Practice Management

I am not sure what some people take out of law school and the practice of law, but I think we all know some that practice the black arts.

It is really the seeking of malevolent powers and malevolent acts, or maybe what should be called "side magic" to gain power over an opponent, or wealth or the admiration of clients that do not know better.  After all, are not the black arts meant to cause misfortune or destruction or a personal gain without regard to the harmful consequences of others.

The black arts are not a matter of misjudgment in a case or the feeling that something could have been better handled during litigation.  There are always regrets at the end of any case.  It is a form of ritual by some attorneys or law firms.  And, we all know the lawyers and firms in our areas that practice the black arts because it is ritual to them.  It is always the same lawyers and the same law firms.

Over time we have called it a number of things.  Gaming.  Rambo attorneys.  The public thinks it only a matter of greed.  Most often than not it is just ego.  Lawyer and law firm mentalities that do not want to lose and are willing to win dirty.  We are talking perceived wins not based upon the the substantive law and facts of the case, but on gimmicks and tricks and tactics.  We are speaking of those lawyers that want to whip their clients into a frenzy on the one hand and then continually be objectionable and spit on the opposing side, so as to create a melodrama that only they enjoy.

The problem is that it is hard to actual define.  We typically know it when we see it in others, but it is not always easy to describe.  It is trying to win on intentional and multiple misinterpretations of case law, or attempting to defeat an otherwise legitimate claim under the law through procedural tricks and gamesmanship.  It is usually accompanied by the act of being completely objectionable and uncooperative with the other side.

It can also entail an attack on the other side to the degree it is overly personal, unfair and most often in ways that are unrelated to the case.  It can be an attack on the lawyer on the other side.  It may also be an frontal attack on the well established law or orders of the court as well.

The other problem I think is that snake oil salesmen do not see themselves as snake oil salesmen, and lawyers of the black arts do not see themselves as purveyors of the black arts.  They do not wish to recognize that their actions have malevolent intentions behind them, and these lawyers and firms try to consider that they are providing benevolent and beneficial representation.  It is a failing really because what we all know it is a lack of stepping out of one's head to see what others in the field see, or to ask others to help one look objectively as to what is happening.  These attorneys and firms have no real set or method of pursuing genuine mental emancipation or self-knowledge.

But, make no mistake about it.  It is the act of trying to cast harmful spells on the case, the court, the opposing party and/or the law.  It is the adding of hot elements to what should be an otherwise cool case.  It represents an attempt to be prickly and harmful, and to make persons, laws and institutions the subject of contempt and and the target of such sorcery and mean intent.

There are just dark people out there, and that personality trait follows lawyers and judges as well.  Maybe the end goal is the same for humble litigation and those using the black arts.  It is, after all, the desire to win or prevail.  In this regard, the end goals and intents are the same.  The question for any lawyer is are you misusing legal interpretation and procedural tactics to keep the truth from being derived or at least interpreted, and is hate, distrust and contentiousness being generated in the process that is unnecessary?  Is there are need to win because of the truth of the litigation (and not extraneous facts) or is winning because losing is just not acceptable.

Lawyers, look more than in your hearts.  Look in the mirror.  Look at yourselves from the standpoint of the courts, your clients and the other side.  Look to see if you are reasonable at all points regardless of the disagreements, whether you are defending or prosecuting your case based upon truth or to prevent truth.  If you clients do not want to win or lose honestly, send them on their way.