The original article has been modified to reflect the problem of dealing with corporate lawyers from the pro per litigant's side.
Coping Pro Per With A Corporate Lawyer|
Unlike people who represent themselves in a lawsuit and tend to see things in black and white, corporate lawyers see a lot of green, mostly on large denomination bills. This green comes from the extra billing they get from their client for everything they do including scratching their ass.
If you fight VeRO takedowns aggressively pro per, you will almost inevitably someday contend with a corporate attorney representing some over-reaching company intent on controlling the secondary market. Corporate attorneys opposing a pro per litigant will typically — irrespective of the pro per litigant’s degree of legal sophistication — find themselves salivating at the chance to teach them a lesson in the costly representation of their clients.
For example, most pro per litigants take relatively direct communication with opposing corporate counsel for granted. Pro per litigants will, however, need to adapt to the manipulations of a crafty corporate attorney who doesn't really want to converse with them. Why should they? Pro pers often are of a lower class and less educated so trying to talk to them is a waste of valuable golf time. The corporate lawyer prefers writing them letter upon letter so the inflated billing can be physically documented.
If the corporate lawyer has a facsimile number, try to obtain it. Sometimes the corporate lawyer will file a document electronically and "forget" that the pro per litigant is to receive a copy so you will want to get PACER and use it to check the case file regularly. Do not be surprised when you arrive in court to find newly filed documents dated on the same day. Additionally, a corporate lawyer may interpret your willingness to send and receive letters by fax as a willingness to accept service of other documents by fax as well. If you are served by fax, advise the corporate lawyer that this is invalid unless agreed to previously in writing.
If the corporate lawyer gives you a telephone number, it is typically not a direct line. You may encounter a voice mail system or some other maze like having to press "1" for English. If you are fortunate enough to speak with a person, he or she may prove to be a receptionist who, after being advised of your identity — says that the corporate lawyer you seek is in a meeting, with clients, in court, or otherwise unavailable (all of which is legalspeak for he's playing golf with some other lawyers don't bother him today). This can prove troubling when it is necessary to get an immediate response from the corporate lawyer.
Understand that once reached, a corporate lawyer may still be difficult to talk to. It's in his/her best interests to drag everything out as long as possible so to maximize billable hours. If the corporate lawyer tells you he is only interested in a fair conclusion to the case, that means drop your drawers and bend over, you're not even going to get kissed first. Even the most elementary communication can quickly escalate into a battle of words, most of which are designed to confuse you. Although every corporate attorney will vigorously defend a client’s position, there is generally no sense of decorum or ethics when a corporate lawyer is discussing the pros and cons of any particular issue. However, when dealing with a corporate lawyer, a relatively innocent observation about the law can turn into an argument during which all hope of accomplishing your goal vanishes. For this reason, take extreme care when attempting to persuade corporate lawyers that their stance is erroneous, no matter how fallacious their arguments may be. You might find that your ability to discuss even the most mundane issues can be compromised if you offend a corporate lawyer's inflated ego.
Also be aware that the common courtesies that are often exchanged between opposing corporate attorneys are most likely not going to be offered to a pro per litigant. Lawyers have their own little fraternity and you're not invited. For example, an extension on a deadline to respond to written discovery is common between corporate lawyers because it is a tactic to delay, confuse, and draw out the proceedings so they can pad the billing. The pro per litigant will likely oppose an extension because the firm has had ample time to comply not to mention the manpower of all those secretaries and paralegals. Not very brotherly. Most pro per litigants have no idea that extensions are routinely granted as a professional courtesy. Unfortunately, the court will, in all but the most egregious instances, grant the first request for an extension not matter how unreasonable the excuse may appear to the pro per litigant. After all, one cannot expect corporate lawyers to interrupt their golf days for actually doing some work, now can we?
A pro per litigant can expect more court appearances than usual, and these bring their own set of obstacles. Corporate lawyers tend to try to "take advantage" of pro per litigants. One is the perception that, by going to the judge, the pro per litigant can get justice. The judges do not dispense justice but rather they dispense the law and that law is dispensed according to certain rules called the Federal Rules Of Civil Procedure ("FRCP") of which most pro per litigants have no knowledge nor can they be easily understood by pro per litigants because the FRCP were written by lawyers for lawyers. The corporate attorney will beat up on the pro per litigant using these rules (FRCP). If you find that the corporate attorney is taking an unreasonable position, it your opinion, it may be a good strategy to bring motions to make the court aware that the corporate attorney is not acting in good faith, which you may find happening a lot. Do not fall for the corporate attorney line that they are "an officer of the court" and as such they cannot lie to you. That is a lie. Corporate attorneys lie to the courts all the time so why would they not lie to you?
Beware a corporate attorney who files many motions and ex parte applications. This is usually an indication the corporate attorney is acting in bad faith. For this reason, take great care in drafting your declaration to point them out. It is common place to exceed the minimum notice requirements. Corporate attorneys are notorious for waiting until the last second and then asking for more time. The court will no doubt appreciate your extra effort in dealing with a corporate attorney for many are incompetent. For example, when conferring (as required) with the corporate attorney before filing an opposed motion, either make all communications via email, or if done by telephone, follow up with an email confirming the conversation. A paper trail is important because, as we noted earlier, corporate attorneys will lie to the court. Document the date and time of each communication and be prepared to produce them at a hearing.
Do not be surprised if you are confronted with the “I did not receive your notice” excuse. orporate attorneys believe, and the courts appear to support them, that a pro per litigant can be blamed for almost anything. If you need to bring a motion or ex parte application, mention the difficulties you have had contacting the corporate attorney and produce records showing delivery confirmation (did we mention ALL notices sent to the corporate attorney should have delivery confirmation?)
In short, the best strategy is to treat the corporate attorney like a rabid animal with an infectous disease. Get your shots updated after shaking hands. Corporate attorneys are able to use the rules to create the conditions for a procedural dismissal whenever you give them the chance.
Tabberone is not a member of any legal committee or organization and all shots are current.