Law Library in 1936
Posted: November 8, 2009 at 8:05 am | by wdelliottFiled under: Grayson County, Legal Stories, Texas Legal History
No comments yetNeilson Rodgers of Sherman, Texas recently died. Neilson started practice in Sherman in 1936 with the Webb & Webb law firm. In my oral interview of him, Neilson said that he was attracted to the Webb firm because it had one of the two largest law libraries in Sherman. The Head, Dillard, Maxey law firm had the other substantial law library. I have reflected on Neilson’s comments about the importance of a law library to the quality of the lawyer’s practice.
Today, with technological advances afoot, law firms migrate away from law libraries, its cost and effort to maintain. A solo lawyer with a computer can access all the law that there is.
In 1936, many and perhaps most lawyers did not maintain a law library. In the town of Sherman, Texas in 1936, with its vibrant business economy and legal community, I am surprised that only two law firms had law libraries of note.
In looking over the cases decided by the Dallas Court of Appeals that originated in Grayson County, Texas (Sherman), from the period from WWI to WWII, the vast majority of appellate cases involved lawyers from the Webb & Webb law firm and the Head, Dillard, Maxey firm. The Webb firm was predominately a plaintiff’s firm and the Head, Dillard, Maxey was a defense firm. Neilson said that this was about the time when the general exception method of trying cases changed to a special issues method. This change placed a premium on a learned understanding of the legal underpinnings of a case. To preserve a trial court judgment on appeal required a studied examination of the underlying law of a case.
Spearman Webb had such an approach as a plaintiff’s lawyer. Most plaintiff lawyers in the period before special issues practice approached a trial without a keen appreciation of the underlying legal principles. They just put on the case. The jury’s decision on the case was the end of it.
With special issues practice, learned lawyers, such as existed in the Head, Dillard, Maxey firm could defeat a trial court judgment on appeal by their intelligent use of assigning error. Only plaintiff lawyers with a law library, such as Webb & Webb, could defend a trial court judgment on appeal. Hence, the value of the law library in 1936.
Tales from the Road: Airline Travel
Posted: July 23, 2009 at 6:32 am | by wdelliottFiled under: Legal Humor
1 comment so farAmidst the rough and tumble nature of airline travel, there are, to use the current phrase, “green shoots” of hope. On a recent trip to Vancouver/Victoria with my wife, Carol, we encountered the all too frequent occurrence of a canceled flight requiring us to spend the night in Salt Lake City with one of those airline vouchers experiences.
What was notable about the experience was the kindness of Delta Airline employees, who went out of their way to make our unfavorable experience palatable. Further, I relearned the important lesson that the front-line airline employees are not the cause of the problem and thus there is no reason to take out frustration on them. My wife Carol showed me the important lesson of being nice and the positive effect resulting from being nice.
The Delta airline person manning the desk at the Delta airline club found a way for us to get two of the last two seats on an early flight the following morning. Without her having done this, we would have been delayed another day. She was kind to us because my wife was kind to her.
We were provided with hotel vouchers, but the hotel shuttle bus was overrun and full. Thus, we were going to need to take a cab into downtown Salt Lake, needing a voucher for the taxi. The Delta employee handing out vouchers personally accompanied Carol and me to the cab stand to confirm that the cab would accept the voucher without difficulty.
Lost luggage is a by-product of canceled airline flights. The lost luggage Delta clerk at DFW, who must have one of the most difficult jobs on earth, was especially helpful and kind in facilitating our report on the missing luggage. She is technically required to wait before permitting Delta customers to file missing luggage reports, forcing harried travelers to stand around waiting at the luggage carousel, but she went ahead and called the luggage handlers to confirm that there were no more bags to be processed and accelerated our report so that we could leave the airport and go home. My wife was nice to her and she was nice to us.
Then there was the Delta flight attendant earlier in the day, when we were actually flying on a scheduled flight, who wrote hand-written thank-you notes to many of the passengers. If you are shocked at what I just wrote, re-read it. Yes, an airline flight attendant wrote thank you notes to the passengers.
