Judge Easterbrook Slights Solos – But Solos Also Spite Themselves

Just like comedian Rodney Dangerfield, seems that solo and small lawyers just can’t get no respect from the federal courts. Only the slight to solos by federal judges is no laughing matter not just for us solo and small firm appellate lawyers but more importantly, for our clients.

The latest round of elitism and reduced expectations comes from Seventh Circuit Judge Frank Easterbrook in remarks at a breakfast meeting earlier this last month reported by in-house counsel columnist Mark Hermann at Above the Law.  Hermann writes that Judge Easterbrook

 excuses poorly written briefs filed by certain overworked government agencies or small and unknown law firms handling low-stakes cases that plainly won’t bear any substantial legal expense.  But the judge expects different quality briefs in high-stakes cases being handled by nationally prominent firms.

While perhaps Judge Easterbrook intended to show empathy for “small and unknown law firms,” his remarks (as reported by Hermann) are insulting, reflecting a generalization that small firm lawyers are so utterly and unredeemingly incapable that we require special accommodation that real lawyers at prominent law firms do not.  Moreover, because Judge Easterbrook apparently expects briefs from small firm lawyers to be bad, solo and small firm lawyers who appear in his courtroom have to work twice as hard to overcome the presumption.

Unfortunately, Judge Easterbrook’s anti-solo/small firm bias predominates in federal courts.  I’ve documented other instances involving federal judges where solo or small firm attorneys were treated more harshly or fared worse than a large firm lawyers. Even a Stanford Law Review article noted that in cases where federal judges perceived a disparity in the quality of representation (mostly civil rights and immigration matters on the civil side), they overwhelmingly found the solo/small firm lawyer to be the more deficient (See Report and Discussion at Table 8).

It’s not surprising that federal judges look down at solos.  The indoctrination begins in law school, where federal judges — many of whom were law school superstars graduating with top grades, law review and federal clerkship in hand —  are taught that solo practice is the dumping ground for losers, morons and those who can’t otherwise find a job.

But federal judges aren’t the only ones to blame for solo and small firm lawyers’ poor reputation in federal court; solo and small firm lawyers are to blame as well.  Too many solos, too frequently, play the solo card, begging for preferential treatment because they can’t keep pace with a larger, better funded and better staffed opponents.  Too bad, kids but that’s life in solo and small firm practice.

There’s simply no excuse for submitting poor quality work to a court.  If the client can’t pay enough to allow you to submit well-reasoned briefs that comply with a federal court’s rules, then don’t take the case.  Or, figure out a way where you can cut corners that won’t adversely impact your client and diminish your reputation.  For example, if you’re a terrible proofreader, maybe you hire a grad student in an English program who would charge less than a contract attorney.  Maybe you tell the client at the outset that you can handle the case for X amount, but they’ll have to communicate by email instead of phone or won’t be allowed to review every single document before it’s filed.  Maybe you prioritize and then limit the number of issues that you pursue in litigation or on appeal.  Or maybe if you’re just starting out or you’re trying to crack into a new area, you take the lower-paying case, but do a bang-up job as a downpayment on establishing the kind of reputation that will allow you to earn more.

At the end of the day, we can’t change the attitude of those like Judge Easterbrook in our profession; elitism is so deeply baked into the legal profession’s DNA that we’d need some kind of full-scale genetic engineering to effect change for future generations.  Even so, by working twice as hard as our big firm colleagues and never settling for second-rate quality, we can achieve the results that our clients deserve and that’s what matters.