Unbillable Hours: A True Story

by Ian Graham

  As I clicked on the email attachment, my secretary, Debbie, walked in to deliver some mail. Just as she neared the corner of my desk, with a perfect view of my computer monitor, the rear view of a young woman, completely naked, bent over at the waist with her hands grasping her ankles and her face looking back at the camera from between her legs, filled my screen.

  “Oh God!” I blurted. “Sorry, it’s not what it looks like.”

  “It never is,” said Debbie as she walked out, closing the door behind her.

  I called Lowen, wondering if this was some kind of joke. He chuckled and explained that, no, this was a real case, or about to be. The picture was part of a German pornographic magazine article, and the woman in the picture was claiming she had never consented to have her face shown in the magazine. She was threatening to sue our client, a large international magazine publisher. My job was to research the law and write a stern letter to the woman’s attorney explaining that she had no legal claim against the publisher and that if they proceeded with a lawsuit, not only would she lose, but we would come after her for reimbursement for our legal fees.

  “She’s staring right into the camera, for God’s sake,” said Lowen.

  Then Tom Coleman, a gray-haired, chain-smoking senior partner, called me about a case for a developer who was partnering with an Indian tribe to build a casino on a reservation near Sacramento. Our client had bought land next to the reservation to use for parking and other casino facilities, but after an article announcing the casino development appeared in the local newspaper, the sellers were now suing to break the deal, claiming they would not have sold the land had they known of its intended use. The developer was countersuing to force the deal through. The case was headed for trial, and a string of depositions needed to be taken quickly.

  After getting up to speed on all the facts and contracts in play, I drafted deposition outlines and scripts for Coleman and attended five depositions he took in Sacramento, handing him exhibits as he fired questions at the witnesses. When Coleman was unavailable, I took my first deposition of the landowners and, to my surprise, managed to back the witness into a corner to the point where he refused to answer any questions that might hurt the plaintiff’s case. The video of my deposition ended up being played in full at the trial, after which our client’s general counsel whispered to me, “Great fucking job.” I drafted the pre- and post-trial briefs and handled the questioning of a witness at the trial.

  Another senior partner sent me a case file with instructions to “handle this and make it go away.” Like the German porno case, this one was also grimly comical. A wealthy middle-aged man from Texas had come to Los Angles by himself on Christmas Day, checked into a luxury hotel in Santa Monica, and taken a taxi to a casino in the tough neighborhood of Inglewood. Surveillance tapes from the casino showed him gambling and drinking for several hours, then leaving with a large tattooed and menacing-looking man, who later beat him severely with an iron in his hotel room. The attacker had been arrested and convicted, but the victim, now facially disfigured, was suing the casino, the casino operator, and the casino’s parent company for negligence in allowing him to get beaten up in his hotel room fifteen miles from the casino by a man with whom he’d voluntarily left the casino. Latham represented the casino owner. The plaintiff’s attorney, a solo practitioner in Manhattan Beach, was apparently hoping for a settlement.

  As in the German porno case, I wrote a stern letter to the plaintiff’s attorney, explaining that he had no legal basis to sue my client and warning him that if he did, we would come after him for legal fees once the case was dismissed. When he ignored me, I took the plaintiff’s deposition, which had to be stopped periodically when the plaintiff’s reconstructed jaw locked. I drafted a motion for summary judgment and ultimately got the case dismissed.

  I also worked on a case for Marcus McDaniel involving a claim of wrongful termination filed by a doctor against a local hospital, alleging, among other things, discrimination based on national origin. “How does an American hospital discriminate against an American doctor on the basis of national origin?” I asked. “Exactly,” replied Marcus. This got me my first courtroom argument experience. I spent weeks drafting a demurrer motion (also called the “so what” motion), arguing that even if his claims were true, which they weren’t, there was no violation of the law, and I argued it in court. I prepared obsessively for the oral argument, trying to anticipate the judge’s questions and hoping I wouldn’t make a fool of myself. When the case was called, I introduced myself: “Ian Graham of Latham & Watkins on behalf of the defendant,” and then didn’t say another word. The judge spent the next ten minutes grilling the plaintiff’s lawyer about the holes in his case, and then said to me:

  “Mr. Graham, do you have anything to add?”

