Swimming, Not Sinking

Denver native Lawrence Litvak talks cases, judges and his ‘sink or swim’ philosophy

Published in 2011 Colorado Super Lawyers — April 2011

The solo practice that Lawrence Litvak started nearly 60 years ago now has three offices, 16 lawyers, and is called Litvak Litvak Mehrtens and Epstein. We spoke with the family law lawyer last November.

 

Were you a general practitioner when you started in 1952?

I did anything and everything that came along—traffic cases, criminal appointments—because I didn’t have a firm or any relatives or connections. I just stupidly threw out my shingle. That’s the way it worked.

One of the things we used to do was take our business cards and give them to each of the district judges because there was no public defender in those days so they used to appoint private attorneys to represent the criminal defendants. I got a call from one of the judges after I’d been in practice about six months, and he said, “I’ve got an appointment for you.” I was all elated. Then he said, “It’s a murder one case.” I said, “Judge, I’ve been in practice six months, I can’t try a first-degree murder case.” He said, “Oh, you can handle this one alright.” Well, I went on to see the young man and it turned out it was an insanity plea. Very clearly. The young man wound up in the state hospital. But it was sure a moment of apprehension.

 

What about family law?

It was called divorce law then and was considered the dregs of the profession.

 

Because there were fewer divorces so it was tough to get work?

No, it was considered a no-brainer. You didn’t need to know any law, you just had to have the fortitude to withstand the onslaught of angry clients. I remember I was sitting in court when the judge was reviewing some exhibits. The attorney on the other side was a haughty kind of guy, and he came over and said, “This is the biggest no-brainer business in the world.” And he just lost the case flatter ’n hell. He had no idea what he was doing. He hadn’t prepared at all for what the issues were.

 

So he was the no-brainer.

[Laughs] And still is.

 

Did Colorado have no-fault divorce when you started?

No-fault divorce came to Colorado somewhere around ’60 as I recall. I started out in the fault system. In the many cases I handled before no-fault, I only tried one contested case. I have no recollection what it was about, except the judge kind of scratched his head and recognized that if he denied the divorce what was he leaving the people with? They’d be at each other’s throat constantly. It was just a foolish system.

 

When did you stick to family law for good?

I would say about 35 years ago. For the first 15 years of practicing family law I was on my own—I may have had one associate. Then my son decided to go to law school. He had no intention of practicing; he was trying to get into the entertainment field and wanted to do it through the back door by becoming a lawyer, but when he got into law school he realized that that was his cup of tea. He joined my firm and has run it for the past 20 years.

 

Did you have an epiphany like your son in law school?

It was a little earlier than that. Actually, in my undergraduate work I took a business law course. It was just very apparent that I could analyze cases quickly. My older brother, who had just gotten out of the service and had the GI Bill, had the book for the class. I didn’t have the money to buy it so I just used his. In class, he would struggle with that book night and day and could never understand it, and I, who would read it the next day, stayed ahead in the class. Incidentally, having failed to recognize the law, he became a neurosurgeon.

 

So your family had a lawyer and a doctor.

There were two lawyers. My sister even married a lawyer. My dad was a junkman.

 

In Denver?

Yes. He was in the auto salvage business in Denver. I worked there for many years.

 

Did you grow up in Denver?

I’m one of the few natives around here. West Denver.

 

What was it like? This would be in the 1930s, correct?

Yep. It was kind of a little ghetto. The city at that time was divided into ethnic groups, as most cities were at that time. It was a Jewish area in the west side. Almost exclusively. You knew everybody who lived in the whole community.

 

As a solo practitioner, did you have a mentor?

In a way. There was an older attorney in the building catty-corner to where I was located, Isaac Mellman, who was very highly regarded—more in the criminal field than anything else—and if I ever got up against it I would go across the street and sit and talk with him. But fundamentally it was a question of sink or swim. And that’s pretty much my method of teaching here in the office. When we get someone who comes in, they’ll say, “We want to go to court with you, we want to sit and watch you try cases,” and you don’t learn anything by watching someone else do it. You learn it by standing on your feet.

