Wednesday, September 18, 2002

The Good Lawyer

Businessweek's Idea No. 23 is called "Don't Kill All the Trial Lawyers" written by Mike France. His thesis in this article is given that regulators and politicians have failed in their duty to protect the investing public from corporate crooks, it is up to the lawyers to put the hurt on corporate miscreants.

Reading this article made me realize how powerful the legal profession is in society. While the lawyers have contributed much to the corporate mess that the US is experiencing nowadays, it is also the lawyers who have the power to put some order into it. That is why history has this sort of love-hate relationship with lawyers. Nowadays, it is on the love side because the lawyers are the ones pushing corporate America to reform (what with the hundred of class action suits being filed left and right and the threatening millions of damages). But people seem to have forgotten that it was also the lawyers (along with the executives and accountants) who conceived and implemented the grand scale fraud in the Enron scam.

Why is this so? In the Ateneo Law School where I studied, there was an attempt to teach law along with Christian values. They thought this was possible by adding some one unit subjects like Theology and the Law and Social Philosophy to the regular law curriculum. The academic thinking is that the law is merely a technical tool, which is value free. Thus, value education should be separately taught through a separate subject.

The idea had some sense. Unfortunately, there was an open resentment to it because the one-unit subjects were eating up the students' time for the law subjects that students believed were more important. Further, the professors could not teach values on a one-hour a week format. I do not know what happened to the Ateneo after that but I know what happened to me.

In my almost seven years of practice three things I've learned as a lawyer trying to make sense of chaotic legal order:

1. A lawyer cannot be rigid about his values.

The Philippine system is so corrupt that if one were to be strict about his values, he'll never accomplish anything. One of these days, some values have to waiver. To achieve legal purposes, one favor or another that will compromise one's value has to be made. That's how it is.

2. A lawyer should know the limits of compromise.

There is a hierarchy of values and lawyers must always make sure that this hierarchy of what is more important is firm in their minds. For example, I am willing to part with some cash just so my case would be set early in the court calendar, but I am not willing to pay a judge for my client to win. That is where I draw the line. The logic is simple; my client will have no use for me if my case is always at the bottom of the heap. I owe the client that much to make sure my case gets priority. But I am not going to pay someone to win. I don’t play that way.

3. Hope.

How can one tell that he has compromised too little or too much? No one can tell. Very often in making the moral decisions that have the interplay of the two principles above, the lawyer will be faced with a dilemma. Failure, morally and financially, is a nagging fear. A lawyer's only salvation is his hope that he is doing the right thing.

Relating the principles above calls to mind the story of St. Thomas More. A successful lawyer in his time, his biographers took note of his practical shrewdness and his being responsible for, among others, the banning of heretical books and the execution of authors who had heretical beliefs. But Thomas found occasion to draw his limits when he was made to choose between loyalty to his king or his God. The stakes were high. King Henry VIII wanted to validate his second marriage to Anne Boleyn. To complete the King's desire to do this, he needed Thomas to take the Oath of Supremacy which meant that the King of England was supreme in the Church of England. More's dilemma was to take the oath that would have repudiated papal supremacy over the Church of England or mince the words of the oath to please King Henry VIII and retain his power and wealth like what the rest of England did. But to Thomas, what was being asked from him was more than just an oath but a repudiation of his own conscience and the truth. All Thomas had to do to retain this power and glory was to profess the King of England as the head of the Catholic Church in England. But to Thomas the obvious fact was that only the Bishop of Rome had the sacred mandate from Christ Himself to run the Church, through succession of Peter. Thomas knew as fact that only God could appoint the head of His Church and this had already been done once, there could not be two heads. Thus, he refused to take the oath. To him, this one oath that the King wanted him to make did not have a price. The King convicted him of treason and had him beheaded.

St. Thomas More is considered the patron saint of all lawyers. Reading and writing about him makes me proud to be a lawyer. The Ateneo simply should have taught us the life of St. Thomas More and it would have solved the problem of values education in law school. Values in lawyering? St. Thomas More's last words said all that was needed to be said, "The King's good servant, but God's first."

Monday, September 16, 2002


Businessweek's Idea No 2 is called "The Mea Culpa Defense" written by Mike France. The article is straight forward in suggesting that businesses should be ready to admit liability if they have committed a wrong. The boxed summary says it well, "The instinctive reaction of executives in times of scandal is to deny, deny, deny -- then clam up. In many cases, the smarter response is a heartfelt apology." .

After reading the article, I remembered the dozens of cases that I've handled that shouldn't have reached my desk had the client only thought of saying the "S" word. Unfortunately, common business sense looks upon the "S" word as a sign of weakness that precludes any semblance of defense in the event of litigation. This is, of course, legally sound as an apology can amount to a confession of liability and no lawyer would be happy to accept a case where he has little room to maneuver a dismissal.

