Crime & Federalism

Lawyer, Protect Thyself

Did the Connecticut Supreme Court recently hold ajar a door that might permit lawyers who win grievances filed against them to sue losing grievants? I certainly hope so. There is no reason why the bar needs to bend and spread before the altar of rage.

A tantalizing footnote in Rioux v. Barry suggests that the Supreme Court is prepared to reconsider the absolute immunity grievants now enjoy. There simply is no reason why a legal system premised on holding people accountable for their actions grants blanket immunity to those who take aim at a lawyer's license.

I am aware of the argument that claims for vexatious litigation arising from failed grievances might chill people from filing claims against lawyers. That could undermine confidence in the legal profession.Perhaps. But last I checked, lawyers ranked near the bottom of those in whom the public places its trust. Absolute immunity hasn't improved our image.

The vast majority of what we do as lawyers, at least insofar as litigation is concerned, is sort out the consequences of other people's mental health issues. We are singularly unprepared for our role as gladiator-therapists. It is small wonder that many litigants turn on their lawyers. Litigation is a zero-sum game. There will always be unhappy litigants.

Below are several reforms to the grievance process that will assure that lawyers are policed and that grievants don't abuse the process of filing cost-free actions against others:

• The process of filing a grievance should not be free. There should be a flat fee that can be waived on an affidavit of indigency. I am not suggesting a prohibitive fee. We make plaintiffs post a $500 bond in the federal courts. Why not do likewise for complaints to the Statewide Grievance Committee?

The presence of a bond would give a grievant a financial stake in the process. Rather than simply spouting off steam, a grievant would be required to conduct a minimal cost-benefit analysis about the value of their time. The way things now stand, many grievants file meritless claims that merely cost their former lawyers time and expense to answer.

• Second, when a grievant loses a claim, the lawyer ought to be permitted to move for a finding that the grievance was frivolous. A claim in which probable cause was found by a reviewing committee should not be granted such a finding. But when clients grieve their lawyers merely because they are angry about the raw deal life has dealt them, there is no reason why such a finding ought not to enter.

• If a claim is found frivolous, give the lawyer a choice: He can either move to have the grievant's bond remitted to him, or he can elect to file a vexatious litigation claim. No lawyer should be able to do both. Indigent clients relieved of the requirement to file bond would be exempt from suit, unless the lawyer proved in the course of the underlying proceeding that the grievant lied about his or her assets.

The vast majority of grievances are dismissed because they lack merit. Yet each grievance must be answered on pain of further disciplinary proceedings. We submit to all this without even so much the power to request an independent medical examination of the grievant when there is reason to believe they are driven by sociopathy.

Public confidence in the profession will not be undermined by requiring that those filing grievances be accountable for their acts. With sensible reform, we can have a system that works. As things now stand, lawyers are sitting ducks without means to recoup lost time and expense. The result is higher legal fees for all, and a decision by most lawyers to avoid clients who look like too much trouble. •

Reprinted with permission of The Connecticut Law Tribune.

ER Lawyering

Newsflash! The education of lawyers does not prepare them for what awaits them in their professional lives. No kidding.

The Carnegie Foundation for the Advancement of Teaching actually seems to believe that lawyers can be trained for what lies ahead. That is, perhaps, the conceit of a foundation that believes in the efficacy of teaching.More teachers?

The foundation wants better training on legal ethics. But there is nothing about the classroom that prepares lawyers for the human dimension of lawyering. Not can there be.

The third and fourth year of a medical school education focuses largely on clinical practice. Disease is made manifest in people. Doctors in training set aside theory for the grimy reality of practice. Law schools would do well to require clinical practice.

The emphasis in legal education on such things as law reviews is a telling sign of why lawyers aren't educated well. Law review articles are fun to read, and law school professors are necessary. But the law is not reason made manifest in the world. The ife of the law, Holmes once reminded, is experience. And in the case of the life of a practicing lawyer, that experience often comes in the form of need that is impervious to reason.

Want better trained lawyers? Spend the third year of legal education outside the classroom. Require all lawyers to intern for a month or so in the local emergency room so that they can see the ordinary chaos that many folks call day-to-day living. Then send the lawyers for a month or so to a drug or alcohol rehabilitation clinic, where they can rub elbows with life-destroying need. Then send the lawyers to a psychiatric facility or two. Top off the year with work in a soup kitchen or homeless shelter.

In each of these settings, assign the would-be lawyers the task of interviewing people. Let the lawyers identify one area of the interviewee's life in which legal advice is needed. Then let the would-be lawyers provide counsel.

That is the reality of the law the small firm practitioner.

Nothing prepares lawyers for the need they face in their clients. And no classroom experience undertaken in the cool light of reason can prepare a lawyer for the emotional travail of a client in fear, terror or anger.

So let's change lawyering education, but not by creating another breed of teachers who can pontificate about what they haven't done, and perhaps cannot do. Remember: Practice conceived isn't theory relieved.

Psychologists As Associates?

I hung up on a client yesterday, and in the dead of night I wondered whether this will yield a grievance. Sure, it was uncivil of me to do so. But civility is a two-way street. What rule requires a lawyer to answer the same question five times? And what training have we as lawyers to deal with folks who only hear what suits them?