 

You’re admitted to practice before the U.S. Supreme Court. Was a case of yours heading in that direction?

That’s exactly right. I had a case with co-counsel George Kramer, who’s now deceased, who was an amazing, amazing attorney. He had a photographic mind. Literally. He could read a book in an hour and tell you everything about that book. We tried the case down in Pueblo, Colorado. The city had asked the electorate to vote on installing parking meters in the downtown area, the voters voted against it, and the city went and did it anyhow. They just overrode the electorate. We lost at the trial court level. We recommended to the client, a local businessman, that he take it to the U.S. Supreme Court, on an issue that was ripe for the Supreme Court, and that’s when I applied for U.S. Supreme Court recognition. But the client elected not to do it. He just said, “I don’t want to go after it anymore. I’m just tired.” It wasn’t six months later the U.S. Supreme Court had that very issue from another state in front of them, and they ruled exactly as we had anticipated.

 

Did that hurt?

Other things have hurt more.

 

Such as?

Oh, “sink or swim.” I didn’t always swim. Sometimes I sank.

 

Any sinking moment that stands out?

One of my earliest jury trials. It was a slip-and-fall case in the Safeway store. My client had received a rather severe spinal injury and the jury ruled that the Safeway was liable, but they gave her such a niggardly amount I appealed it for a new trial. Of course you had to go before the trial judge first to determine if you could have a new trial. That was a prerequisite to appeal. It isn’t anymore but it was then.

The [district] judge, well, he was one of these judges that looked like a judge but that was about it. He couldn’t make a decision. We always thought he had a coin that he flipped behind the desk when he had a decision to make, and he said, “You two gentlemen go out and down the hall and try to resolve this between yourselves.”

This actually appears in the Colorado appellate decision [on that case]. The appellate judge, Judge Robert McWilliams—he’s now on the 10th Circuit Court of Appeals—wrote in the opinion: “To nobody’s great surprise, counsel were unable to resolve the issue.”

I retried it and lost flatter than hell, so that was one of those things.

 

What are some of the big changes in family law you’ve seen in the last 60 years?

The names are different—we use the sophisticated terminology of “dissolution” rather than “divorce,” “parenting time” instead of “custody”—but it’s still the same thing. People are still people. You’re still trying your cases to judges, who have their own foibles. You better know the judge you’re trying your case to. That’s rule No. 1 in this field and it always has been.

 

What about changes in general?

Probably the efforts of the Supreme Court and the administrators to simplify and make more accessible the courts, which has had the opposite effect. You can see the benefit of requiring that everybody knows what the other guy knows so that settlements can be encouraged. But it just seems there are so many more hurdles to get to court, to get your case resolved, than there were then.

The best thing that happened is what’s known in Colorado as the Judicial Reform Amendment. Whereas when I first started practicing, the judges were politicized—they had to run under a political ticket and go out and campaign—now, under the Judicial Reform Amendment, there’s a committee that suggests a list of names to the governor; the governor is given three names off of that list, which are screened very carefully by the committee in advance, and he then appoints one of the three off of that list. So the bench, I think, has taken a dramatic turn for the better.

 

Anything I didn’t ask you that you’d like to talk about?

This is a very personal observation: I don’t think a trial lawyer can be made. I think you’re born. During those years when the judges used to have to campaign, the members of the bar would volunteer to sit as a master so the dockets wouldn’t get all jammed up while the judges were out campaigning. So I had an opportunity to see from the other side of the bench what a trial looked like. And there were so many times when I did that, where there were attorneys who had practiced for many years and had good reputations, who didn’t have the first idea what they were doing in court. They might have been good transaction lawyers, they might have been good in some other field, but they couldn’t try a case. So it’s my feeling that you really have the knack or you don’t.

 

What’s the knack?

I think it’s intangible. It’s a question of being comfortable on your feet. You know, we go in with our trial notebooks and we think we have everything covered, but the first thing that happens is something that isn’t in your notebook and you better be able to respond.

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