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Photo of The Bookhouse and cover design by Brad R Cook
In this issue
By Jennifer Stolzer
By David Alan Lucas
Workshops for Writers: Bill Smith: A Day in the Life of a Trial Attorney
By Jennifer Stolzer
Photo by Steven Langhorst
“In order to tell you about the life of a practicing attorney, I have to give you some background. What I always say when I reach this point is, ‘It’s not like TV,’” William “Bill” Smith III said at the Guild’s Feb. 6 workshop. “Probably four days a week, I’m eating leftovers at my desk while I’m taking emails or voice mails.”
Smith is a licensed attorney practicing in Missouri. When he attended law school, one hundred forty people were in his freshman class. After three years of study – two semesters a year, twelve hours a semester – the class graduated with only forty-three people. Of the seventy-two hours of coursework to prepare for the state bar exam, six of those hours were criminal law, which is what features prominently in media. The rest of the hours were spent studying procedure, protocol, and the letter of the law.
After taking the state bar exam, some went into teaching, others into business, law enforcement or corporate work; and some became prosecutors or public defenders. Smith entered the military to practice law. Five years later, at their first class reunion, only five were in the general practice of law—dealing with clients, courts, and representing people on legal matters.
During his four years as an Army attorney, Smith served as a prosecutor, then as a defender. “I found [the military justice system] to be quite fair, and quite probably – if I had a choice between being accused of a crime in the civilian world – I would choose to be a defendant in the military.”
After the military, Smith returned to St Louis and took a job with an insurance defense firm. They primarily defended insurance companies on behalf of their policyholders, meaning if a policyholder was involved in a legal dispute and got sued, an attorney like Smith was sent to defend the policyholder. He defended personal property cases and other insurance claims.
“Then one day I opened a file and thought, ‘If I have to read another file of an automobile hitting another automobile, I’m going to throw myself out a window,’” he said.
Smith joined a general practice law firm, which was responsible for all kinds of legal work—criminal, divorce, real estate, mechanic’s liens, wills and trusts, probate—and representing both plaintiffs and defendants.
“For me, it was much more interesting, and we felt it gave us a much better balance to understand where clients are coming from.” By taking all kinds of cases, it gave Smith a chance to understand both his clients and their opponents, and structure strong cases accordingly.
“I was the young guy at the firm, and I didn't get all the good cases. I mostly got the bad cases – in our rough language, the junk files.” Smith said. He spent most of his early years at the firm in court -- police, magistrate, circuit courts, federal, trial court, and courts of appeals. “Shortly after coming to the firm, I had to argue a case in the State Supreme Court. That was a moment of truth for a young lawyer. I had a lot of help from the older lawyers in the firm. It was stressful, but a very fun time to be in the profession.”
Smith tried many lawsuits, everything from clients whose spouses were accused of shoplifting, to traffic cases where clients had a courier service and their couriers got speeding tickets. He got acquainted with the judges of the various courts and practiced all over Missouri, gaining a broad exposure to the law. “In the trade, it takes five to ten years to become a lawyer. All the book learning is one thing, but once you get on the streets or in the courtroom, it’s a whole different ballgame.”
For example, Smith represented a lot of people in the construction trade—builders, suppliers, electrical houses, etc.—often focusing on mechanic’s liens. If an architect, supply house, carpenter, electrician, etc., does something to enhance the value of a piece of real estate, they have a mechanic’s lien for the cost of their work. At one point, Smith represented a concrete company that supplied concrete to a swimming pool contractor. The swimming pool contractor went under and didn’t pay for the jobs. Its twenty-five contract holders filed lawsuits under the mechanic’s lien statute to collect their money. Twelve were sent to one judge and thirteen to another judge. In the courtroom where the judge took the time to ask about mechanic’s liens and examine the cases, Smith’s firm won twelve cases. In the other, where the judge said “I hate mechanic’s liens,” they lost thirteen cases. Later when the firm represented real estate holders who had mechanic’s liens filed against them, their firm knew the cracks in the statute and were better able to represent their clients.
Another example was when the state condemned a lot of property along the construction route of Interstate 64. The state or municipality that wants property will always low-ball a settlement offer, so the owners hired Smith’s firm to represent them. They got an appraiser to tell the court what the property was really worth and settled better deals for the owners. “We got to know a lot of people, and knowing people – your reputation and your credibility – is everything. Dealing with all these judges, that makes all the difference in the world.”
After a few years with the firm, Smith was elevated to partner, and after a few more years, he became the managing partner. “I thought that was great until I actually got in the chair and found out what I had to do.”
Just like any other business, a law firm has capital requirements, including making payroll twice a month, tax considerations, dealing with personnel issues and IT concerns. Most importantly, you have to make a profit. Many firms close their doors not because of a lack of work, but because they fail to balance these various business expenses.
