Everyone Smurfs, But Should They?


Unless you have an institutional client or two with deep pockets, you live, as a lawyer in the land of Smalllaw, by your wits. That means the telephone is your friend, except when it is not. The telephone can strangle you if you let it.

We get a lot of referrals from other lawyers. I used to regard that as unmitigated flattery, but I no longer do so. I know now that some lawyers view the use of my firm as a means of getting rid of a sticky telephone call: "That sounds like a case for Norm Pattis," I can hear them saying. They cannot spit out the telephone number fast enough.

There is not a remedy for every harm, we learn soon enough in the law. In the rough and tumble world in which we live, there is not a remedy for the vast majority of harms that yield calls to a lawyer's office.

What sort of harms? I am talking mostly about harms to one's sense of dignity. You know the type: "The man cut in line in front of me and disrespected me; he violated my rights. I want to sue." We get more of these kinds of calls than any other. Handling them is tricky.

Here is a practice pointer for all you law studentss and new lawyers out there. The bar examine and a legal education is intended to do no more than make you minimally competent as a diagnostician. Once barred, you should be able to listen to a perfect stranger's tale of woe and recognize which of the law's many pigeon holes into which the place the grief. Professors call this issue spotting. That is the lawyer's calling. The law is not a theory of this that or the other thing. It's where settled doctrine meets human need. Forget that at your peril, or go teach somewhere.

Many a time a caller will not want to hear what you have to say. I've developed a shorthand means of dealing with disappointment. Here's my favorite: "Hey, I'm not making this stuff up. I don't make laws, I just read them."

But a caller can fight you, he's got a legal shark on the line and he wants to reel you in. He'll offer you top dollar, half the proceeds of the millions you can win. Just take his case. Make the bastards pay! Anger, I remind you, is one of the seven deadly sins.

That's where smurfing comes into play. You won't find the term in any dictionary of legal terms, at least as applied here. But smurfing is the practice of referring a difficult potential client to another lawyer.

Lawyers smurf for all sorts of reasons. We once made a list of every member of the Federal Grievance Committee in Connecticut, and we referred five difficult and impossible cases to each of the members. We actually kept a tally. Our purpose was pedagogic. If these folks were going to pretend to enforce standards of reasonableness on the bar, we wanted to make sure their sample of what lawyers deal with was leavened with a healthy dose of reality.

Some lawyers smurf as revenge. I once noticed a trend of particularly bad referrals from a certain firm. We struck back until they called a truce. We smurf them no longer.

But all lawyers engage either in blatant or subtle smurfing for a core reason: Some potential callers cannot listen. They are blinded by pain, sorrow and frustration. They just want someone to listen, to validate the pain that makes their life a sorrow. A high percentage of these folks don't need a lawyer. They need a therapist. We are not trained to provide care to the souls of the disturbed; that is a different calling.

Why write about smurfing today? A caller got angry with me last night. The person said another lawyer referred them. They assumed I knew all about the case. Was I ready to take it? When could they come in to talk to me? Their lawyer said I would take the case. All this with the breathless sense of entitlement of a bill collector.

I had been smurfed. Another lawyer did not have the heart, or the courage, or perhaps the energy to say no. That task falls to me. Unless I smurf. But I am trying to avoid the joy of smurfing. It is hard.

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