Unbillable Hours: A True Story

by Ian Graham

  I felt blindsided. Until now I’d been too busy to think about the emotional side of meeting Mario. Now suddenly his case was no longer merely about arguments on paper, but about a real person, who was depending on me, whose loss of freedom I had seen firsthand. These thoughts turned over in my head as I blasted the air-conditioning to stay awake on the four-hour drive back through the California desert.

  CHAPTER 14

  These Deficiencies Have Cost Me

  LOS ANGELES, JANUARY–OCTOBER 2003

  WITH THE BEGINNING of 2003, I officially became a second-year associate. Along with the rest of my associate class, I’d just received a $20,000 lockstep raise in salary, apart from any year-end bonus. And remarkably, there was now an entire class of first-year associates wandering around the office with even less legal experience than I had. They were recognizable by their eager faces and enthusiastic attitudes. I’d made it a full year with no visible signs of damage, other than the Gucci loafers and a slowly creeping waistline. Eight members of my incoming associate class — one-sixth of those who started in LA — had left the firm, five during the first year, and three immediately after year-end bonuses were handed out.

  After the excitement and emotion of Mario’s case, it was hard to settle down to billable work again. But I needed to do that. The DA’s office got two extensions for filing their return, so it would be months before we would have to answer it. A new annual tally of billable hours had begun on January 1, and I knew I needed to rack up a lot of billable work to offset the unbillable time I would spend on Mario’s case when it started up again.

  It wasn’t all drudgery. One of the first activities of the new year for the second-year associates was a mandatory weekend in the office for deposition training. A deposition, in a nutshell, consists of formally questioning a potential witness under oath, prior to a trial. It is held out of court, usually in a law firm’s conference room, with no judge present. Depositions are taken to preserve evidence, find out what a witness would say if examined during the trial, and pin the witnesses down so they cannot spring a surprise by changing their testimony at trial. The lawyer taking the deposition asks the witness questions, a court reporter makes a transcript, and in most cases, the proceeding is video-recorded. Depositions are a key element of the fact-finding, or discovery, period of a lawsuit. Done well, they can sometimes lay the foundation for a motion for summary judgment or a favorable settlement. If the witness is unavailable at trial, the deposition video can be used as testimony.

  The training began on Friday afternoon with a videotape of a Latham partner taking a deposition. This particular video apparently was selected to get us in the mood, as it contained an example of every litigator’s dream: catching the witness in a lie.

  The witness was a young hotshot executive who was not happy about some lawyer taking up his day with plodding questions. He was getting testy. A key point in the case was whether this witness wrote or read a particular email that had turned up in evidence with all the names blacked out. The Latham partner had already asked him about it once, earlier in the deposition, and the witness denied knowing anything about it. Now, hours later, with the witness tiring, the partner was circling back. The conversation went something like this:

  PARTNER: I’d like you to look again at what’s been previously marked Defendant’s Exhibit 2.

  WITNESS: [agitated] Again? I thought we went through this already?

  PARTNER: [calmly] If you would, please.

  WITNESS: Okay. Now what?

  PARTNER: You stated before that you are certain you never saw this email or were aware of its contents, is that correct?

  WITNESS: Yes.

  PARTNER: Drawing your attention to the two handwritten comments on the page, can you read those for the record please?

  WITNESS: [rolling eyes] The third sentence of the second paragraph is circled and the comment reads, “Quite a stretch.” The last sentence of paragraph three is circled and the comment reads, again, “Quite a stretch.”

  PARTNER: Did you write those “Quite a stretch” comments on this email?

  WITNESS: No.

  PARTNER: Understanding that this email, as you have previously testified, contains information relating directly to your duties for Company X and that, again, as you testified, you would in the usual course of business read and review a communication such as this, how can you be sure that these “Quite a stretch” comments are not yours? WITNESS: [with visible agitation] Because that just isn’t a term I use, “Quite a stretch.” I don’t think I’ve ever used that expression; it’s just not something I say.

  PARTNER: Is that the only reason you are sure these comments are not yours?

  WITNESS: I suppose so, yes.

  PARTNER: I’d like to hand you now what I will mark as Defense Exhibit 46. [Hands the witness a paper.] This is an email from you to the CEO of Company X, correct?

  WITNESS: It appears to be from the email addresses here at the top.

  PARTNER: Is there anyone else at your company with that email address?

  WITNESS: No.

  PARTNER: Please read the first paragraph of the email for the record.

  WITNESS: Thank you for your invitation to play in your charity softball tournament this weekend. I’m very much looking forward to it. However, your request of three home runs is… quite a stretch… [Witness goes white and sinks in his chair.]

  Depositions give litigators a chance to show off their art. The smart litigator, we were told, always has a cup of water (preferably room temperature) on the table beside his client so that, in case the client starts to “go south” and give the wrong answers, his lawyer can casually knock the cup of water into the client’s lap to stop the proceeding and give them a chance to confer.

