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Thomas Girardi
Phooey on resolutions, but this is the time of year when many of us take stock about where we are, where we’ve been, and where we may want to be in January 2025. Some of us may want to stand pat, but others may be thinking or have been thinking about moving forward, sideways, or even backtracking. It all depends upon what is important to you, a very personal decision. What may be perfect for one person may be horrendous for another. We know, through trial and error (pun intentional), there are many ways to have a career in the law. The perspective of having to have a particular job, to make tons of money, usually changes as we age, and what was worth chasing even a few years ago may no longer be appealing or even doable.
One of the biggest challenges for dinosaur lawyers is when and how to let go. Yes, clients still need us, or at least we think they do, but what about personal and family needs? When, if ever, do they take priority or even parity with practice? For many dinosaurs, the perplexing question is now what to do and how to do it, to still have purpose and meaning while throttling back. It’s not an easy question to answer. I have friends who are close to 80 (and some beyond that), who are still incredibly sharp, and able to work, but should they? How do they reconnect with a personal and family life left behind years ago when chasing equity partnership and other benefits? Sometimes, you just know when it’s time. Other times, it can take a shove, gentle or otherwise.
Meanwhile, some stories don’t end. My first Tom Girardi story of 2024 (apologies to my editor): a federal judge has determined that Girardi is competent to stand trial for his various alleged misdeeds involving client settlement funds. This ruling is only the beginning of the next chapter.
It’s only January 4, and already I have my first “I am not making this up” for the new year. One law firm is suing another for alleged copyright infringement because Firm A allegedly copied language from Firm B’s brief. What? Is nothing sacred anymore? Nor should it be because, as Joe Patrice points out, it can verge on malpractice not to copy language. As Joe says, copying is what we do in a common law system. We use the same words and phrases to avoid malpractice, especially in jury instructions where appellate courts have already ruled on appropriate language to use. Perhaps there might be an issue if the brief was never public record, but in this case, it was and is. I have never seen the © on a brief, at least not so far. Have you?
When I was a junior lawyer, I looked for any help I could get to draft briefs, settlement agreements, and all the other forms of legal documents (this was way before AI). So, the standard answer when I asked for help, which was all the time, was to “go look at the form files.”
Dinosaur lawyers remember form files. They were copies of various and sundry documents/pleadings/agreements/etc. drafted by others and collected in a bunch of file cabinets. File cabinets, another anachronism? The pleadings and the like weren’t always on point, in fact, they rarely were, but they were roadmaps for drafting whatever had to be written, especially for junior lawyers who knew where the restrooms were, but not much more. You still had to research and Shepardize.
No one ever raised a copyright issue; we were all too busy copying from each other. It wasn’t plagiarism, it was using the best mousetrap available for a specific issue. Was it laziness? To the contrary, if you want to talk about laziness, then we can talk about generative AI, but let’s save that for another time.
The form files were usually bulging with past work, from our office and others, even pleadings and briefs from opposing counsel. The test was what would work best in a given situation, and if someone else had a better turn of phrase, a better way to position the argument, to lead the reader in the right direction, then so be it!
If we all had to reinvent the wheel linguistically, the profession would have sunk under the weight of wordiness — and we are wordy enough. There may be ethical issues in copying a brief and charging the client for it, but Joe points out, if copying a brief’s wording saves the client money and gets the necessary points across, what’s wrong with that?
And to end on a California note, heads up for any and all employers who have employees here in the Golden State, who will find that this year is not a happy one. Employees suing for retaliation must show a nexus between their protected activity and employer retaliation. That’s still the law, but now in California if the employee can show that the adverse employment action occurred within 90 days of the protected activity, the presumption is now that the employer is the bad actor. Remember presumptions from evidence class?
I had always counseled HR that the more attenuated the connection between the protected activity and the adverse employment action, the better. But sometimes it was too tempting not to go “ready, fire, aim.” And they did; itchy trigger fingers bought lawsuits. Now, it’s even easier to sue here in California. SB 497 has the deets. You’re welcome. You can thank me later, and Happy New Year!
Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at oldladylawyer@gmail.com.
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