D. Todd Smith | Butler Snow
In this episode, seasoned appellate practitioner Scott Stolley sits down with Todd Smith and Jody Sanders to confront the issue of bullying in the legal profession. Scott explores the multifaceted nature of bullying, from interactions with opposing counsel and judges to the challenges of managing clients and relationships with lawyers in the same firm. Tune in for a deep dive into how lawyers can counteract bullying behavior through professionalism, resilience, and respectful advocacy.
Our guest isScott Stolley of Stolley Law in Dallas. Scott, welcome to the show.
Thank you, Todd and Jody.
We’re thrilled to have another appellate lawyer on the show with us. We’ve ventured away from that a little bit. We’ve had a lot of interesting guests talk about some topics that are scary lately, like AI and death penalty work and so forth. We’re looking forward to nerding out with you a little bit about appellate law and talking about some other things that would be interesting to our audience. As we get into that though, why don’t you tell the audience a little bit about yourself, who is Scott Stolley, and a little bit about your early legal career?
I grew up in a very blue-collar town called Davenport, Iowa, which is part of the Quad Cities. I went to undergrad at Iowa State Law School at the University of Iowa and moved to Dallas in early 1982 right out of law school. I started my career in April of 1982 with an insurance defense firm called Thompson, Coe, Cousins & Irons. I did insurance defense litigation there for about 17 years before I moved to my next firm. For the first 10 years or so at Thompson Coe, I was a trial lawyer and I tried 15 cases to verdict, which gave me a good perspective on certain things, and how to approach appellate work. After about 10 years I realized I don’t like being a trial lawyer that much and I’m a better appellate lawyer than I am a trial lawyer. I will say fortunately it’s worked out that way. I stayed there till 1995.
Thompson Coe, it’s a firm I’m very familiar with and think highly of. When you left Thompson Coe, you went to another Thompson-named firm.
It was Thompson & Knight. What happened after the first ten years at Thompson Coe and I made the decision I wanted to transition to appellate. I went to my partners at Thomson Coe, we did not have an appellate section at that time. I said, “Would you guys let me start an appellate section?” They said, sure. I did that transition.
Back in those days, the successful prominent appellate lawyers were all with big law firms. I planned to hopefully develop enough of an appellate reputation that I could transition to a bigger firm. At that time, Thompson Coe had about 60 lawyers and I managed within a few years to attract enough of a reputation that I got an offer to start at Thompson & Knight, which I did in January 1996. I have Deborah Hankinson to thank for that because I took her seat at Thompson & Knight. It was right after she got put on the Dallas Court of Appeals and they were looking for an appellate lawyer to take her place. I was fortunate enough to know John Martin and he made the offer to me.
That was good timing on your part. I always like hearing from former reformed trial lawyers turned appellate lawyers because, in my experience, Jodi had a good amount of trial experience before he became an appellate lawyer. I started hybrid at one foot in each world, which still gave them the benefit of having the training that all the associates Fulbright & Jaworski were getting when I was coming up as a brand new lawyer. Do you share the view then that having spent some time trying cases makes you a better appellate lawyer?
I think so. There may be some confirmation bias in me saying that. For one thing, it gave me a very healthy respect for what trial lawyers do. It’s very hard to be a trial lawyer. It’s a tough job and they’re asked to make split-second decisions in the middle of a trial. I’ve learned, you don’t throw rocks at the trial lawyers and you don’t second guess their decisions because they have to make hard calls. The other thing that trial experience gave me because I handled my charge conferences back when I tried cases. That gave me a good foundation now to step into trials as appellate counsel and handle the charge conference.
You’re living proof of the difficulty of prepping for a closing argument and handling a charge conference at theoretically the same time. That’s always been a selling point to me for appellate counsel at trial. You need somebody else to handle your charge because you want to be thinking about what you’re going to say to the jury and not what objections you’re going to need to make, particularly in a complex trial where you’ve got to preserve error in the charge. I love that you had that experience aside from your years of experience and reputation, I’m sure it does bring a lot of credibility in the courtroom to have had that experience as a trial lawyer.
One of the things I joke about a lot is my job I get to see the wreckage. A lot of times the wreckage is in the charge conference. I said I don’t throw rocks at the trial lawyer, but I do cringe and see this error was waived or that error was waived and I wish I’d been there because this wouldn’t have happened this way.
That is all too often the case when you’re not hired until after the trial is over. One of the major selling points we’ll all agree on the benefit of having appellate lawyers appellate counsel at trial is to be able to handle those sorts of issues then and there as opposed to trying to clean it up later. You were at Thompson & Knight for a long time and that’s where I first got to know you. You made a transition into solo practice. Tell us about how after you decided to go to a larger firm to head up an appellate practice group, you went the other way and hung out your shingle. How long has it been since you started your practice?
I was at Thompson & Knight for almost 20 years. I left in 2015. At that time Thompson & Knight had about 350 lawyers. I went to a much smaller firm for about a year, the Cherry Petersen firm. One of the big reasons I left Thompson & Knight is the conflicts. With 350 lawyers, the conflicts were almost unresolvable. It became very difficult to open files. I thought, “I’d go to a small firm, I’ve got resources there, and I won’t have conflicts.” The second time my new firm conflicted me out of a significant representation for what wasn’t a real conflict was more a business issue, I said, “This isn’t working.” In 2016, I went solo.
