The Costanza Method - To succeed by saying exactly the opposite of what conventional wisdom dictates one should in any given situation. This practice is based on a famous Seinfeld episode known as "Opposite George," wherein George Costanza receives a series of promotions and dates with gorgeous women by stating exactly what his instincts tell him he shouldn't. A variation of the Costanza Method may be applied in the law firm context, where one can succeed, or be deemed a visionary, at least for a short time, by simply stating obvious and accurate, yet always unspoken, criticisms about one's superiors, co-workers, opponents, clients or the Court system itself.

Litigation is about the unsaid. It presumes to find the truth through an arduous process in which people fight over peripheral procedural matters, but rarely, if ever, discuss the substantive core of the dispute. Lawyers hide their strategies and fight to the last drop of blood about evidentiary and discovery issues. They exchange and force the production of truckloads of documents maybe a handful of which will ever be relevant to the case. Nobody ever offers the other side a point blank common sense analysis of the likely outcome of the action. We never recognize the day-glo argyle elephant in the corner of the room. Instead, we spit legal theories back and forth, with no acknowledgement of how futile or unrealistic they'll sound to a judge or jury. We float absurd arguments that work on paper, but could never be practically applied.

I've been involved in dozens of cases where the opponent didn't have a snowball's chance in hell of prevailing, yet I've never been allowed to call opposing counsel early and tell him "Carter, your client is fucked. The contract's airtight. I have fifteen pieces of correspondence disproving each of your breach theories. I'll send them to you. Walk now or run later." This approach is shot down by partners. "We can't do that. That's playing all of our cards!" Everybody waits through discovery, allowing us all to bill tens of thousands of dollars. Then we file a motion stating exactly the facts I suggested offering to the opposition at the outset. But by this time, the opponent's pissed away so much on his legal fees in the case that they can't settle. So we spend thousands more arguing motions for summary judgment. Some state court judge, afraid of being flipped on appeal, knocks out some of the opponent's more ridiculous claims, but sustains a few to allow for a trial. We spend thousands more preparing for that charade. The plaintiff's remaining weak claims are settled for a little more than "nuisance value" on the courthouse steps. A small fortune's been burned to reach a resolution that might have been achieved months before with one short meeting. Cash changes hands.... bills are sent out... Fat white men with titles pat each other on the back. The Self Perpetuating Machine's been fed - herds of acned children are guaranteed private school for one more semester... Benz Financial is spared the cost of a sending out missed payment notices.

I realize on this stage, for the litigation salesmen, the dance is the reward, but I can't help wondering, "What would have happened if I just told other side the facts which could have been stated to them at the outset? What if I defied the partners and put our cards on the table? What if I violated the unspoken lawyer's code and just told the truth up front?"

I have an idea of what would happen.

Spring of 1999 was a lousy time to be a litigator. Unless you were bringing class actions on behalf of hedge funds, there was no money in lawsuits. Businesses sue each other when money is tight. When everyone's flush, suits are viewed as they ought to be - unnecessary annoyances, revenue inhaling black holes... massive wastes of time and money. In the closing moments of the last millenium, everybody and his brother was rich, or getting there on a bullet train. You were dim, thick - an imbecile... something to be pitied - if you weren't. Working in a "long track" field like law or accounting was a short bus for suckers and chickenshits. Internet Capital Group was the new Berkshire Hathaway. Global Crossing and Amazon were splitting shares once a month. Transactional lawyers were fleeing for gold plated in-house positions at net companies drowning under spigots of endless venture capital money.

Even in Philadelphia, the future held a rose tint. The Safeguard Scientific campus on the Main Line was minting new millionaires weekly. The old market rules were gone. Everybody was retiring at 40, save fools... and litigators. In a cruel repeat of grade school, junior high and college, litigators weren't invited to the party. We were useless instruments on the money merry-go-round - reminders of past business gone sour... of the old days, when the cash-strapped had to sue to recoup losses. The greenest of companies were scrambling to the next round of financing or fluffing numbers to get bought at staggering premiums. The new masters of the universe didn't sue over breaches of contract. If a deal went sour, the next one in the chute replaced it in minutes. Fucking around in the court system was horse-and-buggy bullshit. Worse, it admitted you didn't have the cash or creativity to replace the lost deal with something better... You had to run to the judge.

