Unbillable Hours: A True Story

by Ian Graham

  NEVAREZ: Everything happened really fast… I think it’s when he was walking towards us already that’s when the shots started happening right away.

  MCDANIEL: So your recollection is that as soon as you saw Mr. Padilla walking towards you, toward the argument in the backyard, you heard the shots?

  NEVAREZ: Yes.

  MCDANIEL: You were able to recognize Mr. Padilla?

  NEVAREZ: Yes.

  MCDANIEL: And he’s still in the backyard?

  NEVAREZ: Yes.

  MCDANIEL: Were you ever contacted by an attorney or investigator about what you had seen at the party prior to the 1997 trial relating to the shootings at the party?

  NEVAREZ: No.

  MCDANIEL: If you had been contacted by an attorney or investigator and asked what you had seen at the party, would you have told them what you saw?

  NEVAREZ: Yes.

  MCDANIEL: Would you have appeared in court and testified about what you saw?

  NEVAREZ: Yes.

  MCDANIEL: Let me ask you this, Ms. Nevarez. Do you recall a time when you were interviewed by Ms. Lach and an investigator from the District Attorney’s Office?

  NEVAREZ: Yes.

  MCDANIEL: Do you recall being asked during that interview when it was that you saw Mr. Padilla move into the backyard?

  NEVAREZ: Yes. I told them that I saw him, but I wasn’t sure if it was from the side of me or where, but I did see Matthew coming into the backyard.

  MCDANIEL: Prior to the fight?

  NEVAREZ: Yes.

  MCDANIEL: Do you recall how many times you were asked when you saw Padilla coming into the backyard before the shots rang out?

  NEVAREZ: Yes. A lot. They kept asking me and asking me. MCDANIEL: And you kept giving the same response? Nevarez: Yes.

  MCDANIEL: Did you feel like you were being pressured in that interview? Nevarez: Yes.

  MCDANIEL: And were you uncomfortable?

  NEVAREZ: Yes. I felt like I was on trial or I did something wrong. I was trying to answer as best I could, but things I would say and they would say, “Are you sure? Are you sure? It wasn’t this way? It wasn’t that way?”

  Joanne Lach’s cross-examination of Nevarez lasted an entire afternoon. Lach had found small inconsistencies between the statement Nevarez had given investigator Aldo Velasco in 1999 and her testimony here in court, and tried to use them to discredit her. Nevarez wasn’t sure if she was standing directly in the spot she had identified in her statement or three feet to the left. She wasn’t sure if, when he entered the backyard, Padilla had walked directly toward her or slightly off to the side.

  “You’re worried that you signed a declaration in 1999, under the penalty of perjury, that has mistakes in it, aren’t you!?” Lach thundered at her.

  Laurie Nevarez had heard enough. For the first time, she sat upright in her chair and leaned into the microphone.

  “No, I’m just here to say what I know.”

  I pumped my fist under the table. We had won right there, I thought.

  The next morning, Christina Aragon, Matthew Padilla’s girlfriend at the time of the shooting, took the stand. Although she claimed not to remember anything and was a reluctant witness, she admitted that she had signed a declaration for Aldo Velasco corroborating Nevarez’s account that Padilla was in the backyard when the shots were fired, and stating that she would have testified as much if she had been called at trial.

  Our last witness was Mike White, our expert in criminal defense practice. White’s credentials included thirty years of criminal trial practice, six as a public defender, most of it in Los Angeles County courtrooms. He had handled more than one hundred jury trials, forty of them murder cases, fifteen of which were gang-related. He was a lecturer for the California Bar Association on cases involving multiple defendants. Prior to testifying, he had reviewed the transcripts of Mario’s original trial and Anthony Garcia’s entire file. Questioned by Bob Long, White testified at length and described in detail how Garcia’s representation of Mario had, under the prevailing professional standards as they existed in 1997, fallen woefully short of what a defense lawyer should reasonably have done in this case. White was an excellent witness, getting his points across clearly and speaking in a compelling manner. Lach went at him hard in cross-examination, trying to make him out to be an expert witness for hire who was there simply to second-guess Garcia’s tactics, but White held firm.

