ABA Section of Business Law

ABA Section of Business Law
Business Law Today
November/December 1998

From a distance. . .

My Fair Lawyer

By JAMES C. FREUND

If I ever doubted it, I'm now a confirmed believer — life does imitate art. Or, in this case at least, the lightweight art of parody.

About 10 years ago, as a wind-up piece for a book of my essays (published under the title Legal Ease), I wrote a lawyering parody of the Pygmalion/My Fair Lady plot. "My Fair Lawyer" told of the experiment by an overbearing attorney to transform a young flower girl — illogical in her thinking, unethical in her instincts — and, in three month's time, pass her off as a practicing lawyer at his firm's annual dinner dance.

She moves into his quarters, and they work without respite, on fragments of law, logic and ethics, designed to make her sound like a lawyer. At times the task seems hopeless, but then one day she achieves her breakthrough, correctly identifying the state of the insanity defense in New England ("It's vain . . . to feign . . . insane . . . in Maine") and noting the unwillingness of federal judges in Connecticut, Pennsylvania and Texas to intervene in state court proceedings ("In Hartford, Harrisburg and Houston . . . habeas hardly happens") — while he whispers excitedly, " I think she's got it . . ." — and then she tops things off with a few indispensable phrases expertly rendered ("Subject to checking with my tax partner . . .").

At the law firm gala, she is introduced as a visiting lawyer from a distant city. But also in attendance is a curmudgeonly law professor, fiercely dedicated to detecting individuals who masquerade as lawyers. After a lengthy cross-examination of the flower girl, he announces loudly that she is an utter fraud! She's too logical, too ethical, he says, to be a practicing attorney — whereupon he triumphantly reveals her to be . . . "The Deputy Commissioner of Internal Revenue!"

Well, that's the art, such as it is — now here's the life. For the past several weeks, I've been involved in the filming of an instructional video for the Practicing Law Institute on "Smart Negotiating for Lawyers." I wrote the script, based on my book on the subject, and a related course I teach at Fordham Law School. The script moves back and forth between my observations and staged excerpts of lawyers in action — engaging in simulated negotiations with other lawyers and advising their clients.

The lawyers in these excerpts (as well as the clients) are professional actors and actresses. And the task that has fallen to me — a real life, heretofore lawyerly, Henry Higgins — is to be their acting coach. That's right, I've been trying to teach them how to sound like lawyers. Not, I might add, like a Perry Mason-type lawyer, or his current television progeny. The actors probably know how to do that — you know, how to devastate a hostile witness or hold a murder trial jury spellbound. But what I have taken on is the much harder task of training them to pass as business lawyers — negotiating over dollars, counseling clients and such.

And what I've quickly come to realize is that you can cast people who have the appearance and demeanor of lawyers; you can dress them in appropriate clothes; you can seat them in front of bookshelves lined with American Jurisprudence or behind desks containing lucite mementos of deals; but if, when they open their mouths, they don't sound like business lawyers, then the rest doesn't matter a damn bit. Any business lawyer viewing the video could tell in a minute if the sound doesn't ring true.

But the actors and actresses we've chosen are intelligent, eager to receive advice, and take direction well. They want to look and sound right — which suits me just fine because, like Rex Harrison, I'm in my element. So, let's take a peek inside the studio.

One of the video lawyers is counseling his client on some possible pitfalls of leaving his present employer (Emblem) to work for a competitor. Unfortunately, his client has an existing contract with Emblem, which the lawyer is now examining. I see [says the lawyer] that the contract also precludes you, if you should leave before the end of the term, from soliciting Emblem employees to leave Emblem's employ, and from soliciting Emblem's customers, through the end of the contract term in December 2000. While the question isn't completely free from doubt, in my opinion, these restraints would probably be enforceable in court. On the first reading of an unfamiliar word like "precludes," the actor might accent the "pre" syllable instead of the "cludes" — easily fixed. He may rush through his lines — slow him down. An actor is used to emphasizing key words, but they may not be the right ones to stress — "December," for example. Or he places too much weight on "while the question isn't completely free from doubt," until I tell him that's just a lawyerly caveat to show that nothing in life is certain. The words that I want him to emphasize — the juxtaposition of "employees" and "customers," the key concept of "enforceable" — initially go unpunctuated and get lost in the shuffle. But after a few tips and several passes through the material, he's right there.

Actors long to know what their motivation is supposed to be. Here's a lawyer-to-client counseling excerpt that was bungled on first reading: This issue has a financial dimension that's not obvious right away. My hunch is that the other side's lawyer doesn't understand it. I think I may be able to get more from him than you'll be able to extract out of their much savvier CFO . . . But once I tell the actor that these lines are being spoken by a lawyer whose client is one of those poor negotiators who nonetheless wants to "do it himself," and that this is the lawyer's graceful way of trying to protect the client from his own ineptness, the actor "gets it" immediately and soon makes the lines sing.

Sometimes, the key lies in making the actor understand just what it is I want to demonstrate to the video audience. I'm dissatisfied at first with the actor's reading of this line, spoken by a lawyer advising his client (Alliance) on the upcoming negotiations over the fee of a claimant (Cory): We'll try to do better, of course — although we would clearly be in a stronger bargaining position in terms of the overall fee if Alliance hadn't paid Cory anything up front . . . But as soon as I clue the actor in on my point here — that this gratuitous remark is a prime example of a lawyer (even when he's right!) not knowing when to keep his big mouth shut, since the client will take this as an implied rebuke of its payment practices — then the actor is able to inject just the right smug nuance into his delivery.

Well, I think you get the idea. Each reading is an improvement over the one before. I throw in a few head and hand gestures, some appropriate body language for them to employ, and then, after a few bouts with the Teleprompter on the set, the actors invariably pull it off. Without a doubt, they could pass for business lawyers at the next ABA conference!

What's really scary, though, is that at the end of their individual segments, when the director is filming reaction shots without sound (but for which they're supposed to be pretending to talk), I overhear some of them improvising dialogue with such an authentic lawyer-like tone it reminds me of one of those Sid Caesar gibberish imitations of a Nazi general or Italian filmmaker . . . .

Oh, yes, you're probably wondering how "My Fair Lawyer" ended. After her success at the firm party, the flower girl is abruptly cast out into the cold by the pompous lawyer. But he soon misses her terribly ("I've grown accustomed to her phrase / like 'in consideration of' . . .") and begs her to come back. She is willing to return, but only on one condition, which he's forced to accept. In the final scene of the playlet, she is rehearsing him, he is balking ("Must we?"), and her curtain line is:

"Yes, we must, if you're to pass at the FTD convention. Now, repeat after me: Roses last longer with a pinch of sugar; but for hydrangias, the stems should be dipped in boiling water. . . ."

Freund is a retired partner at Skadden, Arps, Slate, Meagher & Flom LLP, in New York City, and is now of counsel to the firm.