  “No, Your Honor. I think you covered it well,” I responded.

  He granted the motion. Case closed.

  This was as good as it gets for a third-year associate. I was receiving plum assignments, working with partners, and earning favorable reviews. By the firm’s standards, I was doing very well, especially considering that one-third of my first-year class had already left the firm.

  But my life outside the firm was disappearing. The long days and constant pressure to bill hours and produce flawless work, no matter how tight the deadlines or conflicting the demands, were taking a toll. I saw less and less of friends, who were all doing well and seeming to enjoy more balanced lives. I skipped family vacations and holidays. I dated, but it was almost impossible to maintain a relationship when my nights and weekends were spent at the office. The constant adversarial process — facing someone equally prepared and motivated whose mission was to rip apart every thing I did — was wearing.

  Some people thrive on this kind of work. I didn’t. At night I would lie awake for hours, panicked that I had missed something in a brief or had incorrectly numbered exhibits — all to fix the problems of some corporation.

  And those nagging, involuntary thoughts that had begun on the long drives from Calipatria to LA wouldn’t go away. Mario and his case had seeped into my sense of what I was doing, and had brought changes. In spite of myself, I couldn’t help caring about the social value, or lack of it, of what I did. And that — even more than worry over mistakes in briefs or exhibits — also kept me awake at night.

  Teddy McMillan called frequently to check up on me. “Are we getting you enough work?” he asked jokingly. Knowing I had played baseball in college, he asked me to help him represent a Major League Baseball team in a dispute with their insurance company over a policy covering payments owed to the team for an injured player. After I got up to speed on the case, McMillian took me with him to the stadium to meet with the owner, general manager, and general counsel, to discuss strategies and anticipated outcomes. A few months later, he sent me alone to meet with the injured player and represent him during his deposition.

  It doesn’t get any better than that for a junior lawyer in a big firm: working with one of the top partners and getting client contact with a Major League Baseball team and player. But — tellingly — for me, it only confirmed that big-firm practice and I were a bad fit.

  I had played baseball in high school with the team’s general manager, and I had played with one of their players in college. We had mutual friends who were baseball players, baseball executives, and sports agents. They were all about my age, were not worn down by their jobs, and were doing something they were passionate about. Ironically, McMillan’s giving me this coveted assignment left me more dissatisfied than ever about grinding away at a law firm job I wasn’t suited for. Even working with a Major League Baseball team, I was still researching the fine print of insurance contracts and preparing depositions in a fight between corporations over money.

  It was great work for someone who really wanted to make it in a big firm. But it helped me realize that I didn’t. Still, I had invested years at Latham, and the fear of leaving a steady, substantial paycheck kept me going.<
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  CHAPTER 17

  A Lengthy Process

  LOS ANGELES, 2004

  IN LATE AUGUST 2004, ten months after we had concluded the evidentiary hearing in Mario’s case, Judge Bowers’s ruling arrived: DENIED.

  Bowers wrote, “Now that an evidentiary hearing was held, it is clear that no witnesses existed who could prove Petitioner’s innocence as he claimed. The testimony presented failed to raise credible evidence of Petitioner’s innocence by a preponderance of the evidence. [Petitioner] has failed to show that his attorney did not act promptly in conducting an investigation of this case [and] failed to identity any evidence that his attorney would have obtained if the investigation had been conducted swifter.”

  This was devastating. Evidentiary hearings are seldom granted. We had presented our best case, which we thought was overwhelming, and had lost. And under the law, Bowers’s findings and ruling would be given considerable weight in any further proceedings. To succeed in an appeal, we would not only, again have to prove that Garcia had rendered ineffective assistance of counsel, but also, now, convince a court that an experienced Superior Court judge who had heard all of our evidence and witnesses was dead wrong.