  Overall, we felt the hearing had gone very well for us. Bob, Marcus, and I met with Mario briefly in the holding tank outside the courtroom. He was in high spirits. “I don’t want to get my hopes up too much,” he said, “but I think the judge will see the truth this time.” “I hope so. Stay strong,” Bob told him. In the hallway outside the courtroom, Bob addressed Mario’s family and friends and Sister Janet: “I think it went well, but this is a difficult process. We’ll just have to see what happens.” But on the elevator ride down, alone with Marcus and me, he said what we were all thinking: “I think we’ve got a very good shot at this judge ordering a new trial for Mario.”

  CHAPTER 16

  As Good As It Gets

  Some certain dregs of conscience are yet within me.

  — Shakespeare, Richard III

  LATHAM & WATKINS, DECEMBER 2003–2004

  THE LATHAM & WATKINS Christmas party wasn’t exactly the elegant evening affair one might expect from one of the largest, most profitable law firms in the world. It was held from two to four on a Wednesday afternoon in a reception room at the California Club, LA’s oldest private social club, a block from the office. Apart from a few decorations scattered about the paneled room, there was little evidence of a festive spirit. Lawyers milled around talking mostly about work. A few partners prowled the room looking for associates who owed them work. Associates bobbed and weaved to avoid them. A two-drink maximum was enforced, with drink tickets handed out upon arrival.

  I spotted Trevor Wilson sitting at a small empty table against the wall and went over to join him. Since our first document review assignment in San Diego, Trevor had been stuck working healthcare cases, reviewing documents, and coming up with explanations of why hospital after hospital had “mistakenly,” instead of fraudulently, overbilled Medicare. He had unintentionally put himself in a good position with the Healthcare Litigation Group, where he was well regarded by the partners and associates, but he was struggling with the work he was doing and the path on which his career seemed headed. I wasn’t altogether surprised. From a small town outside of Santa Barbara, Trevor had joined Latham out of UCLA Law School for the same reasons I had: he had gotten caught up in the prestige, the money, and the fun of the summer associate experience, and for a time, he had enjoyed the new car and fancy clothes his Latham paycheck made possible. But the real Trevor was at heart an earnest, salt-of-the-earth small-town rancher.

  “This job has no soul,” he said as we sat there nursing the second of our two allotted drinks. “I don’t do anything. I don’t make anything. I clean up other people’s messes and write memos about it,” he said. “I don’t admire any of the people I work for or want to be like them in any way.” His problem, if you can call it that, he knew, would most likely be fatal to his career at a big firm like this one: he needed to find meaning in his work. A few months later, Trevor left Latham to become an attorney for the federal government, investigating and pursuing fraudulent HMO billing practices.

  Until recently, I hadn’t thought I carried that burden. When I joined Latham I’d believed it fit exactly who I was: a capitalist at heart, unapologetic about liking material things. I didn’t need to find meaning in anything as long as the money was right.

  Or so I thought. Two years at Latham had produced some unexpected changes in me. After I had watched guards bring Mario in shackles to our meetings in the prison cafeteria, after I had sat facing him as we talked about his life in prison and his hopes for a life after it — knowing that he and his family and Sister Janet were depending on me and the Latham team for his only chance
at freedom — thoughts about what I was doing and why came involuntarily on those long drives back to Los Angeles. I tried to push them away, but they kept coming back, not yet fully formed or understood, but increasingly present. I was developing a goddamned conscience.

  I BECAME CONCERNED when the new year arrived without a decision from Judge Bowers. I’d figured that if Bowers intended to rule in our favor, he would do it quickly in order to start the process of setting things right. When the decision didn’t come, I told myself that maybe the judge was just taking his time with his ruling in order to get it right and protect himself in case the state wanted to appeal. I said this to Mario over the phone and to Sister Janet when she called at least once a week, trying to sound reassuring. But I was getting nervous.