“On TV, every case is a million-dollar case, and they’re all over in thirty to sixty minutes, then they all go to the club and have lunch,” Smith said. “I’ve missed those cases. I’m still looking for them.”
Photo by Steven Langhorst
Lawyers can get paid two ways—on an hourly or contingency basis. Hourly clients pay for the time a lawyer works on their case. Timesheets are kept in tenths of an hour. Hourly contracts are normally with a business, or in defense representation. A lawyer who works on contingency gets a percentage of what he recovers for the client—if they don’t get a return for the client, they don’t get paid. Typical contingency cases are for an injury or worker’s compensation claims, or when the client is trying to break a trust, contesting a will, etc. Regardless which of the two payment methods is used, firms still encounter all of the pitfalls other businesses have in billing and collecting payment.
The Supreme Court strongly encourages attorneys to have written agreements with their clients specifying how they will be paid. The lead attorney may use other lawyers, paralegals, and assistants to help, or hire people like experts or investigators to do whatever tasks need to be done to build a case. For example, if an accountant is needed to testify as an expert, the attorney will hire the accountant and bill that as an advance to the client. If they need a narrative report from a doctor, that doctor’s going to charge four hundred or five hundred dollars, and the firm will bill the client. If it’s a contingent situation, the fees for extra help are added to the net fee. There’s no markup, just a pass through of the actual cost on top of the percentage the lawyer is owed from the contingency.
State public defenders are paid by the state to defend indigent people in criminal charges. State budgets are quite tight, so they use experts less frequently than private attorneys, but may have access to state-funded forensic experts and the like, who are on state payroll. Miranda rights may give everyone a chance to a public defender, but it is up to the judge to appoint one. Anyone who is charged with a crime punishable by imprisonment gets an attorney, whether appointed or hired. The prosecuting attorney’s office pays more for their assistant prosecutors than the public defender office pays their public defenders. The legislature has not been as sympathetic to criminal defendants as they’ve been responsive to “let’s put these people away who do bad things,” so it is often in a defendant’s best interest to hire their own representation.
You only settle a typical contingency-fee case with the client’s permission and signed release. A lawsuit tried in court can be settled any time until a jury comes back and says you win or lose. In a case tried to a judgment, if there’s a legal basis for getting a new trial, that is presented to the judge. If the judge agrees, it’s called a “judgment notwithstanding the verdict” and you get a new trial. If the motion is denied, one can file with the Court of Appeals.
“It’s not because you don’t like the outcome, but because an error was made,” Smith said. You can always appeal, although how far you get is the more important question. “From a practical point of view, I should mention that in the private practice of law, legal services are very expensive,” Smith said. He advocates cost-benefit analysis—what’s it going to cost to pursue the case, what will the plaintiff win, and what are the chances of success? Frequently, the benefits do not outweigh the cost, and the case is not pursued. “We have a saying that is kind of contrary to the American way; the law doesn’t apply a remedy for every wrong. That doesn’t sound nice, but in today’s world, it’s a very practical application.”
The federal courts and many state courts have alternative dispute resolution, mandatory mediation, or, in business matters, a clause in a contract requiring arbitration. The courts can’t compel a plaintiff to settle a case out of court, but they can send the parties to mediation before a judge will try the case. The mediator allows each side to present their case in summary fashion. If they agree to settle out of court, it’s written up and both parties sign it. In arbitration, the arbitrator hears the case and makes the decision just like a court. The arbitrator’s decision is binding and can be taken to court and enforced.
Most criminal cases end in a guilty plea. If every criminal case from a traffic ticket to a murder case was tried before a jury, the courts would cave in from the sheer volume. So there is something to be gained by the prosecutor for making a “deal.” For example, if a client is charged with a crime that carries a five-year jail penalty, a lawyer may approach the prosecuting attorney and offer a plea of guilty in exchange for a reduction in jail time or for probation. That will avoid the time and expense of a trial. If the prosecutor agrees, it is then presented to the judge for his approval.
In medical malpractice cases, the cost-benefit ratio applies as well. Often clients have had surgery that went wrong, requiring a second surgery to fix it. Although an error occurred, in all those papers patients sign, they assume a certain risk. In a medical case, you have to file the lawsuit under a medical malpractice statute. From a practical point of view, you have to have a serious permanent injury. The statute requires plaintiffs to have an expert testify based on reasonable medical certainty that the standards to be expected in the community were not received. You can easily have $25,000 to $100,000 in expenses for such a case. Unless you’re certain to get a good return, you can’t afford that kind of advancement. In St. Louis County two years ago, statistics showed doctors and hospitals won 87 percent of the cases brought against them. “You can’t run your business very long on those kind of risks.”
