“But I was so much older then, I am younger than that now.”

— Bob Dylan

By Peter Henner

On Oct. 1, I will completely close my law office after more than 29 years of solo practice. Even though I can still earn plenty of money and have the energy to work hard, putting in the long hours for which lawyers are famous, I have lost all respect for the legal system.

The mire of legal process has completely triumphed over any concept of substantive justice: Cases take three to five years, are prohibitively expensive; and a lawyer’s time is spent micromanaging legal trivia, which generates plenty of billable hours, but does not help the client’s cause, help the world, or even assist the supposed function of the law — the resolution of disputes.

Not only does the legal system encourage lawyers to force other lawyers to waste time engaging in meaningless proceedings and over-lawyer cases, judges — sometimes because of overwork, sometimes because of political connections, and sometimes just incompetence — have become enablers for lawyers, especially large-firm lawyers representing affluent and powerful clients, to engage in obnoxious and unprofessional conduct.

After working as a union organizer for a textile union, I enrolled in Rutgers Law School in 1976, because I believed that, as a lawyer, I could be a more effective advocate for people struggling against large corporations and government. Eight years later, after working for the New York State Assembly, and as the general counsel for a public-employee union, I started my own law practice. For the last 29 years, I have primarily represented environmental and community organizations, victims of employment discrimination, unions, and civil-rights clients. I used to believe that my work as a lawyer was useful and important and enjoyed what I did.

A common-law legal system, as we have in the United States, resists change and is inherently conservative because it is based on precedent.  Nevertheless, I grew up at a time when courts, especially federal courts, played a crucial role in breaking down racial barriers, and generally promoting social justice.

When I was first admitted to the bar in 1980, a lawyer could legitimately hope that the legal system would play an important role in expanding the scope of recently adopted environmental statutes and governmental-access laws, as well as continue the expansion of judicially recognized civil rights.

The legal system

As a general rule, it takes at least $25,000 of legal time to get a case to trial. It is only possible to bring a case if the prospective recovery is large, the client can afford to wait, and if either the client is rich enough to pay the full costs, or if the probability of success warrants the lawyer handling the case on a contingent basis.

Litigation is time-consuming and expensive because the legal system encourages, if not mandates, extensive “discovery” and motion practice. In theory, a party is entitled to full knowledge of the adversary’s case to avoid “trial by ambush.” In practice, this means that a well-funded litigant will engage in relatively meaningless paper discovery, and unnecessarily drawn-out depositions to find out all kinds of trivia that is basically unusable at trial anyway.

Pretrial motions, whether pertaining to discovery or pertaining to other issues, require extensive legal briefing and judges will usually take several months to decide. A defendant may challenge whether the plaintiff has standing to sue; whether the court has jurisdiction; or whether the plaintiffs’ claims, even if proven, justify any relief by the court. Defendants are encouraged to delay the proceedings and/or avoid the expense of discovery by making such motions.

When I was starting out, I had a case against a large downtown Albany law firm (Carter, Conboy), and had a problem with an associate not returning my phone calls.  I called one of the senior partners of the firm, who apologized for the firm, and made sure that the associate returned my calls and we resolved the matter.  That was how law was done as recently as the 1980s.

In contrast, I recently had a case against another large downtown firm; my adversary was incapable of having a civil conversation; simply ignored discovery demands, forcing unnecessary motion practice; made frivolous motions returnable on improperly short notice; and blatantly misrepresented both facts and law. The very respected retired judge who is of counsel to the firm countenanced, if not encouraged this conduct, even though I am sure he would never have tolerated such conduct when he was on the bench.

Welcome to the 21st Century!

Such conduct is now acceptable and, what is worse, is now rewarded by judges. Judges do not want to get involved in discovery disputes and a lawyer who simply refuses to respond to a discovery demand or responds in such a way to demonstrate a complete contempt for the process, is not likely to be sanctioned. This attitude encourages lawyers to be unresponsive and discourteous to other lawyers.

In the words of Bruce Hornsby:  “Lawyers dwell on small details.” We are encouraged to fight over every small matter, to look for every scrap of information that might be arguably relevant to the case, to make legal motions over arcane points of law, and to  haggle over the wording of documents that no one will ever care about.

Lawyers who are given a blank check by their clients will spend inordinate amounts of time doing very silly things. One of my clients is also represented by a large firm that insisted on reviewing and then rewriting a three-sentence letter, at great expense to the client who paid both the large law firm and me for our time in this exercise.

