Unbillable Hours: A True Story

by Ian Graham

  Laurie also provided Aldo with the contact information of Christina Aragon, Padilla’s girlfriend at the time of the party, who was standing with Laurie in the back of the yard. When Aldo contacted Christina, she echoed what Laurie had told him. She had called for Padilla during the fight. He had come into the backyard before the shots were fired and remained there until the shooting stopped. She, too, had never been contacted by Garcia or his investigator.

  While this did not directly prove that Mario was innocent, it undercut the testimony of the only witness who had identified him as a shooter with any degree of reliability. Laurie Nevarez and Christina Aragon had no reason to lie to help Mario. Garcia had never contacted them, and if he had, they would have told him what they knew and would have testified at trial.

  A few months later, on October, 20, 2000, Steve Newman and Bob Long filed a motion for habeas corpus in Los Angeles Superior Court, arguing that Mario had received ineffective assistance of counsel based on Garcia’s failure to conduct a timely and adequate investigation of the case, his failure to seek a separate trial for Mario, his many shortcomings at trial, and that Garcia’s incompetence had made a difference in the outcome.

  Their petition was assigned to Judge Larry Fidler, where it sat for more than a year and a half before it was returned with a one-word ruling:

  DENIED.

  CHAPTER 11

  You’re Going to Save His Life

  LOS ANGELES, JUNE–DECEMBER 2002

  “YOU CAN’T DO THAT!” Steve Newman screamed at me. He stomped his feet and waved his arms in exasperation. How could he have been stuck working with a monumental idiot like me? In a memo about some research for our new habeas petition, I had cited cases using the standard blue book legal citation form.

  “In the California courts, you cite according to the California rule!” Steve said. “The goddamn date goes after the goddamn case name, not at the end. Christ! This is basic stuff!”

  I felt about two feet tall. “Sorry Steve,” I said, trying to calm him down. “I didn’t know. I won’t do it again.”

  It was only later that I found out that California courts accept cases cited either way and that the “California rule” method was only Steve’s personal preference.

  For the next three weeks, I found myself being pulled apart and swatted back and forth like a dead fish between two cats:

  Adam Greene and Steve Newman. Greene insisted that his IPO deal took priority, frantically tossing assignments at Wilke, Davies, and me, insisting that we clear our schedules and pull frequent all-nighters inputting changes into his IPO prospectus.

  But Greene was a teddy bear compared to Steve Newman. Like Greene, he seemed to live at the office. He fired off emails at all hours, seven days a week, asking me to find cases supporting the arguments in our habeas petition and assigning me portions of the petition to draft. Moody and intense, he had no patience for my other workload or my lack of experience. “Don’t give me that. Everyone here is busy. If you can’t get this done, I’ll find somebody else!” he would bark. When I made the mistake of stopping by his office to ask a question about something, he threw a fit. “It’s not my job to answer your questions. It’s your job to answer mine!” When I sent him a section of the appeal I had written that I thought was pretty good, he sent it back the next day with one word scrawled across the top in red ink: “Yuck!”

  But over the weeks, as our habeas petition to the Court of Appeal began to take shape, for the first time I saw the case — the facts, legal arguments, and analysis — as a whole. And the client as a real person whose life was at stake. I began to understand that this case was about correcting an injustice, not about fulfilling an assignment and not just an interesting diversion from document review. And I began to develop a grudging respect for Steve Newman.

  I had begun Mario’s case thinking that Steve’s short temper, incessant demands, and zero-tolerance perfectionism were simply the result of him being a prick who derived sadistic enjoyment from belittling junior associates. I figured he was working on the case only as a way to suck up to Bob Long. But I came to see there was more to him. Steve was an eighth-year associate, up for partner at the end of the year, and he was juggling a lot of other billable cases that were far more important to his career and partnership prospects. Other associates in his position would have considered Mario’s case, while exciting and noble, as a nuisance and a loser. Steve didn’t have to be working this hard on it. With a lot less effort and stress, he could have put together a good habeas petition that covered the facts and necessary arguments, and nobody would have known the difference. This was a habeas corpus petition, after all. We were expected to lose.

