim.  Everyone knows that the plaintiffs have no plan to actually seek damages against the local defendant (the jury probably wouldn't like that).  So, by means of this tactic, the case stays in state court, and the local defendant gets to pay munificent sums in defense of a claim that is pure veneer.  Seems strange, perhaps.  But, to lawyers, it's totally normal.  Basic procedural tactics.  No big deal.

What is a big deal in the law these days?  Well, one thing is the harrumphy effort to teach lawyers what they call "professionalism,"  which is different than "ethics."  Ethics is about what you have to do; and "professionalism" is about what you are supposed to do, because it's right.  Lawyers have a hard time identifying what exactly they are supposed to do, especially when the ethics rules tell them that they have to zealously advance the interests of their client in almost any way that is permissible.  So the tactical games continue, safely ensconced in that wonderfully grey area that exists between virtue and duty.

The blogosphere loves to talk about how messed up the intellectual property laws are.  Yes, how true.  But the legal system as a whole is even more seriously off-kilter.   Lawyers know this.  The professionalism move is laudable, but it is window dressing on a problem that is more deeply rooted.  Tactics and procedure are intertwined with that serious problem.  True, many of the tactics used by lawyers are legitimate and acceptable.  But some are contemptible and demean the stature of the profession.  And, for that, we lawyers have no one to blame but ourselves.

Last update: 8/28/2002; 6:51:11 PM.