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In This Issue

If nucular scientists can split the atom, lawyers can split contingent fees.

Did You Know?

Ethical rules that govern fee division between law firms vary by jurisdiction, but all recognize the splitting of fees as proper under certain circumstances. Rule 1.5(e) of the American Bar Association's Model Rules of Professional Conduct, for example, provides:

(e) A division of a fee between lawyers who are not in the same firm may be made only if:

(1) the division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation;

(2) the client agrees to the arrangement, including the share each lawyer will receive, and the agreement is confirmed in writing; and

(3) the total fee is reasonable.

Similar rules exist in Texas, California, New York, Washington, and other states.

Please comment.

A Texan's favorite winter scene -- in New England.

Greetings of the Season

As the saying goes, the world has three kinds of people -- those who can count, and those who can't.

We at Susman Godfrey generally do better at verbal tasks than at mathematical ones, but we do know how much we count on our friends for the successes we've enjoyed.

We would of course have nothing without our peerless clients -- the smartest, most likable, and, yes, handsomest group ever to go to court, willingly or not. Thanks to them, 2006 ranks as the best year ever for our growing Dallas office.

Since January, for example, the firm's Metroplex branch has:

• Added two partners and four associates.

• Helped recover tens of millions of dollars for our clients.

• Won two awards for the design of our new offices and a grand prize for Barnett's Notes.

Please accept our warmest thanks for your help this year and our best wishes for an even happier 2007.

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Hot Lunch

Call me Bouré.

That nickname came to me in high school. Buddies who played a Cajun kind of poker bestowed it on me despite – or maybe because of – my distaste for gambling. But let’s get to that earlier time later. Right now we should talk about the present, when almost nobody calls me that.

I practice law. Trial law. Commercial trial law. That means my cases usually don’t involve death, dismemberment, rape, or other human tragedies except of the figurative kind. Company A kills Company B. Company C steals stuff from Company D. Company E breaks its promise to Company F. That sort of thing.

You might think that these kinds of lawsuits don’t arouse much passion. Duh. But they do produce serious fights, brutal fights, long and expensive fights. In a typical case, each side spends millions of dollars trying to whip the other. Sometimes they shell out ten, twenty, or thirty million.

My job gives me a bird’s-eye view of how big cases develop and move through the court system. The experience doesn’t always make a pretty picture. High-stakes civil litigation involves fierce combat. It generates winners and losers. It may even wound participants and by-standers. And, at bottom, the tilting and jousting proceed on a hope – a bet – that the effort will generate victory.

But I don’t want to talk about that. I prefer the sunny, funny side of my work. Let me tell you some of what I’ve learned in two decades. Bouré won’t steer you wrong.

* * * *

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I Like Big Words, and I Can Not Lie!

The rapper Sir Mix-A-Lot. He won a Grammy in 1993 for his magnum opus, Baby Got Back, which established him as an admirer of things callipygian. A Futurama episode describes Baby Got Back as "classical music" in the year 3000.

Pedants like Your Editor adore displaying simulacra of erudition via sesquipedalianizations. We love to use big words.

We also adore defining them for lesser mortals. Like now: Sesquipedalian = one and a half (sesqui) feet (ped). This long word describes, well, a long word.

Let's have a little fun with sesquipedalia, shall we?

Autocthonous thespians defenestrate bacciferous biblioklepts. [Native actors throw berry-eating book thieves out a window.] Dendrophilous eleemosynarians deipnosophize anthropophagy. [Tree-loving charity supporters talk smartly at the dinner table about human cannibalism.] Mesopotamians cachinnate at meretricious castrametation. [Iraqis laugh loudly about falsely alluring plans for military camps.] Circumlocutionization disembogues cathchresis. [Talking around a subject flows into word misuse.] And so on.

These examples may lead many to conclude that a big vocabulary simply makes you obnoxious. It can, of course, do that. But it also may increase your effectiveness as a trial lawyer -- if you follow these rules:

First, do no harm. We all remember that smart-arse guy who used words that nobody knew. Now we realize that he made them up. "Invenereal" doesn't mean "immaterial", and "indubiably" and "irregardless" don't even exist.

Smile when you say it. Big words lose impact when they betray a superior tone. If you want to conjure the clamor of a shareholder meeting by calling it "callithumpian", flash a grin. It says "I'm not a jerk".

A little goes a long way. Sesquipedalia can quickly grow tiresome. (As it just did.) Don't detract from your wallop-packing "antepenultimate" or "dipsomania" by using too many big words.