What is solo appellate lawyering like in 2023? Tell us a little about the upsides that you’ve enjoyed and maybe some of the challenges that have come along with being a solo now.
First of all, I love it. To me, it’s the best way to practice law. I work at home so I don’t have a commute to deal with. Because I work at home and I don’t have any employees, my overhead is very low. I can charge a much lower hourly rate than the big firm appellate lawyers are charging. I can still make significant money. I had a record year in 2023. I’m probably going to break that record in 2024.
I like the freedom and the flexibility. I can set my rates, I don’t have to take every case, and I can be very selective about what I take. I don’t have to deal with bureaucracy and the phone keeps ringing. I got a phone call about a mandamus, and I got a follow-up call about that. Here’s one of the amazing things that’s shocked me I don’t have a website. At first, when I went solo I thought, “I got to dig in and build a website.” I was so busy and never got around to it. Now, years later, I’m realizing I don’t need one. The phone keeps ringing.
I’ll confess that I was looking for a little more biographical information on you, although you sent me some information. I went toAppellateHub.com and it’s just a landing page with your contact information on it. It does say still Scott though, “Under construction.” I don’t know if you want to change that or not because it seems like after all these years maybe it’s not going to get built.
It might not.
It’s interesting because I was talking to a solo who handles trial work who early in his career had a website but has taken it down and has as much business as he wants without it. That is quite a mental departure from what we’re told we might need to do to market our practices. Congratulations on not needing to maintain a website to keep yourself busy because having done that can be a lot of work. I was going to ask you this though. It’s just you and you have no employees. Do you have any help administratively with filings or any contract admin support, or is it just Scott Stolley handling everything?
It’s just me. There was a few years ago when I was extraordinarily busy because I was offering people’s introductory rate. I’ve raised my rate since then but I probably didn’t do a great job of managing and I just got overloaded. I did hire another appellate lawyer as an independent contractor to help me with some things. I found that I didn’t even enjoy that part of managing somebody else. I’ve been more selective and it worked. I haven’t needed that help. You ask about the downsides. One of them is there are times I wish I had some admin help, particularly with things like billing. Sometimes it’s hard to carve out the time to bill and then collect. That’s been the biggest place where I wished I had some admin help.
pic
Bullying: When doing solo appellate work, sometimes it’s hard to carve out the time to build and then collect.
Have you made yourself more efficient with technology and things like that to maybe automate some things to make it easier and hopefully take some of that administrative load away?
I used Clio to do my timekeeping and billing and that’s been a real godsend. In terms of the legal practice itself, when I knew I was going to be transitioning to a small firm and then solo, I went to the extra effort to learn how word processing. At a place like Thompson & Knight, you have all these resources and you have a secretary. I knew I was going to have to learn to do that stuff on my own and I did. The other thing you guys probably know that has made solo appellate work possible is electronic research. I could not do this if I had to have a big library. When I started Westlaw was very clunky. It was so clunky, that I refused to use it. Now it’s so powerful that all kinds of lawyers can be solo because of the technology.
The bars have gotten good about acknowledging that being a solo is not a weakness. It may have been 2 or 3 decades ago, it might’ve been perceived that way. There are reasons why so many of us gravitate to larger firms. These days, someone like you who’s already got an existing practice can step out get a Westlaw, count a computer and a good internet connection, and be in business. I certainly appreciate the freedom and flexibility aspect that you highlighted because that comes with your practice setting. It seems like the technology side keeps getting better and better and it’s going to make it easier. We may see more people who are comfortable with technology, stepping out into their practices because what’s being made possible now through the tech and the ability to handle more as one person than you ever could before.
At the same time, I don’t think I can understate the importance of having gotten good training at big firms and good mentoring. A new grad can step out and open their own office and have all the resources I have right now, but they don’t have the reputation and the ability to track work. They may not be doing quality work because they haven’t been properly trained. You have to have both.
No disagreement here. I think we’ve seen a lot of young lawyers step out of law school and hang their shingle and I do think there’s something lost in doing that. Whether it’s out of necessity or out of an entrepreneurial spirit or whatever it is. The idea of getting that mentorship, developing professional relationships within your firm and outside your firm, and the bar, and so forth. There’s a reason why a lot of people go and work in firms and then make changes a few years into their careers. That experience is invaluable if you can get it. No doubt about it.
One of the things I do miss about the big firm is the marketing and professional development budget. I use that to my advantage. I did a lot of marketing on the firm dime. I went to a lot of CLEs and got very active in bar organizations, which I encourage everybody to do. I know Todd, you serve on the state bar board. I’ve done that. All those experiences helped me and it was a big advantage to have a big firm to finance that.
Just to wrap up talking about your specific practice, what kinds of cases are you working on these days and have you developed particular areas? I don’t know that appellate lawyers call themselves experts in anything maybe other than in being an appellate lawyer, which is a legitimate area of expertise. What kinds of things are you working on that you’re proud of or you’ve developed a particular interest in?
