Unbillable Hours: A True Story

by Ian Graham

  “Is he okay?” I asked.

  “I can’t give out that information,” he said coldly.

  “Is he sick? Can you at least tell me the nature of the problem?”

  The information officer was silent for a few seconds and then said slowly, “It was a stabbing. He was stabbed.”

  I was speechless. Immediately, I thought about the police report mentioning Joker that I had inserted in our last habeas petition. The attack on Mario might be my fault.

  Unable to get any other information from the prison, I called Mario’s cousin, David. David was my primary contact with the Rocha family. He and Mario had grown up together and were like brothers. A city employee and pee wee football coach, David was solidly built and had tattoos covering his shoulder and upper arm, but had an easygoing manner and a friendly smile.

  “David?”

  “Ian, hey, what’s up? How you doing?” he asked cheerfully.

  “I’m good, but, um, I’m afraid I’ve got some bad news. I just talked to someone at Calipatria who told me Mario was stabbed and is in the infirmary.”

  David’s tone changed instantly. “What happened? Tell me what happened?”

  “I don’t know at this point, I’m afraid. They won’t tell me anything other than he is in the infirmary. The information officer I spoke to said they can only give medical information to family members, so you or someone from the family should call.”

  “Okay,” David said quickly. “I’ll call you back.”

  The next morning, David dropped by my office. We walked quickly from the reception area to my office and shut the door.

  “A couple of guys jumped him,” David said.

  “How bad is he hurt?” I asked.

  “He’s okay. Nothing too serious. One of the blades went through his forearm.”

  “Holy Christ,” I gasped, visualizing the attack for a moment. “Is this about what I think it’s about? About the footnote?

  David hesitated for a moment.

  “Yeah,” he said finally. “It’s about that.”

  I could hardly breathe. Mario had tried to warn me about this. “You can’t bring anyone else’s name into this,” he’d said.

  “See, there is the law like you do it up here,” David said, motioning to the surroundings of my office, “and then there’s the street law. On the street and in prison, it’s a different set of rules. On the inside, legal technicalities don’t matter.” Through the vagaries of the prison system, other inmates had seen a copy of our recent habeas petition, with my footnote mentioning Joker. And word had spread that Mario had snitched. It didn’t matter, in prison, that my footnote said the information had come from public police files.

  When Mario recovered and returned from the infirmary to the general prison population, it would be only a matter of time before he was attacked again.

  “What can we do? How can I help,” I asked David.

  “I’m not sure. Mario said he’ll call you soon.”

  Mario called the next afternoon.

  From clipped and roundabout conversations over the next few days, I learned that the only way to help Mario was to write a letter to a person on the outside, a former inmate who had influence among the Latino inmates in Calipatria, explaining that Mario had not said anything about Joker, and that the information about Joker had come from a witness statement in the police files, and that I had used it on my own initiative. This letter, along with the transcript of Mario’s police interrogation, the witness statement from the police files, and our petition to the Court of Appeal, would be reviewed by the former inmate to determine whether Mario had snitched.

  “This is important,” Mario said, in what I took to be a big understatement.

  I was drowning in billable work: depositions to prepare for, motions to draft, and masses of research. I had already been warned that my billable hours were low and that I needed to get them up. But that stuff would have to wait. This was a deadline of another kind.

  I did not tell Bob Long or anyone else at Latham about the connection between the footnote and the stabbing, nor what I was doing to resolve the issue. This was solely my responsibility, to handle alone.

  The letter and transcripts were delivered.

  And then I waited.

  Time ticked away. It was difficult to focus on my day-to-day work. My billable hours began slipping again. We were coming down to the last days that Mario would be in the infirmary before being put back into the general population, but all we could do was wait. Mario assured me he could handle himself until the “ruling” arrived, but I could tell he was anxious. And for good reason. A few weeks after he was released from the infirmary, he was attacked again. This time it was worse. He was stabbed thirteen times and one of his lungs was punctured.

