Learn One Thing From Every Lawyer You Meet

Experienced lawyers speak about trying to learn something from every case you handle. This is valuable advice, and something most of us probably do without really thinking about it. But I’ve found it more valuable and interesting to try to learn at least one thing each from at least most lawyers I come across in the course of my practice. In many ways our professional education only begins in earnest after we finish law school, pass the bar and start plying our trade. I was fortunate to have a great mentor during these formative first years, but I recognize the reality that not every new lawyer is going to bond with a mentor.

In an odd way, however, every lawyer we encounter in our practice can act as a mentor of sorts and, if we’re perceptive, can open our eyes and help shape us into better lawyers. Let me offer a couple of illustrations. Let’s first take a positive example. Some years back, my partner and I defended a catastrophic product liability case against an older aviation lawyer. This guy, who is now retired, was quite literally a trial legend. He was sharper in his early 80s than most of us at our peak. Our case together resolved pretty early on, but I still had an opportunity to share an almost empty courtroom with him one morning while we waited for our judge to rule in chambers on an ex parte application.

What did I take away from the experience? Probably more than I realize, but what struck me at the time, and has stuck with me since, was the way in which he interacted with the courtroom clerk and bailiff. We’ve all seen how lawyers parade into courts and treat the courtroom staff with . . . let’s call it indifference, or sometimes worse. We litigators often see clerks and bailiffs as impediments to what we’re trying to accomplish. I know at my worst moments I’ve done it. But I saw how my opponent’s manner was different. When he spoke with the clerk and bailiff he engaged them. From his attention and questions, it was obvious he had a genuine interest in their backgrounds, their interests and families. It wasn’t a stretch to imagine he would take a similar interest during voir dire in the prospective jurors who would decide his client’s case.

We all know people who are have this kind interpersonal curiosity—they’re often very successful, as politicians, leaders—or trial lawyers. Why are they so successful? Because being interested—genuinely interested—is the first step in creating a bond, which involves trust. And the ability to garner trust can be among a trial lawyer’s greatest strengths.

Not every lawyer we encounter is worthy of emulation, and that can be a valuable learning experience, too. And we don’t learn only from seasoned lawyers, newbies who have a trait or style can help shape us, if we’re paying attention. In particular I’m thinking of a young associate I came up against a while back. I previously wrote about this guy. On the surface, he had a lot going for him. He seemed intelligent, charming and had scored a job working for an LA-based “Nader Raider” automotive product liability lawyer who boasted a string of six and seven-figure trial verdicts.

It wasn’t too long, however, before it became clear to everyone on our side of the fence that this associate had something of a . . . reckless relationship with the truth. Not only did he make calculated and blatant misrepresentations to our judge, but every telephone call or conversation with him was followed by a letter purportedly “confirming” several things that were either not discussed or never agreed upon. From this lawyer I learned how precious is a lawyer’s reputation for honesty. It is an undeserved gift; one that we must never squander.

Sometimes the way an opponent practices forces us to confront our intuitions about whether something is ethical or appropriate. We learn from this, too. For example, I am presently litigating a civil case against a pretty seasoned lawyer who spent the first half of his 35+ years practicing criminal law. There are numerous “independent” witnesses in our case—witnesses who would not be expected to have any inherent bias in favor of one side or the other. We’ve just wrapped up a long string of depositions, including several such independent witnesses. During these depositions, it has become clear that my opponent has gone out and met in person with every single witness in anticipation of their deposition. In some cases he literally spent hours with them preparing for their deposition.

Undoubtedly, readers will have different views on whether this is appropriate. There is another party in our case and its lawyers are adamant that our opponent’s behavior is the worst kind of slimy. And I’ll admit that my initial reaction was not positive. But after serious reflection, I’ve come around to think it’s not necessarily inappropriate, and could in fact be a prudent thing to do in some circumstances. It obviously leaves the witnesses somewhat vulnerable to cross-examination (“Now, how long did you spend with Mr. So & So preparing for your deposition today?”). On the other hand, my opponent knew before we went on the record what the witness was planning to say, and he could tailor his examination to capitalize on positive aspects, while anticipating and diffusing negative testimony.

I realized, too, that while this kind of interaction with independent witnesses might seem unusual in civil litigation (it is more common to interview witnesses through the medium of a third-party investigator), it is the most natural thing in the world in criminal law, where my opponent cut his teeth. After all, depositions and other prior testimony are rarely available in criminal trials; an interview is often the only way to know what a witness will say before he/she takes the stand. So, while I try to learn something (or a bunch of things) from every case, I also make it a point to try to keep my eyes open and learn something from every lawyer I’m up against.