I’ll take just about any civil case, even if I don’t know the area of law like you guys I’m sure. I’ve learned how to get up to speed very quickly in a new area of law. I’ve got business disputes, real estate disputes, contract cases. Since I’ve been solo I had some family law cases. I don’t do criminal work. I probably would not be competent to do that. I won’t do IP work. Again, I probably wouldn’t be competent in that area. Due to my insurance defense background, I get into a lot of tort wrongful death cases. One of the really fun parts of my practice besides the wide variety of the kinds of cases is that I can work both sides. I have plaintiff’s cases and defense cases and among other things, I’ve found that plaintiff’s lawyers appreciate the defense lawyer frame and perspective that I can bring to their case.
I’m sure plaintiff’s lawyers enjoy being able to hire a former insurance defense lawyer. It’s like having that depth of knowledge about defense strategy and so forth on your side as a plaintiff’s lawyer has got to be super valuable. One thing we talked about before we started is being something that you have a keen interest in is typography. We hadMatthew Butterick on the show a few years ago now, but we did have him and he talked about the basic elements that he covers in his book and some of the thinking that he’s managed to inject into the legal profession about typography. Some of us have absorbed it better than others I suppose, but what’s your perspective on typography and legal documents? I assume we’re talking primarily about briefs.
I got very interested in that when I joined Thompson & Knight in ’96. The whole field became open to me. The other thing I’ve done besides studying writing is I’ve studied persuasion. The first step in being able to persuade is to get somebody’s attention. You have to get and keep the court’s attention. To me, if your brief doesn’t look good typographically, you’re going to lose their attention. I’ve worked over the years to develop a style that works for me that creates a very visually appealing brief that hopefully will get their attention, keep their attention, and ultimately make it easier for them to rule for my client.
pic
Bullying: If your brief doesn’t look good typographically, you’re going to lose their attention.
The rules aren’t that hard. Matthew Butterick’s book is excellent and I recommend that book to anybody who’s creating legal documents, trial court documents, appellate, or whatever. It’s an excellent resource. You don’t have to follow all his rules if you don’t have time but some certain very basic rules will dramatically improve the appearance of your brief.
What are some of your top choices on those rules?
Don’t pick a bad font, don’t use Courier, and don’t use Times New Roman. Times New Roman was developed from newspapers. You’re not writing for a newspaper. It’s a very dense font. I use Century which is available on Word. You don’t have to pay extra for it. It’s a very readable font and it’s very big. When it’s 14-point it looks bigger. I even use 14-point Century in my footnotes because why would you make it harder for them to read a footnote they don’t want to read anyway? That’s another thing I do. Don’t make your footnotes smaller. We’re not worried about page limits anymore. You don’t have to make things smaller.
The rule says an inch margin on the top, bottom right, and left. There’s no reason you can’t make it bigger. I use 1.35-inch margins on the right and left. The line length is much shorter. It makes it easier for the court to read. I build in a lot of wide space when you read Butterick and people like that. Wide space is very important for the human eye. I build in extra space in between sections for example. Those are some of the basics.
You see people adjusting to electronic briefs and using some of Butterick’s strategies but also things that just make sense. When we all came up as young lawyers, people would use Roman in the table of contents and the index of authorities. I do this myself. I’ve seen a trend away from that to start treating the cover as page number one, and then moving on through and numbering the document sequentially in part because we don’t have page limits anymore.
Also, it makes sense because you can align the pagination within the PDF with the way you’re labeling it in the document itself. I find that helpful when opposing counsel because I never do this, and forget to number their pages, but that’s just another example of something that can be done. How do you handle headings in your brief? You said you added extra space. Have you moved away from Roman numerals?
I don’t use Roman numerals. I pretty much use Bryan Garner’s formatting for headings. If at all possible I try to keep my headings to two lines. If they’re longer than two lines, they get too dense and you run the risk the court won’t even read it. One thing you mentioned earlier is about table of contents and index of authorities. I see some awful tables of contents and indexes of authorities from really good appellate lawyers. I’m as careful about formatting those two sections as I am anywhere in the brief. When you hear from appellate judges at conferences, believe it or not, they read the table of contents. They look at the index of authorities.
I remember a former Dallas judge Joe Morris, a very good appellate judge at a CLE one time, the first thing he did was look at the table of authorities to see what cases were cited because he knew he would know from the cases that were cited what kind of case he’s dealing with, whether he is dealing with a good brief or a bad brief pretty much.
I don’t know that I’ve ever heard another judge say that. It seems like maybe only an appellate judge could follow that strategy because having seen so many cases, we do hear all the time about the table of contents and there being a missed opportunity for advocacy and not including your argument outline or your issue statements. That’s a lesson I learned many years ago. The brief may not be awesome, but I’m going to have an outline of my argument in the table of contents and my issues are going to be there. Any other typography thoughts before we move into the main topic?
I like to use visuals. It’s gotten to where very frequently I’ll have some visual in a brief. I like to use bullet-point lists. That’s another way to build in white space and make it less dense. There are all kinds of tips like that. Butterick is very good at explaining. Garners is very good at explaining that thing.