Every litigation firm has a handful of clients whose needs overwhelm paralegals and lawyers alike. New ethics rules on client communications create a quandary for litigators. Increasingly, we are called upon to serve as social workers. The role of counselor now encompasses more than mere advice on legal options. We are wedded now to the sorrows of strangers who need help we do not know how to give.

In personal injury firms, nurses are often hired to help sort through the paper work and to manage files. I am wondering whether any firms have experimented with hiring a psychologist to handle difficult clients.

I am sorely tempted to hire a psychologist. Most often clients find themselves, or have placed themselves, at crisis-laden crossroads. The legal signposts are clear enough. But accepting the reality of what the law provides is often traumatic. Who better than a psychologist to understand and cope with a client in crisis?

Anyone out there aware of any case law on this topic? I am not proposing a joint venture in which clients come to a law firm for analysis or psychotherapy. I am simply looking for a way to meet client needs while actually engaging in the practice of law. Increasingly, my firm is turning away cases in which clients are simply too needy, most often in employment cases. I wonder where those clients go to address their woes.

Lawyer Beware

We all know the Latin term, caveat emptor -- buyer beware. But when it comes time to selling your services as a legal professional, heed the following: Lawyer beware!

Consider the following: A recent ethics seminar sponsored by the Connecticut Bar Association recommended that a lawyer return each and every telephone call from a client. The same panel then went on to say it is a lawyer's duty to send a copy of each pleading to the client. Question? When did the duty to keep a client reasonably informed of the status of their litigation become a duty to service every whim?  Every call? Every pleading? Why?

Do we as a profession think so little of ourselves that we are prepared to sacrifice our professional independence to the lowest common denominator in the community? Experienced lawyers know what "sticky" clients are. They are clients who can never get enough of your attention. Ask them to answer a question, and they pepper you with three new requests, often far afield from the cause of action at hand. Do you answer each new request, thereby getting sucked into a vortex of infinite need? Or do you do your job, and advance the material issues as best you can? These days, you better jump right into the arms of your client, regardless of whether their demands suffocate.

Lawyer cops among us appear to demand that the client be coddled at all costs. I recently put the following question to an ethics panel: Suppose in a case you come to believe that a certain issue is without merit. Are you obliged to obtain your client's consent before withdrawing the claim? The unanimous decision was "yes." If a client insists on pursuing a meritless claim, then you must do what the client wants, whether it makes sense or not.

That's not law. That's little more that intellectual pinball. Of course, these same ethics experts remind us that we can move to withdraw when a client insists on an unreasonable objective. So I guess that is the answer in the brave new world of legal ethics. Worship the client, and then beg to be relieved by the Court when you learn that you should perhaps have had the client consent to an independent medical examination at the same time they signed the retainer.

Oh, don't get me wrong. Most clients are not a problem, and it is a privilege to represent people in need. But any lawyer with more than a smattering of gray hair will tell you that amid the sheep are clients with howling needs that can never be satisfied.

Lawyer beware. An unhinged client can cost you a bundle in terms of time, expense and professional reputation when they decide that you are next target in their lifelong parade of horribles. Advice to the new lawyer: When it comes to a new client follow your gut. When in doubt, don't sell your services. Trust your gut.

Why It Is Important To Charge Fees

I am not a personal injury lawyer, so I have never been in the business of sheer speculation over the suffering of another. Contingency fees are the norm among the "PI" crowd. I litigate criminal cases and plaintiff's federal civil rights cases. From time to time, and increasingly, I defend civilly. Here is something I have learned that may be of value: Be sure to charge adequate, even high, fees.

I see eyes rolling. Let me explain.

Filing an appearance or a lawsuit on behalf of a client is an act carrying consequences. Call it something akin to a marriage vow. You can only be let out of a case with permission of the Court. Have you a retainer agreement that will protect you from a client with infinite and irrational needs?

Persons accused of crimes or seeking access to the civil justice system are people in trouble, people in need. Sometimes the needs are simple and easy to meet. In some cases, lingering just beneath a benign smile there lurks a hollow and angry heart. The needs of this latter class of clients approach infinity. All lawyers blunder into the path of sociopaths and borderline personalities.

The Rules of Professional Conduct require that we keep our clients reasonably informed about the status of their case. But some clients can't help but obsess, and cannot avoid telling you how to do your job. Nothing requires us to give law-school tutorials to our clients, and we are no more required to explain each step we take than is a surgeon to justify each cut. These clients will call, cavil, quibble, and write one thing after another, taking time most lawyers don't have. How many lawyers have made the mistake of charging a flat fee only to hear the client want one impossible thing after another. Ever hear a client say "What have we got to lose," when all he is spending is your time?

Lawyers speak of client control. Wary litigators are aware that it is far easier to lead a client to the courthouse than it is to make them think. Fees, hourly fees, impose discipline on a client, and, if the client insists on wasting time, a lawyer is at least compensated for the time spent.

Failure to charge fees often yields the inevitable and most often frivolous grievances when a client feels neglected. That, too, takes time to defend. And then there is all the staff time spent copying documents, answering endless calls responding to questions that are not really questions, but are really just pleas for attention.

As lawyers we are all free to give our time away as often as we like. Indeed, it is our obligation to serve and to offer pro bono service. But we get to choose the person to whom we give.