  For all practical purposes, Mario’s case now looked unwinnable.

  Bob Long, Marcus McDaniel, and I gathered in Bob’s office to deliver the news to Mario in a speakerphone call.

  “Good morning, attorneys!” Mario greeted us with excitement.

  “Good morning to you, Mario,” Bob began somberly. “I wish we were calling with better news, but the court has denied our petition.”

  Mario had already heard about the denial from his family, and as Bob started to speak, Mario interrupted. “It’s okay. I’m already handling it,” he said.

  Bob shook his head, as if to say, “How on earth can you handle this?”

  “Well, we’re not handling it so well here, you might say. In all respects, we are disappointed with the judge’s ruling.”

  “What’s the next step?” Mario asked. And after a pause, he added, “Is there a next step?”

  “Well, the next step is to go back to the Court of Appeal to appeal this decision,” Bob said, sounding grim. “And then the California Supreme Court after that, and then the federal system after that. But I think it’s safe to say that this is going to be a lengthy process.”

  “Lengthy processes are what I’m used to,” Mario said, forcing a laugh. “Time is something I’ve got plenty of.”

  Bob shook his head again at Mario’s resilience. “We are going to stay with this to the…” Bob caught himself and paused for a second to find the right words, “… until we get the right result.”

  After Bob hung up the phone, he turned to Marcus and me and said, “How does he do it? How does he manage to keep his head up when he keeps getting the raw end of it at every turn?”

  Then he looked at me and said, “You’ve got to go point by point through this judge’s ruling and knock it down. Because he’s wrong. He’s just wrong.”

  Drafting a new habeas petition to the Court of Appeal, picking apart the findings of a Superior Court judge, would require long hours of research and writing with virtually no chance of success. And I didn’t have a lot of time to spare. In addition to working on my baseball case with Teddy McMillan, and the casino case with Tom Coleman, I had recently gotten a call from Bert Adler, one of Latham’s superstar litigation partners and biggest rainmakers. He and Teddy McMillan were good friends, and Teddy had given him a favorable scouting report on me. “I’ve got a case for you,” Adler said. You didn’t say no to Bert Adler. At Latham, it was considered a big opportunity to work for him. He had the clout to make partners of associates.

  But Adler had made millions for himself and the firm by coldly and effectively defending toxic waste dumpers and gun manufacturers, among others such clients. It was rumored around Latham that he kept on a shelf in his office a drop of chromium 6, the toxic chemical alleged to have caused cancer clusters in one of his toxic tort cases.

  Adler wanted me to help defend a large company accused of dumping toxic chemicals into the groundwater in Nevada, causing cancer clusters and leukemia in a nearby town. My assignment was to fight the plaintiffs’ request for an expedited trial by writing a brief arguing that — although many of the plaintiffs under the age of thirteen and over the age of seventy were dying of cancer — they couldn’t prove they were going to die within a year, and therefore they were not sick enough to warrant speeding up the trial date. It felt like a dirty assignment on behalf of an allegedly dirty client. And yet, I couldn’t help but like Adler as a person. He was a genial guy, had a sharp wit, and as a lawyer he was brilliant. He thought, talked, and worked at hyper speed, and I found myself wanting to impress him by doing a good job.

  Over the next month, I spent my days drafting the motion for Adler’s toxic groundwater case. I reviewed the plaintiffs’ medical records and their deposition testimony, and twisted their words to take advantage of any ambiguity or misstatement in their medical diagnoses. Bert loved my draft of the motion. He barely changed a word, and I heard he argued my brief flawlessly in court. The judge ruled for us, denying those plaintiffs their expedited day in court.

  And while I worked on Bert Adler’s toxic tort case, I spent my nights, evenings, and weekends working on Mario’s appeal of Judge Bowers’s ruling — showing how the DA’s office and the prosecutor at Mario’s trial had twisted testimony and sown confusion in the minds of jurors.