I recently represented a defendant in a high-profile case brought by a civil rights plaintiff, against 12 state employees. Although it was a foregone conclusion that the case would be settled (the state ultimately paid $5 million to the plaintiff), before it was settled, I participated in the lengthy pretrial proceedings, where defense counsel sat through interminable depositions establishing nothing (at great expense to the state that was paying for our time), as well as court conferences and motion practice. Although I suppose I should be happy that I was able to earn a lot of money, I think that I can do better things with my time.

Judges and the law

Since the 1960s, federal courts have become not only conservative, but have become results- oriented. Even before Bush v. Gore, one could fairly accurately predict which way the Supreme Court would decide a case based on the politics involved, regardless of the legal principles at stake.

In Citizens United, a 5-4 decision of the Supreme Court held that corporations are people for the purposes of political contributions. Less than a year later, in a concurring opinion, the chief judge of the Second Circuit Court of Appeals wrote that corporations, while people for the purposes of political speech, nevertheless deserve to be immunized from liability for violations of international law.

New York State courts are no better. In 1991, the New York State Court of Appeals decided the case of Society of Plastics, which established a very restrictive standing test in environmental cases. In short, a plaintiff now has to establish an injury different from the injury to the public at large in order to proceed, particularly in cases where it is alleged that an environmental review was inadequate.

Consequently, many environmental reviews performed by state and local agencies have been able to escape any court challenge because the injury is to the public at large, and, paradoxically, injuries to the public cannot be raised by a specific individual. The standing test in Society of Plastics now goes far beyond environmental cases:  the town of Brunswick is even challenging the standing of the city of Troy to contest whether certain property is within the city boundaries in a boundary dispute, even though the city plainly has an interest.

At the very least, any plaintiff raising any challenge to the action of any governmental body can expect to spend six months to a year litigating the issue of standing before getting to the merits of any claim.

Most judges are honest, hard-working individuals who try, to the best of their abilities, to do their jobs. However, in New York State, judges are selected politically, not on the basis of legal competence or integrity.

In recent years, we have had one local State Supreme Court judge removed because of a series of corrupt activities, a Family Court Judge run unopposed for reelection despite a celebrated driving-while-intoxicated incident, and the mention of at least one high-level judge’s intellectual capabilities will get a laugh from any gathering of local lawyers. 

Pro bono work

One of the more hypocritical concepts of the legal “profession” is the emphasis given to “pro bono” work. Law firms that customarily represent commercial interests and affluent people do a certain amount of work for the completely indigent. The purpose of such pro bono work is not to provide assistance to the people who need it; rather, the purpose is to enable the lawyers to feel good about themselves.

Pro bono work draws a distinction between any paid work and completely free work. A lawyer who performs services at a reduced cost, because he knows that the client cannot afford the full cost of his services is not performing pro bono work, nor is a lawyer who handles a case with the possibility of a contingent review recovery (even though the contingent risk would not be justified as a business risk) performing pro bono work. The bar’s emphasis on pro bono work is designed only for the poorest of the poor; the vast majority of people who have some resources, but still cannot afford to pay for a lawyer, are not helped.

As a sole practitioner, I did not admit to doing pro bono work. In the first place, I do not believe in insulting and degrading my clients by referring to them as pro bono clients; I always tried to represent everyone to the best of my ability, and took the position that my fee arrangements were private matters.

Secondly, if I ever admitted that I was doing pro bono work, many of my clients, who were struggling to pay my legal fees, would ask me why I was not doing their case pro bono as well.  Finally, while big law firms may be able to represent themselves as good guys for doing pro bono work, sole practitioners simply get a reputation as being a soft touch, and get more requests to do pro bono work.

On to a new life

I have gotten tired of telling prospective clients that, while they have been injured, there is no legal remedy or, if there is a legal remedy, it will take many years, and is prohibitively expensive.

I am also tired of interminable depositions where nothing is being accomplished and briefing points that are basically silly, and I simply don’t like pretending that I am doing something useful just because I am getting paid.

I am frustrated by decisions applying increasingly bad law to deprive my clients of justice.

People have asked me what I plan to do if I am not practicing law. I do not plan to “retire”: Instead, I will take a period of time to pursue long neglected personal goals like trying to become a chess master. I hope to run a marathon, and do some writing, partly as a form of therapy, and partly to pursue scholarly interests. I expect that, after a suitable break, I will find something interesting and challenging to do, possibly using legal skills.

However, I am clear about two things:  I will never again be focused on doing useless and mindless things just because I am generating billable hours, and I will never again take a case unless I believe that the client deserves to have something done and that I can do something useful for the client.