My advice to young practitioners? Don't scramble so for cases that you fail to charge enough. I've spoken to more than one young lawyer in the past month who is at wits end over the impossible demands of impossible clients. Protect yourself and your firm by charging fees sufficient to permit you to get the job done, and fees high enough to let clients know that if they insist on wasting your time, they, and not you, will pay for it.

Mirror, Mirror on the Wall

A federal jury returned a verdict of $250,000 against a Corrections Officer in Connecticut the other day. His offense? The guard abused a prisoner who was shackled in four point restraints. It was an important vindication of the civil rights of prisoners. And the lawyers for the prisoner should be proud of their work.

It is difficult to win an Eighth Amendment claim. One need prove not merely that the force used was excessive, but that it was administered for the very purpose of causing pain.

But how deeply and quickly we fall in love with the sound of our own voices. Is it a species of sociopathy -- a lawyer's inability to see beyond his own shadow?

On the courthouse steps after the verdict, one of the plaintiff's lawyers had this to say: "This might be the most significant verdict against the [state] Department of Correction ever, because of the effect it should have on guards and other staff members who might be tempted to mistreat inmates," Antonio Ponvert said. "It sends a loud message that no one is immune from the law and the Constitution is fully alive within the prison facilities of this state." Mirror, Mirror on the Page Indeed, the verdict was not against the DOC at all. The defendant's conduct was so egregious, the DOC cut him loose.

Ponvert is one of the species of lawyers who calls his own press conferences. He should spend a little more time reading something other than his own clippings.

In 1999, another Connecticut jury returned a verdict of $2.1 million against two Department of Corrections officers for their mistreatment of a prisoner. The case was King v. Verdone, et al., a case I tried. Unlike Ponvert's case, the Department of Corrections both defended the tortfeasors and paid the remiited verdict. In Ponvert's case, the defendant had to defend himself. Whether the defendant has anything to pay the verdict remains to be seen.

The King verdict changed nothing in the DOC, as witnessed by the need for this latest case. It feels great to win a case, and the illusion of efficacy transports. But the grim reality remains: litigation changes little.

Moral Madness?

Does anyone really doubt the fact that some people are, at least some of the time, mentally ill?

I start with this tentative question as a means of tip-toeing to the brink of a larger question: Does philosophic skepticism and a commitment to pluralism require that we abandon common sense?

This morning's New York Times reports on a debate in New Mexico about legislation to require the mentally ill to undergo treatment even if they have not committed a crime. Not surprisingly, opinion is sharply divided. Some fear violation of the civil rights of the mentally ill; others contend it is cruel to ignore the needs of those in obvious pain.

But here is the rub: Who decides whether a person requires mental-health treatment?

In the 1960s, we set about a deinstitutionalizing persons from mental-health institutions. Commuity-based care was deemed more humane. But we have never funded community based care. Releasing people from institutions has often resulted in the cruuelty of homelessness.

Some argued at the time that there was no such thing as mental illness. Influenced by the likes of Michael Foucault, the mental health profession was regarded as a means of social control, imposing a vision or view point of sanity on raw humanity. The hidden assumption? There is no mental illness, simply different means of expressing one's humanity.

There is a superficial appeal to this claim. Indeed, pluralism and skepticism about larger truths counsel equal respect for all points of view. These views are often under attack by moral absolutists of one sort or another. Thus the war of the worlds taking shape between Muslim fundamentalists and the West; thus even our own cultural wars pitting Bible-bangers against secularists.

Can skepticism and pluralism be squared with a commitment to aggressive medical treatment of the mentally ill? I think the answer is yes. A person patently unable to care for themself is not expressing a commitment to freedom. And a person torn from within is not Walt Whitman singing himself in transcendant autonomy.

It is cruel and irresponsible to turn our back on the need to treat the mentally ill simply because doing otherwise would require us to make clear our philosophic and moral commitments about what is and is not consistent with a good life.

On balance, I weigh in on the side of compulsory treatment of the mentally ill. This can be done without tipping the scales in favor of an authoritarian state filled with Stepford Wives. Of course, the danger is that the merely deviant will be regarded as ill and forced into the mainstream. Yet refusing to recognize the line between mere deviance and suffering is an abdication of responsibility both to those who suffer, and to our communities.

Deinstitutionalization failed. It failed in part because it was based on a faulty philosophic premise: That in a skeptical world we cannot draw distinctions between better and worse. Common sense requires that we do so, and each of us draws such distinctions daily in our own lives. We kid ourselves by saying a commitment to civil liberties requires ignoring the obvious.

Thanks To CTLA Readers

Not long ago, a newspaper requested permission to reprint one of the blogs appearing on this page. The post was one appearing in the series we have labelled "The Sociopathy Project." It was playfully entitled the "Hee-Bee Gee-Bee Test," and it was about how to spot clients who need medication more than they need litigation.

Of course, I was flattered to have the essay reprinted. But the comments that have flowed on the Connecticut Trial Lawyers Association listserve during the past week have not been quite so flattering.

I am not a member of the listserve. Generally, I dislike the devices. They are very distracting, yielding plenty of email smoke, but little more. A few friends have been shooting over the comments on the blog. Let me preface what follows by thanking all for reading.