There is a story, however, of a Filipino immigrant in the US who was a victim of medical malpractice that caused him to lose his two fingers. He approached a lot of lawyers in the US who declined to accept his case allegedly because no doctor would testify against a fellow doctor. Yet, he struggled to find that lawyer, knowing deep in his heart that there is someone who can fight his just cause for him in that foreign land. True enough, after a long time, his son found the doctor-lawyer who was even willing to take it on a contingency basis. After months of litigation, they were awarded a hefty sum for the malpractice. The man felt vindicated not only because he succeeded in his quest to find justice for his predicament but also because he was able to prove that all the previous lawyers he consulted were wrong about his case.

Then right after the decision was handed down, the guilty doctor approached his former patient and said, "I'm sorry."

And then the patient cried, "All these years, that is all that I wanted to hear from you."

Until now, as the story is being recounted to me by the man, he gets misty eyed.

This is concrete proof that the "S" word is not really a bad idea. In the world of torts, the apology is the wild card that can throw a quick spin in any litigation. If things work well, the case can be settled with not a penny spent because of the apology. If things don't, then the apology can be a blank check payable to bearer. It takes character and a strong sense of justice to make that decision. Unfortunately, it is very hard to find any man of that make nowadays.

Thursday, September 05, 2002


Businessweek's New Idea No. 19 is called "Rethinking the Rat Race" written by Diane Brady. The idea is to give the workers more flexible time at work, to focus more on the results and not on hours spent on the office. Given that new technology has given everyone the opportunity to be productive even if he is at home with the family, the idea of allowing the worker to balance his time with work and life will result in more productivity. In addition to this, the idea is also to give workers more vacation time to allow them to refresh more often and not be overburdened by work.

I think this is the best idea in this Businessweek series. I am particularly concerned that I may have become too workaholic to enjoy life. My typical day usually starts at 5:30 am to check email, do routine paper work and pleadings. I do this at home with our home computer. I have breakfast with the kids and my wife at 8:00 am and I'm off to work at 9:00 am. If there are hearings I have to attend, everything gets pushed back so I can be in court at 8:30 am.

The entire morning is then spent either on hearings or meetings. Lunch gives me time to grab a magazine or surf the web while eating, assuming that there are no lunch meetings with clients. Then, I'm back on my desk at 2:00 pm for what I call the "Assault from All Sides". This is because I have to juggle with phone calls from the land line and the cellular phone, follow up from bosses and co-lawyers barging in through the front door, email popping in through the LAN, and text messages being received by my GSM cellular phone.

Everything subsides at around 5:00 pm when I take a break for snack. At 5:30 pm onwards, the real hard paperwork and research is done. If I'm fast, it's all over at 8:30 pm during which I go home to have dinner with my wife who often has already eaten by that time. If, however, work is still not finished by 8:30 pm, the time extends all the way to the wee hours of the morning. I only break off for an hour so I can go home and finish the work in our home computer.

In the last three years, the longest break I took was seven (7) working days on Paternity Leave to take care of my newly born second son Hans. Although we are allowed 15 calendar days of leave with pay every year, I haven't used it at all. I don’t know why. I guess I'm enjoying myself too much.

You think I have a problem? Take a look at the other lawyers of the Firm. Some of my co-lawyers work all the way to 11:00 pm or midnight on a daily basis and are back at 8:00 am the following day. Most have not taken longer leaves than I have. In my seven years in the Firm, I was able to take short breaks to date, court my wife-to-be, get married, and have kids. Some guys here have not found time to do that. As a result they've gone past their forties and they're still single and unattached. This is not to say that they are unhappy or are less of a human being than anyone. This is just to say that this is the kind life the lawyers in our Firm live.

But looking at how I've been all these years, I know I've missed a lot of things with my family because of work. My favorite grandmother died two weeks ago. My deepest regret is that I didn't find time to visit her in the faraway province of Calatagan Batangas in all the three years that she wished to see me with my kids when she was still alive. When she was buried last weekend, I brought my kids along to witness the interment. But I guess she's no longer around to appreciate that.

It is true, nobody in his deathbed ever wished to have spent more time in the office. Life is short. We can't spend it all working. We can't spend it all having fun either. That's an awful deal. But it doesn’t get better than that.

The old work paradigm is to spend most of our quality hours at work. Who was it who said that life is like a game of cigars. If you smoke the most number of cigars, you win and your prize is a box of cigars. Isn't that much like the work ethic that we have lived? Work hard in the game of life. If you win, you get more work.That doesn't sound like a fair game, does it?

Now in the information age, the "in" thing is to spend more quality time with our families. Who cares if you've won the biggest case in the world, if you can’t even play with your kids (worse if you can't even have time to have a kid?) What is there to be happy about at the end of a long day when all you come home to is still your work? Work hard. That's ok. But live life. That's the only way to play this game. I am a non-smoker but if you have to compare life with a game of cigars, I think the object of the game is not to smoke the most number of cigars. And the prize is the game itself.