Unbillable Hours: A True Story

by Ian Graham

  My secretary had booked me a room at the five-star Silverado Resort in wine country, just a few miles from the courthouse in downtown Napa. Set at the end of a manicured, tree-lined drive, with a colonial estate–style main house and cabana-like rooms spread among the bucolic grounds and championship golf course, the accommodation would have given me a nice break from the office under different circumstances. But I was way too stressed to enjoy it. After checking into my cabana, I ordered room service and began preparing for the hearing the next day.

  It is an old joke among seasoned trial lawyers that many big firm lawyers may have a reputation for winning cases in pretrial motions or settling them before trial, but “can’t find the courthouse” for real trials. The next morning, I walked around the Napa town square for thirty minutes looking for the courthouse. I had the address and a map in my hand, but my only courtroom experiences up to this point had been in the big, serious-looking court building in downtown LA. In my stressed-out state, I overlooked the Victorian house at the center of the town square. In desperation, and with only minutes to go before the 8:30 A.M. hearing was scheduled to begin, I stopped someone who looked like a lawyer and asked him where the courthouse was. He looked at me strangely and told me I was standing in front of it. I followed him into the Victorian house and upstairs to Courtroom A.

  The courtroom was much more intimate than I had expected. The elevated judge’s bench took up half of the room. A handful of lawyers were crammed together in one pew only a few feet behind the lawyers’ tables, waiting for their cases to be called. A uniformed bailiff stood in front of the judge’s bench, and an elderly court reporter sat at a desk in the corner of the room, sandwiched between the witness stand and the wall. I took the last remaining space on the pew just as the judge emerged from his chambers exactly at 8:30 and the bailiff called the court to order.

  My case was first up, and as I approached the lawyers’ table, my nerves almost had me sweating through my shirt. Arguing motions in court was nothing new for me at this point, but I was exhausted and terrified by the thought of two more all-nighters writing a summary judgment motion if the judge denied us a continuance. The plaintiff’s lawyer, a young partner from a big San Francisco firm, turned out to be the guy I had asked for directions in front of the courthouse. As I took my place at the table next to him, he said with a grin, “I see you found the place.”

  My strategy was to deflect all blame for the delay from my client and put it onto my client’s former lawyers. Since their case file had given me absolutely nothing useful for the summary judgment motion, I had no qualms about pushing the former firm under a bus to try to gain a little sympathy for my client.

  The hearing began ominously. The judge looked down at me, sitting almost literally at his feet, and began, “Mr. Graham, this case has been pending in my court for almost a year now. Why should I grant another continuance at this point?” Doing my best Bob Long impersonation, I replied earnestly, telling the judge that my client had diligently prepared for trial, but their previous counsel had only recently discovered a conflict of interest that prevented them from continuing their representation of my client. They had abruptly withdrawn, leaving my client in the lurch. And since Latham was retained as counsel only Monday, with summary judgment motions due a week later, we would not have an opportunity to take any depositions and we would have little time to review the file.

  The plaintiff’s lawyer opposed the continuance, hoping to force us to file a weak, doomed summary judgment motion. He basically called me a liar, saying there was no evidence to support my “conflict of interest” story, and painted my client as seeking to delay the trial by any means necessary.

  After a little back-and-forth between the plaintiff’s lawyer and me, the judge, perhaps noting the look of desperation on my face, granted the continuance. Staring down at me with his eyebrows raised, in what sounded more like a warning than a favorable ruling, he said that since I was a member of the state bar and an officer of the court, he would accept my statement, trusting that I would not mislead the court.

  Whatever, I thought. Thank God! I would rather have spent the next two days in jail for contempt of court than writing that summary judgment motion. At least in jail I might have been able to sleep. As I left the courtroom, the plaintiff’s lawyer stopped me in the hallway to apologize for his harsh words. “Just doing my job,” he said.

  I WENT BACK to the hotel and had two hours to kill before leaving for the airport. Although I had piles of work to do for the remaining depositions in my patent case and had to read and respond to the more than fifty emails that had come in while I was in court, I decided to leave my briefcase and BlackBerry in my room and have lunch on the hotel patio overlooking the golf course. I spent the next two hours sitting in the sun on a beautiful Friday afternoon, nursing my way through two glasses of cabernet and nibbling on a sandwich. I was so exhausted I could barely eat. As I watched the other guests wandering around the hotel in shorts and T-shirts, and the golfers happily three-putting on the eighteenth green, I wondered what these people did for a living. Many of them didn’t look much older than I was. They were fit and tanned and seemed relaxed and at ease. I hadn’t felt that way in years.

  When I got back to LA that night, I decided to take the night off. I went to dinner with my girlfriend, Kate, but I fell asleep before 9:00 P.M. and she went out with some friends. She was twenty-six, beautiful, and worked in fashion at a job that, as far as I could tell, involved mostly shopping at Barneys and Neiman Marcus. That was just fine with me. There were lots of lawyers at Latham who, despite their own unhappiness with their careers, only dated or married other lawyers. Proximity and limited options, it seemed to me, weren’t the best building blocks for a relationship. Outside the office, I wanted to get as far from law as possible.