The take away messages:
1. Being nice to others leads to them being nice to you. That rule sounds familiar – oh yes, “Do unto others as you would them do unto you.”
2. Front line airline employees are not the cause, but in fact are part of the solution. They can make your unpleasant travel experience passable. You only need to be nice to them.
3. If for no other reason than self-interest, when confronted with challenges, put on your smiley face and soldier on. My wife Carol taught me that vital lesson this past week.
4. Men travelers, let your wife do the talking.
Clinging to Technological Change
Posted: July 4, 2009 at 6:19 am | by wdelliottFiled under: Legal Humor
1 comment so farOne way to measure the speed of technological change is to pull all tech tools from my briefcase and evaluate those tools as of a clear moment, say September 11, 2001 (“911″). That date was some 7 1/2 years ago from this writing.
The following discussion looks at my tech tools on 911:
IPOD. The IPOD did not exist on 911. Apple introduced IPODs a month later, in October 2001. By 2007, Apple had sold 100 millions of them, and by 2009, the sales had risen to an astonishing 163 millions IPODs. Competitive products have not succeeded.
Laptop. Today, I use a Dell Latitude E6400, with 80g harddrive, 2.26 ghz, 2g memory, Intel core duo processor. This is my fifth laptop since 911. On 911, IBM offered a Thinkpad with 64 mb memory, 20g storage, 700 mhz processor, and featured a 3.5″ 1.44 MB floppy drive.
Wireless broadband. I use a wireless broadband device on my laptop. There was a slow, limited, expensive, wireless connectivity available, but nothing like today’s technology.
Smartphone. My Samsung Blackjack II is not state of the art. On 911, in the developed world, some 58 out of every 100 persons had a cell phone. Today, it is 97 out of 100. The first internet use on a cell occurred in 1999. On 911, cell phones did not work on account of the overloading of the cell phone systems. Hand-held data only devices, (PDAs) such as Blackberry, Palm, pagers, did work. At that time, estimates were that 1 million data hand-helds were in use. At the end of 2007, there were a total of 3.3 billion subscriptions to cell phones, sending some 2.6 billion messages a day. In 2008, there are 4.1 billion subscriptions.
Today, the IPhone is transformative. The new, third, phase of the IPhone recently introduced is dramatic. One million people purchased the new IPhone in three days! Some 22 million IPhones have been purchased since June 2007, when it was introduced. Some 50,000 applications have been written and introduced for the IPhone.
Other popular technologies did not exist on 911. Facebook was invented in 2003. Today, it boasts 132 million unique visitors. In 2001, Windows XP had not been introduced; Windows 2000 was the standard. Shortly before 911, Apple released OS X. Netscape was a dominate browser. It does not exist today. Internet Explorer was at version 5.5. Firefox was barely developed at version 0.9. ITunes had been introduced earlier in 2001.
If all of this technological advancement, and more, has occurred in the last 7.5 years, what will be the state of technology in the next 7.5 years? The thought boggles the mind.
The trend towards individualized devices will almost certainly continue. Desktop computers will become less and less relevant. The vision provided by the IPhone will continue and accelerate. Web content will be delivered to the hand-held device. Consumers of web information will use a single device for most functions, from calls, photos, music, videos.
Lawyers will view continuing legal education in short bites. The three-day seminar in hotel ballrooms will continue to have their place, but more and more, CLE will be broken up into small segments, say 10 minutes at a time. Before entering a courtroom, a lawyer will view a 10 minute tutorial on his or her hand-held device, on cross-examining an expert witness, as a refresher.
The hand-held will download content without wires. The playback options from the hand-held device will be plentiful. Should I sit on the couch and play my hand-held content through the large TV monitor? While driving, should I play the sound track from the downloaded CLE content on my car sound system, with the hand-held connecting through a wireless connection?
Downloads and playbacks will be wireless and seamless.
The next 7.5 years wil be a time of terrific and wonder technological advancements.