Smith told how one client nearly died after a medical clamp was accidentally left in her abdominal cavity. Although she had a proper malpractice case, it didn’t have a large payoff because she wasn’t permanently injured.
In the end, law is never as cut and dry as shown in fiction. In real life, trials take forever. Expert testimony can last days, and lawyers are always speaking with the judge or calling for recesses.
When it comes to courtroom rivals, Smith relies on professionalism and courtesy. “Remember, it’s the clients who are fighting, not the lawyers.”
From the President’s Desk: Mixing Reality with Illusion
By David Alan Lucas
An age-old question when it comes to writing fiction is: How much reality do I let get in the way of the story? Every published author has an answer to this question, and the recipe depends on the author. Regardless of your personal answer or the sage advice of someone else, one thing is important to know—what the reality is.
That, in fact, is why St. Louis Writers Guild (SLWG) has been hosting a series called “A day in the life of . . . “ The fiction we read or watch paints various careers incorrectly. Some examples are: CSI do not get to interrogate suspects, lawyers don’t break and enter into homes to obtain evidence, spies don’t get into 120-mph car chases on the highways of the world, doctors don’t find cures in a matter of days, and authors don’t usually get to solve murder mysteries with police departments. Instead, SLWG has held two workshops with people who are in professions many of us really don’t get exposure to. One was a trial lawyer and one was a SWAT and combat medic/fire investigator.
If there is another field you would be interested in knowing more about, please let the Board know and we will see what we can do.
second friday notes, second Friday of each month, 7 p.m., at Whole Foods Town & Country, Clayton Road just west of Highway 141.
RIVER STYX. Third Mondays, 7:30 p.m., Tavern of Fine Arts, 313 Belt Ave. riverstyx.org/events.
POETRY AT THE POINT, 4th Tuesday of the month, at Focal Point, 2720 Sutton Ave
Sheila Nolan Whalen Reading Series at SLU, 221 N. Grand Ave., Dubourg 409. Tuesdays at 4 p.m.
CHANCE OPERATIONS on the last Monday of each month At Tavern of the Arts, 313 Belt Ave., just off Pershing, between Union and DeBaliviere. 7:30 p.m. Open mic follows featured poets.
EVERY WEDNESDAY open mic for poetry and music at Stone Spiral Coffee & Curios, 2500 Sutton in Maplewood (2 blocks N. of Manchester). Great food and beverages. Open mic, 8 until around 11 p.m.
GOODY HOUSE, 7 p.m., fourth Thursdays at Art Marketplace, 2028 S. 12th Street. Featured poets.
R-SPACE. Last Saturday of the month, Lenny Smith and friends at 2 p.m.
ST. LOUIS WRITERS GUILD open mic for prose and poetry, second Tuesday of each month, 7 p.m., Kirkwood Train Station, Argonne Drive, just west of Kirkwood Road. Allow time to find parking.
ADDITIONAL OPEN MICS at The Wolf, (every Tuesday), Legacy Books & Café (every Friday), The Historic Crossings (every other Tuesday), Shameless Grounds (Wednesdays at 7), Venice Café (Mondays at 9)
A Quick Guide to St. Louis Writers Guild Events
It’s as easy as
Workshops for Writers
First Saturday of every month (except holiday weekends)
10 a.m. to Noon at the Kirkwood Community Center
Station Open Mic
Second Tuesday of every month
7-9 p.m. at the Kirkwood Amtrak Station
SLWG Authors Series
Third Thursday of every month
Query for “SLWG Authors Series” on You Tube or check the Members’ Room on our website, www.stlwritersguild.org.
The Scribe Editorial Staff
Brad R. Cook
NOTE: If you are a St. Louis Writers Guild member, please consider submitting a poem, short story or an article about writing (4,000 words or less) for publication in this newsletter. THE SCRIBE is now issued monthly and promoted to more than 1,000 people on our mailing list. Submissions should be sent by the first of each month to [email protected]—put SCRIBE in the subject line.
Also, if you are interested in joining the editorial staff as a writer, please contact [email protected] -- put SCRIBE in the subject line.
For more than a decade, The Scribe has been the mainstay for communicating with members of the St. Louis Writers Guild. It began as a way to showcase the organization and share insights into the publishing world. Back issues give a wonderful record of the Guild. The Scribe is now available to everyone, not just members. It features stories, poems, and essays from our members, as well as information about our events, most of which are open to the public. The February 2016 edition features a report by Jennifer Stolzer on the Guild's Feb. 6 workshop presented by William "Bill" Smith III on "A Day in the Life of a Trial Attorney."