The Obama Administration, women, and the nunc pro tunc son-of-a-bitch rule

Regular readers may recall that after law school and a one-year judicial clerkship, I spent six years in the early 1980s working as an associate in the Trial Department of Texas' oldest law firm, BigLaw stalwart Baker Botts. When I started there, in keeping with the practice of that firm at the time, I assisted more senior lawyers on some very big cases, but I was also handed a "docket" of my own — a collection of already-in-progress small and medium-sized cases deemed appropriate for handling by an associate — with the instruction to "do the necessary." When new cases of that sort came in, the department head or his assistant typically distributed those among the department's associates. This, in turn, was accomplished by walking into the chosen associate's office and dropping the file (typically comprising only a new lawsuit just served on a firm client and a transmittal memo) on the associate's desk, always with the instruction to "handle this to conclusion."

The firm wasn't prone to hiring idiots, so we knew that implicit in these dramatically sparse instructions was the expectation that we would seek guidance, instruction, inspiration, review, and criticism in connection with our own efforts to "do the necessary" and "handle to a conclusion." And the available teaching faculty included a very deep and very diverse set of several dozen Trial Department partners and associates whose experience ranged from other just-starting lawyers to senior partners with individual experience measured in decades and jury verdicts numbered in the hundreds.

It was a wonderful system. Through it, in some respects I taught myself my profession; and in other respects, through it I learned my profession studying at the knees or elbows of those with more, and sometimes great, mastery.

*******

The system did have some dark aspects to it, though. And one of them related to the "up or out" nature of BigLaw associate status. Most associates didn't become partners; most left before they were up for partnership consideration, sometimes because they'd decided BigLaw wasn't for them, some because they wanted to go in-house with clients or become entrepreneurs; some wanted to change practices (e.g., by moving to a plaintiffs' personal injury firm); and a relatively small number were gently nudged into looking elsewhere because their performance was thought below the firm's expectations. And every time an associate left, his or her entire docket had to be re-assigned.

I remember discussing that process one day with a more senior associate whose advice I had sought in trying to figure out one of the personal injury defense cases I'd inherited from a just-departed associate whom I'll call "Bob." The case was dangerous; its development by Bob had been just barely adequate; and it urgently needed lots of work, much of which (like finding and working up expert witnesses) could have been done better if it had been started much earlier. "Wow," I commented, "I'm surprised the firm thinks I can handle this."

My older colleague said, "Well, you know, there's a benefit to you in getting to take over a case like this that's already so close to trial. Are you familiar with the 'nunc pro tunc son-of-a-bitch rule'?"

"The what?"

"You know the Latin phrase 'nunc pro tunc'?" he asked.

"Sure," I replied, "it means 'now for then.' Like with a revised judgment submitted for the purpose of completely replacing an earlier judgment that had some important error in it. Something the law deems a complete and retroactive replacement, as if the earlier version had never even existed. Neat phrase, powerful stuff! But what's that got to do with Bob handing over this case to me when he left the firm?"

"It means," he answered, "that Bob is your ready-made 'nunc pro tunc sun-of-a-bitch'!" But I continued to stare blankly at him.

"Look," he explained more patiently, "You took over handling twenty-something of Bob's other files, the whole docket for [Valued Firm Client from the Fortune 500 List], when he left. You've seen his work closely and in volume now. Was Bob a good lawyer?"

"Yes," I said truthfully. "This is the only case he was working on that really seemed to have gotten a bit beyond him."

"That's right," he said, "and while he was here, everyone liked Bob, and they all genuinely wish him well in his new job. He'll be a respected alumnus of this firm for the rest of his career, and we may refer some business his way or support him if he decides to run for some judgeship. Bob's a great guy, and a solid, competent lawyer. I mean that.

"But," he continued, "every case has the potential to go south in a hurry. This looks like one you're going to have to take all the way to a verdict; I don't think it can be settled at anything close to what our client is willing to pay, or that the client should be willing to pay. If you're not losing any cases —"

We both finished the sentence in unison: "— you're not trying enough cases!" This is a truism, a fundamental tenet of the trial lawyer's faith, already drilled into me when I'd been a mere summer clerk, and at more than one very fine law firm.

"And yet," the older associate continued, "you don't have to worry about the microscope only being put on you if you end up taking a thrashing from the jury, or about taking all the blame yourself, because Bob is ...." He waited for me to finish this thought too.

I answered hesitantly: "... the son-of-a-bitch who screwed this case up before I ever touched it?"

He made the "Charades" gesture: index finger to the tip of his nose. "Exactly! Bob's a great guy, but now he's gone. So if need be, he becomes a son-of-a-bitch. Retroactively. Just as if he'd always been a son-of-a-bitch. Nunc pro tunc, now for then. And it's an irrebutable presumption."

"Meaning," I said, "not just a presumption, but really a pre-determined conclusion that can't be challenged."

"Meaning exactly that, yes. And also meaning that Bob's not around anymore to rebut it. He'll probably never even hear about this. He'll never know that, for purposes of this case, 'Bob's a hale fellow well-met' got replaced with 'Bob was a lousy son-of-a-bitch who screwed this pooch beyond rescue.'"

I rubbed my chin and pondered this for a minute. Then I asked a question that seemed obvious, and was: "The nunc pro tunc son-of-a-bitch rule won't impress clients a bit, will it?"

"No," answered my slightly older and much wiser colleague. "This client's legal department in Chicago probably hasn't even noticed that you've taken over this file, despite your letter. We're all just fungible Baker Botts associates to them. You score no points at all by blaming Bob to them, so don't even think about it. You may have a nunc pro tunc son-of-a-bitch in waiting, but you still better win the case if it possibly can be won."

I thought a little more. "And the Trial Department head who assigned this case to me —"

"— knows exactly how big a challenge he just handed you," he confirmed. "The 'nunc pro tunc son-of-a-bitch rule' won't work on him, either, nor on anyone in the partnership who's evaluating your progress. You should always assume that they already know everything, but then point out everything important anyway, as a back-up and because you're supposed to, and then send them a memo as a back-up to that too. But yeah, they know they've just given you a big challenge, and they're waiting to see what you do with it."

"So who will the 'nunc pro tunc son-of-a-bitch rule' really help me with?" I asked.

"Only people who don't know any better," said my friend, "like, maybe, your parents or your girlfriend or your buddies at some other firm, when you're trying to explain to them how the firm's good client got tagged by the jury for umpty-ump million dollars while you were defending them." He stopped and seemed to contemplate the consequences of what he'd just said as if something new had occurred to him. "I guess," he finished, "it only works on people who are clueless and who are willing to be fooled."

"I see," I said.

*******

I thought of the nunc pro tunc son-of-a-bitch rule, and who it may be effective in fooling, when I watched the video of White House Chief of Staff Bill Daley blaming his immediate predecessor — famed ballet dancer, idiot savant investment banker, and Chicago-Way politician Rahm Emanuel, now mayor of Chicago — for reports that women staffers felt they had been "marginalized" by senior male members of the early Obama administration. If you can't figure out why I made that association, then you're precisely the sort of person the 'nunc pro tunc son-of-a-bitch rule' was created in order to influence.