Disclaimer: this writeup may best be understood when read together with this one.
I remember it well. I was a mid-level associate, pale from lack of sunlight and on a first-name basis with a growing list of late-night cabbies who drove me home at the end of each 14-hour workday. I was sitting in my cramped, windowless office, working on some forgettable piece of legal makework, when one of the two junior partners I worked for barged in.
We had a problem, he said. A major one.
The client was a major local university, defending itself against a discrimination lawsuit by one of its faculty members. Although the parties wanted to settle the case, the statute of limitations loomed large. Hoping to keep the faculty member from filing her complaint, we entered into a series of “tolling agreements” giving her more time.
This kind of thing happens all the time. The idea is to allow parties to agree to extend the time for filing a complaint beyond the time allowed by the applicable statute of limitations. There are countless pattern “tolling agreements” available online and elsewhere, and parties rarely argue about what they mean.
In our case, the settlement discussions broke down, and the plaintiff filed her complaint one day after the last tolling agreement expired. In an extremely aggressive move typical of my litigation team, we filed a motion for summary judgment, claiming that the plaintiff had missed her filing deadline by a single day.
Not so fast, plaintiff responded. There were 11 days left in the limitations period when we began the tolling agreements, so there were 11 days left when the last one expired. We made it by 10 days, and the university should withdraw its motion for summary judgment.
To tell you the truth, their argument made sense. The senior associate working on the case, a former Supreme Court clerk, thought so too, and said we should withdraw our motion. Not satisfied with such an embarrassing result, the junior partner promptly took her off the case.
This is where I come in.
“We’ve got to say something,” he said, “we can’t just turn tail and run.” He told me to drop everything else and come up with something, anything, to say in response. We had to save face with the client.
So I doggedly worked on the task for the next week, stretching out my already-long workdays. I started dreaming about the issue so much I really should have billed the client for my sleep time.
But I didn’t. No, really.
The problem was a tough one. Because we had drafted the agreements, any uncertainties in the language would be construed against us, and it was our burden, as the drafters, to show ambiguity. So I couldn’t just say, “we meant this, they meant that.”
In the end, I said that, as private parties, we weren’t really “tolling” the statute of limitations at all. We couldn’t. That was for legislators in Congress. No, what we were doing instead was waiving our personal right to assert the limitations period for a certain period of time.
Why was this important? Because the burden to show a waiver of rights -- whether it be Miranda rights or the right to assert a legal defense -- is a heavy one, and must be made by “clear and convincing evidence.” Most importantly, it would be their burden to show waiver.
By framing the issue this way, we could argue with a straight face that our original motion for summary judgment deserved at least to be considered by the court, rather than withdrawn. It was an aggressive position, pushing the envelope of existing law, and flew in the face of decades of day-to-day practice by attorneys everywhere.
Still, the assignment had been given. Justify our original motion, or else. And my argument, strained to the point of breaking though it was, fulfilled that assignment.
Opposing counsel shrieked bad faith after we filed our response, and launched another, uncommon series of briefs known as “surreplies” and “surrebutters.” Despite what I thought was a near-sanctionable argument on our part, the district court wound up ruling in our favor.
No, seriously. I couldn’t believe it. The junior partner crowed to the client about “silk purses” and “sow’s ears,” and we all patted ourselves on the back.
Of course, at the end of the day, the D.C. Circuit saw right through me, and we lost on appeal, eventually settling the case for just about what they had been trying for in the beginning. With a couple of million in attorney’s fees added in for good measure.
So what’s the point of this lengthy war story, you ask? Well, it illustrates the concept of what I call “attack memos.” These are documents -- briefs, memos, opinions, whatever -- that are commissioned with a very specific purpose in mind, and use every single argument, every self-serving spin of fact possible, to justify a position.
In my case, the purpose was simple -- provide some kind of good-faith justification for our earlier motion for summary judgment asserting the statute of limitations as a defense. To fulfill this assignment, I ignored everyday legal practice and a wealth of caselaw, in cases just like ours, decided against us. I took a slender reed of a legal theory and spun it out in a desperate attempt to cover our asses with the client.
This is the quintessential definition of an attack memo. It’s not designed to tell the truth. It’s not designed to be relied upon by anyone seeking to be fair. Sometimes, it’s not even designed in good faith.
It’s just designed to make the best-case argument for one side to win. Period.
I knew when I was writing our reply that I was full of shit. I didn’t care. I just wanted to win.
I was just following orders. Like Jay Bybee. Like John Yoo.