The Impossibility of Explaining …

The Impossibility of Explaining …

. . .anything to a man with power.” ~ Graham Greene, Our Man in Havana.

We deal with a lot of smart people. Corporate executives, lawyers, doctors, business owners of all stripes. Highly competent people, all perfectly capable of rationally speaking on a wide variety of subjects, to wide audiences.

Our clients are the kind of people who can explain things, they do it for their businesses every day. And yet, if we are involved early enough in the process – when they are first informed of an investigation into something they are accused of doing, or knowing about – we can’t stress enough the importance of not talking to anyone, especially someone in a position of authority, on your own.

“But, I didn’t do anything and I can help them sort this mess out,” and a few dozen riffs on that theme are the usual response. Perfectly understandable, and we recognize that you’re smart, competent, and in the real world perfectly capable of doing so.


But, simply, you can’t. Being investigated, questioned, suspected, is not the real world. It has little bearing on reality for the simple reason it’s its own singular, insulated world.

Ever read about people on death row or imprisoned for years who are released when new evidence, usually DNA, comes to light and the prosecutors and arresting officers still swear they got the right person?

It happens all the time and it happens for a simple, very human reason: people (including witnesses) create narratives, invest time and effort in reinforcing them, and are, unsurprisingly, loathe to let go.

Not sure this is true? Take a quick look around social media. People post the same old meme’s and urban myths every day despite a hundred comments showing that they are simply not true. It takes a lot to change one’s views.

In the first (unfortunately not the only) season of True Detective, Woody Harrelson’s character, Martin Hart, warns Mathew McConaughey’s Rust Cohle, “When you attach an assumption to a piece of evidence you start to bend the narrative to support it.”

And that’s the rub – you can do a lot of talking, you can answer questions, you can volunteer information that you think may help – what you can’t do is change a narrative.

Since we’re in an election cycle and politicians and their staff and their handlers are everywhere, there’s potentially a vast number of examples to point to right out of this morning’s headlines. But, in this particular cycle that would be counterproductive, so let’s take an example from another election cycle. 1864.

George B. McClellan ran against Lincoln that year. McClellan was the former commander of the Army of the Potomac. Twice fired by Lincoln, he was renowned as an excellent organizer and leader who was painfully slow to react, never mind engage, the Confederate Army. He had ‘the slows’ as Lincoln pointed out more than once.

McClellan had a ready answer for that charge, one that he used over and over – he was always outnumbered. Always. If he had 75,000 men, Robert E. Lee had 100,000. When he had 120,00, Lee had 200,000 men. No matter the actual truth.

Nothing anyone could tell him would change his mind. Intelligence that refuted his numbers was discarded in favor of the sketchiest reports of Lee’s vast hordes.

By the time McClellan was the Democratic presidential nominee two years after his last firing, some of the truth of what McClellan had been up against came out – he always, always, outnumbered Lee. Sometimes 2-1. Always significantly.

McClellan refused to acknowledge it. He held steady during the presidential campaign, which he lost in a landslide (interestingly, 70 % of the Army of the Potomac, the army he formed and named, voted for Lincoln).

He maintained this unshakeable belief after the war as Confederate officers began to publish their memoirs. He became chief engineer of the New York City Department of Docks in 1870, then president of the Atlantic and Great Western Railroad. Generals on both sides were publishing memoirs at a prodigious  rate, he maintained the ‘outnumbered’ myth without falter despite tomes to the opposite.

Even the publication of the U.S. Government’s 127 volume: The War of the Rebellion: A Compilation of the Official Records of the Union and Confederate Armies during McClellan’s term as Governor of New Jersey could not persuade McClellan otherwise. He was outnumbered, despite what Confederate rosters, commissary, orders, telegraphs, quartermaster reports said.

He went to his grave believing it, his apologists – and there were many- still believed it, his post-mortem memoirs maintained it beyond the grave.