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Keeping Sane When It’s Crunch Time

Big revelation: I was never a model associate. Despite my present willingness to freely dispense advice on how to make your career all that it can be, I was pretty consumed as a young lawyer with setting and adhering to strict boundaries and trying to maintain a work-life balance. While I was relatively efficient with my time and regularly achieved solid results, I never set any records for billing massive hours or being the earliest to arrive or the last to leave the office. My stats were underwhelming, at best.

I recognize now that, in my preoccupation with boundaries and balance, I was just delaying the inevitable realization that ours is just not a profession that conforms well to individual desires for boundaries and balance. We’re in a service industry, and we’re forever beholden to both clients and courts. Both are demanding. Without either, we’re sunk.

Although it’s technically possible to “skate by” as a young lawyer like I often did, there comes a time when reality catches up to you. Once you develop your own clients and cases, you suddenly realize there is no longer a safety net–the buck stops with you. You’re no longer worried about disappointing a partner with the quality of your research or writing in a memo or a brief. Instead, you’re worried about losing the case or the client, or both.

I’ve spent the past decade or so learning to adjust to this new reality. It was harsh at first, a little bit like my experience as a Southern Californian visiting Alaska in January for depositions. But I’ve evolved and actually developed some strategies to cope with the sturm und drang that is inevitable in an active litigation practice.

Recognize It’s Cyclic

The first step I’ve found useful is to be objective and recognize that, for most of us, episodes or periods of extreme stress tend to be cyclic. There will be demanding times and slow times. When I find I’m in a particularly demanding period, I remind myself that this will at some point pass and life will return to normal. At least my practice is cyclic and I know there will come a time when I’m slow again and hungry for excitement. If you are reading this and shaking your head, “no, there’s never a break,” then I think you might need to take a look at changing how you manage your professional life. Seriously.

Communicate With Those Close To You

I’ve only had the experience of being married to another lawyer. But if your spouse or significant other is not a lawyer (or even if they, too, practice) it can be challenging for them to comprehend the extreme stress we experience when we are preparing for trial, or are in trial, or are just too friggin’ busy. Communication can be key to making it through these periods. Even if you bore your family to death describing what you’re working on, they will appreciate being included and better understand the challenges you’re facing and the stress you’re under.

Get Outside And Get Some Exercise

Speaking for myself, the first thing that seems to happen when I go into “lockdown” mode is that I forget all about exercise or diet. I tend to be chained to my desk and I give in and eat a lot of crap I generally avoid when I’m more in balance. If I don’t actively force myself to get outside, I’ll pass several days sitting at my desk, only venturing outdoors long enough to get to and from my office or pick up lunch or dinner. Really unhealthy! I’ve learned, however, if I set my iPhone alarm to go off at 3 in the afternoon, I can force myself to leave the office and walk for at least a half hour. This not only provides a break with some mild exercise, it reminds me there is a world outside  that hasn’t stopped spinning just because I got busy. This small slice of exercise, daylight and reality can be refreshing and helps me not to be so irritable about being so busy.

Look On The Bright Side

Although I’m stressed and missing my family and chained to a desk getting fat, I actually find that our profession is most exciting and rewarding to me when I’m either in trial or getting ready for a trial. There’s something about this time, when a case is (hopefully) starting to really come together and make sense and we are nearing the point of no return that I find stimulating. I try to appreciate these times and, again, remind myself it’s all cyclic and before too long things will slow down and return to “normal.”

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Brand New Associates, Read This!

My college roommate and Venture Capital Badass Mark Suster maintains a well-respected VC blog, Both Sides of The Table. He recently quoted some advice his wife, Tania (brilliant, beautiful, Wharton MBA, ex-consultant, serious media chops), gave to a friend who was starting his first real job. I have no idea what kind of job. As I read it, however, I couldn’t help thinking it was the kind of sound advice we all wish we’d received (and, more importantly, followed) when we were brand new lawyers. I can’t resist sharing it. With kind thanks to Tania and Mark, here’s what she said:

