White Shoe, Black HatMichael Clayton's devastating critique of the legal profession.

Remarks from the Fray:

The problem that drives the lawyer in Michael Clayton crazy is a common one, and simply resolved. If a lawyer discovers an unfavorable document in a client's files, he claims a privilege if he can, which is his responsibility as the client's advocate, and otherwise he discloses the document, which is his duty, and then he tries to muster other evidence to support a narrative that portrays the client in the most favorable light the facts allow.

It's not the easy cases like the one in "Michael Clayton" that drive you crazy. When the client is caught and there's smoking-gun evidence, the system usually functions well enough to prevent capable counsel extricating the wrongdoer through some sort of legal sleight of hand. The job of the defense counsel is to put the other side's claim through procedural tests to see if he can expose it as bogus, and if it turns out to be legitimate, the lawyer will ordinarily counsel the client to settle.

If the system can't routinely resolve cases like this justly, than the lawyer's guilt in "Michael Clayton" is like the guilt of a thief who swiped some silverware from the dining room on the Titanic.

If lawyers are unhappy or mentally ill, it's not because of our guilt over our clients. I think part of what makes us unhappy is that we have a doomy professional outlook. When newly engaged lovers are dreaming about living happily ever after, lawyers are tasked with preparing pre-nup agreements and wills to deal with the disposition of the assets in the event of death or divorce. While businessmen toast the commencement of a new venture, their lawyers negotiate how to divide blame if the enterprise fails, and which creditors will feast first on the carcass in the event of insolvency.

Another source of unhappiness is that our analytical approach to thinking forces us to identify flaws in ideas we'd sometimes prefer to embrace uncritically. You can't stop being a lawyer when you go to church or listen to a political speech. Most of us start out as idealists, and legal training is about systematically puncturing those ideals.

We become incapable of being spontaneous or carefree. We look for rain clouds on a clear day. We are the nagging voice reminding you to get a flu shot. We're the guy at the party trying to get someone to be a designated driver.

The bankers and hedge fund managers are happier because they're optimists and we're pessimists. They look forward to success and we anticipate failure. Whether that's part of what we become by being lawyers or why we become lawyers in the first place is an open question.

--Crawford

(To reply, click here.)

I enjoyed Michael Clayton, and the last thing I would want to do is spoil anyone's fun by pointing out how inaccurate it is as a portrayal of firm life. There's nothing wrong with taking artistic license in order to tell a good story. There is, however, something wrong with a journalist--who seems to have gone to law school but seems never to have worked at a big law firm--claiming that Michael Clayton is an "unusually accurate" look inside the lives of big firm lawyers.

To take one of the movie's lines quoted in this article: "Six years. Four hundred depositions. A hundred motions. Five changes of venue. Eighty-four thousand documents in discovery." If you're a big firm lawyer, this line makes you wonder why the writers did not consult any before putting this on the screen. Six years is not an unrealistic time frame for a large products liability case; many last longer. […] Four hundred depositions, though, is a howler. The Federal Rules permit ten depositions as of right, after which you have to seek the court's permission. Courts routinely allow more than ten in complex cases, but four hundred is astronomically high. It's hard to imagine any court requiring a private litigant to submit to the burden and expense of four hundred depositions. On the other hand, eighty-four thousand documents is laughably low for a complex case in the era of personal computers and email. In fact, I laughed out loud at this line in the theater because I have myself been involved in a large products liability case for the last two years which has involved the review of approximately 30 million pages of documents and the production, so far, of approximately 8 million pages. It's hard to say how many unique documents this comprises, but it would be well in excess of 2 million. So far.

I also take issue with the author's claim that "in the '70s, firms might expect 1,800 billable hours a year; today some New York associates bill 3,000." Both parts of this statement are, strictly speaking, true, but the suggestion that typical associate billable hours today are closer to 3,000 than to 1,800 is not. And it's certainly not true that firms expect 3,000 hours a year from associates. Even in New York. 3,000 hours happens, of course, and I'm sure it happens more today than in the 1970s, but 1,800 hours happens a hell of a lot more. As a litigation associate, it would be difficult to bill 3,000 hours in a year unless you were closely involved in one or more active jury trials. I've billed a 2,500 hour year before, and I can tell you that a 3,000 hour year would be physically and mentally exhausting. I would be extremely skeptical of anyone who claimed to have billed those kinds of hours for more than one year in a row. Billing like that is more likely due to hours inflation (which is a nice way of saying defrauding clients) than it is actual work.

--El Camino

(To reply, click here.)

(2/26)

• Broder: A Bellwether Town's Forecast
• Meyerson: Assembling an Obama Nation
• Froomkin: A Reversal for the White House?
• Editorial: The Bush Administration's Silence