McClellan was not a stupid man. He was used to being in a position of authority – he had been in one or another from the day he graduated West Point in 1846. He created his own narratives and he saw them out – regardless. It doesn’t make him a good or bad person, it makes him human.

It also makes him the perfect object lesson for not being interviewed – even casually – without having a lawyer present.

Virtual law firms may be on upswing in North Jersey

Virtual law firms may be on upswing in North Jersey


Law firms in North Jersey are going digital, jettisoning brick-and-mortar offices and establishing virtual law firms that bring services to clients from a distance using technological forms of communication, instead of traditional face-to-face meetings.

Virtual law firms allow lawyers who run them to be more flexible. These attorneys do most of their work through phone calls, emails, video chatting and other technologies. Oftentimes, these lawyers do much of their work from home — allowing them to drastically reduce overhead costs traditionally associated with having a physical law firm, such as rent or paying a secretary, and also enables a better work-life balance.

“It may be a growing trend,” said Timothy Anderson, a lawyer in Red Bank and also chairman of the Solo & Small Firm Section of the New Jersey State Bar Association. “It really gives lawyers a way to be more efficient and practice anywhere.”

There are no statistics as to how many virtual law firms there are in the state. According to data from two State of the Attorney Disciplinary System Reports, there were 95,807 lawyers in New Jersey at the end of 2014 and 93,757 by the end of 2013. Despite the growing number of Garden State lawyers, 28,937 law offices reported they had physical locations in the state in 2014, unchanged from the year before, according to the reports.

Virtual offices were made possible in 2013 after the state Supreme Court Professional Responsibility Rules Committee approved amendments to the state’s “bona fide office” rule, which had essentially required all lawyers to have a brick-and-mortar office. The 2013 ruling said “an attorney need not have a fixed physical location.”

Critics of virtual firms argued that a virtual office means clients wouldn’t have immediate access to their lawyers. But lawyers with virtual offices say having one doesn’t mean you don’t meet your clients face-to-face. Tech-savvy lawyers who go virtual usually rent out shared office spaces. These spaces, which could cost as low as $100 per month, include access to Wi-Fi, an escape from long-term leases and a formal location for lawyers to meet clients.

Christopher Dunn, a former defense attorney in Paterson who lives in Scotch Plains, said he set up shop at C.E.O. Executive Suites, a suite-rental building in Scotch Plains, after deciding his daily commute to work was taking too much time away from his 10-month-old baby.

“If not for the change [in the bona-fide office rule], I’m not sure if I would have been able to start up,” said Dunn, who began running his own virtual practice in the spring.

Dunn, who practices criminal law, said he mostly works from home and is usually traveling to meet with clients, sometimes at their homes. When he does have to meet with clients at C.E.O. Executive Suites, he said the office is so close to home that he can walk. Because of the lack of traditional overhead costs, Dunn said he has also been able to shave significant dollars off of his clients’ hourly rates.

Though virtual firms are typically small-run operations, going virtual can also help firms, such as Rubenstein Business Law in Saddle Brook, operate at a geographically larger scale. The firm has locations in Saddle Brook, Chicago and Lakeland, Fla., and is run by David Rubenstein out of Chicago. This firm did not wish to comment on its operations.

There is no specific type of lawyer turning to virtual firms either. These lawyers could be recent law school graduates or seasoned lawyers “looking toward the idea to save money and keep overhead [costs] as low as possible,” said Anderson.

According to Matthew Stoloff, who is of counsel to Florham Park-based Jardim Meisner & Susser P.C., virtual firms create more opportunities for new attorneys. The Bureau of Labor Statistics forecasts job growth for lawyers for the 10-year period ending 2022 to be about 10 percent, roughly as fast as the average for all occupations.

“The job market for new attorneys has been challenging for the last several years,” said Stoloff in an email. “And, virtual law offices give newly admitted attorneys the opportunity to develop their lawyering and business skills without worrying about high overhead costs.”