I like bullet points too because they focus the attention on, usually, it’s a fairly short statement of something in a bullet point. It attracts attention to that one thing. Maybe you don’t want to list the ten bullet points. Three is a good number to keep in mind when you’re writing briefs anyway. Try to keep your issues to 3, maybe 3 bullet points in a list. There’s no rule I’ve seen on that but it does allow you to state parts of your argument in a succinct way that it can drive it home. I’m a big fan of the bullet points too, especially those over long and extensive block quotes which tend to get overused and underread.
You talk about judges not wanting to read footnotes. We all just gloss over a big long block quote. We permit ourselves to just take that page off. The three of us are certainly of the same mind on these things and that comes from being students of written advocacy. I’ll tell you, Scott, I agree with your overall observation that typography is important. When I see bad typography on the other side, it’s much harder as an advocate to deal with that. Almost in the same vein as when you have a bad brief you’re responding to and I tell clients that sometimes those are the hardest ones to deal with because then you start thinking, “The judge is going to read this, how much judicial advocacy is going to go on to try to make sense of their argument?”
I’m not saying that’s intentional, but when you see an opinion that says, “We construe the appellant’s argument as X,” it’s so much better to be able to respond for a brief that’s not so hard to read. Also, it contains those sorts of cogent succinct arguments that we see among people whom we all admire as written advocates.
The goal is to be clear and persuasive. Typography adds to both of those. As you say, if it’s bad typography, it’s harder to read and it takes more effort. more effort. My philosophy is you want to help the court find the path of least resistance to get to the result you want for your client. If your brief is hard to read, you’re making it hard for them to get there.
Scott, as I mentioned, I’ve certainly known you for many years. We’re thrilled to have you on the show to talk about your career as an appellate lawyer and some of these good tips that you’ve brought forward. One of the reasons why you came to mind to invite you on the show was because you’ve been involved in some CLE presentations fairly on the topic of bullying in the law.
Just to give the audience a little bit of context, you’ve put on a CLE program withJudge Royal Furgeson,Amy Stewart, andMike Bassett from Dallas. You have one of those programs was recorded and is available on Texas Bar CLE for anybody who has access to that. I’ll commend that program to anybody after tuning into this, whether you read the whole interview or not is interested in the topic. Why don’t we start by having you tell us what’s the origin story of that bullying and the lost CLE? When I first saw it I thought I’m sure that’s a great topic and it’s very much needed, but I was pleasantly surprised to see Texas Bar CLE putting on a program like that. How did it get started?
I want to say this was probably early in the pandemic when we had a lot of thoughts swirling in our heads. This thought occurred to me, there’s a lot of bullying in our profession and it’s weird because I found in my senior years that when I ask myself a question, a lot of times the answer will just hop in my head magically, it’s a funny thing. I ask myself, “Why is there so much bullying in our profession?” The answer that popped into my head immediately was that it works.
As we go through this topic a little bit, I’m not sure it works so much as it gives the appearance of working. People think it works. I started mulling over the problem and I decided eventually I was going to put together a panel discussion to talk about why bullying happens and how we deal with it. I had no interest in rolling out this program by Zoom. I knew I had to wait until the pandemic was over and we were able to do it live. As we’re rolling out of the pandemic, I happened to have breakfast with my friend Mike Bassett and I told him my idea and he said, “I’d like to be part of that.” That led us to involve Amy Stewart. Both of them are prominent experienced trial lawyers in Dallas.
Mike suggested the third person on the panel be a psychologist who he knows named Jim Dolan. The first few times we did this, that was our panel and Jim Dolan added a lot to the panel, the psychological perspective, particularly because he’s had a lot of lawyers as clients and as patients and he’s written for legal publications like Texas Lawyer so he knows lawyers. Yet we couldn’t always get the same people available. We’ve done this program now about eight times and Jim Dolan’s got a busy practice so he is not always available, we’ve often substituted Judge Royal Furgeson and there’ve been a couple of other people we’ve ruled in at various programs, but it’s me, Mike, Amy and Judge Furgeson who’s the core group right now.
Eight times is a lot of presentations. That’s great. It’s funny you said you wanted to roll it out after the pandemic and not over Zoom because my experience with it was on Texas Bar CLE, which is just a variation on Zoom. You could reach a broader audience with the topic that way, but I’m sure there’s some value in people hearing that discussion live and in person, and maybe if there’s time even being allowed to ask some questions. We’re going to dive into the meat of the issues but before we move on to that, are there any current plans to do more live presentations?
We’re always open to invitations. Right now, the only thing on our calendar is for the Collin County Bar in February 2024. We’ve done it for the state bar, and the webcast you’re talking about, and we’ve done several state bar seminars for various groups within the Dallas Bar Association. Mike Bassett has a podcast of his own called Legal Grounds. We did it on his podcast one time. We’re always open to invitations. The cool thing about this program is, that you guys have experienced speaking at a program, you look out over the audience, and at least half of them are looking at their phones or their laptops. Every time we’ve done this program, nobody is doing that. They’re paying attention because everybody has been bullied.