The Connecticut Trial Lawyers Association is a plaintiff-oriented club. I've really never understood why lawyers form clubs for those representing only one side of an aisle. I represent civil plaintiffs and civil defendants -- although over the years I have represented far more plaintiffs. It seems sort of silly to say, as does a famed Trial Lawyers College in Wyoming, that prosecutors and insurance defense lawyers need not apply. We are all officers of the court, serving clients with the doctrine at hand. Neither side of the aisle has a monopoly on virtue, or truth.

Did I unfairly characterize all plaintiffs? No, I did not even write about all plaintiffs. I wrote about the wolves-in-sheep's-clothing sociopaths whose smiles and facile demeanors are masks for rage and the mere destructive desire for revenge. Nothing I wrote, and nothing I believe, suggests that the doors of the courts should be closed to those injured by the acts and omissions of another. All I am saying is that a significant percentage of plaintiffs bring deep-seated psychological injury to their cases that is not caused by a defendant's misconduct, and these clients transfer all their anger and disappointment onto the first available target, whether it be defendant or lawyer. I suspect any lawyer practicing more than a couple of years can draw this distinction with ease.

Was I suggesting that defendants are somehow devoid of the same sociopathy? Not at all. I suspect many defendants are disturbed as well. But there is a crucial difference -- the defendant did not choose to be in court. Sue my client, and I must defend; but I am not required to bring suit in response to every phantasm shaking my plaintiff's soul.

Finally, why did I not speak out against outrageously stupid and wasteful defense conduct? The filing, let's say, of baseless motions for change of venue, or the stupid stonewalling of the white shoe firm on discovery? Can't sociopaths also wear the lawyer's suit?

There is no doubt that a lot of lawyers are practicing law without moral compass. And I do not doubt that many of them are on the defense side of the aisle in civil litigation. I stand rightly rebuked for not having paid enough attention to them in "The Sociopathy Project," which is, I remind you, just gathering steam.

So thanks to all the good folks at the Connecticut Trial Lawyers Association for reading. I haven't lost the will and zeal to fight, far from it. But I do get to choose not to become more than the blunt instrument of those client's whose cases lack merit, and whose psyches bring nothing but hatred and rage to a courtroom.

In Cold Blood

"Am I sorry? If that's what you mean -- I'm not. I don't feel anything about it. I wish I did. But nothing about it bothers me a bit. Half an hour after it happened, Dick was making jokes and I was laughing at them. Maybe we're not human. I'm human enough to feel sorry for myself. Sorry I can't walk out of here when you walk out. But that's all."

The words are those of Perry Smith, convicted and sentenced to death for the murder of four people, the Clutter family, in Holcomb, Kansas, in 1959. They are reported by Truman Capote's In Cold Blood, originally published in 1965.

I was moved to reread this work not long ago while researching sociopathy and borderline personalities. One scholar in the field noted the work's power at portraying the two dimensional world of the sociopath. Utterly lacking in conscience, a sociopath can kill without remorse. The sight of human suffering yields no empathy. It is as though an emotional keel is missing, and the sociopath is drawn along on primitive currents the rest of us can keep in check.

Perry Smith's words leapt off the page, and not because Capote wrote with grace. I am assuming the words themselves were Smith's, and that Capote reported what he heard.

Richard Hickock and Perry Smith were two ex-convicts in search of the good life in November 1959. The search led them to the Clutter farm, and ended on Kansas' death row. Capote's rendering of the crime, the character of the defendants and the legal wrangling resulting in their execution is wonderfully written. But Capote was no lawyer. His account of the post-conviction proceedings does not convince. He simply didn't get habeas corpus, and he had no sense of litigation as a sometimes wasteful blood sport.

Even so, the work is well worth reading. The final sentence of the book is absolutely perfect, and must be saved for last. If you are not clear what a sociopath is, read In Cold Blood. Even if you are confident that you know a sociopath when you see him, read the book any way. I last read it in college, reading it again was like a reunion with an old friend.

Beware The P300 -- Honest!

If you thought genetics posed challenges to the development of law and legal dotrcine, you haven't seen anything yet. Developments in neuroscience are rapidly providing insight into the structure and function of the brain. Does that mean we will soon understand the contents of our minds? And, if so, what then of the law, where factfinders struggle with mental states, memory and truth?

I could not put down Neuroscience and the Law: Brain, Mind and the Scales of Justice. It kept me up all night -- in the middle of trial, I hasten to add. Edited by Brent Garland on behalf of the American Association for the Advancement of Sciences, the book is a collection of four papers and a discussion. The papers were presented at an invitation-only symposium of neuroscientists, legal scholrs, judges and lawyers to explore the sorts of issues likely to arise in years to come as neuroscience advances.

Are lie detectors unreliable? Fine. How about charting the P300 brain wave, which is activated when a person knowingly fails to be truthful, or lies? Farfetched? This business of Brain Fingerprinting, as it is know, was admitted into evidence in Iowa not long ago. Harrington v. Iowa, PCCV 073247 (Pottawattamie County D.C. Iowa, 2000).

Are pyschological tests unreliable in part because they rely on self-reporting? Then let's eliminate the danger of malingering by going right to the source of cognition, the neural circuitry than underlies and, perhaps, forms the mind.

