LAWSUIT!
My mentor Arnie Schwartz told me I would never be a trial lawyer until I was arguing to the jury, and I knew they were laughing at me, and I kept arguing anyway. I’ve had that experience. But I say you’re not a real lawyer until you’ve been unfairly sued for a large sum of money. I passed that milestone on February 15, 2000. It began with Bob Dorband taking control of my fax machine. It got that intense look it gets when it’s been possessed by the adversary, and out it came, a complaint filed in Portland Federal Court entitled Stephen M. Cohen v. Charles Carreon and Gary Kremen. The last pages came out of the fax machine. When I got to the prayer for relief, where Cohen claimed $50 Million in damages, it was a relief. The amount was so outlandish. If you say you’re going to kill me by shooting me with a .22, it’s believable, and it’s scary. If you say you’re going to kill me by dropping the Empire State Building on my head, it’s laughable. So I laughed.
I continued laughing as I read the allegations. Cohen alleged that Kremen and I had conspired, years before we ever met, to arrange the theft of the Sex.Com domain name. Then we had encouraged Cohen to steal it and develop the website to its present profitable state. Now, in the last stages of the plot, we were suing to acquire control of the fully developed asset.
I immediately knew the genesis of Cohen’s thinking. Kremen’s original business plan was a two-page document. The first page was just a scrawl of notes in Gary’s awkward hand. The second page showed initials, among them “CC,” next to some percentages. So Cohen concluded I was CC, had known Kremen since 1994, and as we say in Oregon, had been “lying in the weeds” for five years, waiting to bushwhack him. Or more likely, Dorband concluded there was enough evidence to claim the allegations were made in good faith, and planned to use the suit to drive a wedge between Gary and myself. If I wanted out, but just wasn’t saying it, this lawsuit was my exit vehicle. I could claim a conflict of interest and kiss Kremen goodbye, with my legal dignity intact. And that would get rid of the first lawyer who had really tried to move the ball.
Because the story was bogus, I wasn’t worried about liability, as long as I got my defense from the Oregon Professional Liability Fund (the “PLF”). The PLF insures me for legal malpractice, but Cohen’s claim wasn’t for malpractice. He was suing me for representing Gary Kremen, and for calling him a liar. He was alleging that I had “exceeded the bounds of zealous advocacy,” and strayed into defamation. While truth is a defense to defamation, insurance defense lawyers always hate it when they ask you a question like, “Did you say he was a thief?” and you say, “Yes.” Right away they think you were injudicious or something. I thought lawyers were supposed to call things by their true names. Liar, thief -- if the shoe fits, make ‘em wear it!
But throw me a frickin’ bone here! I was deprived of some important elements of a proper legal education. Most lawyers learn how to behave from watching their lawyer dads, or while hanging out with their lawyer uncles. I learned from watching 70s TV shows like “Judd for the Defense,” and “The Young Lawyers” (they had cool cars, sweet little blonde hippie chicks in trouble for clients, and sparred in court with conservative judges who nevertheless had a streak of fairness). If I had only once in my life been to a golf course, or a tennis court, or an athletic club frequented by lawyers and their families, I would have realized that a lawyer is not expected to be a fiery advocate in search of justice. A lawyer must cultivate a careful manner, and in all things, particularly public speech, refrain from the sort of bluntness that attracts attention.
So yes, my press release said that Cohen stole Sex.Com. And the PLF agreed to cover my defense. They assigned Portland attorney Susan Eggum to be my lawyer. I had learned about her recently after she had resolved a scandalous case involving unconscionable tactics used by attorneys hired by the PLF. She was receiving kudos in the media for her ethics and savvy. In Portland law, she was hot.
I met her in April, 2000. Susan was crisp, trim, with short black hair and a manner both attentive and extremely efficient. An air of sharpness and clarity surrounded her, but maybe it was just the Portland sunlight coming through the window of her office. We discussed the case, and I knew I was in good hands. She accepted my statements at face value, expressed sympathy for my situation, discussed strategy, and had me out of her office in less than an hour.
This type of crisp efficiency makes some women good lawyers. A man would have interviewed me for two hours, and then taken me out to a long working lunch where we could swap war stories. Women seem more interested in cutting to the chase. They don’t vibe to the drama and the hype, and tend to look at all legal tasks as chores. Maybe it’s this matter-of-fact attitude that makes women better at multi-tasking. Have you ever seen a woman simultaneously juggling a baby on her hip while sorting laundry, heating a baby bottle, telling the kids not to track mud into the kitchen, and all the while keeping an ear on the Oprah show? The art of doing all of these things is not doing them at once, but rather doing them in sequence really close together. When you put that kind of attention to lawyering, you get a final product like a meal that comes to the table with all of the ingredients prepared properly and presented at the right time. It is logical that nature would select for women with nervous systems well adapted to multi-tasking, since nature hamstrings them with the care of infants while making no countervailing provision for extra time to accomplish all the household tasks that also fall to her lot.
Men, on the other hand, enjoy cooperating with a group of other men to accomplish a single goal, such as chasing down a giraffe on foot for five days and stabbing it to death with sharpened poles. Or getting together a pack of dogs and chasing bears up trees, where you can shoot them with arrows. Given half a chance, men will paint their faces with blood and howl at the moon to announce their conquest over the foe. When this type of mentality is applied without additional refinement to the practice of law, you get a lot of guys trying to hammer every peg, whatever the shape, into the same damn hole. You get narrow issues pursued with monomaniacal zeal and a lack of comprehensive strategy. You get people who are sure of their case, and lose because they never bothered to think that the jury just might agree with the other guy’s view. You get a lack of empathy and a lack of insight.
This difference in temperaments has traditionally been resolved in the law by means of the lawyer/legal-secretary relationship. These relationships can be quite lovely and charming, sometimes to the chagrin of the lawyer’s spouse, who sees less of him than the secretary, and instead of presenting him with the rewards of work well done, gives him bills, kids to put through college, and a mortgage. Fortunately, lawyers are masters of concealment, so spouses are spared the pain of knowing how deeply these relationships go and how much of a bond develops. When I worked in L.A., I often referred to my secretary Victoria inadvertently as my wife, and referred to my wife Tara as my secretary. Indeed, it is not uncommon to meet a retired lawyer and his second wife, and discover that she was once his secretary, and that the young woman who put him through law school is no longer on the scene.
A good legal secretary has several of the qualities of the ideal girlfriend. She always listens to everything her boss says. She thinks he is charming, witty, urbane, and whatever nebbishy characteristics he has, are agreeable and endearing. She corrects his spelling, straightens his tie, and reminds him not to be late for court and appointments. She makes excuses for him and can provide convenient alibis on occasion, although only a rogue or a coward shifts his mistakes to his secretary. If, in addition, your secretary is also attractive, such that you have a living adornment sitting in your office to inspire the envious whispered admiration of other lawyers, it can be kind of like having a facsimile of a happy relationship. And it can be tremendously productive.
My wife is my legal secretary, and she has many of the characteristics of the perfect girlfriend. What I particularly like is the way she listens to me eagerly when I’m yelling about how we’ll get those blankety-blanks, watches approvingly as I smash my fist into my palm to demonstrate how severe justice will be visited upon the wrongdoers, and then hands me my dictaphone with a tape already in it and says, “Do you want to do it now?” This kind of relationship is stimulating on many levels, and when you’ve married your secretary, a strange thing happens. She begins to thrive on sexual harassment.