You asked yourself the question, why is there so much bullying in the profession? That answers the question I was going to ask you, is bullying a problem in the profession? It’s enough of a problem that you’ve managed to garner that much interest in a topic at CLE presentations and to get people to look up from their phones and laptops. What do you think are the major reasons why it’s a problem in the profession? You have the perception that it works. I suppose that feeds the bullies a little bit.
I’ll just say having watched the presentation, I was impressed that you not only covered bullying between lawyers but also bullying by colleagues internally in law practices by judges and by clients because there are bullying behaviors that occur within each one of those relationships. Anybody who’s practiced law for very long has seen all four of those, no doubt about it. Coming back to the basic question, other than the perception that bullying works, which is subject to some debate, why do we think it’s become so rampant?
One place I tie that back to is we ask this question and a lot of times I pose this to Jim Dolan because he’s the psychologist. I say, “Does the law attract bullies or does the law create bullies?” Probably the consensus is it’s some of both. Certain people with bullying tendencies may be just temperamentally disagreeable and want their way. They’re attracted to a field that allows them to exhibit that. Also, the law can create bullies.
One of the interesting things about that is we have all these DRs and codes of conduct, etc., and they all prohibit bullying. They don’t use the word, but they all prohibit that behavior, yet it still happens. Why does it happen? In terms of facilitating those who are attracted to the law because they’re bullies and also the way the law can create bullies. The law gives us lawyers very powerful tools to use on other people. We can subpoena somebody to show up for a deposition against their will. We can force them to produce documents, we can force them to show up at the courthouse and judges have even more powerful tools.
The law lends itself to misuse of those tools by people who are inclined to do so. It’s also a question of mentoring. When you watched the program, I’m sure you saw a lot of discussion about the importance of mentoring young lawyers properly not bullying. What behavior are you modeling for your young lawyers? Something I learned in the last years about the human brain there’s a set of neurons called mirror neurons. Those are neurons that allow us to mimic what we see in hear. Infants and babies, that’s how they learn how to behave through the mirror neurons. That’s how young lawyers learn how to bully because those mirror neurons get triggered. It’s not always a conscious thing.
That also relates to something you said much earlier in the discussion, which was the notion of young lawyers getting out and hanging their shingles without the benefit of training up among folks in a position to mentor them, to model for them how the law should be practiced. How do you deal with a confrontational situation, which is what litigation and much of the law is? How do you deal with that effectively without taking everything personally? This also relates directly to one of our other favorite topics, which is lawyer mental health and wellbeing. How do you advocate for your clients in a way that doesn’t require you to always have your shield up and your sword drawn? That’s what it feels like a lot of times and appellate lawyers aren’t immune from it, frankly.
I do like to think we are one layer detached from slugging it out on the battlefield, but not always. Going back to the mentoring idea that to me is one of the major issues that we as a profession need to be confronting. The presentation that you all have made to me illustrates and reinforces that despite all the DRs and the codes and so forth, if we’re not going to follow those because we’re an honorable profession we need to be training each other up, raising each other in a way going to work doesn’t give us an ulcer or cause us to have to take medication. That is a major issue that I would love to see.
I know the bars have gotten good about focusing on wellbeing and mental health and we do often see bars good about focusing on mentoring efforts. One of the things that your program is doing is helping to illustrate some of these other effects of the nature of the legal market in this day and age and the need for lawyers to have those sorts of mentoring relationships early.
As you say, Scott, you’re going to act like you’ve been taught and if you’re teaching yourself, you can read a lot of books and read up on legal professionalism and hold yourself to that standard. You also get unwittingly mentored by opposing counsel or judges. Having someone in a position to advise you, to teach you how to practice law, includes dealing not only with opposing counsel but also with all the other potential bullies that we’ve identified, clients, judges, and so forth. The importance of that I just don’t think can be overstated.
We’re taught and we believe we can’t show weakness as lawyers. We’re advocates and therefore we can’t show weakness and that you can take that overboard. Also, clients expect us to be combative, strong, and aggressive. With those kinds of forces working on us, it’s difficult to make sure you notch it back and act professionally. There are ways to be strong without being a bully. We talk about that a lot in this program. How do you handle the bully? The bottom line is you be strong but you don’t have to be a bully back.
Seems like that would instigate more than anything.
We start the program by talking about bullying by opposing counsel because that’s probably the most prevalent that we deal with. As our program has evolved, we’ve evolved and developed several strategies. One of them I call it like the bottle rocket strategy. You just let them go off like a bottle rocket. You observe and watch. A bottle rocket uses fuel pretty quickly and then falls to Earth. You let them expend their fuel and fall to earth and then you move on. You don’t engage and you don’t instigate further firing. This is not about shooting bullets at each other.
Another one we talked about in the program is engaging with humor. I find that tricky because I’m nobody’s standup comedian, but someone like Amy Stewart is good at humor and she illustrates how you can use humor. One of my favorites is just to shine a light on what it is they’re doing. I’ll give one example. You guys know when you file a mandamus, you could also pair it with an emergency motion for a stay. I had a mandamus where we decided, “Let’s not file the emergency motion, let’s wait and see if the court’s interested.”