  A few days later, the ruling arrived in my office. My letter and its attachments had been reviewed carefully. The ruling contained a handwritten note that said, in carefully coded Spanish, that “legally” under the inmates’ code, Mario had not snitched and that the attacks against him were unjustified.

  Now I just had to get the note to Mario. I requested a meeting with him for the day he was to be released from the infirmary.

  Prison guards check all papers handed to inmates, even those from attorneys. They would easily identify the note as a coded message. To camouflage it, and hoping the guards were inattentive, I printed more than five hundred pages of cases and marked some of them with handwritten marginalia. On a Wednesday in August 2005, though I was juggling demands for billable work from all sides, I skipped the office, told no one where I was going or why, and headed for Calipatria.

  “WHAT’S THIS?” the prison guard asked.

  My body went numb, and I hardly had enough air in my lungs to speak. I turned my head slowly and saw that he had parted the pages and was pointing his finger directly to the handwritten coded note. Lie. Say something, I thought.

  “Oh, um, that’s just a few of my notes to Mario about the cases,” I blurted. I held my breath for a second, as the guard glanced down at the note. I’m busted, I thought. I had failed Mario. As I watched the guard’s hands, waiting for him to reach for the handcuffs on his belt, another terrifying thought popped into my head: Are they going to lock me up in here?

  After a beat, which seemed like an hour, the guard released the pages and the stack flopped back together, with the note still inside.

  “Looks thrilling,” he sneered.

  As he unlocked the door separating my side of the room from the side where Mario sat behind a wire-reinforced glass partition, I slowly exhaled the breath I’d been holding. The guard walked through the door to Mario’s side, relocking it behind him, and dropped the stack of papers on the desk in front of Mario.

  When the guard turned his back to return to my side of the room, I caught Mario’s eye. I smiled as I nodded at the stack and mouthed the words “it’s in there.” He smiled back.

  I COULDN’T GET out of there fast enough. I could feel the color returning to my face as I pushed open the door to the outside. The heat didn’t feel so bad. After retrieving my belongings from the check-in area, I walked quickly to my car, threw my suit jacket in the backseat, yanked off my tie, and drove out the front gate and onto the highway.

  For a few minutes, I had visions of police cars chasing me down and dragging me back to the prison. But as the guard tower faded into the distance, I knew I was in the clear. I had never felt better or more exhilarated. No one but Mario and I knew about this. I felt like a hero.

  Twenty miles later, however, the good feelings stopped cold. As I approached El Centro, my BlackBerry began to vibrate wildly. I had been out of range at the prison, and now a flood of emails and voice mails was pouring in. “Where are you?” my secretary had asked twice. Both her messages were marked urgent. The partner on forty-four was asking where the hell his demurrer motion was. It wasn’t due to be filed for another week, but he was leaving on a family vacation the next day and wanted to read it on the plane. Opp
osing counsel in a patent case wanted to discuss changing deposition dates and needed an answer immediately. The partner on forty-two wanted to know if he should forget about me and staff somebody else on his new case. “What’s the status on the Rogs and RFAs?” another partner asked.

  I pulled over in a rest area to peck out responses. I couldn’t tell them what I was really doing, and I couldn’t even say I was working on a pro bono case. The Associates Committee would be unforgiving about my priorities when it came to billable and unbillable hours.

  “Got stuck in a meeting, I’ll have the demurrer to you first thing in the morning,” I told the partner on forty-four, knowing this would mean pulling an all-nighter after the four-hour drive back to the office. “Was in a meeting all day, I’ll be in the office by four if you want to talk today,” I told the partner on forty-two.

  As I typed another response, a new email came in, this one from the head of the Associates Committee, saying he wanted to meet with me as soon as possible. He had stopped by my office, but I wasn’t there, and, he pointed out, nobody seemed to know where I was. This could not be good. The formal reviews were coming up soon, and the only reason the Associates Committee would want to talk to me before then would be to discuss a problem.