And what of downloading the contents of a brain onto a computer? Or, perhaps, transplanting part, or, indeed, all, of a brain from one body -- I almost wrote person -- to another.

The law routinely accommodates changes in science. Computer-generated evidence is now common in the courts. The various iterations of the Daubert tests across the nation permit the results of new science to be admitted into evidence as it becomes available. But science teetering on the very verge of eliminating the disctinction between mind and body? That is, pun intended, mind-blowing.

Neuroscience already points to abnormalities in the brains of those exhibiting signs of consciencesless sociopathy. A specific gene has been located that is associated with aggression, and a variance from the norm may account for certain forms of criminality. How will the law respond to this information? Shall we quarantine those set to explode?

Of the four essays in this book, Laurence Tancredi's, clinical professor of psychiatry at New York University and an attorney, is the most challenging. I was unaware of how sophisticated the technologies used for brain imaging had become. His chapter inspired me to read further.

The brief chapter on free-will by Michael Gazzinga and Megan Steven is a huge disappointment. Gazzinga is at the Center for Cognitive Neuroscience at Dartmouth College, and Steven is at the University Laboratory of Physiology at Oxford. They dabble at philosophy and yield the trite conclusion that the person is a social contruct, and we are therefore free. This question-begging linguistic trick is unworthy of the AAS symposium. Why wasn't a credible philosopher invited to this event? The law is, after all, nine parts unstated and, for the most part, unexamined philosophic commitment.

The two final papers int the volume, by Henry Greely and Stephen Morse, are fantastic. They steer between trite conclusions of Gazzinga and Steven and the complexity constructed by Tancredi. Both papers are reliable issue-spotting devices.

Perhaps the best thing about the practice of law is the ever changing terrain. It may be that the human dramas unfolding in the courtroom are old and repetitive, but the manner in which facts can be explored grows ever more complex. Advances in neuroscience promise tremendous excitement and turbulence in the law in years to come.

The Dana Press, which published Neuroscience and the Law will send a free 30-page summary report of the conference on which the book is based. Contact Randy Talley at rtalley@dana.org.

Sociopathy and Wickedness

Whether philosophy has anything to teach is a post-modern dilemma: When it tries to assert a truth that is universal, creeping skepticism takes aim. Yet the skeptic's tart attack on universals contains its own universal truth. One can know that nothing can be known? How can this be?

The point is life requires commitments and commitments yield struggle. Philosophy can aid in illuminating the shape and form of our conflicts, and in providing insights into how we may cope in some principled fashion with the many things that go bump in the night. That includes sociopathy and downright evil in the people we represent.

Mary Midgley's Wickedness, first published in 1984, now republished as a Routledge Classic, 2001, is a refreshing read. She is an analytic philosopher, but no mere word-dicer. Her contention is that there are genuinely evil, or wicked, things in human nature. Evil cannot be explained away in reductionistic terms as the product of evironment. Neither is evil some romantic lark, or the ambrosia  of overlords and strong-spirited men and women breaking with the herd.

In matters large and small, in things world-historicial to mundane, there is a capacity for wickedness, and evil, everpresent. We need to recognize that, not make excuses for it, and contend with it judgment by judgment, choice by choice.

I was struck by this simple thesis as I considered some of the literature on sociopathy. Sociopaths are manipulative, they lack conscience, they possess the uncanny ability to make their failings appear to us to be our faults. And we are inclined often to give the sociopath the benefit of the doubt because we want to believe the best of those around us, including our clients. The ability to recognize wickedness on its own terms is a gift.

Oh, I can hear sniggering in some corners. In a world seemingly bounded by cause and effect, can we not explain the appearance of evil in terms of privation, want, need, and all the other nostrums of the reformer? We can try. But these excuses for poor behavior are often disproven by the everyday exceptions in our midst. Evil a result of poor education? Recall that Nazi Germany arose in a cutlure that produced the gymnasium and superb scholarhsip. Evil a result of poverty? Most poor persons aren't monsters. You can name the other exceptions.

Midgely provides an unflinching look at our capacity to be wicked. I heartily recommend the work as abounding in good sense, good scholarship, and a solid grasp on recent trends and tendencies in philosophy and intellectual history that have made the discussion of evil appear to be trite. There is nothing trite about it. Indeed, evil is what makes most of our professional life possible. Would there be a need for law if we were something other than flawed?

Ruggero Aldisert on Sociopathic Clients

Sort of:

[Over the past several years] we have seen a profound change in the lawyer-client relationship. Many lawyers are no longer able to control, or even to moderate, the demands of emotion-laden clients. Often, professional advice and wisdom are insufficient to curb the excesses of losing parties in lawsuits. Persons who would never dare to instruct a cardiovascular specialist on heart surgery have no qualms about instructing their lawyers when and how to prosecute appeals of highly technical cases.

Such persons are everywhere. They are not restricted to any economic or social class. Appellants are rich or poor; from the east, west, north, and south; scarred by adverse jury verdicts or angered by judicial rulings. They are chief executive officers of multinational corporations who direct prestigious law firms on when to move and when not to move. They are impecunious defendants in criminal cases represented by court-appointed counsel who have nothing to lose by cluttering appellate dockets.