  But good wasn’t good enough for Steve. For all his bluster, I could see that he cared about this case, and about Mario, and he had his own standards. He knew the odds we were up against, and he wanted our appeal to be airtight, powerful, overwhelming. He demanded perfection because perfection was the only thing that would give us a chance. He organized the massive amounts of legal research and evidence, and he wrote persuasively. He did all this while working as lead counsel or second chair on a handful of billable cases that could make or break his chance to become a partner. Maybe he could stand to lighten up a bit, but I was learning a lot from him.

  We had almost finished the habeas petition to the Court of Appeal when something caught my eye: In his statement to the police shortly after the shooting, at the preliminary hearing, and at trial, Matthew Padilla had described the shooter as “getting down on his right knee, placing the gun in his left hand,” and firing down the driveway. In each instance it was the same: right knee, left hand. When I brought this to Steve’s attention, his eyes got wide. He immediately called Mario’s mother, Virginia, who confirmed that Mario was right-handed. “Great work!” he said. “Let’s add a section to the petition pointing out that Garcia never even noticed that Padilla had identified a left-handed shooter. We’ll get a declaration from Virginia saying that Mario is right-handed.”

  When we finished the petition, I was surprised by how good it was. It laid out clearly how Anthony Garcia had failed to conduct an adequate investigation of the case and had failed Mario at trial. It argued persuasively, using declarations signed under penalty of perjury from witnesses Laurie Nevarez and Christina Aragon, that if Garcia had gone to the crime scene and talked to the owners of the house, he would have found witnesses able to undercut Matthew Padilla’s identification of Mario.

  Unlike some partners, who insisted on rounds of heavy editing on every brief, costing the client more billable hours while often resulting in few important changes, Bob Long made only a few minor edits to our appeal, moving a few paragraphs and changing a word or phrase here and there. Each of his edits made the writing crisper and the arguments more compelling. He sent an email to Steve and me commending us and calling the appeal “a powerful piece of work.” It was gratifying to get praise from a senior partner like Bob, and I was proud of the work Steve and I had done, but still I figured it was all for nothing. The words of those district attorneys at the UCLA seminar kept playing in my head: “You have no shot.”

  ON THE MORNING the petition was to be filed, I arrived early and headed over to our “war room” — the fortieth-floor conference room we had commandeered for Mario’s case — for one last check that the petition and exhibits were in order. Two strides into the room, I stopped short. At the opposite end of the long conference table stood four women huddled around the petition, holding hands with their heads bowed. Three were middle-aged and Hispanic. The fourth, who looked to be in her sixties, was a small white woman with short white hair and a cross hanging from her neck. She whispered a blessing as the three Hispanic women slowly waved their hands over the petition. I glanced at Steve, who was sitting in a chair at the near end of the conference table casually observing the ritual. “Can’t hurt,” he said with a shrug.

  When the blessing was finished, Steve introduced me to Mario’s mother, Virginia Rocha, and
his two aunts, Bertha and Martha. Virginia and Martha gave me a long hug and thanked me for helping Mario.

  Mario’s aunt Bertha looked concerned. “How old are you?” she asked.

  “Twenty-eight,” I told her.

  “Mario is twenty-four, she said quickly. You are almost the same age.” She looked at Steve. “Steve, he looks too young to be a lawyer. He is working on Mario’s case?”

  “Don’t worry, Bertha,” Steve said, seemingly accustomed to dealing with Bertha’s concerns. “Ian is helping out, but I am still in charge.”

  Martha apologized to me and quietly scolded her sister. But I wasn’t offended. Mario and his family had been burned badly by an incompetent attorney, and they had every right to be wary of someone new who looked too young for the job. If Mario were my relative, I wouldn’t want me as his lawyer either.