I learned in the Spring of 1999 that the partners I worked for were planning to jump to another firm at the end of the Summer. Graham, an old college buddy who was the brother in law of one of the partners, Janet, spilled the news in a vodka and tonic lapse at __________'s one happy hour.

"...and so they're like, fucking gone by September," Graham spat over the bar chatter.

"What's so funny?" he stared at me quizzically.

"Nothing, nothing at all," I straightened the smirk from my face. I couldn't say "Graham, you've just given me the summer off." But I knew... I didn't have to work anymore. If the partners give me shit about my lack of billables, all I had to do was threaten to out their plot to management.

"Here's to their new firm," I tapped my glass against Graham's.

Blackmail's all about the subtlety. "Janet, what's going on?" I closed her door as though I were about to flip off some office gossip. "Why are you asking for lists of all of the associates cases? Is there something I should know?" I felt a tiny pang of guilt about cornering her, since we had a good relationship. Fuck it. This was business, and I already knew the answer to the question... And she knew it was rhetorical. Janet turned red for a second, stiffened and smiled. "We're just trying to get a grip on the files, and... We want to maintain the continuity of this department, and..." A good lie needs a quick hook, like a solid pop tune. She was noodling, up and down the fretboard, semantic Jerry Garcia in the depths of his worst Persian heroin haze. "You're a good associate, and everyone wants to keep you with us..." Between the lines, the compliment read, "We're taking you with us." Janet couldn't come right out and tell me the department was leaving. If she said it in so many words, and the partners' mutinee was uncovered, Janet might have to deny her admission - a bald faced lie. She had to leave it opaque, so she could spin her words however she needed to later. She knew I'd never have rat her out, but that didn't matter. No good lawyer entirely trusts another. I flipped off a polite "thank you" and left, non-commital.

I walked back to my office, packed my stuff up and told my secretary I was leaving for the day. "Where are you going?" The tremor of twenty years of office shellshock staticking her voice. I'd normally make something up about having a meeting outside the office. "I'll be back tomorrow." As I walked to the elevator, passing faces along the way, I thought about what the firm would do with the people who'd surely be left behind when the department bolted - the Bronze Age secretaries from Northeast Philly waiting out retirement, the shiftless drama queen paralegal from Manayunk... the service partners in their rumpled oxfords, muttering to themselves at the urinals. Who'd be fired? Who'd be promoted to fill the void? The suspense could drive a man mad... a man with three cats, basic cable and a passion for kites. I hit the button for the lobby.

I stopped by at the beer distributor on the way home and picked up a case of Budweiser cans. Then I placed a call to a headhunter. I gave her my information, promised to email her my resume as soon as I got home and told her I wanted to make a move before the end of the summer. I went to the gym, rented a movie, picked up a burger at the corner bar and sat on the couch, downing Buds and smoking dry shwag weed from cheap ceramic bong. I repeated this routine for the rest of the summer. Why not? Janet couldn't say shit to me. She and her pack of traitors were too busy shoring up their exit strategy to bother with me, and they couldn't bark at me even if they wanted to. I could rat them out to management, creating a caged death match for their clients between them and firm management. That'd ignite litigation, which the exiting partners couldn't afford. I had free reign to do whatever I liked. My time sheets, when I did them, reflected maybe one or two hours of billable entries a day. I'd float in to work at 10:00, play on the internet for a few hours, read the paper, chat with the paralegals, follow up with the headhunter, then go out for drinks with anyone who was willing. By the time July rolled around, I was working four days a week, but taking no vacation days.

I received two job offers in early August. I accepted the one that let me start the latest, in mid-September. Six weeks to do whatever the hell I liked. I was Bill Murray in "Groundhog Day." Whatever I did or said, it didn't matter.

By late August, I found myself twisted pretty much every waking moment I wasn't in the office, sleeping or at the gym. Friends who were actually working avoided my calls begging them to go out for early drinks. Thursdays through Sundays were a blur - scenes of random events sewn together by the second hand narratives of witnesses. I was reloading the freezer with a 1.75 liter bottle of Stolichnaya every few days. The only thing that kept me from rehab was a luxurious gym regimen. When you've got endless hours to rebound and eat right, the body'll take all the poison you can pour into it. The mind is another story... The indulgence and sloth had warped my judgment and rusted my "filter" to dust. I stated saying all the things I'd wanted to say to so many for so long, but didn't think I could. In the lucid moments, I'd lament burning bridges. Then it'd strike me - I was never going back over any of them.