  The contrast between my billable work by day and my unbillable work for Mario at night was hard to take. Before Mario’s case, I might not have thought twice about working on Bert Adler’s case. Lawyers are hired to argue for their clients, I believed. They represent clients, not causes. It was up to the voters and the legislature to change the laws if they didn’t like them.

  But I didn’t really believe that anymore. How different was what I had done for Bert Adler, and others, from what the prosecutors had done in Mario’s case? Was I willing to excuse Mario’s prosecutors for “just doing their job?” Maybe my job in a private law firm was different from that of a public servant — in my billable work, I was indeed paid to represent clients, not causes — but was that the end of my personal responsibility? Never mind the tedium of much of law practice; if my conscience conflicted too much with my job description a lot of the time, then maybe I needed to rethink my job.

  FOR MONTHS I worked obsessively on the new habeas petition. I spent weeks poring over the transcripts of the evidentiary hearing, pulling together pieces of testimony to contradict Bowers’s findings. I turned the living room of my new home into a war room, with pleadings, transcripts, and case files scattered everywhere. As Bob had instructed, I went point by point through Bowers’s flawed ruling, knocking down his findings one by one.

  The one ray of hope for Mario was that Bowers’s ruling was so poorly written and reasoned that it opened the door very slightly for an appeal. Bowers ruled that we had failed to prove Mario was innocent — an issue that was not before the court and that he had previously admonished us was not relevant to the hearing. In response to Joanne Lach’s argument in her opening statement that we were improperly trying to relitigate the entire case and offer evidence of Mario’s actual innocence (instead of focusing on Garcia’s ineffective assistance of counsel), Bowers had agreed with Lach. As he warned us, “[I]t is not this court’s intention to relitigate this trial. We have a very specific mandate from the Court of Appeal, and I intend to abide by that.” We had abided and been punished for it. In his ruling, Bowers wrote, “It is clear no witness exists who could have proven Petitioner’s innocence as he claimed. The testimony failed to raise credible evidence of Petitioner’s innocence by a preponderance of the evidence.”

  Bowers found that Laurie Nevarez was not a credible witness, despite the fact that she never wavered in her testimony that Padilla was in a place where he could not have seen Mario firing down the driveway, as he had claimed.

 
Bowers even found a witness “not credible” who had not even testified. The ruling made it look sadly as though Judge Bowers had not taken the hearing seriously and had not paid attention.

  Looking for any advantage I could find, I remembered the witness statement in the police files implicating the third Highland Park gang member, Joker, who had crashed the party along with Pee Wee and Cartoon. I cited and described the statement in a footnote of our petition to the Court of Appeal, emphasizing that I had gotten the information from the police files.

  NEAR THE END of 2004, while I was still working on our appeal of Judge Bowers’s ruling, I received my first negative review from the firm. The comments from the partners I had worked with were all very positive. I got great reviews from Bob Long, Bert Adler, and Teddy McMillan. But the firm’s formal message to me addressed only one thing: “Your billable hours are below pace for the class of 2001. Failure to maintain billable hours pace could negatively affect your future at the firm.”

  CHAPTER 18

  What’s This?

  LOS ANGELES AND CALIPATRIA, 2005

  WE FILED OUR appeal of Judge Bowers’s ruling in January 2005. Remarkably, three months later, the Court of Appeal came through for Mario, again ordering the DA’s office to show cause why our habeas corpus petition challenging Mario’s conviction should not be granted.

  And this time the Court of Appeal ordered a one-hour oral argument before a three-justice panel of the Court of Appeal on the basis of the evidence presented at Judge Bowers’s hearing.

  Mario would have another shot, this time with some hope that the pendulum was swinging his way. But the greatest personal trial for Mario — and for me — was about to begin.

  The day after we received the favorable Court of Appeal ruling, I called the prison to arrange a phone call with Mario to tell him the good news. Instead of the usual straightforward procedure, I was bounced around and finally passed to the prison information officer. He told me Mario was in the infirmary.