  After the petition and exhibits had been taken away to be filed, I was about to leave the conference room when the slight, elderly white woman who had offered the blessing stopped me. She clasped my hand between hers and looked me squarely in the eye for a few seconds.

  “You must be Ian,” she said calmly. “Steve has told me so much about you. Thank you for all you’ve done for Mario.”

  Steve was standing nearby shaking his head as if to say, “Don’t feel special, she does this to everyone.”

  “I’m Janet,” she said, still holding my hand in hers.

  “Oh, right! You’re the one who brought us the case. NICE… TO… MEET YOU!” I replied, as if she were hard of hearing.

  She smiled and graciously ignored my slight. “I may have brought it here, but you are the ones who are walking on water. You are the ones doing God’s work.”

  She stared at me silently for another moment and then said matter-of-factly, “You are going to save his life. I know it.”

  My first impression of Sister Janet Harris was that she was a sweet old lady who was possibly out of her mind. God’s work? I bet that’s the first time anyone had described what goes on in a Latham conference room that way. Save his life? Thanks for the blessing and all, Sister, but hasn’t anyone told you that this is a habeas corpus petition, and therefore is bound to lose? But even in this brief meeting, Sister Janet’s confidence and the strength of her convictions were contagious. She had a kind of magic about her, and I instantly liked her and wanted to please her.

  MONTHS PASSED WHILE our petition languished in the Court of Appeal. Adam Greene’s IPO deal kept me busy most days, but because I had taken “time off” (Greene’s words) to work on Mario’s case, I was less involved in the IPO than my friends Mike Wilke and Jon Davies, who were working around the clock seven days a week, with no end in sight. Greene’s work was manageable enough, and it allowed me to take on a few other cases. I was sent for two weeks of document review to Manchester, England, where I sat in a dusty warehouse all day and night with a handful of other first-years, only to find that the case had settled and our work had been for nothing. I researched and wrote a brief on behalf of a developer in a dispute with the plumbers’ union, arguing that “no-flow” urinals fit within the municipal code’s definition of “low-flow” urinals.

  And I was assigned to work on another healthcare fraud case, with a partner named John Oliver. This time, however, instead of just reviewing documents (although I did that, too), I spent weeks at the client’s office taking notes while Oliver, a former federal prosecutor, methodically interviewed hospital employees about their complex Medicare billing systems and procedures — “Tell me again how the front-end billing software system creates the TSI report assigning Medicare codes to various patients?” — sometimes for twelve hours at a time. I downed pots of coffee and tried to stay awake.

  Observing Oliver engage in torturously complex and often repetitive questioning over even the smallest details of the hospital’s billing process, I realized what my trial advocacy professor in law school had meant when he said, “Litigation is bathtub learning.” Litigators have to become quick-study experts in the subjects of their cases, learning in a few days or weeks minute and complex details that experts in the topic spend years mastering. After they’ve filled their brains and the case is done, they then pull the plug and make room for the next case.

  Maybe it’s the long hours and bathtub learning year after year that make a lot of litigators seem a little odd to the rest of the world. There is so much material to understand and so many moving parts rattling around in the brain that things such as social norms and routine pleasantness get pushed aside as “unimportant facts.” Oliver, for example, while reputed to be a brilliant litigator, seemed uncomfortable with or uninterested in any sort of basic human interaction. He ignored routine pleasantries such as handshakes, invaded other people’s personal space, and questioned the hospital employees in a robotic, expressionless monotone, inching closer to them as he talked, for hours on end, day after day. In the two weeks I worked closely with him, not once did he show any sign of a personality. When we met in his office to discuss the interviews, he would pull his chair so close to mine that our knees had to be positioned uncomfortably so as not to touch. After I mumbled my thoughts about the interviews, he would stare at me blankly for an awkwardly long time, unleash a shrill noise from somewhere near his throat, and continue staring.