  CHAPTER 19

  A Strongly Worded Decision

  AUGUST–DECEMBER 2005

  AS I HEADED to a sixth-floor conference room to meet with two partners from the Associates Committee, I knew this couldn’t be good. It was widely known among associates that if two or more committee members attended your review, you were dead meat, or nearly so. Inside the room, positioned so I would be sitting across the long table from them, were Dan Goldman and David Moran, both partners on the Associates Committee.

  Moran opened my file and began reading my reviews in a monotone, as if this were a normal review. The six partners I had worked for had all said positive things. As Moran read, I began to reflect on all the work I had done for the firm over the years: thousands of hours spent mindlessly reviewing documents, cutting and pasting discovery responses, proofreading edits, and researching case law.

  The last review Moran read was from Bob Long. Bob praised my work, noting that I had “made this case my own.” He went out of his way to tell the committee that this was an important case, one that had attracted an extraordinary amount of priceless favorable publicity for the firm.

  Moran then closed the file, looked up for the first time, and said, “Your message from the committee is as follows: Your billable hours remain below pace for the class of 2001. Failure to address this issue will negatively affect your future at the firm.”

  “Do you understand what this means, Ian?” Moran asked sternly.

  I understood exactly what it meant. This was the formal language used to make a record for firing an associate if they did not immediately and dramatically shape up. It meant that, in a big and far-flung law firm, the record on paper of billable hours is the reality. Never mind the subjective evaluations, or the practical PR benefits the firm was getting from a case like Mario’s. The only relevant evidence was in the billable hour spreadsheets. The firm was building a paper trail to fire me if I didn’t bill more hours.

  Moran continued: “Look, Ian. I spoke with your supervisors, and everyone speaks highly of you. But if you want to climb the ranks here, if you want to make partner, you have to make some better choices about your work.”

  It would have felt so good to quit right there. But the Court of Appeal’s hearing in Mario’s case was coming up in a couple of months. I had to hang on a little longer.

  “Yes, I understand. I guarantee you it won’t be a problem in the future,” I said.

  THE COURT OF APPEAL hearing in Mario’s case took place on October 26, 2005. It was one of those magical days when everything falls into place. On the morning of the hearing, a front-page article about the case ran in the Los Angeles Times under the headline “In Search of Juvenile Justice.” The article described Mario’s writing talent and the chain of events that had brought the case to this point, portraying Mario in a very favorable light. The courtroom again was packed with Mario’s family, friends, and supporters as Bob Long and I took our seats at a table in front of the panel of three justices. A young male deputy district attorney sat at the table next to us, while Joanne Lach watched from the gallery.

  Each side had only thirty minutes — a half hour to present what we believed was Mario’s last realistic chance. The Court of Appeal took judicial notice of the record from the Superior Court hearing before Judge Bowers, which meant our three justices* would be aware of the evidence and arguments we had presented before.

  Bob Long went first, and he showed the difference between being merely good and being great. He was compelling and clear as he stood before the panel of justices, wearing his good-luck bow tie, and argued Mario’s case. I was proud to be sitting at the table next to him. The three justices did not interrupt him once and appeared to hang on his every word.

  The young deputy district attorney, who had recently taken over the case from Joanne Lach, did not fare so well. “It seems to me like what the court is interested in is narrowing the issues…” he began. The justices pounced on him.

  “No. That’s not right. We’re interested in all of this,” said one of them.

  “What about Garcia’s failure to investigate? What about the two shooters?” asked another.

  “Is [Mario] right-handed or left-handed?” asked the third.

  “I believe his mother testified that he is right-handed, but I think that’s just a red herring,” the deputy DA replied. The justice who asked the question visibly shook her head at the response.

  The hearing could not have gone any better. But still we allowed ourselves only cautious optimism. We warned Mario and his family not to get their hopes up too much.