Now, I didn't seek out opportunities to speak my mind. In fact, I shied from all contact. But when somebody engaged me, I said exactly what I was thinking. The largest forum for my new found honesty was the bi-weekly meeting where we went over all of the cases in the department. The meetings were run by Vaughn, a new junior partner. Vaughn was a universally disliked control freak the exiting partners were all but certainly not taking with them. Vaughn loved putting people on the spot, particularly me. For reasons I never full understood, since I took great pains to avoid him, Vaughn seem threatened by me. My pet theory was that he was jealous of my relationship with Janet. Vaughn didn't like women, and women didn't like him. Vaughn talked past women, as though they weren't part of the conversation. I hated meeting with him and a paralegal, as he'd stare at me and ignore everything the paralegal said, as though she weren't even there, and only address her to bark orders. "Get on this, Michelle. I need it done yesterday."

Vaughn didn't like working for Janet, and really didn't like the fact that I got along with her. He knew that if he screwed with me, I'd go over his head. In what I can only assume was an effort to keep Vaughn from snooping, and possibly uncovering their plan, the exiting partners gave him a slew of administrative duties. Vaughn relished disciplining staff, issuing edicts and presiding over department meetings. During those meetings, I'd sit at the far end of the conference table, leaning back on my chair, hiding from his view. I'd doodle on my pad, grinning at his Gestapo questioning of associates. "What's the status in the Cartwright cases, Candace? Why haven't you filed that motion to consolidate yet?" Vaughn had no idea how fucked he was come September. Here he was, blackout drunk on power, making a fool of himself in front of half of the table who know something he didn't. Terminally deluded, Vaughn took the absence of half of the exiting partners at his monthly meetings as a vote of confidence in him.

Eventually, Vaughn made his way to me. "Have you finished the Martin research? I didn't see a memo. I thought we were going to file a complaint by next week." I leaned in toward the table. "No. Its a dog. The case is old. Statutes ran on the best counts before you gave me the file, and even those were dicey. If you want to discuss it, I'll get into the specifics with you later."

Vaughn cleared his throat. "I'm... I'm trying to cultivate that client. We can win that case." What Vaughn really wanted was a memo from me saying the Martin matter had some solid claims in it, to give him a justification to spank the client with billings which would be credited to him. He didn't want to write the memo justifying an action because he knew the case was a loser. I volleyed back, "That's a short term hit that'll piss off a potential long term client."

Vaughn looked at Janet, who pretended not to hear me. He scanned the room for support. Dead air - clicking of pens... the shifting of wool suits on leather chairs. I imagined Vaughn as Torquemada, sentencing me to the fire. "Heresy!" To argue against stealing immediately available cash in a law firm is sacrilege. In this city, with its then sagging, now in-the-grave-and-rotted economy, the law firm business model for all but the Big Two was, and pretty much remains, "grab the fucking cash." Every client was a mark. You never knew how soon they'd leave the city, go out of business or find another firm that would do the work for $20 an hour less. You had to hit them for what you could when the opportunity presented itself, concern about an ongoing future business relationship be damned. To argue against short term cash was stealing from the partners' mouths. They had crushing mortgages on Main Line McMansions, country club memberships and nose jobs for their teenage daughters to worry about... the American Dream to pay for - heavy freight on a litigator's income in 1999. Who was some associate, with no responsibilities, to tell them they shouldn't take that extra $100k retainer?

"I'll take the case back and do it myself," Vaughn growled into the table, staring daggers through his meeting agenda. I leaned back and resumed doodling.

I didn't limit my new directness to the office. In late August, I went before a suburban county judge on a motion to compel production of documents which were absolutely relevant to my client's case. This particular county is known for having one of the laziest and least prepared benches in the state. Their judges don't even try to hide the fact that they don't read the papers submitted. To avoid having to actually rule, the judge brought my opponent and I back into his chambers, where he muddled through a sloppy canned approach to settling the dispute.

"Can't you give him what he wants?" The judge leaned back in his huge leather chair and grumbled at my opponent.

"No," my opponent snapped back.

The judge looked at me. "Do you really need it?"

"Well, uh... I did file a motion for it, your honor."