  With the beginning of 2004, I became a third-year associate. My two-year purgatory as a lowly unassigned associate had ended, and I joined the Litigation Department. On the upside, this meant an end to the Friday afternoon “emergency” emails from The Book, which assigned weekend document reviews and due diligence work to any associate who appeared to have the time. And it meant I was no longer under Adam Greene’s thumb.

  But it also meant that I could no longer rely on the The Book for work. I would have to network with the litigation partners and senior associates to get staffed on their cases, and I would have to perform well enough for them to keep me in mind for future cases. Over the next few years, it would be up to me to get experience in the full range of litigation skills — discovery, depositions, motion writing, court appearances — as I laid the foundation for my career as a litigator.

  Most of the third-years who were joining the Litigation Department were hitting the ground running. They were already working on active cases for several partners, and they had already cultivated a pipeline of work that would keep them going for the foreseeable future. I was hitting the ground with a thud. My only real litigation experience so far, other than a few document reviews on which I was one anonymous member of a large team, was Mario’s case. Steve Newman had left the firm, and Bob Long, to my surprise, had announced that he was retiring from the firm at the end of 2004. By my count, Marcus McDaniel and John Oliver were the only two litigation partners who knew I existed. Oliver was busy with a trial in San Diego, and McDaniel, an employment litigator, had just settled a few cases and didn’t have any work available for me.

  Until now I had done most of my billable work for mid-level and senior associates. So over the next few days, I emailed every Litigation Department associate I knew or was even vaguely familiar with, announcing that I had capacity to take on new work; but none of them had anything for me. I came to realize that some of them viewed me differently now that I was a third-year in their department. I was now a rival for billable hours and the attention of partners they had been cultivating, not a rookie, fair game for anonymous backroom work. I began walking the halls, introducing myself to a few partners in the department and asking if they had anything for me. Nothing. I began emailing other partners, asking for work. No response. As the days of no work turned into weeks, I began to panic. Turning in time sheets that read “0.6 hours — professional reading,” which meant I had read the Daily Journal, a law-related newspaper, was not the way to start out in the Litigation Department. For three weeks I was completely idle. I began sending out more emails asking for work and saving them as evidence, in case anyone wanted to know what the hell I had been doing all day.

  During this time, a headhunter (or legal recruiter) called to ask if I would be interested in hearing about some great firms that were looking to hire third-year associates. Headhunters call law firm associates frequently, but I had always dismissed them with a curt “not interested, thank you.” Moving to another firm had never made sense to me. No matter what firms say, the work at all big firms is generally the same. If I moved, I would only be starting all over again with a bunch of strangers. And I would be leaving Mario in the lurch. Steve Newman had already left. Bob Long would be retiring soon. Marcus McDaniel, who had stepped in and performed remarkably at the evidentiary hearing, wasn’t totally invested in the case yet. I was the only continuity. I felt terrible for even thinking about leaving.

  Still, I feared my days might be numbered anyway. At any moment, I expected the head of the Litigation Department to storm into my office and demand to know exactly what I had been doing for the past month. But there was no work for me at Latham, or for whatever reason, nobody seemed to want to work with me. Reluctantly, I agreed to meet with the headhunters.

  They suggested we meet at an out-of-the way place where no one from Latham would see us talking. When I arrived at the Santa Monica café we had selected, the whole thing felt kind of dirty. The two headhunters — a dumpy, disheveled man somewhere between the ages of thirty and fifty, and a large, overeager middle-aged woman — insisted on talking in whispers, furtively glancing around as if someone in the café might overhear us and report back to Latham. They said they had set up three interviews for me with international “first-tier” firms similar to Latham. They were excited, the woman almost too much so, going on and on about how wonderful and “collegial” these firms were. They told me to “smile” in the interviews and to talk about my “passion for law practice.”