From Winning on Appeal, an expensive book, but it's worth it.

The Hee-Bee Jee-Bee Test

I am going to lower my guard this evening and give away a million, no make that a billion, dollars worth of legal advice. The topic? A new standard for lawyers to use when selecting clients. Call it the Hee-Bee Jee-Bee Test.

What is that?

I am talking about the client who simply gives you the creeps. You know the type. The injured, angry, pissed off, ornery cuss of client who has been waiting, hoping, praying for a lifetime for someone to commit a tort, any tort will do, against them. Armed with this tort, this anger addicted fiend of a plaintiff will demand the scortching of any Earth within one thousand miles of their rubbed raw hang nail. If you don't entertain every morbid fantasy they advance, expect a grievance to the bar and endless angry letters and complaints. This client has been waiting forever for something to blame their failures on. Pity the poor defendant who crosses their path. And pity the lawyer who champions their case. These clients, my friends, will suck the life out of you.

Don't tell me you don't know what I am talking about. Each year the bar belches forth a new class of lawyers; we add them faster than they die off. Lawyers need cases or controversies to survive. As the number of lawyers grows, plaintiffs' lawyers reach ever deeper into the cesspool of human need to find clients. Is it any wonder that the courts are filled to overflowing with litigation that would better be treated with Prozac, Thorazine or some other radical therapy?

A lawyer's best friend is not an advertisement; it is his or her credit line -- the necessary vehicle to survive the periodic lull in cases of merit. Lawyers without credit lines make mistakes. They dive at cases presented by histrionic monsters, sociopathic ghouls and clients who have waited a lifetime for some cause, some controvery, that would make the entire world stop for a moment to note just how special, injured and aggrieved they are. Lawyers mistakenly dive at such clients because a payroll must be met, a bill must be paid. Buy such a client and watch your life swallowed by the sort of howling ghosts suitable only for Dante's Inferno.

So herewith a new test for evaluating clients. Call it the Hee-Bee Jee-Bee Test. What are the Hee-Bee Jee-Bees? Simply this: A sense that this client is trouble, their need infinite, their anger boundless. The client is of a sort that expects the President of the United States to answer their letter. They write to their Governor requesting relief. They request that a Congressman filibuster the nation to a standstill to assuage their pain. In sum, they expect the world to stop simply because they are angry. Such a client knows no boundaries. Avoid them like the plague. Better debt than pissing into the infinite maw of sociopathic need.

The law, for all its shortcomings, is an an exacting discipline. Proximate cause teaches us the limitations of foreseeability. Doctrine limits expectations. The angry client sees not any limitation to their hopes and claims. Try explaining the concept of compensatory damages to a mama's boy persuaded that he's entitled to millions for a garden variety tort. C'mon, fess up, plaintiff's bar, we have handled scores of these files, each sucking us dry.

I am a plaintiff's lawyer. I am a succsessful plaintiff's lawyer. But, perhaps this is too much to assert -- I am an honest plaintiff's lawyer. I favor as a matter of policy liberal rules requiring a plaintiff to pay sanctions for a claim brough without merit. A plaintiff who imposes unneeded expense on a defendant should reimburse the defendant.

Herewith some simple suggestions:

1.  Liberalize the use of independent medical examinations for plaintiffs claiming emotional distress. Let's see whether the defendant's conduct caused injury, or whether the plaintiff was a walking wound wainting to inflict itself on the first person he or she could tag with a suit.

2.   Expand Rule 11 type sanctions on lawyers. Make lawyers accountable for the cases they bring. If a lawyer discovers a claim lacks merit, why should the lawyer advance it at the defendant's expense?

3.   Make it easier for lawyers to withdraw when they discover that the client's claims lack merit. Many lawyers now fight bad cases to the end as a matter of defensive lawyering. Why shouldn't a lawyer be permitted to withdraw once he realizes his client is playing with something less than a full deck?

We are our client's advocates, but we are also officers of the court. I say take greater pains in avoiding clients whose personal "issues" far transcend the case or controversy they implore you to take. Why? It is wasteful of your time and talents to serve the irrational anger of the sociopath. Some of the most expensive mistakes I ever made came after accepting a retainer from a client who gave me the Hee-Bee Jee-Bees -- that gnawing sense that the person sitting across from me was a resident of a foreign world governed by anger and paranoia.

It is better to be in debt to a bank than to owe your time and skill to a client who whould better be served by a psychiatrist.

More On Sociopathy

If you are going to read only one book on sociopathy, Robert Hare's Without Conscience: The Disturbing World of the Psychopaths Among Us, might just be the book to read. Although it was first published a dozen years ago, it remains an extremely useful overview of a troubling topic.

Hare, a clinical psychologist with years of experience interviewing prisoners, estimates that there are as many as two million sociopaths at large in the United States. This estimate is lower than some, which contend that as much as four percent of the population lacks conscience. Even so, the number is troubling. As Hare notes, many sociopaths never end up behind bars. They circulate among us, causing distress whereever they go.

As Hare tells it, a sociopath lacks conscience. They can understand the words we use to convey moral sentiments, but they lack the feeling associated with those words. Hence, moral talk by a sociopath is mere gamesmanship, designed to get the rest of us to give what they want, whether it be money, power or some other thing of value.