  THE SHOCK I INITIALLY felt at the long hours and boredom of the work had subsided a bit and been replaced mostly by apathy. Still, while I figured a lot of people worked at jobs they didn’t like, most didn’t make nearly as much money as I did. For the next few months my billable work remained pretty much the same, but I was getting more comfortable with it. I was a master of document reviews, I was becoming handy with Westlaw and Lexis research, and I could whip out a basic legal memo pretty quickly. My first two semiannual reviews by the Associates Committee came and went without incident. Both were conducted in my office by a senior associate on the Committee, who read what the attorneys I’d worked for had said about me. They all gave me high marks for teamwork and attention to detail and wrote that I was working at or above the level expected. I was pleasantly surprised to discover that my best review had come from Adam Greene, who gave me fives and five-pluses (out of five) across the board and added that I was a team player who had pitched in on several all-nighters — which made me want to take back every evil thought I’d ever had about him. My worst review came from Steve Newman, who gave me mostly threes and fours. I had heard that the committee considered a single three on any review a red flag, but when I asked the interviewer about it, she laughed. “Generally speaking, that’s right, but everyone knows that Steve is tough. A three from him is actually not that bad.” Later, I would hear that Steve had given another first-year associate ones across the board, which led to her departure from the firm.

  Others had endured enough. After spending a weekend doing emergency document review, my roommate Matt burst through the door to our apartment late on Sunday night, dropped his bags, and announced, “I can’t take this anymore. This fucking place is not going to be on my tombstone! I’d rather live in a cardboard box under the freeway for the rest of my life than spend another Saturday night reviewing documents.” A few weeks later, he got a job as a legislative assistant to a United States congressman and was gone. He was the sixth member of my class to leave in the first year.

  I hadn’t even started looking for a new place to live when, driving through the Santa Monica Canyon on the way back to my apartment after a rare few hours of surfing at the beach, I spotted a “For Sale” sign in front of a small house. On a whim, I decided to take a look. The house was a two-bedroom, one-bath midcentury California bungalow with a small courtyard in the front, a brick patio and outdoor fireplace in back, and a price tag in the middle six figures. It had a few quirks, such as the washer and dryer being in a shed on the patio and forest green paint on every surface, inside and out. But otherwise it was perfect: it was two blocks from the beach, and it sat between the “Santa Monica Stairs,” two long sets of stairs running up th
e canyon hillside with a constant stream of LA’s beautiful people marching up and down them with their personal trainers. “It’s a steal,” the real estate agent told me. “It’ll double in three years!”

  I’d never given much thought to buying a house and didn’t think I could afford one. But when I called the bank to get information about a mortgage, as soon as I told them I was an attorney at Latham, they almost fell over themselves to loan me money. That was it. At twenty-eight, I owned a home in one of the wealthiest zip codes in the country. I was too busy and too caught up in my new home and the other trappings of a Latham income to realize that the golden handcuffs had just become tighter.

  CHAPTER 12

  You’ll Do Fine

  LOS ANGELES, DECEMBER 2002

  IT HAD BEEN four months since we’d filed our habeas corpus petition to the Court of Appeal, when Steve Newman walked into my office on a Friday afternoon triumphantly waving a piece of paper.

  “We got it!” he announced proudly. “We’re going to get a hearing!”

  I had never seen Steve so pleased. The Court of Appeal had ordered the State of California to provide a formal written response to our petition and had ordered that a hearing take place in the Superior Court before a judge other than Judge Fidler, the judge who had held our last petition for a year and a half before denying it. What the Court of Appeal was now requiring was an evidentiary hearing — a sort of mini-trial — to determine if we could prove the allegations in our habeas petition: that Mario had received ineffective assistance of counsel at his trial and that his lawyer’s incompetence had contributed materially to his conviction. If we could prove those two things — if we could win at the evidentiary hearing — Mario would get a new trial.