Secrets of the real world – stuff I learned the hard way

General Advice

  1. Don’t expect constructive feedback without asking directly for it. Most businesses have formal programs in place to give you feedback. Most bosses are too busy to put in the real effort to help you. Many just ask you to fill out the forms for them. It becomes more administrative than constructive. If you ask for feedback in a pleasant, non-defensive way you will likely get it.
  2. You won’t really have a mentor unless lightning strikes. But if you seek one out, most talented employees would gladly become your informal mentor. This can be your most valuable career management tool so use it. It can be a great way to build advocates that will move mountains for you in the future.
  3. People won’t communicate expectations clearly (you must ask, clarify, ask again). Knowing the expectations of your senior employees (and peers) is invaluable to your success and asking people’s expectations is the clearest way to get them to think about it in the first place. The easiest way to beat expectations is for you and your boss to agree them two-ways and check on progress periodically.
  4. Constructive criticism stings, but we all need it. So seek it out, push for real feedback and be open to hearing it whether you agree or not. If you’re defensive you’ll never get real criticism. It’s much easier for your boss to avoid the confrontation or putting the time into thinking through what you could do better.
  5. Don’t overly rely on HR. Make your boss and her boss your primary allies. Your career is best navigated though line managers. HR should be able to manage the sensitive information you give them separate from your line managers but in my experience they do not so be careful. They are not your free psychoanalysts.
  6. Show up early. You may be a morning person – you may not. But nothing gets noticed more than which employees constantly turn up late. Even if bosses say they don’t care – they do. Nothing tarnishes your reputation more quick than being THAT person. The one always slipping in late.
  7. Be humble. Nobody cares where you went to school or how great of a student you were. Get over yourself. Don’t be arrogant. Don’t try to act like a managing partner from day 1. It’s OK to be junior. Nobody expects you to be managing the whole division. In fact, they’ll resent you if you try to act like you are.
Working with Your Boss
Sit down with your boss asap and tell her you want to do an amazing job. Ask her:
  • What could I do to exceed your expectations? What have past employees done that made your life much easier? What tips would you pass along from the most successful employees who have had this job?
  • What is the worst thing I could do in this job that you want me to avoid?
  • Whom should I emulate? Who is great in this role that I should learn from?
  • How can I best help you?
What to do in Your First Weeks
  • Interview your peers, people in your role/team: set up a meeting and ask them same questions as above, plus:
  • How can I best work with my boss, what does she love/hate?
  • What mistakes did you make that I can avoid?
What is Your Job, Really?
  • Your job is to make your boss’s job easier – to help your boss succeed.  Always have that in mind even if it’s not in your immediate job description
  • NEVER bring your boss a problem without bringing him a few potential solutions. Be associated with problem solving, not problems, it creates a positive halo around you
  • Say “yes” to work even when don’t want to. Everybody loves employees who take on projects with enthusiasm. The world is filled with people who sigh when assigned work.
  • BUT if you do become overwhelmed with work it’s ok to say “I need your help prioritizing my tasks because I have too much on my plate.”  Make it a positive thing. The worst thing is to take on too much work and under-deliver.
Other Notes
  • Schedule in your calendar and in your bosses calendar a few check in meetings and ask for feedback and make it a formal conversation. Prepare them in advance by providing a list of the things you’re working on developing and tell them you’d love feedback on how to improve at those things.  You might want to preface with ”I want to learn how I’m doing so I can improve, please give me constructive criticism!” Mostly you don’t want them to feel like these meetings are obligations, reasons for hours of preparations or ways for you to be defensive about your job.
  • So take the feedback on and don’t get defensive. The more you get positive measurement on your work the more likely your boss will be aware of it at the annual review time. Make sure to thank you for his time (he is likely busier than you are, after all!)
  • After you feel stable in your role and with your relationship with your boss – make sure to get to know your boss’s boss. Don’t let your boss love you but his boss not know who you are! This WILL come in handy in your career but you have to manage this cautiously.
There. Invaluable advice. Read it. Memorize it. Duct tape it to the sun visor in your car.
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Getting In Touch With My Inner Associate

If anyone reading this blog has not read–and read often–Associate’s Mind, you must absolutely begin following it. Every post has some nugget of brilliance.

Before I  actually read the blog, I assumed from the title I would encounter either (1) ranting about the misery of being an overworked albeit overpaid BigLaw associate à la the old Greedy Associates message boards;* or (2) posts like “Five Easy Tips To Bill 2,700 Hours Before October!” I couldn’t have been more off-base. Instead, I’ve always found thoughtful, well-written posts offering insight on topics ranging from the profession to litigation strategy to Eastern Philosophy.

And, now that I’ve been a partner in an AmLaw 150 law firm for almost 10 years, I feel qualified to endorse the following observation by the blog’s author, Keith Lee:

“Although frequently people speak of always thinking like a “partner” or “partner-level” thinking when in regards to how one should conduct oneself inside a firm –  reject the notion. Just as in the mind of the master there are few possibilities and in the Beginner’s mind, infinite – most partners have fixed ways of thinking and conducting their practice and processes.

An Associate’s Mind should be flexible and open to new ideas and processes, while being mindful of the guidance of those who have tread the road before him.”

I recognize this tendency in myself to “have fixed ways of thinking and conducting [my] practice and processes,” and I don’t like it. When he refers to the beauty of the “Beginner’s mind,” I think I may know what Lee means: I love to watch how my 4-year-old approaches any new issue, problem or obstacle. Her thinking is always “outside the box” (or whatever cliché you prefer) because she hasn’t yet been trained to think inside the box.