The judge scratched his chin, gazed out the window and thought about what he'd order for lunch. "Welll-uhh, this case... it troubles me..." He trailed off, distracted, wavering between the chicken Caesar salad and turkey club. I'd heard "this case troubles me" before. It's judge-speak for "I don't want to learn the issue. Give me a path of least resistance." Most of the time, letting the judge play Solomon's fine. You hedge for it, demanding stacks of sensitive documents you don't need, so you'll have something to concede to settle the motion and get the things you do need. If you need fifty documents, ask for a hundred. But don't be a hog. If you ask for two hundred, you're obvious. Obvious is insulting.

The judge's clerk was a thin pasty kid dressed in the standard clerk uniform - rumpled oversized blue suit, white shirt about three collar sizes too big and red Brooks Brothers pattern tie. Clerks, or at least state clerks, seem to share many common elements of style and demeanor. Their shirts are oversized, as though they're still 14 year old kids who might grow out of their clothes. Their suits are enormous and ill-fitting, aping David Byrne's look from the "Stop Making Sense" era. Their facial expression is always somewhere between Reverend Jim from "Taxi" and Napoleon Dynamite - mouth-breathing mongoloid, genetically incapable of any assertive act or independent thought. Were the average state clerk pumping your gas or watering your azaleas, you'd probably assume he had fetal alcohol syndrome, or just been finished 30 days in a methadone clinic. In reality, he's a legal scholar. His mouth is agape because he's in awe, sucking in the legal wisdom all around him, like a whale shark inhaling plankton.

The clerk in this judge's chambers was standard issue. He sat stone motionless through our colloquy, staring at me as though I had a horn growing out of my forehead, until the judge told him to fetch my motion papers. Hey, Cletus, how about picking me up a Shasta while you're digging through those papers? While Cletus stepped out to leaf through the files, thus continuing his apprenticeship toward becoming the next Felix Frankfurter, I made my argument for why the judge should grant the motion. My opposition gave his rebuttal. Then we began arguing between each other, at which point the judge raised his hand, signaling for us to stop.

"Tell you what... I'll take this under consideration."

A week later I got the order - "Motion Denied." No opinion. No explanation. I was annoyed when I learned the result. Winning was the only even remotely satisfying part of this job, and though leaving one firm was reward enough - the time off between jobs the most coveted of bonuses - I wanted to go out on a high note.

I had Janet force one of the other associates to write up a motion for reconsideration. In a matter of days, I was back in front of Judge ________. This time, he'd read the papers.

"Reconsideration, huh? You really want this stuff."

"No, my client requires it to prove his case."

"I don't see any new law different from your last motion," the judge snapped.

"Well, I believe we were right last time, so there was no need for that."

"But I ruled. I ruled you don't need it and you're not entitled to it."

"Well, without it, I can't get past my opponent's summary judgment motion. If I get the documents I seek, I'm certain I'll have the issues of fact my client needs to defeat that motion."

"Oh, well, this case has gone on long enough. You, you shouldn't have to worry about the summary judgment motion, should you? But it's... this case... it's troubling because... Well, I don't see where all this discovery goes..."

Gibberish. He was setting me up. He wanted to clear his docket. My case was making him work; he was trying to deep six it by refusing to allow me necessary discovery, a ruling he was sure wouldn't be overturned on appeal. The judge was positioning me so he could blow out the case on summary judgment. I should have never even discussed summary judgment... I probably gave him the idea.

"Excuse me, your honor," I cut him off. "Respectfully, Your Honor, I see what's going on here. The Court sees an opportunity to kill the case or force a settlement here. It has broad discretion on discovery, and that the appellate courts won't overrule it on those issues. If I get the discovery I'm seeking, which will get me past summary judgment, the case will go trial. There will undoubtedly be enough factual issues uncovered to preclude the court from granting summary judgment to the other side. And if the court were to grant summary judgment anyway, it would likely be reversed on appeal. BUT, if the court refuses my client necessary discovery, it can grant summary judgment to my opponent with no concern for being flipped on appeal, since the mechanism it employed to do so was a discovery ruling, which the appellate panels will not touch."

The courtroom was dead silent. The judge stared at me. I hadn't gone far enough to be held in contempt, but I'd never get another favorable ruling in this county.

He all but blurted "you fucking Philadelphia cocksucker" before stammering almost under his breath through the words "I'll give you the very, ver-rrry most limited discovery on this issue... you have ten days. Ten days."

Directness works. It's just a shame you have to not give a shit anymore before you can try it.

To be continued...

Posted by PhilaLawyer at 12:49 PM

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