What are the telltale signs of sociopathy?  Hare has developed something called the Pshcopathology Checklist. Here are the key symptoms.

*glib and superficial;

*egocentric and grandiose:

*lack of remorse and guilt;

*lack of empathy;

*deceitful and manipulative;

*shallow emotions:

*impulsive:

*poor behavior controls;

*need for excitement;

*lack of responsibility;

*early bahavior problems;

*adult antisocial behavior.

Not all need be present in any given person. As Hare describes the syndrome it presents as a "cluster of related feelings." A common observation that he and others report on sociopathic encounters is the unusual stare or gaze of the sociopath, eyes devoid of expression seeming to bore in on their target, eyes almost reptilian in character studying and their prey for signs of the false and fatal move.

It did not suprise me to learn of the extent of sociopathy in prisons. I am still looking for a book on sociopathy in civil settings. My suspicion is that there is a great deal of sociopathy in civil litigation, especially in the employment law context. Many is the lawyer who has been seduced by a good tale on the intact interview. A client presents well with a good and compelling story. Only months into the case is the employer's perspective clear. The client was not promoted, or fired, or whatever the case may be because the client cannot get along with others. I wonder how many of these clients are sociopaths, and what lawyers can do to avoid becoming their hostages.

The Importance Of A First Date

So you now have a law degree. You have passed the bar exam. You even have your own office, replete with desk, waiting area, business cards and all the regalia of professional status. It is time to meet and greet potential clients.

Feels sort of like a first date, doesn't it?

Of course, you put your best foot forward when meeting a client in a potential civil case for the first time. But who is interviewing whom?

Your client is shopping for a lawyer, but, unless you view yourself as shopping, too, you are likely to make a costly mistake. Recall this one simple piece of advice each and every time you interview a person looking for a lawyer: No one has a right to your time.

You are in the business of selling your talents and time to strangers. Some clients want lawyers, that is advocates and counselors. But some want props to work out unresolved pyschic issues. The narcissist wants constant reassurance and validation; the hysteric wants attention and will prompt one crisis after another to get it; the sociopath wants a hammer to use against others regardless of the merits or lack of merits of her case.

Learning to distinguish between clients with needs you can fulfill as opposed to those with needs no one can meet will determine to a significant degree your satisfaction with the practice of law.

Assume that clients, too, are putting their best faces on in the initial meeting. If you are uneasy on the first date, assume that things will only get worse.

Telltale signs of trouble:

1.  Potential client calls wanting "my free consultation." Unless you advertise that you will provide such a thing, run. This is entitlement calling. No one has a constitutional right to your time.

2.  Client tells you:  "It is all right here in the documents. All you have to do is go to court."  This client is most likely a narcissistic creep who will not listen to you, or hear your counsel. Run. Tell the client he may well be right. Advise him to test his theory by filing the action himself. That way he doesn't have to share the fee.

3.  Client tells you: "My case is worth millions." Some cases are, so be careful here. But most aren't. This is especially so in the employment context where all you are hearing is the plaintiff's side. Things often look far different to the defendants. Many is the employment case in which a plaintiff's lawyer understands after six or so months exactly why the client was fired or not promoted: it shouldn't take prolongued negotiations with your client to get interrogatories signed, depositions scheduled, documents produced, or legal strategy explained. You and your staff can waste days on these sorts of non-issues.

4.  Client insists on telling you which of his rights were violated. I once failed to listen to a client who kept contending his human rights were violated. Funny thing is, we don't have human rights at law in the United States. Client never heard what I had to say about difficulties in proving statutory and constitutional violations. Lots of time down the sinkhole on this one. Remember, you are the lawyer here.

5.  Client offers more money. Oh, to have back the time wasted on files in which I initially rejected the case, and the client upped the ante. I say, it is a difficult case, and odds are against you. Client says, well, I am willing to gamble. You quote fee designed to scare client away. Client takes out check book. You foolishly accept retainer. The most important word in a litigator's vocabulary? No. Trust your gut. If a case looks bad at your standard fee, it should look no better when the fee is doubled or tripled.

6. Client doesn't listen. You explain the law governing a proposed case. You explain the defenses. You parse the facts presented and tell the client the strengths and weaknesses of the case. The client then proceeds to regurgitate all that you have said, but without having acknolwedged any of the weaknesses of his case. Say no. This is the sort of client who will try to tell you what is and is not relevant in discovery, what torts to pursue, how to brief your issues, etc.

7.  Finally, don't assume a case has merit because another lawyer has referred it. This is the biggest mistake a young lawyer can make. Veterans know all about "sticky" potential clients. These are folks who won't get off the phone. How do you get rid of them without being rude? Refer them to the young hotshot down the road. Question: If the case was really so good don't you think the referring lawyer would have kept it, or asked for a referral fee?

The selection of a client in a civil case is like the selection of a spouse. You will go through a lot together. If during or after the first date you find yourself wanting to run for the door, heed that insight and do so. Some of the most expensive mistakes young lawyers make come in the form of accepting a fee from a client who won't listen to you, and then proceeds to drive you and your staff to distraction.

.The Sociopath Next Door

I wonder whether there is a correlation between litigiousness and sociopathy, and whether there are reliable cross-cultural studies correlating the two. Of course, such data would be difficult to gather. Not all legal systems are the same.