Sure enough, they were interested, they asked to decide for a response. We said, “We feel like that’s some grounds for us to go ahead and file an emergency motion.” Now, you have to confer with opposing counsel. I sent an email to opposing counsel and this is a guy I did not know, never met him, never even heard of him. He fires back an email and it says, “What’s your ground for the stay? I’ll file your motion and I’ll seek sanctions on you.” Here’s somebody I don’t even know who’s trying to bully me.
What I did in my certificate of the conference I quoted his email, verbatim word for word what he said in his response to my request for his position. What I was doing was shining a light on him in front of the court. I don’t know if the court ever even saw it, but if you’re a lawyer, you don’t want the court to see something like that. Guess what? He never filed his threatened motion for sanctions. I’ve done that several different times in different ways using the certificate of conference to shine a light on what the other guy’s doing.
I’ve found that to be an effective way to do it. Mike Bassett has an interesting way of handling it. Mike’s a personable guy, a straight-up standup guy. He said at least once and maybe multiple times, I can’t remember where he had opposing counsel who was spinning out of control, would call him up the next day and say, “I’m just touching base with you. Are you okay?” This ties back to what you were talking about earlier about a lawyer’s mental health.
Sometimes bullying is a manifestation of some substance problem or a mental health problem or maybe just stress, maybe family life, somebody’s ill, who knows? You don’t know, you can’t necessarily read their minds. Mike said he’s found that to be a very effective way to get opposing counsel to start relating to him on basically a human level instead of an aggressive level. Shooting back is usually not the right answer. We had a lawyer named Al Alice on our program one time. I don’t know if you guys know Al, he’s a legend in Alice Barr.
pic
Bullying: Sometimes, bullying is a manifestation of some sort of substance problem or a mental health problem.
He’s a legal legend.
Before our program that first time he was on it, he said, “I’ve never been bullied.” I guess you have to be an Al Alice to never have experienced bullying. When you meet Al, you know not to bully him. That ties to something that I’ve talked about, Jim Dolan has talked about how we teach people how to treat us.
I love that quote.
You give it some thought and figure out how to teach the bullies how to treat you. I don’t know if you want to get into any of this, but it varies with the context because bullying by clients is different than bullying by opposing counsel.
Before we do that real quick, let’s talk about looping into one of the thoughts about asking whether the bully is okay. It’s true to say that that can fuse the situation with someone perhaps that you don’t know. If it’s a lawyer that you do know, and are familiar with, and this is uncharacteristic behavior, for them, it can be particularly effective. It also may help you answer the question in your mind about whether that person might be suffering from some impairment, which in the right situation could call for a call to TLAP to see or something similar in the local bar. To make sure that out of concern for your fellow lawyer’s well-being, they are okay.
You don’t have to be the one to make sure they’re okay but it’s a fair question and it can be particularly effective for someone you think this isn’t characteristic behavior of. I didn’t mean to derail the transition into talking about clients because that is a very valid question to ask. Scott, you may have mentioned that clients expect us to be aggressive and so forth. When you all talk about clients in the presentation and bullying by clients what specific examples can we give about that behavior for us to be mindful of?
Judge Furgeson tells an interesting story about a very prominent lawyer in El Paso back in the day John Grambling, who with an insurance company’s permission, made an offer to the other side and then the insurance company called him up and said, “We want you to withdraw that offer.” Grambling said, “I’m sorry, I can’t do that. I gave my word.” The insurance company tried to bully him to withdraw the offer and said, “If you don’t withdraw that offer then we’re going to pull all our files from you.” Grambling’s answer was, “Your files will be at the front desk by noon.” Standing up to them is one thing.
Mike Bassett has a compelling story where he got lured into assisting an in-house claims manager for a trucking company who became a good friend and client of Mike’s to participate in basically the client’s extortion scheme. He was extorting money from his own trucking company. He was running the money through all the law firms he used around the country and it nearly cost Mike his freedom and his license. He wrote a book about it, which I recommend called The Man in the Ditch.
Mike’s very open in talking about it and how it changed his life. That was an example of a very insidious recruitment by the client until you get to the ultimate hammer and he wants Mike to do something illegal. He says, “Not only won’t you get any more work from my trucking company, but I’ll make sure every other trucking claim person I know stays away from you.” It was very insidious up to the point where the guy dropped the hammer and we can all look at that and say they’re but for the grace of God. When you’ve got a very big client of yours or the firms, they have a hammer that you got to be careful how you let them use it.
That is a great story that Mike tells. I need to get that book because that would be a great read and a reminder to keep in mind what’s important. It ties into the whole idea of a note that I had written down about things clients may want you to do it can bully you, trying to bully you into taking untenable or unethical legal positions. Going back to the notion of codes and DRs, we have the benefit in our state of the Texas Lawyers’ Creed and specific to appellate lawyers, as we’ve talked about on the show many times the standards of appellate conduct.
One potential answer is maybe it doesn’t happen so much to us in appeals, not to say that it doesn’t happen, but those two documents, the lawyers creating the standards for appellate conduct do give us something concrete to show to the client to say, “These are the reasons why I cannot do what you’re asking me to do besides I don’t want to go to jail or lose my law license, but this is the standard of conduct that the Supreme Court expects of me.”