  Although Kate and I got along well and had been dating for almost four months (a post–bar exam record for me), she couldn’t understand what I did at the office all night or why I never had my weekends free. “What could possibly take you until two in the morning?” she asked with increasing frequency. But every time I mentioned quitting and doing something other than practicing law, she would scrunch her nose in an expression that said, “I don’t think so!” She liked the house and the car and the material things my job provided. But even so, by this point, the idea of dating a lawyer was beginning to sour for her.

  I spent Saturday and Sunday in the office finishing up the outlines for the remaining depositions coming up that week in my patent case. The next week, I spent my days in a conference room at the offices of opposing counsel in downtown San Diego, taking notes during the depositions and handing the partner taking the deposition exhibits as he needed them. At night, back at the hotel, I would stay up late writing summaries of the depositions for the client.

  Then I had a week to prepare for the depositions I was taking in London.

  On my return from London, when my plane landed at LAX, I was almost startled to hear the pilot signing off by wishing everyone a merry Christmas and happy holidays. In the last five weeks, I had been so busy I had hardly noticed that Christmas was only two days away.

  For most associates, the days before Christmas and the week between Christmas and New Year’s are a rare quiet time at the office. With clients’ offices shut down for the holidays and many of the firm’s partners on vacation, associates who have already racked up enough billable hours to qualify for their annual bonuses sneak away to relax for a few days before the billable hour count begins again on January 1. In the past, I had tried to clear at least the twenty-fourth and twenty-fifth of December to spend Christmas with my family, who had recently moved to Portland, Oregon, from D.C. But this year, because of my recent run-in with the Associates Committee and the two cases I was juggling, I was stuck in the office trying to catch up and to squeeze in every last billable hour before the end of the year.

  MY PATENT CASE had kept me so busy over the past month that I hadn’t even looked at my dr
ug case since the Napa court had granted the continuance. I needed to catch up. Again, a lot of work had to be done in a short time. There were five boxes of discovery documents in my office, each containing more than a thousand pages to be reviewed and digested in preparation for depositions coming up in a couple of weeks, and I knew it would be slow going. The plaintiff’s complaint was more than 120 pages long, with many exhibits. It was poorly written, which made it difficult to identify exactly what they were claiming our client had done wrong. The pharmaceutical industry jargon and the clinical trial procedures, while not quite as bad as analyzing patents, still made for heavy sledding. I was ready to spend the week between Christmas and New Year’s reading and rereading the complaint and researching the legal arguments.

  I ate Christmas dinner that year at an all-night diner in Santa Monica with another Latham associate who was stuck working over the holiday, too. We slumped in a booth and didn’t say much to each other.

  On the morning of December 26, loaded up on coffee, I pulled the first box of documents onto my desk and began reading.

  IT HAD BEEN more than two months since the hearing on Mario’s case in the California Court of Appeal, and I was getting antsy. As with Bowers, I figured the court would have ruled quickly if they thought Mario had been unjustly incarcerated. By now, I was becoming more discouraged than ever about our chance of success. Work was suffocating everything else in my life, and there was no end in sight.

  Day to day, it was a dreadful time. But even so, driving to work every day past holiday decorations gleaming in the sunshine, I couldn’t help but wonder if that day would be the one on which Mario would get his freedom. And that thought made me smile.

  By midafternoon on December 28, my desk looked like an arts and crafts project. I had different colored tabs on hundreds of documents, sorted in various piles on my desk and on the floor according to relevance, date, and deposition witness. When my phone rang at around 3:30 p.m., I had a stack of papers on my lap, Post-it notes in my hands, and a pen in my mouth like a Cuban cigar. I thought about letting the call go to voice mail, but at the last moment, I reached back and hit the speakerphone button without checking the caller ID.

  “Ian, can you believe it?” shouted a voice I recognized as a reporter from the Daily Journal, who had been closely following Mario’s case. She sounded almost hysterical.

  “Have you seen it? Did you get it? I just got it! This is so unbelievable!”

  In an instant, I realized what she was talking about. I whirled my chair around to face my computer, sending papers flying off my lap. An email from the Court of Appeal sat at the top of my in-box. The subject line was “Action in Case BA 130020.”

  I told the reporter to wait a minute as I opened the email and quickly scanned to the last page of the ruling. The last two words, standing alone at the end of the page in bold type, said simply:

  “PETITION GRANTED.”

  “No fucking way!” I shouted, temporarily forgetting about the reporter on speakerphone.

  “Let me call you back after I read this,” I told her, and hung up.

  Without taking a breath, I picked the phone up and dialed a number I knew by heart: the state prison at Calipatria.

  MARIO ROCHA SAT in his cell on the second level of the D block, reading another inmate’s handwritten habeas corpus petition. In the last few years, as stories about his case had appeared in newspapers, he had become something of a celebrity in the Latino community. Other inmates sometimes came to him for advice about their own petitions. For a while he had enjoyed doing this, using legal knowledge gained from his case to help others. But recently he had tried to avoid being drawn into others’ hopes. It made him think too much of his own case, something he had been trying not to do since the hearing in October. It was too painful to get his hopes up again. But the prison had been on lockdown for the past week, after an inmate had attacked a prison staff member. That it was Christmas seemed not to matter. Confined to his cell twenty-four hours a day, Mario had little else to do and no excuse for not reading other inmates’ petitions.

