Utah Bar Journal

So the litigation section sent one of its fatherly alpha male silverbacks along to give me a little confidence – which actually helped in an awkward sort of way because I could at least take comfort in knowing that I wasn’t the only one who failed at his job that day. He watched me argue a motion to sell dirt in a bankruptcy proceeding. I decided that the highest and best use of the real estate (which comprised pretty much all the assets of the debtor) would be to dig it up, carry it off in buckets, and sell it out of the trunk of a car to some limited partnership in Spanish Fork. I lost the motion, but avoided being held in contempt. So I told the client the results were mixed.

On other red letter days, Alpha Partner heard various judges say, “Counsel, I have neither the time nor the inclination to read your brief.” “Counsel, was that your best authority?” And the clincher, “You just don’t get it, do you?” Alpha Partner returned and dutifully reported the proceedings to the firm’s litigation group – probably sounding like the distraught reporter who narrated that famous footage of the Hindenburg.

The partners decided I did my best thinking on my seat, instead of on my feet. They were probably right, and I’ve been there ever since – which is an uncomfortable way of describing a transactional practice. But as one of my former clients would always say after describing his latest hopeless predicament (usually involving a brilliant idea, followed by products liability, personal injury, and just a pinch of securities fraud), “There it sits.” I was not born to be a barrister. (Which reminds me of a funny thing that happened the other day. I was working on a matter with a British firm and one of the lawyers needed to contact me at home. He called; no one was home; and he got the friendly greeting that says, “This number does not accept unidentified calls. If you are a solicitor, please hang up.” He thought that was hilarious. I guess you had to be there.)

This flood of nostalgia was triggered by a recent bout of home remodeling. I won’t bore you with the details. OK, if you insist. It started as a new kitchen. The avocado appliances and gold swirl Formica still looked as stunning as the day they were installed, but the orange plaid linoleum was getting a little tired in spots. After dismembering the kitchen, the contractor pointed out that the floor appeared to have sagged a little more than one might have expected. The design of the home was novel (some might say ‘baffling,’ others would say ‘tortious’). The house itself was balanced on top of a tiny foundation – think of a mushroom – with the perimeter inadequately supported by wooden posts. The wooden posts weren’t up to the job. The contractor recommended an architect. The architect recommended a structural engineer. The structural engineer recommended that we never stand under the house again. And he confessed that he’d feel a whole lot more comfortable if we would continue the conversation out in the driveway. Safely in the driveway, he gave us two options: (i) an attractive set of reinforced concrete pillars to replace the wooden posts and give our home the understated elegance of a freeway overpass; or (ii) do a little excavating and slide a full basement under the house.

One thing led to another, and after a series of pleasant surprises (miles of aluminum wiring, an uphill sewer drainpipe, mold in the sheetrock, two colonies of carpenter ants, beams that disappear into walls and end instead of spanning the length of the structure, and some ingeniously creative code violations1), I now have a completely new house and no prayer of retirement. I know – join the club.

The whole episode reminded me of a simple commercial collection case I filed that spawned a Frankenstein counterclaim that refused to die. I won’t bore you with the details of that one either, but the lead attorney for the defendant-counterclaimant later named her first born ‘Robinson Patman’ in celebration of how the little guy’s future Ivy League post-graduate studies will be funded (and he should be just about ready to start them by now…).

But I haven’t yet gotten around to mentioning the part of the remodeling that made me feel so nostalgic about the good old days of being a litigation associate. That was triggered by one of the most puzzling and humiliating experiences of my life (and that’s saying a lot… after all, I’ve been through law school, divorce, and the Uniform Commercial Code): appearing before the Salt Lake County Board of Adjustment. We want to turn our carport into an enclosed garage, but we need a zoning variance to do that. In our neighborhood there is a 10 foot side yard setback requirement, and our carport is only 6 1/2 feet from the property line. I filed my variance application and paid my non-refundable $1,000 application fee for the privilege of groveling before the Board of Adjustment. The Board sits upon a big platform behind a huge hardwood desk with microphones while you cower in front of them in a dark little pit and beg for permission to improve your property. I apologized for the location of my carport and tried to explain that it really wasn’t my fault because I was only eight years old and living in another city when it was built, and all I want to do is put walls on it and I’m here because I want to follow the rules. By the time they were finished with me, I had confessed to kidnapping the Lindbergh baby, in German so they would understand. But the kicker – I got my variance and all it cost me was $1,000 and my dignity. Passive-aggressive advocacy. I knew it would work. I still think there’s a market for it. Alpha Partner, are you watching? I was ahead of my time.

1. Did I consider a home inspection when I bought the place? Of course not, why waste $250? I’m not stupid.