It’s not just schadenfreude that caused me to take a look at Lawrence Cunningham’s post at Concurring Opinions, though I would be less than forthright to say that it didn’t bring a wry smile to my face.

Bingham, the galactic law firm with roots in Boston’s old-fashioned legal market, is a ubiquitous advertiser in expensive print publications, boasting about its deftness in navigating complex business challenges with keen legal insight. The firm even brags about its advertising prowess.

The shameful performance of one of its Boston-based partners in botching a basic matter of document handling suggests the firm ought to spend more time and money on the nuts and bolts of old-fashioned lawyering than on Madison Avenue promotion and mercantile ambitions. 

Of course, Cunningham is talking about Larry Silverstein’s monumental screw up of the Jamie and Frank McCourt agreement, compounded by his cover-up of his screw-up, and his screw-up of his cover-up of his screw-up.  And did I mention his screw-up?  I couldn’t care less who ends up owning the Los Angeles Dodgers, and yet the message is of great concern.

One of the ongoing battles in corporate and financial criminal defense is between the “white collar specialists” at Biglaw and us little guys, solos and small firms who only do criminal defense.  The ranks of the former are replete with former AUSAs, often mere minutes out of the office and who have spent their in-court careers justifying why everyone is guilty of something. 

They’ve never defended anyone, but they have the imprimatur of the government on their resume, thus being held out as grade A prime beef to corporate executives.  Business people are particularly attuned to the presumption that connections are the secret to success, and they are played like violins when it comes to admiring a lawyer’s pedigree.  In fairness, some of these former AUSAs turn out to be great defense lawyers, after some experience.  Most find a home in general litigation, and are trotted out to pretend to be their white collar guys when Biglaw puts on its dog and pony show for potential clients.

One might wonder why Biglaw doesn’t run out and snatch up solid criminal defense lawyers, the guys who actually fight to win cases rather than take the long march to the United States Attorneys office to offer their clients’ neck in sublimation to the overwhelming might of the government. 

It’s because we’re not as easily marketable, lacking that grade A stamp on our foreheads that provides objective proof that if we were good enough for government work, we’re good enough for them.  But we’re also not “like” them, in that we talk a bit louder, curse on occasion, and wear shirts of hues other than white or blue.  The colors could clash in the hallways, and that would disrupt the calm demeanor of Biglaw.  Worse still, we sometimes use the wrong fork in the Biglaw dining room, a metric that can’t be ignored.

When we talk to potential clients, who are wondering whether to stake their lot on experience and quality or go with Biglaw, the word that invariably comes up is “resources.”  Biglaw has the “resources” to do whatever needs to be done.  By this they mean the staff, copy machines and legions of elves in the basement to review the thousands of boxes of documents.  It’s mostly a grandiose view of the relative importance of their case to the bottom line, thinking that the thousand attorneys at Biglaw will all be rowing in unison in their best interest.  This idealized image sustains them, lets them sleep well at night and comforts them knowing that they have done everything the can to cover every base.

Of course, there is one base left uncovered.

Earlier this week, I was walking down the hallway of a big law firm.  Even the hallway was big, nice and wide, with wood paneled walls of institutional teak, seating areas interspersed with reception desks and large pieces of dubious art on the walls.  It’s all very impressive.  It’s meant to be.  It’s a design genre enjoyed by those who have a lot of money to spend on dead space.

I imagine that the corporate chieftain who walks down the hallway in my office feels a bit claustrophobic.  My institutional walls aren’t nearly as nice as their institutional walls.  The offices aren’t as large, and the ego wall lacks any awards from the Attorney General of the United States of America for locking people away.

So back to Cunningham’s post.

A California court hearing the McCourt divorce case released an opinion declaring invalid the couple’s contract that Silverstein prepared. The contract was invalid because Silverstein botched it.  His errors culminated in the existence of two versions of a single contract, one declaring that the Dodgers belonged solely to Frank and the other that the team was the couple’s joint property.    The contract thus failed elementary requirements of contract law and basic requirements of California law applicable to marital asset splits. 

But damn, I bet he knew how to dress, what fork to use, how to stroll down the broad hallways graciously showing the vast resources at his clients’ disposal.  But he couldn’t do a basic contract without screwing it up.

The McCourts were fighting over the Los Angeles Dodgers, as if anybody really cares who owns those losers.  What if one of their lives was on the line?  Can you imagine Frank McCourt, as he’s being led by the marshals off to the sidedoor in shackles, mumbling “but they have resources…”?

Putting together a team of people to manage sifting through the mountains of papers is easy.  Copying is readily available at a large variety of places 24/7.  Enjoying the rich Corinthian leather of the client couch isn’t all it’s cracked up to be. Enjoy your couch at home all you want, but in the office it’s about work, not comfort.  Somehow the McCourts had everything and nothing, as Silverstein of Bingham couldn’t take the responsibility to see that a basic contract was done properly.  Not well, not excellently, but merely properly.  Even that was too great a burden.

When you are in court, standing before a District Judge who looks intensely at your over his half-glasses as you say “not guilty” to the 39 counts in the indictment, there will be one person standing next to you.  Neither the judge, nor you, should be overly concerned with the wood on the walls of his hallway, or the material on the seats of his couches. 

But you should make extremely sure that the words that flow from his lips on your behalf will provide you with the defense you need.  At that moment, it’s just one lawyer’s skill on your behalf, that separates you from the marshal’s shackles.  The excellence of his representation, not the width of his hallways, is the only resource you need.