  When I reached the prison communications officer, he told me about the lockdown and made it clear that it would be impossible to get a call or mail through, or even to receive a call from Mario, until the lockdown ended, probably sometime the following week. I was bursting to tell Mario the news, and I wanted to tell the prison official the importance of the call. But Mario had warned me about telling anyone at the prison about his case. “Some of the guards are just as corrupt as the inmates,” he had told me. And after Mario’s stabbings, I had learned my lesson. So I kept my mouth shut.

  It was disappointing that Mario would have to wait to hear the news, but there were many other calls to make. My boxes of drug trial documents would have to wait. The next two hours, which I spent on the phone with Mario’s family, friends, and supporters, were the most rewarding of my life.

  When I told Mario’s cousin David the news, there was a long silence on the other end of the line. After a moment, I realized he was crying quietly. Finally, he thanked me and asked for a copy of the court’s order for the family.

  I tracked down Bob Long at his vacation house in Mammoth Lakes in the Sierras. He let out a loud whoop, overjoyed.

  I called Sister Janet, who was speechless. In a very quiet but sincere voice, she said simply, “Ian, thank you.”

  As word of the ruling began to trickle out, calls began pouring in. The Los Angeles Times wanted a comment for a story they would run the next day. ABC News wanted information on the case. It seemed the whole country was taking notice.

  As the impact of it all began to sink in, another thought crossed my mind: my career at Latham was over, on my terms.

  We had hoped for a new trial, but the court’s ruling exceeded our hope by vacating outright Mario’s conviction, leaving it as though he had never been convicted. Unanimously and resoundingly, the court wrote that Mario’s “trial counsel ignored petitioner’s case for a prolonged period of time, made only desultory efforts, if any, to locate most witnesses and spent very little time in preparation of the case. This is such an extreme defalcation of the duty to conduct a timely and reasonable factual investigation of the case as to constitute a breakdown of the adversarial process.”

  CALIPATRIA PRISON finally ended its lockdown on New Year’s Day 2006, a Sunday. Inmates could leave their cells for an hour in the morning and two hours in the early evening, although they were still not permitted to make or receive phone calls. Having been cut off from the outside world for over two weeks, Mario used his free time that evening to watch the news on a small television in another inmate’s cell. As ABC World News Tonight began its final segment, announcing its “Person of the Week,” Mario was surprised to see Sister Janet’s face fill the screen. ABC was hailing her for her nearly ten-year effort to exonerate Mario Rocha, a young man she believed had been wrongfully convicted of murder as a sixteen-year-old in 1997 and sentenced as an adult to two life terms with no possibility of parole. Mario watched in disbelief as the ABC anchor concluded the segment: “Just last week, Mario Rocha’s conviction was vacated by the California Court of Appeal in a strongly worded decision.”

  Mario sat motionless as the rest of the inmates in the room began to cheer and congratulate him. Their cheers soon turned into a full standing ovation from the entire cellblock. He could hardly believe it. His ten-year nightmare was ending.

  *Appeals court judges are called justices in California.

  CHAPTER 20

  A Good Question

  There is a strain of hubris that affects certain people in power… It can cause right-thinking people to do terrible things. The devil has a long tail.

  — Tim Junkin, Bloodsworth

  MARIO ROCHA was not alone.

  In 1985, Kirk Bloodsworth was convicted of the brutal rape and murder of nine-year-old Dawn Hamilton, in Essex, Maryland. Bloodsworth was sentenced to death.

  There was no physical evidence tying Bloodsworth to the
crime. Four alibi witnesses testified that he was at home, far away from the crime scene, when the murder occurred. He was convicted largely on the basis of a description two eyewitnesses gave to a police sketch artist of a strange man lingering near the crime scene. The eyewitnesses — a ten-year-old and a seven-year-old — had described a man who roughly fit Bloodsworth’s description.

  After ten years in prison, Bloodsworth became the first person on death row to be exonerated by DNA evidence. The DNA found on Dawn Hamilton’s clothing proved conclusively that Kirk Bloodsworth could not have committed the crime for which he had been convicted. He was innocent.

  After Bloodsworth’s release from prison, the Office of the State’s Attorney issued a three-page press release describing in detail the evidence against him and stating that he was released because, as a result of the DNA test, his conviction now “lacked the necessary integrity.” In her news conference, the state’s attorney declined to say that Bloodsworth was innocent and offered no apologies. “There are no other suspects at this time,” she said. “I believe he is not guilty, but I am not prepared to say he is innocent.”

  District attorneys have a difficult job. They deal daily with gruesome crimes and hardened criminals. They’ve heard every excuse in the book and have dealt with their share of sanctimonious defense attorneys. It is their job to find justice for crime victims and, in many cases, the grieving loved ones they leave behind, by putting the guilty behind bars. And they do all of this for much less money than they could be making if they switched sides to private practice.