As we gain experience and, hopefully, wisdom in our profession and our life, we should strive to retain the infinite possibilities of the Beginner’s mind.

*Note: I have not read Greedy Associates in many years, so I don’t know if such ranting still persists, though I expect it does.

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Is Law School “Worth” The Money? A Reply To Dean Mitchell

In a November 28th editorial in the NY Times, Case Western Reserve University Law School Dean Lawrence E. Mitchell defends the investment in a law school education. He writes:

“I’m a law dean, and I’m proud. And I think it’s time to stop the nonsense. After two years of almost relentless attacks on law schools, a bit of perspective would be nice.”

The gist of Dean Mitchell’s well-crafted apology is that the strongest criticisms are wrongly premised on a prospective lawyer’s first job, i.e., whether there will be an entry-level law job available and how much a first year lawyer will earn, compared with the heavy blanket of debt lawyers will carry into their chosen careers. He argues:

“[T]he focus on first jobs is misplaced. We educate students for a career likely to span 40 to 50 years. . . . Many graduates will find that their legal educations give them the skills to find rich and rewarding lives in business, politics, government, finance, the nonprofit sector, the arts, education and more.the focus on first jobs is misplaced. We educate students for a career likely to span 40 to 50 years. The world is guaranteed to change in unpredictable ways, but that reality doesn’t keep us from planning our lives. Moreover, the career for which we educate students, done through the medium of the law, is a career in leadership and creative problem solving. Many graduates will find that their legal educations give them the skills to find rich and rewarding lives in business, politics, government, finance, the nonprofit sector, the arts, education and more.”

Mitchell makes good points, but I don’t think he goes far enough–in either direction. On the one hand, while he acknowledges that the average graduate of a private law school comes away with $125,000 in debt, I don’t get the sense that Mitchell has any clue what a mountain of debt that heavy feels like. As one who finished school and passed the bar in 1993 owing roughly $80,000, I can tell you it sucked. While I found employment, and got the opportunity to don a suit and tie, hone my skills and learn from a really terrific mentor, the loan payments dug heavily into my $57,600 first year lawyer salary. The drag of “servicing” this debt for the first 10-15 years (or more) should not be lightly brushed aside as a mere inconvenience.

On the other hand, for some (few!), our profession is truly a calling. If someone asked me to honestly answer whether law school is worth the investment of time and A LOT of money, I would answer in the way many successful artists, writers, musicians answer when asked if sacrificing everything to draw, paint, write, cook, etc. is “worth” it: if you honestly can’t imagine living out your life without the experience of practicing law–not just “applying the skills to a career in government or business”–but you literally can’t imagine doing anything else–then law school is absolutely worth it. If you come from means and an extra $50k is waiting to be put to good use, then the law school investment is absolutely worth it.

But if you are like many of us, from middle-class families, who are taking the last few classes needed for your Poli Sci or English (in my case, Philosophy) degree, and you think a career in law “is as good as anything else,” then perhaps you should save your time, (borrowed) money and psyche. Maybe do something else instead.

Dean Mitchell worries that all the “hysteria” (his term) has effectively turned off talented prospective students from law schools that really should go ahead and apply, notwithstanding the cost and dismal job market. He trots out the following example:

“Last spring we accepted an excellent student with a generous financial-aid package that left her with the need to borrow only $5,000 a year. She told us that she thought it would be “irresponsible” to borrow the money. She didn’t attend any law school. I think that was extremely shortsighted, but this prevailing attitude discourages bright students from attending law school.”

Aw, what a shame! Here’s the truth: if that “excellent student” really felt the need to be a lawyer deep enough in her bones, she would have borrowed the $5,000 a year, or panhandled or done something else and found the money. Like a musician who wants to make music–who needs to make music like she needs to breathe–bad enough to starve as a street busker* for a few years, someone who can’t imagine not practicing law will find a way–some way–to make it work.

For everyone else, me included, there’s no harm in doing what Dean Mitchell’s “excellent student” actually did (turns out she was pretty smart): rationally weigh the costs and benefits of borrowing $15,000, or $125,000 and spending 3 years of your life pursuing a dream that might not be the rosy path to success it once was.

I’m glad I struggled through law school and struggled through paying off my law school loans. I’m doing pretty okay now, and I generally like what I do (some parts MUCH MORE than others). But, if you can rationally weigh the alternatives, and can reasonably picture spending the next 30-40 years doing something other than practicing law, then don’t be too quick to rush in. Go ahead, take some time, weigh the alternatives.

*Joe Strummer, for example, who was a street busker for years before he found fame and fortune.

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Another Reason to be Concerned About Reduced Hiring of New Lawyers

I was talking the other day with a young lawyer about, guess what,  the challenges facing new graduates.  This lawyer had just started a new job and I was telling him how fortunate he will be to get some first class mentoring during his early years of practice.  The conversation got me thinking about what the downstream impact could be of the drastically reduced hiring of brand new lawyers.  I’m talking now about lawyers who in another time and a different economy would get a job with a law firm or government entity for at least the first couple years of practice.  It seems like the news reminds us daily how this has changed and the market for newly minted lawyers is dismal.  Others remind us that this is not just a consequence of the recession, but a more permanent trend resulting from a change in our clients’ collective attitude about paying–even reduced rates–for neophyte lawyers to learn their trade. 

I don’t begrudge this change in client thinking–how could I? But I do think this shift in philosophy, which is changing hiring practices, not just for AmLaw100 firms and their triple digit first year “classes,” but also small partnerships that still occasionally hired a first or second year lawyer, will impact our profession in ways for which we are not prepared. 

This is because the training and experience we receive in the first years are pretty important in our development as a lawyer.  Law schools do a decent job of helping us learn to think lawyers, read cases and adopt an IRAC-centric* style of analysis and writing.  But, with the exception of a few “skills” classes or the optional clinic, law school does not prepare students to immediately enter the marketplace, take on clients and effectively practice law.  I know there are respected bloggers who would take issue with this assertion.  And I’ll admit that there is plenty of hardware, software and other “products” on the market which make it logistically much easier to open and run a law office right out of school with a cell phone and a laptop. 

I’m not talking about the ability or experience conducting legal research.  Most law school graduates can open the right book or access Lexis and figure out the elements of a cause of action or defense.  What’s missing, I believe, is a measure of judgment that is crucially important to a law practice, but generally takes at least a couple of years of supervised training and experience to gain.  I’m referring to judgment about when to take a case and when to say no.  Judgment about how long to keep working a case you know is a loser, just to avoid the difficult conversation you know you need to have with that client who took a chance on you.  Judgment about how to shape and deal with clients’ expectations.  Judgment about how to manage a client who is persistently untruthful about the facts.  Importantly, judgment about when a question or case calls for the kind of special knowledge or training that just cannot be gleaned from reading cases or a practice guide. 

It could be argued that very experienced lawyers–lawyers who should know better–demonstrate terrible judgment all the time!  This is true and, while unfortunate, helps ensure that legal malpractice will thrive as a practice area.  But the fact that experienced lawyers make lots of mistakes in judgment does not mean that brand new lawyers who enter the marketplace armed only with a law degree and maybe some moot court experience–without at least a year or two of supervised training at a firm, a government agency or even with a more experienced solo–won’t make more mistakes, more often.   

What will be the impact to our practice and profession from this training vacuum? It could be significant.  For starters, inexperienced new lawyers who are hungry enough will likely take anything–literally anything–that comes in the door.  Our shrinking, already overstressed courts will become a repository for even more meritless cases.  I’m not talking as a defense lawyer–but as a litigator interested in reducing, or at least controlling, the growing judicial log jam.  Putting my defense lawyer hat on for a moment, when manufacturers and employers are forced to defend, not borderline, but absolutely spurious cases, it negatively impacts the economy through higher prices and reduced hiring.  

The real victims, though, could be clients.  Clients who are misled, overencouraged, underwarned or led down the wrong path.  Clients who, had they visited a different lawyer, would have been told early on they have no case or needed to consult with an eminent domain (or tax, or probate) specialist.  Or at least told that the odds of winning don’t look too good.

Enough.  I tend to dislike writers who do nothing but diagnose a problem.  A proposal for a solution, even something half-baked, is the least a writer should do. 

Here, I put the responsiblity for filling this void of practical training back onto law schools and bar associations.  As I’ve said before, law schools should, in exchange for the privilege of collecting tuition, strive to do a better job of enabling their graduates to join the legal marketplace upon graduation.  If paid, new lawyer apprenticeships are no longer the norm in the legal marketplace, law schools need to pick up the slack.  If economics dictate that tuition needs to increase to make this additional training possible, so be it. 

Local, county, state and national bar associations should also help fill the void.  There is no shortage of continuing legal education programs, at least in those states which require it.  But as these tend to be lecture format, they are not interactive and probably ineffective as a training tool for brand new lawyers.  I’m thinking more along the lines of the type of clinics, internships and externships that are typically only available to law school students.   Perhaps these programs could be coordinated with pro bono opportunities.  I’m just thinking out loud . . .

 I’ve always felt fortunate that, although I didn’t earn an AmLaw100 salary right out of school, I did have an opportunity to work with and learn from some really great lawyers.  It’s interesting, but also scary, to think about some of the mistakes I could have made if I had not received that early training.  Not just sloppy lawyering or calendaring mistakes, but errors in judgment.  I think it’s something everyone in the profession needs to consider, as the path from law school into the legal marketplace changes.

*IRAC = Issue, Rule, Analysis & Conclusion (but you know that already).

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My Biggest Challenge: Staying Outside My “Shell”

Certainly the biggest challenge for me, as an outside or, if you prefer, “outhouse,” lawyer representing private clients is keeping up my client development efforts, even when I’m absolutely slammed in the actual practice of law.  I know I’m not alone and this challenge is hard for just about everybody on the outside.

I sometimes envy people with client-development or sales-type jobs that allow (or force) them to focus exclusively on selling.  Unlike a pharmaceutical representative or residential realtor, lawyers have to constantly balance the substantive side of the job (conducting discovery, writing and arguing motions, preparing for trial) with the sales side (writing, speaking, meeting, etc.).  When push comes to shove, at least for me, the sales side usually takes a back seat to the demands of the practice.  This isn’t surprising: clients hire trial lawyers to litigate cases, not to spend their time finding new clients and more cases.  Also, lawyers aren’t typically sued for malpractice for neglecting their marketing responsibilities and focusing instead on winning the case.  On the other hand, without a pipeline of new work, we find ourselves languishing, dead in the water, when a busy case resolves.

In a perfect world, I would use others to appropriately leverage both sides of my job.  I would have associates and paralegals available to leverage for performing practice-related tasks they are equally, if not better, suited to do.  But then I would also have someone, even a part-time employee who could help make sure I keep up with my marketing and networking responsibilities, scheduling meetings, arranging for articles and speaking opportunities.

Alas, it’s not a perfect world, yet.  Until then, I’ve got to keep struggling not to neglect my marketing efforts when, as in the past few weeks, I’ve been extremely busy with a particular case.  I recently spoke with my business development coach about this challenge.  His suggestion, loosely paraphrased, was that I shift my orientation away from being a legal “practitioner” to being a legal “business developer.”  I should understand as my primary job, not to win cases or achieve favorable settlements, but rather to generate more business.  I’m not sure I understand or completely agree with this view.  But thinking about the issue has helped me develop some  simple strategies designed to help me maintain the law practice/business development balance, even when things get hectic.  Here they are:

1.  Schedule, schedule, schedule.  Like many litigators, I live my life out of a calendar.  I’ve found that, provided I get a coffee, lunch or dinner date on my calendar, I have little trouble scheduling around this appointment.  The takeaway:  get something on the calendar, even if it has to be rescheduled later.

2.  Combine case-related travel with visits to existing or prospective clients.  The most successful practitioners I’ve known make it a habit to visit existing and prospective clients face-to-face whenever they are “in town” for another reason.

3.  Calendar follow-up steps.  For every 5 appointments I schedule for coffee or lunch, at least 3 cancel or reschedule.  I have a bad habit when someone cancels at the last-minute of failing to follow through immediately to get a new date on calendar.  The result is a long, long delay and starting from scratch on the rescheduling.  I’m trying now to follow-up right away when someone cancels to get a new appoint on our calendars, even if that, too, eventually must be rescheduled.  Ideally, no meeting will be left behind.

4.  Do business development before anything else.  This is one my biz dev coach really likes.  He suggests I spend between 5 and 30 minutes each morning on client development before doing anything case-related.  I’ve tried to adopt this, but it’s challenging given the unpredictability of a litigation practice.

Hopefully, these 4 strategies will help me stay out of my shell and not find myself dead in the water whenever a particularly time-consuming case resolves.

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Don’t Squander Your Unearned Reputation For Honesty

It is simply too easy for lawyers to quickly lose credibility within the bar and before the judiciary. It seems we’ve already lost this battle with much of the public, but within the profession I like to think we begin our careers with an undeserved presumption that most of us (at least those without the last name “Madoff”) are straight shooters. This presumption should be nurtured and guarded for the gift it truly is.

A lawyer’s individual reputation for honesty is as important, if not more important, than his or her intelligence or skill set.  Why? Most of us quickly learn that if we’re out of our comfort zone skill-wise, we have choices.  We can involve another, more experienced practitioner.  Or we can double up on our research until we completely understand an issue or area.  Skills can be improved.  The same is not true for reputation.  Once our reputation for honesty is placed at risk, it is nearly impossible to fix.

The easiest way to lose credibility is almost too obvious to mention: to be untruthful, even about the most trivial detail. It’s not necessary to falsify documents or manufacture evidence; a lawyer’s reputation for honesty can be ruined simply by stretching the truth when “memorializing” a telephone conversation. We hang up, I read your letter, realize you’ve mischaracterized our discussion and from that point forward I don’t trust a word you say. Worse, when my law partner mentions ten years from now that he’s got a case against you, the first thought that comes to mind, which I surely share, is that you’re not to be trusted. And just like that, you’re no longer trusted.

Being untruthful with the court is even more dangerous.  Setting aside the risks of sanctions, contempt, complaints to the state bar, etc., judges have institutional memory which can follow you your entire career.  Just as I’ll tell my law partner that you can’t be trusted, judges do talk, and have lunch together and, I am informed, discuss their cases and the lawyers appearing before them.  Let just one judge conclude that you are a lawyer capable of lying to the bench and that alone could devalue any statement you ever make in the same courthouse or even jurisdiction.

Many lawyers believe we only have our time and intelligence to sell on the open market.  I would add that neither time nor intelligence have any value at all without a reputation for honesty.  Once we lose the trust of our colleagues and judges, everything about the practice of law becomes more difficult, especially winning cases and getting referrals.  Don’t risk it.

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A PSA For DRI

The Defense Research Institute (DRI) is seeking new members and I promised to do my part with this public service announcement.* 

I’ve belonged to DRI since my first year of practice and I have found it to be a great resource and, at times, a lot of fun.  Over the years, I’ve belonged to the Young Lawyers, Products Liability, Trial Tactics, Alternative Dispute Resolution, Commercial Litigation and Employment and Labor Law Committees.  With a few exceptions, I’ve tried to hit at least one conference every year, often in Chicago, but sometimes in really exotic destinations like Scottsdale or Las Vegas.

The benefits of membership  include well-planned, well-executed conferences, a monthly print magazine, For the Defense, which generally has focused and relevant articles, and multiple online e-newsletters.  There are expert witness databases and certain substantive law committees have very active listservs.  There’s also a blawg, DRI Today.  The real benefit from my perspective, though, is the opportunity to belong to an (inter)national** network of thousands of practitioners who can serve as both referral sources and substantive law resources.  I met some great people at the conferences and I’ve kept in touch and tried to refer business to many of them over the years. 

Take a look at DRI.  There’s a discounted membership for lawyers practicing 5 years or less.  And if you’re interested in joining, let me know and I’ll hook you up.

*With guitar!
** Including Canada.

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On the Beauty of Process: The E-Myth Attorney

Like many business books, the Attorney entry into Michael Gerber’s E-Myth series is substantively less revolutionary than it sounds.  But, it contains advice which, if followed, can be transformative.

What is an E-Myth Attorney? “In short, the E-Myth says that most attorneys don’t own a true business–most own a job disguised as a legal practice.  They’re doing it, doing it, doing it, hoping like hell to get some time off, but never figuring out how to get their business to run without them.  And if your business doesn’t run well without you, what happens when you can’t be in two places at once?  Ultimately, your practice will fail.” (From the Preface, xvii.)

The book is largely about transforming lawyers’ approach to their practices, so they think more like entrepreneurs.  There seems to be a cherished, romantic view that professionals, like doctors and lawyers, should somehow be above treating their practice as a business.  As if being called to the priesthood, one is called to the practice of law, and lawyers should avoid transforming this calling into a profitable enterprise.  I read blog posts and commentary that frown upon the notion that lawyers should build their law practice like a business.  That thinking is noble and all, until it comes time to pay off student loans or put a child through college.  Though we constantly confront media reports to the contrary, I’ve argued that there’s nothing mutually exclusive  about being a highly ethical professional, but also thinking like a business person.  This is exactly the premise of The E-Myth Attorney.

How should a lawyer think more like an entrepreneur?  The E-Myth authors focus heavily on the development of systems, ultimately a “system of systems.”  It’s not complicated.  Using the fantastic success of McDonald’s as a case study, the book discusses how that company “needed to turn pimply-faced, ADD, teenaged kids into productive workers in charge of multimillion dollar franchises.”  (64)  How did they do it? By developing a system for performing every task of the business which is imparted through meticulous training to every “pimply-faced, ADD” employee.  Figure out how to make the perfect hamburger or french fry, and train every employee to do it that way every time.  Starbucks uses the same philosophy, so I know a Grande nonfat latte in Toledo, Ohio or Montecito will taste just like it does in downtown Los Angeles.

Of course lawyers don’t make burgers, fries or lattes.  But much of the nuts and bolts of what we do–at least those parts that do not require our active thinking and involvement–are not too dissimilar from making burgers and fries in the sense of repeatability.  For example, a law practice that caters to individual clients, such as estate planning or family law, should develop a system for client intake, information and file management, calendaring and billing.  These aspects are required for every client, every case.  Most intelligent law practices already have systematic procedures for these tasks.  But there are other aspects of the practice that are capable of systematization, but which we tend to shun or put off systematizing.  Not only should we develop and use form files (they benefit attorneys and clients), but forms should be organized in a way that provides instantaneous access.   A practice which sees the same or similar claims or defenses over and over should have form discovery which goes out in every such case and which can be quickly tailored to fit unique or individual facts or claims.  Systematizing the familiar and repeatable parts of our practice frees us to direct our minds and attention away from the mundane, and toward that for which each of us are uniquely, and expensively, trained.

The book encourages attorneys to develop a manual about every element of the practice which can be given to a new employee.  Without this, the authors argue, the departure of a staff member becomes the kind of catastrophic event from which it takes months to recover.  And, the authors touch upon other points, including the notion of being selective in accepting clients, alternative billing arrangements, managing time and alternative marketing strategies.

But, for me, the E-Myth is ultimately about appreciating process.  I would argue that actively utilizing process and developing systems won’t just make our law practices more profitable and tolerable (what, take a vacation?!?), but it can help us do a better job as advocates.  I’ve seen the beauty of process first-hand, as my long time mentor is nearly obsessed with developing repeatable procedures for everything from answering an email from a client (must be the same day even if a substantive response is not immediately possible), to maintaining discovery notebooks for every case into which are gathered discovery, responses, correspondence about discovery and matrices of document productions in a single place.  I’ll confess that, after nearly two decades of trying to follow these procedures, it’s only now that I recognize that attention to process should appeal to everyone, not just the anal-retentive members of our profession.  It will make our practice better and our life easier.

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Should the California State Bar Add a Skills Requirement–Postscript.

Following my post yesterday about the California Bar’s exploration of a possible skills requirement, I was pleased to see that my alma mater, Loyola Law School, has rolled out a new “Concentration” program which, according to the Loyola Lawyer, will require students participating in the program to “participate in at least one semester-long simulation or live client experience.”  The Concentrations are in Civil Litigation and Advocacy, Corporate Law, Criminal Justice, Entertainment/Media Law, Environmental Law, International and Comparative Law, Public Interest Law and Tax Law.

Nice work!

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Should the California State Bar Add a Skills Requirement?

The California State Bar has apparently formed a task force to explore whether to “develop a regulatory requirement for a pre-admission practical skills training program” for new lawyers.  Is this a good idea?

I think requiring a prospective new attorney to complete some kind of practical skills training is a really good idea.  With some caveats.
First, the requirement  shouldn’t be one-size-fits-all.  In the perfect world, every prospective lawyer would get some exposure to various practices before he/she focuses, by choice or necessity, on a single area.  Many of us litigators will wonder until we retire what it would have been like to practice as a transactional lawyer (and vice versa).  That said, it would take a major overhaul of  the American style of legal education to expose everyone to a little bit of everything.  A more palatable approach would be to give prospective admittees a range of reasonable options for fulfilling the requirement.

The second caveat would be to avoid attaching a mandated proficiency level to the skills requirement.  In California, at least, passing the bar examination is hard enough.  Of the 4,382 people who took the California bar exam this past February, only 42 % passed and only 53% of those taking it for the first time passed.  Those kind of statistics can be really discouraging to someone who invested  3 or 4 years of their life and roughly $100,000 toward a professional career.  We don’t need to make the admission process more intellectually challenging.

I would argue that we do, however, owe both new practitioners and the consuming public an obligation to help ensure someone who holds a license to practice law has some basic practical skills.  By the time I graduated law school and passed the bar examination in 1993, I had already “clerked” for two litigation firms.  I had been exposed to depositions and court (as an observer), I had written, copied, blue-backed (remember those?), served and filed pleadings and motions.  In short, I had a decent idea what courtroom lawyers did for a living.  Although the early 1990s are typically remembered as a “challenging” job market for students and new admittees, most of my classmates who desired experience during the summers and their second and third years of law school found it.

From what I read and hear, the present legal job market makes the “challenging” early 1990s look almost like a “boom” period.  At a time when new admittees who graduated at the top of their class from a top-tier school are struggling to find a position as an associate anywhere, it makes me believe the opportunities to gain practical experience before passing the bar examination are more limited.  This will need to be addressed or our profession (and reputation) will (further)erode.

The major criticism of a skills requirement is that it will increase the cost of legal education.  I fail to see the link between ensuring that bar applicants have some skills to go along with their theoretical training and higher law school cost.  It may be necessary to adjust the nature of what is taught, meaning more clinical programs.  Or, the solution could  be training through volunteer or pro bono programs which, in addition to fulfilling the skills requirement, provides the disadvantaged with greater access to needed legal services.

Without the training I received during my two years as a “law clerk,” I still would have received training at the first firm who hired me as a lawyer.  The problem now, as I see it, is that many are graduating law school, passing the bar and entering the marketplace without a job, forcing a great number of those who intend to enter private practice to open a solo practice without any skills training.  These newly minted professionals will learn, eventually, by a process of trial and error, but woe to those who hire them!

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