Any experienced attorney has lost cases. You’re not Denny Crane; it’s bound to happen. Harder is not getting a case heard in the first place.
Let’s back up. You went to three years of law school, and maybe had an internship or clerkship in there before you went out on your own. Maybe you worked for a few years to get some experience under your belt. It’s safe to assume that you have a working familiarity with Minnesota statutes and rules of procedure and practice and you’ve faced similar situations many times. How do you file a TRO? What do you need to file with a bankruptcy petition? Does a particular action violate a statute?
When you see those situations, you know what to do, but just as importantly, the staff or administrators you deal with know what to do as well. When they do not, this can put you in one of the hardest, most frustrating positions in legal practice: knowing you are right, but without anyone to convince. Worse, as a small-firm lawyer or solo, this leads to hours of unproductive and worse, unbillable hours trying to find an audience to accept your work.
Let’s take an example: an amalgam of three stories that I have heard or experienced over the last week. You need to file a petition with the court, and the statute says that to do so, you need to file X and Y. So you prepare X and Y, at which point you go down to the court, where the court administrator says you also need to file Z. You think you do not need Z, and the statute or rule agrees with you. Nevertheless, the court administrator refuses to file it without Z.
I’ve seen it come up dozens of times just in the last few weeks. The rules say one thing, but the policy or practice of the court, administrative agency, or facility says something else. You can rant and rave, you can print out and show them the rule, but most administrators have no power to change their policy, and the disconnect can be extremely frustrating.
Just this week I saw a judge on a telephonic conference become red in the face and start yelling at the receptionist on the other end of the phone, who despite a clear rule to the contrary would not accede to the court’s order. In the end, even the judge had to give in and do what the receptionist said, not because the judge was wrong, but because there was no way to get anything done unless the judge did what he was told. In the end, even though he had to give in, I ended up with greater respect for the judge who, even knowing he was right, decided that doing what was right was more important than being right. The issue was resolved quickly after that.
It illustrates an important point that I and other new-ish solo attorneys often have to learn the hard way: what to do when you’re right but you can’t get through to the people you need to hear you.
First, it never helps to rant. Righteous indignation in this sort of situation is tempting (and, let’s be honest, a little satisfying), but rarely does anything more than make the situation worse. The best way to resolve these sorts of situations requires some planning.
These situations rarely happen in common situations like filing a complaint, or requesting a client’s medical records. They tend to happen in unusual situations. If you haven’t seen this type of situation before, it’s entirely possible that the clerks or administrators have not either. In other words, you can see this coming. When you do, save yourself some time and headache, and call ahead. Ask the clerk, administrator, or whoever you will be dealing with what their policy is for this type of situation. Most of the time they will be willing to help, and if you have a good relationship with them, you greatly increase your chances of getting a good result. To quote the last piece of advice our drill sergeant gave us on the last day of basic training: “Men, make friends with the supply sergeants and cooks. Trust me.” He was right, and it is as good advice in the legal field as it was then.
Additionally, for solos or small-firm lawyers who don’t have an older associate or partner at the firm to go to, having an established mentor, even an informal one, can be a great resource in this situation. Again, this takes some foresight. Lawyers are mostly very willing to help other lawyers, especially younger ones, but if you need to file a petition today, you may not have a lot of luck calling through the phone book for bankruptcy attorneys and beginning the conversation with “Hey, I just met you, and this is crazy, but….”
Learning what sort of situations are likely to cause problems, calling ahead to court staff or agency administrators, and having an established mentor to bounce ideas around when an unusual situation arises can save a small-firm lawyer hours of frustration and uncertainty, and make sure that you spend your time where it is spent most efficiently.
Contact Michael Kemp at firstname.lastname@example.org.