Commentary, 0419 UTBJ, Vol. 32, No. 2. 20

• Author: NATHAN S. MORRIS
• Position: Vol. 32 2 Pg. 20

Commentary

Vol. 32 No. 2 Pg. 20

Utah Bar Journal

April, 2019

March,

2019

“Get

out your checkbook” – Musings from Both Sides of

the Litigation Aisle

NATHAN

S. MORRIS

Just

three months after attending the annual

“pat-on-the-back” convention of the Utah Defense

Lawyers, I was indoctrinated into the Utah Association for

Justice (UAJ) when I attended the UAJ annual convention. Both

conventions shared hearty chuckles at the quirks of the other

side, with a sprinkling of names that incite frustration,

fear, or even loathing. Each group touted impressive bonds

amongst members and spun convincing “war stories”

of success and failure while fighting on the front lines: a

battle between right and wrong, good and evil, the Legion

of Doom verses the League of Justice. For my

part, I was convinced on both ends, struck by the sincerity

of thought of the formidable defense bar and persuaded by the

intelligent UAJ advocates, that I was indeed fighting the

good fight. I consider myself fortunate and blessed to have

friends on both sides of the aisle, mentors and colleagues

who believe in what they do and who pass on knowledge and

practice pointers with passion and dignity. When people chide

me for joining the dark side – or express their

conviction that I have switched to the good side – I am

unsure which is which.

I’ve

gleaned a few things in my personal journey from dark to

light (or from good to bad) over the past two years. Like

Cosmo Cramer, I often find myself in the middle of an eternal

feud between Jerry and Newman; a symbiotic relationship

featuring frustrating interchanges, “Bizarro

World” alliances, and a realization that most often it

takes both perspectives to successfully navigate the strange

legal world we live in.

Compassionate

Regard for the Pressures We Live Under

But

now, for the first time, I see that you are a man like me. I

thought of your hand-grenades, of your bayonet, of your

rifle; now I see your wife and your face and our fellowship.

Forgive me comrade. We always see it too late. Why do they

never tell us that you are poor devils like us, that your

mothers are just as anxious as ours, and that we have the

same fear of death, and the same dying and the same agony

– Forgive me, comrade; how could you be my enemy?

Erich

Maria Remarque, All Quiet On The Western Front

(1929).

It’s

difficult to peer out of our foxholes to observe the burdens

and stresses faced by the other side, but it’s a

process we must attempt. Certainly, the demands and

circumstances of a law practice fall far short of those faced

in war. However, acknowledging the humanity of the opposing

lawyer will ultimately lead to a more fulfilled and civil

existence for us all. As the author Alain de Botton stated,

“The psychological pressures are enormous… [We

need to] show a compassionate, tolerant regard for the

pressures we live under.” Alain de Botton, ted radio

hour, What’s A Kinder Way to Frame Success,

National Public Radio (Nov. 1, 2013),

https://www.npr.org/templates/transcript/

transcript.php?storyId=240782763.

Defense

lawyers have tremendous pressures placed on their shoulders

as a result of our modern society. Did you realize that most

insurance carriers prohibit billing hours for travel time to

a deposition? Through the years, this has deprived many fine,

hard-working attorneys of thousands of billable hours and

hundreds of thousands of dollars in collective collections.

The time needs to be made up, resulting in longer hours at

the office or mind-numbing and fruitless appeals to the

companies that pay their bills. Endless reports and forms are

required on a regular basis and failure to timely complete

them could impact the entire firm. By the way, those reports

are often non-billable as well. Young associates have

billable hour requirements that determine their future fate

as they scratch and claw their way to partnerships. Junior

partners wrestle with the reality that their livelihood

depends on their ability to develop their own clientele in a

legal world dominated by competent and trusted attorneys with

many more years of experience. Insurance adjusters sit in the

back of an empty courtroom measuring every step taken by

their retained attorney, careful to report to their superiors

the competence (or lack thereof) they are witnessing. The

insurance company’s decision to file for trial de novo

because of their perception of an “unjust or

unprecedented” Arbitration Award highlights just how

disappointed it is with the attorney’s performance. The

lucky practitioner is able to avoid the adjuster’s

instructions to contact and complain to the arbitrator that

the Award is being appealed – lest there be any doubt

that those arbitrators are likewise being judged by the

companies who “pay their bills.” Have you talked

with a young...