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Bill like a lawyer? Talk like a lawyer

I had the misfortune this past week to wait my turn on the motion docket.

The motion docket in this circuit is usually a long one. I frequently learn something hearing other lawyers argue. Other times, I leave shaking my head at the things lawyers say with a straight face.

Long dockets are especially painful to me because I work on a contingent fee and can’t bill for my time. My goal is to use as few words as necessary to get back to the office quickly. And to avoid winding up in jail for contempt of court. On this day I was much more successful at the latter than the former.

The motion being heard before mine was argued by six or eight big firm lawyers who were evidently being paid by the word. They used a lot of them, although they didn’t really say very much. In fact, most of the time was spent repeating what they had just said, prefaced by “as I said…” I have no idea what they wanted, or if they got it as I tuned out. In any event, they spent an hour and a half of my life that I will never recover. They didn’t even look good doing it.

My mentor taught me early on that if you’re going to bill high rates like a professional, you should look like one. To this day, I wear a sport coat to the office even if no one will see it but me. If you don’t know what you are doing, you should look like you do, and a man in a dark suit with a clipboard can move freely almost anywhere. My suit is my armor, as it is the one thing I don’t have to worry over.

I know that the cool lawyers have no problem showing up to meetings in torn jeans. The big firm group was followed by a young nattily dressed man. This young fellow shared my mentor’s view on appearance. When he opened his mouth to speak however, I wished he had spent more time laying out his argument and less laying out his clothes.

In the course of his argument, he punctuated every third phrase by cocking his head at the judge and saying “right?”

“They should pay for my wasted time, right? I shouldn’t have to travel for a wasted trip that is their fault, right?”

His monologue was more skateboard kid living in his parents’ basement than barrister. He ultimately asked the court for $5,000 in legal fees. He said that his hourly rate was $375 an hour, and justified that rate by arguing that big firm lawyers bill $900 an hour and he is at least half as good as they are. While I was scratching my head at both his logic and his math, he got what he wanted.

You can certainly take this as sour grapes, Gentle Reader. I have yet to ask for an hourly rate of more than $300, and I almost blushed when doing that after my opponent complained. It seems like a pretty tall number in this part of the world, and one could argue that my level of legal acumen barely justifies minimum wage. I think my opponent made exactly that argument.

High legal fees do nothing to help lawyers’ image. Anyone who has hired an attorney is quick to complain about the fees. On the other hand, I remember an anecdote from a lawyer hired to defend one of the Big 3 automakers against product liability claims. He was told that if he expected to continue doing big time legal work for them, he’d better raise his hourly rate so as not to embarrass them for hiring a bargain barrister. While that didn’t keep them from grousing about the bill, they made him do it.

There has long been a push to do away with legalese in our profession. Clients may want to hire a good ol’ boy or girl, but they still expect a professional fighter in court. Not an MMA fighter per se, but an elegant gentleman who plays according to Hoyle. No one would hire a neurosurgeon who said “what we are fixin’ to do is cut open your melon and pull out that danged ol’ tumor.” Yet lawyers have no problem abandoning the King’s English for goober talk.

Most lawyers can’t avoid Anglo-Saxon antiquities such as “comes now petitioner” and “respondent prays this Honorable court” from their writing. A document including the phrase “any and all” invites my haughty grammarian snickers – do I give you any of the documents or all of the documents? How will I give you all without also giving you any?

Concededly, grammar corrections by someone who took an English degree from an agricultural college are suspect. Even so, I can’t get my arms around how to speak at a low level while billing a high one. The courthouse gallery of old was not packed with observers who expected Charles Darwin or John Adams to talk like they did.

“Judge, we like, want you to be all fair and stuff.”

It is one thing to talk plainly to a client. It is another to address a judge without the appropriate decorum. And if your language is common, your bill should reflect that.

Right?

1201farris1:  Attorney Spencer Farris.  KAREN ELSHOUT/photo

©2016 under analysis llc. Under analysis is a nationally syndicated column. Spencer Farris is the founding partner of The S.E. Farris Law Firm in St Louis. He really does have an English degree from an Ag college. Comments about the column may be sent this newspaper’s editor, Fred Ehrlich, at fehrlich@molawyersmedia.com or directly to Under Analysis at farris@farrislaw.net.

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