For many of us, let the client know when we’re retained, and send them copies of these documents, which is a good way to set expectations. Does it prevent the bullying? No, but that’s, I suppose one possible response to a situation like that, not quite to the extreme of what Mike was dealing with. To say a client wants you to say something about a case in the brief that’s not supported by the case or something else in that vein, it’s pretty easy to recite those documents and say, this is not the way we practice and we won’t do it.
I’ve done that in just a few rare instances where I thought counsel was being abusive and not agreeing to an extension. I would cite them to the standards for appellate conduct.
Or your client doesn’t want you to. Same thing. There’s also the notion that we said that clients want us to be aggressive, but that client, particularly in litigation trial work, you’re not mean enough Mr. Stolley, you’re too nice. If you would just be meaner, you could get the result that we’re looking for. We all know that’s not true, but sometimes the clients have to be educated. It says a lot for the lawyers. The line is firm enough in their mind, that it makes it easy for them to decide to tell the client your files will be at the front desk by noon.
We’ve probably all had a client who made us want to say that. I certainly admire that approach. As we move through the list, Scott, we have time to talk about bullying among colleagues and also from judges. They’re slightly different than clients or opposing counsel. What kind of bullying issues have we seen in all covered in the presentations involving colleagues?
Amy Stewart has some good stories about a partner at a firm who would bully young lawyers with comments on documents and call them stupid, “Were you dropped on your head as a child?” and stuff like that. She ultimately decided the solution was to leave that firm. Sometimes that’s the only answer is to leave. I had a senior partner who was general counsel at my law firm bully me one time because I was taking a different position than him on a significant firm issue. He told me, “You better come around to my view or look for another job.” He had no power to fire me. I ignored it and I just kept doing what was necessary, writing the memos, and talking to the right people within the law firm, and eventually, my position was vindicated. Sometimes you just have to stay steady.
Another example, I got bullied. I was on a board of a nonprofit and there was a task force within the nonprofit where the chair of the task force was trying to bully me to take a position that I thought was very detrimental. He wanted to get very confrontational with the board in a way that would not be useful or helpful. I kept saying, “I’m not doing that. I’m not signing off on that letter.” Eventually, I got an email from him at about 3:00 in the morning, which I read when I got up that morning, it’s the worst email I’ve ever received. Not only did he insult me, but he insulted the board. I decided I was done with this task force. I resigned from the task force and at the next board meeting. I threw it in the board’s lap.
What I did was I stood up at the board meeting and read his email to the board, and the board was appropriately outraged. As I expected and thought would happen, the board took care of the problem. The way I’ve come around to characterizing that is one way to handle the bully in that setting anyway is to build a coalition. I thought the board would work the problem appropriately and they did. You might be even able to do that in a multi-party case. If one lawyer is being a bully, you get the rest of the lawyers as a coalition to deal with the bully.
Someone mentioned in the presentation that the idea of physical confrontations too in the workplace is not limited to the workplace. That could happen with opposing counsel. I’ve observed something close to that before. Obviously, in a situation like that, you’ve got to process to deal with issues like that hopefully, unless it’s a small setting. Unless you’re Scott Stolley PC, you’ve got an HR director or someone who handles these issues, “I would like to think that firms would treat that very seriously.”
You think about it in terms of maybe on the order of sexual harassment or something like that. There’s a mechanism there for dealing with that situation that does play in Scott to the notion of building a coalition. If the partners in a firm see that another lawyer in the firm is physically threatening another colleague, there’s a reason to circle up and deal with that situation because it’s detrimental to the law firm. There’s certainly got to be precedent for that.
I did appreciate what Amy said in the presentation about how sometimes if things are just not going to get better, you don’t have a choice but to find another work environment. That’s something else we’ve talked about a lot in this program is, you may not be in the right situation. There may be a better situation for you and you shouldn’t have to put up with that thing day in and day out in your work environment. It’s one thing to have to deal with it from a client occasionally, or opposing counsel occasionally, but that whole idea of somebody asking, “Are you an idiot?” when making redline changes on a document, no. Absolutely not.
We talked about this in the program, but young lawyers are very susceptible to being bullied as are women lawyers.
It’s a power differential issue, largely. I see that in three of the areas that we’re covering now. Clients, they’re the ones with the money and the purse strings colleagues typically think of someone senior bullying, someone junior, although not necessarily. Maybe this is a good segue into talking about judges because talks about a power differential, that’s we’re all potentially subjected to some level of bullying, even the most senior, highly regarded lawyer. It goes in front of a judge who’s having, hopefully, it’s more than a bad day because I don’t think it’s ever justified.
Let’s talk a little, Scott, let you lead the discussion about what bullying by judges looks like. One thought that I had as I was getting ready for this talk was we’re lawyers. Didn’t we sign up for this? That judge was mean to me. That opens up a whole different range of topics to talk about, but what does bullying from the bench look like?
Consistent with what you just said, Al Alice made a great point in one of our programs. He said that not every time a judge does something that you consider mean or whatever adjective you want to apply to it doesn’t mean it’s bullying. You do have to make those fine distinctions. To me, bullying by a judge is most exemplified by basically arm-twisting you to give up something that is your client’s right. Whether it’s a right to object, the right to pursue a claim, the right to make a record. We all know judges who have insidiously threatened you with something that would ultimately require you or your client to give up a right. To me, that’s the worst judicial bullying because that’s trying to get to the judge’s outcome rather than the outcome that the system results. It results from the system working properly.
pic
Bullying: Bullying by a judge is most exemplified by basically arm twisting you to give up something that is your client’s right.