  Our instructor was Peter Jacobs, a senior litigation partner. Mostly bald, with thick glasses and a pear-shaped body, Jacobs took his depositions seriously. “The first thing I like to do is to establish mental dominance over the deposition: This is my deposition. I’m calling the shots. I’ll tell people where to sit and I’ll ask whatever questions I want!” From there we learned how to “clean a witness out.” This phrase was probably repeated five hundred times that weekend. It meant leaving witnesses no wiggle room, so they couldn’t later change their testimony at trial. Since a witness will have been told by his lawyer to divulge as little information as possible, “cleaning a witness out” involves a ridiculously thorough but necessary method of questioning, which usually goes something like this:

  LAWYER: Have you ever been to the White House?

  WITNESS: Yes.

  LAWYER: How many times?

  WITNESS: I don’t know.

  LAWYER: In the past five years, how many times have you been to the White House?

  WITNESS: I don’t remember.

  LAWYER: Have you been there more than once in the past five years?

  WITNESS: Yes.

  LAWYER: Have you been there more than ten times in the past five years?

  WITNESS: I don’t remember.

  LAWYER: Have you been there more than five times in the past five years?

  WITNESS: Yes.

  LAWYER: So, to the best of your recollection, you have been there between five and ten times in the past five years?

  WITNESS: Yes.

  This pattern is repeated for almost every line of questioning throughout the deposition, which is why depositions are usually long and tedious. Years later, after I took a particularly tedious deposition of a real estate agent in a small town in Northern California, she looked at me sympathetically and said, “I can’t believe you do this for a living.”

  “Tell me about it,” I replied.

  AFTER DEPOSITION TRAINING, my billable work remained much the same as it had been. All January and February, I pored over financial documents and sifted company records to chart the location of an energy company’s coal deposits for the fine print of a financing deal. I spent a week at the company’s headquarters reviewing their in-house
files on coal seams and excavated piles of coal, slope mines, and shaft mines.

  On other cases, I answered discovery requests, which mainly involved repeatedly cutting and pasting the standard objection response: “X objects to this request on the grounds that it is vague, ambiguous, overly broad, and unduly burdensome. X further objects to this request on the basis that it requests documents not reasonably likely to lead to the discovery of admissible evidence. X further objects to this request to the extent that it seeks documents protected by the attorney-client privilege and/or the attorney work product doctrine.”

  I wrote draft jury instructions for a partner to propose to a judge. This meant little more than finding the right template on the firm’s document system and cutting and pasting the names of the parties.

  And I did more document reviews.

  AFTER SEVERAL EXTENSIONS, the DA’s return in opposition to our habeas corpus petition in Mario’s case finally arrived on my desk in mid-April 2003. I had been wondering what the DA would say. I thought the evidence of Garcia’s incompetence was overwhelming. And considering the absence of credible evidence against Mario, and the fact that there were only two shooters, I hoped the DA’s office would take a hard look at the case and perhaps see that they had gotten this one wrong. Maybe, even, they wouldn’t put up much of a fight. Wasn’t it their job to promote justice, and wasn’t correcting mistakes of the justice system part of that? I would soon learn just how naïve that assumption was.

  The return was massive, about four inches thick. That was not a good sign. I grabbed a pen and started reading. As I read, I began jotting notes in the margin next to points I didn’t agree with.

  “No,” I wrote, we weren’t just second-guessing the results of a legitimate trial.

  “Wrong,” we weren’t simply throwing out a “grab bag” of allegations against Garcia, with the benefit of hindsight.

  By the third page, I’d written “asshole” for the first time, and by the fifth, I was writing strings of obscenities. According to the DA’s office, Anthony Garcia had performed admirably for Mario. They separated each of Garcia’s failures that we had alleged, discussed each in isolation, and claimed that each (by itself) did not satisfy the Strickland legal standard for ineffective assistance. The DA’s office argued that Garcia’s failure to request a separate trial for Mario or to establish that Mario was not a gang member — a key distinction between Mario and his co-defendants — did not amount to ineffective assistance. Neither, they argued, did Garcia’s failure to cross-examine witnesses adequately or to call any effective witnesses on Mario’s behalf. Any more witnesses for Mario would merely have been “cumulative testimony,” they said. And how should Garcia have known to talk to Laurie Nevarez, who had hosted the party at her aunt’s house, since, the DA’s office argued, Nevarez “couldn’t prove that Rocha was innocent.”

  To me, this was disingenuous and a bold-faced disregard for Garcia’s professional duty at the trial stage: to pursue every lead that might raise a reasonable doubt in the minds of jurors. It also ignored the fact that Mario’s case depended on eyewitnesses. With no DNA or other physical evidence, it was one witness’s word against another’s, and there was no way to “prove innocence.” Laurie Nevarez was important because, as a witness with no reason to lie on Mario’s behalf, her testimony would have undercut Matthew Padilla’s identification of Mario as the supposed third driveway shooter, by placing Padilla at a spot where he could not have seen anyone shooting down the driveway. That point was absolutely crucial to Mario’s defense. And the law is crystal clear that the cumulative effects of a lawyer’s errors are to be weighed in determining ineffective assistance of counsel.