  Every day I hoped the court would issue its decision and grant Mario a new trial. But as the days and weeks went by, the reality began to sink in that a new trial was still a long shot, that habeas corpus petitions almost never succeed, even on appeal, even when the case was compelling. After all, we had thought the evidentiary hearing with Judge Bowers had gone well.

  If we lost again, it might be years before another court heard the case. I couldn’t wait that long. I wanted badly to see it through to the end, but I needed to think about my future and start planning for a life after Latham. In a compromise with myself, I decided I could grit my teeth and stay at Latham until the Court of Appeal’s decision arrived. But win or lose, that would be it. I was getting out.

  THE ASSOCIATES COMMITTEE had spread the word among the partners that my hours were low and that I was available to take on any and all billable work. That made me fair game for them to pile it on. Almost immediately, I was assigned to two cases that were moving very quickly.

  The first was a massive and complex patent dispute playing out fast in several courts in the United States and abroad. Two weeks earlier, a key senior associate on the case had left Latham. I was stepping cold into his shoes.

  Within an hour of getting the assignment, documents from the case file nearly filled my office. These were followed quickly by a schedule of depositions to be taken and defended that looked like the Dodgers’ season schedule: hundreds over the next three months, with “home” depositions in Los Angeles shaded in blue and “away” depositions in London shaded in red. I was to do all the preparation work for six depositions of our opponent’s top executives, which would take place in Los Angeles one week after I first received the files. Then I was scheduled to take four depositions of technical witnesses in London a week later.

  AT THE SAME TIME, I was assigned to a case defending a client who was being sued by the maker of a new drug for allegedly botching the drug’s clinical trial. Latham had taken on the case only a few days earlier, after our client suddenly dropped its former lawyers — one week before the deadline for filing a key motion asking the court for summary judgment (to terminate the case in our fav
or without proceeding further).

  And so, on the same Monday that I was assigned to prepare in one week six depositions in a highly technical patent case, I was also assigned to appear in the Napa County court that Friday to ask the judge to give us more time to prepare our summary judgment motion in our drug case. That motion was currently due the following Monday, the same day the depositions were to start in my patent case. For good measure, Tom Coleman, the lead Latham partner on the drug case, told me to have our summary judgment motion ready for filing the following Monday, in case the Napa County judge denied our request for more time. Drafting a summary judgment motion, by itself, would normally take two to three weeks.

  Starting from scratch to prepare for six technically complex depositions, drafting a summary judgment motion for a different new case, and appearing in court in Napa, all in the same week, was going to take every waking minute; and I wasn’t planning to sleep much. Hoping to find a draft summary judgment motion, or at least notes I could use, I looked through the stacks of files that our client’s fired counsel had sent us. There was nothing I could use. I simply did not have time to do the motion. Since our chances were good that the judge would grant our request for more time to prepare the motion, I took a calculated gamble and put it on the back burner until after the hearing on Friday. If we lost, I would have to whip up the motion on Saturday and Sunday. I had no choice but to hope for the best on Friday and get cracking on my patent case.

  The rest of that week, I worked frantically, reading through the patent case file, trying to parse out the technical issues, and searching through the hundreds of thousands of documents the parties had exchanged, looking for exhibits to use in the depositions. A small army of paralegals worked around the clock scanning documents into a software program that allowed me and other attorneys to perform Google-type searches for key words and names. And while this helped, a lot of my searches were turning up new documents — more than 100,000. I stayed at the office from Monday morning until late Wednesday night, downing pots of coffee and napping occasionally for a few hours on a couch on the sixth floor — under a photo of a lion mauling a gazelle. On Wednesday night, I finally went home, slept five hours, showered, and returned to the office to draft the deposition outlines. Finally, on Thursday afternoon, I sent outlines for the first two depositions to a paralegal who specialized in the technical and engineering aspects of patents and asked him to review my outlines, make any changes he thought appropriate, and send them on to the partner taking the depositions. Then I raced to LAX to catch a plane to Oakland, where I rented a car and made the one-hour drive to Napa.