We’ve all heard stories and as appellate lawyers, we’ve all advised trial lawyers, you have to make a record. We’ve all had judges who have refused in various ways to let us have a record. You have got to insist on a record. That requires you to be in the uncomfortable position of standing up to the judge. As you noted, we’re paid to take uncomfortable positions and to withstand the discomfort.
I’ve had judges who didn’t want to hear my charge objections and one of them stormed off the bench before I was done as the door was closing, I said, “By the way, your Honor, I object to your failure to hear the rest of my objections.” That’s one way I deal with it just very professionally, but firmly insist on making a record and then objecting when the judge refuses to give you a record or when the judge won’t give you a ruling. As you all know, you’ve got to get a ruling on your charge and if you don’t get a ruling, you have to object to the failure to give you a ruling.
That’s probably the best example. You have no choice as you point out, Scott. I heard Mike Bassett say that when you’re getting bullied by a judge, maybe it’s a good idea to remind the court that you’ve got a client you’re representing and you have a duty to your client. Maybe that could help depersonalize it a little bit if the judge is reminded of that.
I thought of something even more aggressive. I’ve never tried it out, but something like, “Is it your honor’s position that in your courtroom I have to violate my oath to my client?” That’s pretty aggressive. Glad to do it. Thanks for inviting me.
Scott, one thing that comes to mind that I don’t think we’ve addressed yet is a situation, we talk about preserving error in trials. It’s commonly known that judges sometimes give fake rulings on objections by saying “Move along counsel.” That’s a classic quote. That’s another example of something that would have to be dealt with using the strategy you talked about and saying, “Judge, I’m afraid I’m here in part as an appellate counsel without rubbing your face in it, to preserve the record for appeal. Therefore, I have to insist that the court rule on my objection.”
Use some of the other strategies you talked about, that’s a very uncomfortable moment in a courtroom sometimes. It does seem like sometimes you do have to confront the judge in the nicest, most professional way possible. Sometimes the judge needs to be reminded that you’re a professional representing your client in their courtroom and you’re just doing your job.
There are lots of ways to do it. I’ve found the simplest way to do it when a judge doesn’t want to give you a ruling through some vehicle, such as saying move along counsel, instead of ruling, I’ll just say something as simple as, “Your Honor, may I please have a ruling on my objection.” Maybe the judge will say, “Counsel, just move along.” You might say something like, “I’m sorry, but to protect my client’s rights, I need to ask that you give us a ruling.” “Counsel move along.” At that point, you’re justified in saying something like, “Your Honor, I’m just going to have to take that as you refusing to rule. I want the record to reflect that I’m objecting to your refusal to rule.”
Seems like that would be enough at that point.
That last part is important. It’s not enough to point out that he/she is refusing to rule, you have to object to the failure to rule, otherwise you’re waiving error. The judge accomplished his/her objective, which was to get you to waive the record. The program is largely aimed at lawyers, but it’s also partially aimed at judges. It’s important to educate judges along with lawyers that we can all lapse into bullying. I started the program by asking the audience, “Have you ever been bullied by a client? Arms go up. Have you ever been bullied by a judge? Here’s the tricky question, have you ever been guilty of bullying?”
That’s the thing we haven’t talked about.
I have to raise my hand when I ask that question. I have to tell on myself because we’ve all got that dark spot in our hearts where we know we’ve bullied somebody somewhere in our lives. It might be our children but we’ve all done it. If we can educate judges just like lawyers, it’ll make it better for everybody.
That’s an important takeaway as we get close to wrapping up here. This is an important issue for self-reflection and asking yourself, “Not only have I ever been the bully, but am I the bully currently in a relationship or one of these relationships,” whichever seat you sit in, among the four types of relationships we’ve talked about. Ask yourself, “Am I the bully currently? Do I need to act that way to represent the best interest of my client?” The three of us would agree that if you are doing that if you’re engaging in that behavior, the answer to the question about whether you need to do it is no.
pic
Bullying: In the long run, bullying doesn’t work because it, among other things, hurts your reputation as a lawyer. Then that reputation carries over to your clients.
I haven’t seen any evidence yet to show that bullying is effective. There’s a lot of downside to it. There’s a lot of damage to reputation. You can tell me if you agree with this, Scott, but if anybody looked around and said, who are the most successful lawyers in the profession? I venture to say that if any of them would be folks they could be classified as bullies. If we start getting toward the end here, that’s a good near-parting thought is to engage in some self-reflection and try to be honest with yourself about whether this is you that we’re talking about.
Your last point is a good one. We’ve wrapped up the program by circling back to “Does bullying work?” Our consensus usually is. In the long run, no. Among other things, it hurts your reputation as a lawyer and then that reputation carries over to your clients. Bullying you engaged in many years ago may hurt your present-day client because your reputation has been damaged.
When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.