Category Archives: The Weird Weird World of Lawyers

Law & Order: Originalism

Legal conservatives are always whining about “originalism,” by which they mean “the law back when the Constitution was drafted,” but which really means “the description of law ca. 1787 that we pulled straight out of our tucheses and that coincidentally happens to support whatever rich and/or white people want the result to be in 2023.” For as-yet undisclosed but intensely law-nerdy reasons, I’m poking around in cases from that era and stumbled across evidence that those white guys in the constitution-drafting era really were much more sophisticated about the law:

The new trial had been pressed on five grounds:

1st. That the verdict was against the weight of evidence.

2d. That Herman Skiles, one of the jurors, some weeks before the trial, had betted a pint of wine with colonel James Mercer, that a verdict would go for the plaintiff, and thereby shewed his partiality.

3d. That five of the jurors eat or drank during the trial, at the expence of one of the lessors of the plaintiff.

4th. That two of the jurors declared their opinion in favour of the plaintiff before they heard the testimony.

5th. That Herman Skiles aforesaid, and two others of the jurors, threatened to throw three others of the jury, who dissented from them in opinion, out of the window of the second story of the Court House, where they were deliberating on their verdict, unless they would agree to find a verdict for the plaintiff.

Goodright v. McCausland, 1794 WL 615, at *1 (Pa. 1794). So, yeah, let’s take all our legal cues from that august system as it existed in the late 18th century.


I wrote this a (large but unspecified) number of years ago, decided that I should not publish it given the cast of characters I was co-counseling with at the time (not that any of them would read my deathless prose), and put it aside. For some reason — Monday afternoon of a long weekend, maybe? — I was noodling around in my drafts folder, found it again, and decided enough time had passed that no one would recognize themselves. 

I love co-counseling.  Working on interesting legal issues with a good team is one of the absolute joys of being a lawyer. I have been very lucky, too, with the teams I have had the privilege to work with, snark with, drink with, and learn from.  On rare occasions, though, it doesn’t go as smoothly.  As I pondered the co-counsel relationships that worked well and those that didn’t, I decided that there are a couple of basic principles that could guide you to find your dream team, or warn you off the duds.  Call it E-Harmony for co-counsel: 

Co-Harmony.  Six points of compatibility!

  1. Technological compatibility:  If one firm is using the latest case management technology and the other firm has large redwelds of dead trees, it may not work out.  If the dead trees firm is proud of its ignorance and ridicules the advanced technology of the tech-nerd firm, it definitely will not work out.  It’s not cool to announce that you don’t understand your own firm’s email program.  Not cool.
  2. Hierarchical compatibility.  Will the senior lawyer insist on speaking only to other senior lawyers, or chat and work comfortably with more junior lawyers and even (gasp!) paralegals?  Corollary:  If the other firm’s senior lawyers treat their own junior lawyers or paralegals like crap, run.  Fast.
  3. Reachability compatibility.  Is everyone more or less equally neurotic about being reachable?  Or does one firm carry smart phones with email while the other gets email only on a desktop computer at the office during work hours, possibly after their admin prints it out? 
  4. Deadline compatibility.  You’re either an afternoon-of-the-deadline filer or a 11:59:59 p.m.-of-the-deadline filer.  If you’re the former co-counseling with the latter, you will spend many days from mid-afternoon (when your last draft was finished) to 11:59:59 banging your forehead slowly and painfully on your desk, often while your significant other enjoys a festive night out with your friends.*
  5. Grammar and bluebook nerd compatibility.  Everyone has to agree to care whether the comma is italicized, or at least to defer to the lawyer(s) on the team who do.  Or not.  If one firm is compulsive about making briefs look beautiful and the other resists these efforts, it will not work out. 
  6. Sense of humor compatibility:  Try telling a mild joke about opposing counsel’s tie.  If the other lawyers don’t even chuckle, they will not — down the road — enjoy your brilliant, side-splittingly hilarious, vaguely disgusting analysis of your opposing counsel’s legal arguments.  Not a good match.  Corollary:  Both firms’ cynicism level should be roughly equal.  This is why co-counseling across the plaintiff/defendant divide rarely works smoothly.

Go forth and co-counsel!

*See: written long before the pandemic.