Beware the Jabberwock, my son. Remember Mary Poppins (1964)? We learned at Raguet Elementary a song about a very long word -- supercalifragalisticexpealidocious. Like Seinfeld and Jabberwocky, it means nothing. But I still smile when I hear it. Aim for that; make your audience beam.

Yes, sesquipedalia can give trial lawyers another arrow in their quiver. Just don't overdo it. Word up!

Barry Barnett, Editor

Post a comment -- if you dare.

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Time to Split

A banana split. Tra la la, la la la la. Tra la la, la la la la.

Lawyers like you, Gentle Reader, send us a great many of our contingent fee cases. I have three words for y'all -- we love you.

The circumstances in which you do this necessary and noble work vary. Perhaps you practice in a specialty other than trying commercial lawsuits. Possibly you prefer not to expend -- or don't exactly have -- the financial resources for a big matter. Or you belong to a firm that hasn't taken contingent fee cases before or just want to spread the risk. Most likely, you enjoy reading Barnett's Notes more than life itself and fear losing your subscription if you, uh, call somebody else.

Seriously though. We show the love by agreeing, in writing, to split the contingent fee that we will earn together. Typically, you will receive a percentage of the fee.

Your percentage will depend on the particular case. Generally:

• We will offer you a competitive share of the fee.

• The split will reflect relative contributions to the case. Therefore, your willingness and ability to contribute productive work or share expenses will increase your percentage.

• Our arrangement will strictly comply with applicable ethical requirements. See Did You Know? at left.

Visit our website for more information about our lawyers and our practice areas.

Did I mention that we love you?

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Conditional War

Lyndon B. Johnson shakes hands with American soldiers in 1966 during a surprise visit to South Vietnam. He tried to do too much.

This administration today, here and now, declares unconditional war on poverty in America .

-- Lyndon B. Johnson, Jan. 8, 1964

Our war on terror begins with al Qaeda, but it does not end there. It will not end until every terrorist group of global reach has been found, stopped and defeated.

-- George W. Bush, Sept. 20, 2001

The difference between the almost right word and the right word is really a large matter -- 'tis the difference between the lightning-bug and the lightning.

-- Mark Twain, 1890

Two score years and three after President Johnson declared unconditional war on poverty, his ambition seems quaint. The New Testament of the Bible says that “the poor always ye have with you”. Did Bible-belt politician Johnson forget?

You have to wonder. The Oxford English Dictionary defines poverty as a condition – “[t]he condition of having little or no wealth or material possessions; indigence, destitution, want”. Who declares war on a condition?

The idea of fighting a condition strikes Your Editor as similar to nailing Jell-O to a wall. The nail goes through sure enough, but the Jell-O can’t hold onto it. The goop splats on the floor, and now you have a mess to clean up.

But at least poverty describes a condition that involves material circumstances. Having enough money solves the problem. A money-haver can use it to furnish a roof over his family’s head, fund education and training, buy food and clothing. Money changes everything.

Cash doesn’t address the root causes of poverty, of course. As the saying goes, if you give a starving man a fish, he’ll live another day; but, if you teach him to fish, he’ll spend his weekends in a boat drinking beer.

No, giving a poor person money helps only temporarily. The same goes for government benefits. Indeed, many of Johnson’s War on Poverty programs – Head Start, Job Corps, VISTA, and food stamps, to name a few – aimed at providing short-term assistance that would allow people to lift themselves out of poverty.

Okay, Your Editor gets that. If someone doesn’t have the resources to live a decent life, those who have more than enough ought to help him -- but he should help himself at least as much as we do. Whether you agree with the concept or not, at least it makes a kind of moral sense.

But how do we fight a war on terror – the condition of feeling anxious about terrorism? Do we give money to the worst sufferers? Enroll them in programs that teach them how to manage their fears? Or do we strike at the terrorists themselves?

Call me crazy, but I think a War on Terrorists stands a far better chance of success than a war on the emotion that their cowardly, despicable, and heinous acts beget.

Do you consider me a hair-splitter? My Lord, many of you will, yes. Does calling the task before us a War on Terrorists rather than a War on Terror make a bit of difference? Absolutely.

Johnson's War on Poverty failed because it targeted a condition. A War on Terror tempts the same fate. Terrorists we have always had and always will have among us. Let's please focus on reducing their numbers with the short-term help they need – into oblivion.

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Message from God

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