  It was a very different hiring process from the one I had experienced coming out of law school. I had been riding high then, or thought I was, and had wanted the job. Now, having been at a firm for over two years, I knew I didn’t love the work, but I needed the job. I had a mortgage and a fancy car to pay for. Recognizing this, I sucked it up, put on a happy face, and hit the interview circuit again.

  I had offers from all three firms where I interviewed. The headhunters were panting and almost delirious. They started pushing me toward one of the firms. I assumed they stood to earn the biggest commission if I accepted that one. I ignored much of what they said. To me, the other big LA firms were all pretty much the same. They looked the same, had the same specialized departments, competed for the same clients, and paid about the same. One firm, however, which happened to be the one the headhunters favored, had the advantage of having its offices in Santa Monica. I could get from my house to the office in five minutes, without fighting LA freeway traffic.

  I decided to give Latham another week, to see if anything changed. Each day I sent out more emails asking for work. No responses. I ate lunch in the attorney dining room (usually a significant hazard for overloaded associates) and stared eagerly at anyone in the Litigation Department. Nothing. Finally, depressed about the whole situation, I accepted the Santa Monica firm’s offer.

  I had thought about calling Mario to talk to him about it before accepting, but I couldn’t bring myself to do it.

  A few hours after accepting the offer, I gave my two weeks’ notice to Latham’s human resources manager and then sent an email to Bob Long telling him that I was leaving the firm and had given Latham my notice. I told him how much I had enjoyed working with him on Mario’s case.

  I wasn’t expecting a response, and if I did get one, I expected it to be something along the lines of “don’t let the door hit you in the ass on the way out.” But within minutes, Bob responded: “Ian, this is surprising news, and I certainly hope this isn’t an undoable decision. I’d like to talk to you as soon as possible about this and hope we can keep you here at Latham. How about lunch tomorrow?”

  At Café Pinot, one of downtown LA’s best restaurants, Bob began recruiting me all over again. My work on Mario’s case, he said, had been commendable and had shown him I had what it took to succeed at Latham. “What can we do to keep you here?” he asked. I explained that I hadn’t wanted to leave, but that I had not been able to find any work. “I’ve been sitting on my hands for almost a month,” I said.

  “That’s the firm’s fault, not yours,” he said. “This place has grown so rapidly and to such a staggering size that sometimes associates can slip through the cracks.”

  Although Bob was in the process of retirin
g and didn’t personally have any work for me, he could see to it that I was given plenty of interesting work that would pave the way for my future at the firm.

  “I would urge you not to make any final decision right now,” he said. “If you are open to the possibility of staying, which I truly hope you are, think about it for a few days and let me see what I can do.” I agreed to give it some thought.

  Minutes after I got back to my office, Teddy McMillan, a senior partner in the Litigation Department, stopped by to introduce himself.

  “I’ve been following the Rocha case for a while,” he said, “and I’ve heard some very good things about your work. You’ve managed to impress some serious people here, and I’d like to do what I can to keep you here. What can we do?”

  I told him about my lack of work, that I had already accepted an offer at another firm, and that I wasn’t sure I could back out of it.

  “Of course you can. People do that stuff all the time,” Teddy said. “I’ve got some pull around this place and can see to it that we get you up and running. Think about it, and please call or swing by anytime if you want to talk about this, or any thing.”

  Later that afternoon, Marc Peterson, a tax partner who had just taken over for Elaine Sherman as the LA office managing partner, stopped by my office. He was remarkably soft-spoken and genuine.

  “I just wanted to talk to you about this situation and let you know that we would truly like to keep you here. I think you have a bright future here if you give us the chance to fix this. We certainly don’t do this for everybody, and that speaks to how well you are regarded here.”

  With Bob Long’s support, by working on a pro bono case, and without intending to, I had put myself on the fast track. I agreed to stay.

  My first case arrived by email the following day.

  “I hear you’re looking to get some ‘interesting work,’” wrote David Lowen a fast-rising junior partner. “Take a look at the attachment and give me a buzz.”