Helpful Technology – Digital Dictation
Posted: June 6, 2009 at 9:32 am | by wdelliottFiled under: Law practice management
2 comments so farA frequently-asked question is what technology do I find helpful. This is a occasional discussion of the technology that I use.
Digital dictation is fabulous and helpful hardware/software. In contrast to the old days, when tape-based dictation was used, in today’’s e-world, everything today is digital. Olympus is perhaps the leading vendor of digital dictation equipment, along with Phillips and Grundig. I use the Olympus DSS-4400, which is full-featured portable hand-held unit. My portable dictation unit sits in a cradle sitting next to my laptop docking station for recharging and syncing.
Digital dictation is receiving increasing attention. Nerino Petro has written an excellent article on this important subject. The reality is that most people talk faster than they type. Further, there are many messages that do not need to be typed. Recording remains ubiquitous. Even cell phones are beginning to have dictation capability, but the dedicated hand-held units are still the preferred dictation system.
I carry my Olympus 4400 with me at all times. It provides 5 segments or compartments for allocating dictation between your categories, such as instructions, business, personal, meetings, etc. The unit also allows to me to record in a conference or and conventional dictation. The conferencing recording picks up an impressive broad range of voices in a meeting or conference.
When dictation is finished, the unit syncs quickly to my laptop via a cradle or cable and then I e-mail the relevant dictation files to my secretary. She can then either return the typed material to me via e-mail or place on my desk for my return. Virtual transcription services over the web. Some of my digital notes are not transcribed, but remain on my computer’s hard-drive as part of the client file. Not all file material need be written.
The digital dictation is help for capture meetings, an alleviating the need for written note-taking. Of course, you should announce what you are doing so that recording the meeting does not offend.
Digital dictation allows for insertion of new dictation material into the middle of a previously recorded session. Special instructions can be added to a dictation file. The choices are seemingly limitless.
Conversion of dictation to type-written words, via software, is now available. I have not tried it, on account of the cost of the software, but the benefits seem interesting and useful.
The storage is generous allowing from 3 to 11 hours of recording. The battery life allows for about 3 hours of recording before recharging the battery.
This is an important tool for my law practice. Dictation might have faded a bit on account of the digital world, when everyone seems to be typing, but for the busy lawyer, the availability of a hand-held digital recorder is an effective tool.
Courtroom Distractions
Posted: April 13, 2009 at 12:41 pm | by wdelliottFiled under: Courtroom Distractions, Legal Stories
1 comment so farLawyer lore has an important subset that is the courtroom distraction. The subject of courtroom distraction will never be found in the treatises and coursebooks teaching the presentment of a legal case to a jury, but among leading trial lawyers, especially in former days, the bag of tricks of leading lawyers includes the courtroom distraction.
Imagine a plaintiff’s lawyer making an impassioned argument to the jury, trying to focus the mind the jury on the plaintiff’s essential argument, marshaling key facts, attempting to stir emotion and persuade. The courtroom distraction is the effort by opposing counsel to draw jury attention away from the plaintiff’s lawyer.
The effective distraction is subtle, almost invisible. Among the past masters of courtroom distraction are lawyers fully possessed of the qualities of thespian, huckster, comedian, and, of course, subtlety.
Actors on stage and in film commonly describe the concept of “stealing the scene.” They talk of actors who have certain techniques, practices, habits, etc. that have the effect of stealing the scene, much to the consternation of the actor from whom the scene is being stolen. Apart from the apparent angst, what you often hear in these pleas and complaints is a level of admiration, the actor stealing the scene is admired for having committed the theft right before everyone’s eyes.
Take the movie, The Magnificent Seven, with Yul Brenner, Steve McQueen, and many other actors. The next time you watch the movie, notice those scenes when Yul Brenner and Steve McQueen are acting together. If you watch carefully, you will find yourself watching Steve McQueen, not Yul Brenner. What is going on is that Steve McQueen steals the scene. His moves are tiny and almost unnoticed, but McQueen is forcing the viewer to watch him, not Brenner. He rolls a cigarette, handles his gun, adjusts his hat, and myriad other small moves. McQueen was so effective at executing these moves that Yul Brenner was said to be driven crazy. McQueen’s gestures do not even seem purposeful. Yet, they were effective.
The same goes for courtroom distractions. They are almost unnoticeable, but the effect is the same as produced by Steve McQueen – the jury ends up watching opposing counsel, not the presenting lawyer.
Opposing counsel is seated, of course, seemingly listening attentively to the presentiugn lawyer. The technique has to be almost invisible.
In an earlier time, when smoking was commonly allowed in courtrooms, one of the classic courtroom distraction techniques was for opposing counsel to smoke a cigar and never let the ash drop from the cigar. The ash would grow to amazing lengths without dropping. The jury would begin staring at that cigar wondering when the ash would fall off, or asking themselves silently when will opposing lawyer flick off the ash.
What the jury did not know is that the cigar was rigged. Before the trial started, opposing counsel inserted a toothpick in the cigar to hold the ash. After the ash was burned back some extraordinary length, say an inch to an inch and a half, no one in the courtroom could help themselves; they were obsessed with the cigar ash. “When would that thing fall off?”
The length of the toothpick was carefully measured in advance. The ash needed to burn about the same length of time as the other lawyer’s jury argument. Later, in the jury room, no one could remember what the plaintiff’s lawyer said. No one mentioned it, but all the jury members remembered that stupid cigar and that never ending ash.
When to Retire
Posted: March 24, 2009 at 10:50 am | by wdelliottFiled under: Legal Humor, Legal Stories
No comments yetMy father, Ralph Elliott of Sherman, Texas, was one of the District Judges in Sherman in the last decade of his law life. The rule in Texas generally is that judges are to retire at or about 70 years of age.
Judge R.C. Vaughn and my father were contemporaries on the bench in Sherman and had been discussing whether to and when to retire – together.
In one of our conversations, Dad mentioned that he believed it was time to step down. I responded that he was on top of his work, experienced, providing good public service, and so on and I questioned whether retirement was appropriate. I asked him what invited his retirement decision.
He said that his experience at a recent hearing convinced him that this was the correct time.
In the recent hearing, two lawyers were going on endlessly about metes and bounds in a property boundary dispute. Dad said he rested his head on the back of the judge’s chair while listening, when, after a moment, the first thing he heard one of the lawyers say, “You wake him up, it’s your motion.”
He knew then, it was time to retire.
Asking all the Questions
Posted: March 22, 2009 at 7:32 am | by wdelliottFiled under: Legal Humor, Legal Stories
1 comment so farNeilson Rogers of Sherman, who started practice in Sherman in 1936 with Webb & Webb, and still goes to the office everyday, talked of the fraternity that the lawyers possessed in the early days. Despite being adversaries in the courtroom, there was a bond, a trust, among the lawyers that is scarce today.
Neilson described how both the plaintiff and defense counsel and the court reporter would commonly travel together in the same automobile when taking a deposition out of town.
In one case, Neilson was scheduled to take the deposition of a man in Houston in a case in which he was plaintiff’s counsel. The defense counsel and the court reporter were to travel with him in Neilson’s car, but at the last minute, the defense counsel became ill. He called Neilson the day before they were to leave to tell Neilson he could not go on the trip, but asked Neilson, “Neilson, go ahead and ask the the witness the questions you know I would ask.”
Neilson was surprised, “You want me, the plaintiff’s lawyer, to ask your questions, the defense lawyer, in the deposition?”
“Yes,” replied the ill lawyer. “You know what I would ask the witness anyway.”
Well, the next day, Neilson and the court reporter traveled from Sherman to Houston and Neilson took the deposition for both lawyers.
Boxing on the Courthouse Lawn
Posted: March 22, 2009 at 7:21 am | by wdelliottFiled under: Legal Stories
No comments yetIn the early 1950s, larger than life characters were present in and around courthouses. Texas courthouses seemed to have an abundant share of out-sized personalities, including notably Paul Jackson of Dallas and Judge R.C. Slagle, Jr. of Sherman. The story of their boxing match on the courthouse lawn in Sherman is quite extraordinary.
Judge R.C. Slagle, Jr. was District Judge in the 15th District Court, in Sherman, Texas in the early 1950s. He had served in the U.S. Marine Corp. during World War II. He was politically active in Sherman and remained so for the rest of the life. R.C. Slagle was also physically imposing, barrel-chested, and possessed, shall we way, an expansive personality.
Paul Jackson, senior partner of Jackson & Walker, Dallas, Texas, was also a bear of a man with an outsized personality. He also was an ex-U.S. Marine.
Jackson and Slagle were friends from WWII and in their service in the Marines. As a leading tax lawyer, Paul Jackson pioneered giving CLE speeches to local bar associations and lawyer groups.
One day, while traveling through Sherman, Paul Jackson stopped off to visit his Marine buddy, R.C. Slagle, at the Sherman courthouse. It so happened, that at the moment Jackson came calling, Judge Slagle was presiding over a criminal trial in the 15th District Courtroom in the Grayson Courthouse. As Jackson entered the courtroom, Slagle saw him and immediately jumped up from the bench, announcing a pause in the trial proceedings, and ran over to Jackson and gave him a big bear hug.
As they greeted each other loudly, both started rough-housing with the other, in the middle of the courtroom floor. Their hugs and greetings quickly escalated to more of a form of wrestling, with each trying to pin the arms of the other behind their back, much like a couple of school-yard boys. Everyone in the courtroom was stunned to see this display, especially involving the presiding judge on the case.
After a bit, Slagle and Jackson paused in their struggling and Jackson suggested to Slagle, with everyone listening, that perhaps he and Slagle should find a time to have a boxing match, “just like they used to.” Apparently, they boxed in the Marines.
Slagle immediately accepted Jackson’s offer. Jackson suggested the following week when he would coming back through Sherman and he would bring the boxing gloves.
The following week, Jackson arrived in late morning, shortly before noon. As it happened again, Slagle was presiding over another criminal trial. When Slagle spied Jackson, the judge announced a recess and invited all, including the jury, to follow them out to the lawn of the courthouse, where Judge Slagle and Paul Jackson would put on a boxing display.
Everyone filed outside onto the lawn, and Jackson and Slagle stripped down to their waist. The crowd formed a rough square, approximating the size of a boxing ring. Judge Slagle asked Ralph Elliott (my father), who was then District Attorney, and who had been participating in the trial, to hold his coat, shirt and tie and judicial robe, of course.
Jackson produced the boxing gloves. Then Jackson and Slagle proceeded to display their boxing skills for all to see, only as a couple of ex-Marines could do. For three rounds, Slagle and Jackson went at it with fists flying, punches landing, grunts and groans, and sweat flying as punches were landed.
After three rounds, they stopped, announced that the match produced a tie. Everyone applauded, and Slagle and Jackson went off to lunch, arm-in-arm, like a couple of school y ard buddies. After lunch, Judge Slagle was back on the bench, continuing the criminal case, no less the worse for wear.
That Abilene Case
Posted: March 22, 2009 at 7:09 am | by wdelliottFiled under: Legal Humor, Legal Stories
No comments yetThe namesake of the Dallas law firm, Strasburger, is Henry W. Strasburger (1898-1972), who along with Hobert Price (1899-1965), started Strasburger & Price in 1939, along with Bob Holland, Phil Kelton and Claude Miller and Mark Martin (their sole associate). It grew into a great law firm, and still is. Around 1950, Tom Unis joined the firm, having spent a few years in District Attorney Henry Wade’s office.
Over time, Unis became larger than life, along with Strasburger and many other trial lawyers in that firm. Tom Unis was sort of a force unto himself.
Judge’s across Texas appreciated and respected Tom Unis to such an extent that he was said to often quote some vague case as authority for his argument. When Unis would argue a point, he was known to say, “Judge, this point is controlled by that Abilene case decided a few years ago.”
Of course, opposing counsel could not refute the point. They either did not know of the Abilene case, or believed Unis. He was a trial lawyer from the Strasburger firm, after all.
The problem was that no matter what the point was he was arguing, or how often he needed to cite it, Unis always cited to the Abilene case.
Amazingly, he always got away with it.
Hourly Billing: Demographics
Posted: March 10, 2009 at 3:49 am | by wdelliottFiled under: Legal Fees
No comments yetBefore our very eyes, the method lawyers use to charge for their legal service is changing. The change is brought on by the marketplace. The driving forces for change in legal pricing are clients and competition. Not all lawyers accept that change is coming, and not lawyers will alter their behavior, but there is a sufficient activity to leave the clear impression that change in astir.
In this blog, and in successive blogs, attention will be placed on how lawyers bill for their services. This large subject is worthy of continuous attention. Legal fees is a real world necessity, of course, but in general is thought to be among the more unpleasant topics, ranking up there with a colonoscopy or dentist visit.
There is a duality in the world of legal services, existing now more than ever. Big law firms exist in a world unto themselves, and quite apart from small law firms. Ross Kodner, a leading legal blogger, speaker, writer, on technology and productivity law topics, has even coined the phrase “SmallLaw.” We might even add “BigLaw.” The world of BigLaw is prominent is media. A perusal of the ABA Journal, American Lawyer and other major media outlets suggests that BigLaw is a favorite topic. The fees charged by BigLaw, especially on big and complicated cases, draw attention as well. For example, when Princeton University recently settled its lawsuit with the Robertson family over claims by the family that the terms their original gift had been violated, a striking feature of the settlement was the agreement by Princeton to reimburse the family for their legal fees, totaling Forty million dollars for litigation, for only one side, impresses.
Despite the high profile of BigLaw in the public conscience, it is SmallLaw that predominates in real life. The statistics on the preponderance of SmallLaw is impressive. The American Bar Association statistics indicate the significant portion of U.S. lawyer who practice alone or in small groups:
- 74% of U.S. lawyers are in private practice
- Of those in private practice, 48% are solo practitioners, 15% practice in groups of 2-5. Thus, 63% of all U.S. lawyers who are in private law practice are working alone or in groups of 5 or less.
- 76% of all law firms are 5 or less size.
For BigLaw, the comparable ABA statistics are:
- Of the 74% private practitioners, 14% practice in groups of 101+. An additional 4% work in practice groups of 50-100.
- 1% of all law firms in the U.S. are 101+ and an additional 1% for firms in the 50-100 size. [Source: American Bar Association].
These ABA statistics are dated from the year 2,000. There is indications from more recent statistics from Texas that this demarcation between BigLaw and SmallLaw continues to be valid. The State Bar of Texas comparable statistics, based on 2006-2007 information, are:
- 69% of Texas lawyers engaged in private practice
- Of those 69%, 36% are solos, 24% are in 2-5 practice size, for a total of 60%.
- 8% of private practitioners are in firms 100+ and an additional 9% are in practice groups of 60-100, or a total of 17% in practice groups over 60 attorneys.
In Texas, median firm size is 4 attorneys.
What these numbers reveal is that SmallLaw is big.
Interestingly, the disparity between SmallLaw and BigLaw does not seem to change over time, as a percentage. Texas statistics indicate that while the growth in total lawyers increased from 61,638 in 1996 to 79,409 in 2006 (an increase of 29% over a 10 year period, the percentages cited above remain constant, as a percentage.
These statistics indicate that the discussion over the hourly rates should exclude BigLaw. The big law firms can take care of themselves and confront pricing issues not present to SmallLaw. Whether general counsel offices permit BigLaw to charge on an hourly basis, or not, is not of concern to SmallLaw, who usually confront clients, not general counsel. Therefore, the articles presented in the coming weeks and months will remain focus on SmallLaw and excluded BigLaw.
Attorney and Counselor