But if it is, in fact, true, that as much as four percent of the American population suffers sociopathy, that may help explain our love of litigation. But what is a sociopath?

Martha Stout's, The Sociopath Nex Door (Broadway Books, New York, 2005), is an accessible introduction to the topic.  She reports that about four percent of the population lacks conscience, the defining characteristic of the sociopath. The number is not drawn from thin air. An endnote recites, among other things, a study by the federal Department of Health and Human Services.

The Diagnostic and Statistical Manual of Mental Disorders IV-R, of the American Psychiatric Association, defines antisocial personality disorder, a synonym for sociopath, as the presence of three of more of the following "symptoms:" (1) failure to conform to social norms; (2) deceitfulness, manipulativeness; (3) impulsivity, failure to plan ahead; (4) irritability, aggressiveness; (5) reckless disregard for the safety of self or others; (6) consistent irresponsibility; (7) lack of remorse after hurting, mistreating or stealing from another."

Stout argues that conscience is akin to a "seventh sense," and that it is rooted in an emotional sense of connection with others. Rather than the harsh overlord of the Fruedian superego, dispensing sometimes unconscious commands without regard to well-being, Stout's conception of conscience is related to our ability to love, to empathize, to feel for others.

She errs, in my view, by dismissing all terrorists as sociopaths. That is far too easy a definitional move, and it obscures the larger truth that terror can be a highly adaptive means of accomplishing political ends. And Stout gets downright gooey at the end when she claims that the visions of the good life offered by disparate religious leaders all converge around something akin to the same sense of emotional well-being.

These lapses are forgiveable. Her discussion of case studies givse valuable insight into manipulative behavior and how to cope with it. I recommend this book for any lawyer struggling to understand the sometimes bizarre behavior of their clients.

Announcing: The Sociopathy Project

Let's face a fact that is not openly discussed enough among lawyers: A significant percentage of the plaintiffs have mental health issues. That is why many of them become plaintiffs in the first place.

This is especially so in the case of employment litigation.

Practitioners know the drill. In walks a client. The client is articulate and speaks in complete and compelling sentences about the horrible experience he or she has had at work. You explain the law to them as best you can. More likely than not, you practice in an employment-at-will state. Are they a member of a protected class? Was their adverse action? Did race, gender, age, perceived disability play a role?

The client marshals facts sufficient to persuade you that a prima facie case can be made. Listening carefully, you conclude that the employer is wrong, they've singled out your client for prohibited reasons. You read through the documents brought to you by your client, and suit is filed.

In the weeks and months to follow you notice things: The client refuses to cooperate with discovery, arguing with you about what is and is not relevant. You again try to explain the law, and anger without bounds is unleashed. Every call you make is wrong. Withdraw a claim without support in law or facts and you are met with accusations. The client demands millions to settle a case worth far less, and soon there are letters to the president, the FBI and demands even for press conferences. Soon your paralegal, secretary and associates begin to complain about the hours they spend with this one client discussing issues such as why he or she must sign their interrogatories. The cool calm and collected client you met at the intake interview is suddenly a ravenous black hole demanding answers to questions without answers and refusing to accept your counsel and advise.

Odds are you have stumbled into the embrace of a sociopath or person with a borderline personality.

So what do you do? Do you withdraw because the client's objectives have become repugnant? Do so and face the intevitable grievance and perhaps suit. Do you litigate the case to completion, papering your file so as not to become the latest target for the infinite wrath of a person with stripped gears?

Lawyers and judges don't talk openly about this. This is water cooler talk -- talk behind closed doors.

I can't say I am going to open the door here. But I have been searching in vain for continuing legal education material on how to cope with sociopathic and borderline clients. We expect to meet them in criminal cases, where mental health issues of one sort or another typically predominate; but nothing is said about these issues in cases.

So I've begun reading books on these issues. As part of the Sociopathy Project I will periodically review what I've read. Perhaps you will read them, too, and refer cases, published opinions, law review articles to me. I need answers. Since no one else seems to be offering any, I will find them myself.

First book? Benjamin Wolman, Antisocial Behavior (Prometheus Books, 1999). Wolman is a Ph.D. and heavy into Freudian analysis. I chose this book to read first because, frankly, it was short, and I wanted to avoid something too scholarly early in the project.

Bottom line: sociopaths lack conscience and are devoted solely to serving basic instinctual needs. The world is a mere instrument to their satisfaction. They can fit in and appear to conform to basic social norms, but they do so only for instrumental reasons: Most of us do not steal because we believe it to be wrong. A sociopath avoids theft because the consequences of detection are unpleasant.

Wolman gives quick anecdotal examples of sociopathic behavior. But these are scattered through impressionistic declarations of Freudian theories that are asserted rather than explained or analyzed. The book appears to have been written quickly, a sort of talk-show precise on why there are so many screwed up people in the world. He quotes police chiefs, news magazines and popular sources to write a sort of decline of the west plea for better parenting and moral standards.

There is nothing wrong with what Wolman has done. But not much right either. The book is a quick read and a good working definition of sociopathy. Wolman's written 40-plus other books. I may try another to see if this work is just a representative of a bad month at the keyboard.