  With fourteen months of backroom legal experience under my belt, I was naïve about the workings of the criminal justice system and the mind-set of the DA’s office. I’d thought their job was to look fairly at the evidence and to prosecute only those they had good reason to believe were guilty. And I’d thought that if they made a mistake, or saw evidence strongly indicating that they had, they would want to correct it. Instead, what we got from them was a knee-jerk defense of the system, full of twisted logic and dubious legal arguments that wouldn’t have received a passing grade in law school. I’d thought that stuff was for the dregs of the defense bar, not respected public servants. Loyalty to the lie, as Sister Janet called it.

  That afternoon, Bob Long called me up to his office to discuss the DA’s return. I sputtered, trying to find the right words to express my contempt for it while remaining professional. But this was the first time I had been “poked in the eye” by an opposing lawyer, as litigators like to say, and I couldn’t come up with anything better than, “it sucked.” “Long-winded and not particularly impressive,” Bob said in agreement.

  The return was technically submitted on behalf of the People of California, and the names listed on the signature page included the governor, attorney general, and district attorney, surely none of whom had — at this point — heard of the case. The actual author of the brief was a deputy district attorney named Joanne Lach.

  “Why don’t we give Ms. Lach a call and introduce ourselves?” Bob suggested. That call was pretty unforgettable. Bob said something like:

  “Hi, Joanne. This is Bob Long and Ian Graham from Latham & Watkins. We’d like to speak with you briefly about the Rocha case if you have a minute.”

  Immediately, Lach’s voice took on an abrasive tone. She had no interest in talking to us and seemed personally offended that we, as big firm civil litigators, had dared to question the legitimacy of a criminal conviction. She raised her voice and refused to listen to a word Bob said. It was clear that this was going to be a dogfight.

  OVER THE NEXT months, while neck deep in billable work, I spent nights and weekends putting together our response to Lach’s return, and preparing for the evidentiary hearing. As the summer of 2003 came to an end and the hearing began to draw closer, Mario’s case took over my schedule. The hearing was like a trial, and preparing for a trial — I was learning — is like preparing for a battle. Every detail, tactic, and possibility had to be thought through from every possible angle. Excruciating thought was given to witness lists, presentation of testimony, what exhibits to use, and getting evidence into the record over anticipated objections. I drafted our pretrial brief for Bob Long’s review and found and organized the trial exhibits. I recruited Mike White, a former public defender and veteran criminal defense attorney with an impeccable record, who could testify about the standard of competence for defense attorneys at the time of Mario’s trial. I worked with our investigator, Aldo Velasco, to locate potential witnesses, including Laurie Nevarez, and to prepare subpoenas that would require them to appear at trial, if they were not willing to do so voluntarily.

  As we prepared, I visited Mario several more times to go over some questions about the night of the shooting to prepare him for the hearing, and at Bob’s request, to ask him to grow some hair on his shaved head for his appearance in court. We always met in the same empty room around a small round table. Mario was always polite, but I could tell that he was anxious about the hearing. The last time he had been in a courtroom, things had not gone well. He asked questions about our strategy, who our witnesses were going to be, and what they were going to say. He asked about Laurie Nevarez and why Garcia hadn’t called her as a witness at his trial. As we became more familiar with each other, Mario and I also talked about things beyond his case: What his life was like in prison. What he wanted to do if he got out. How much he missed his family. He asked me about my family and my interests. He sent me letters about books he was reading and the writing he was doing. We were becoming friends.

  During these visits, I had been struck by Mario’s self-control, his ability to remain rational and appear calm in that hard and lonely prison where he did not belong. But in my last visit before the hearing, after I had gone over with him our witness list and what we planned to prove, he seemed visibly shaken. It was the first time he had
fully understood how bad his trial defense had been. He took a slow breath and composed himself.

  “I want to thank you, Ian. You and Bob, for all you are doing for me. It feels good to know that these deficiencies [in Garcia’s representation] are going to be exposed. But at the same time, I think, like, these deficiencies have cost me a lot.”

  OUR ENTIRE CASE, I knew, would come down to Laurie Nevarez’s testimony. Matthew Padilla had been the only semi-credible witness against Mario at his trial. Nevarez had signed a declaration for us two years earlier, under penalty of perjury, placing Padilla in the backyard at the time of the shooting — a position from which he could not possibly have identified anyone shooting down the driveway — and stating that she would have testified to this at trial if Garcia had called her as a witness. If she testified confidently at the evidentiary hearing regarding Padilla’s location, then we could satisfy the second prong of the Strickland standard: that but for Garcia’s errors and omissions, the outcome of Mario’s trial would have been different. “The whole case is Nevarez,” Bob said.

  A week before the hearing, prosecutor Joanne Lach called to tell me that she and her investigator had visited Laurie Nevarez “to interview” her. I could pick up a tape of the interview at her office, she said, sounding slightly smug. I raced over to the Criminal Courts Building to see what damage, if any, had been done to our star witness. When I listened to the tape, I was aghast. This is from the tape: