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(323) 652-9451The path from the first day of law school to an aspiring lawyer’s first job is an increasingly precarious journey, with a shrinking margin for error. I like to think others can learn from my mistakes, which is why I am going to describe the dumbest thing I did when I was in law school. (I also continue to be inspired by Jordan Rushie’s brutally honest post on the Philly Law Blog specifically on the topic of hubris.)
Like every law school, Loyola (Los Angeles), where I attended, offered classes in Trial Advocacy. Believing I wanted to be a litigator, I took “Trial Ad,” and had a fabulous adjunct professor (John McNicholas), who is a gifted trial lawyer and extremely successful fellow Loyola alum. I received a great education about how to try a case. The only problem is that the nuts and bolts training I received was not done in an actual courtroom, but in a posh new classroom constructed (at students’ and alumni expense) to look like a courtroom. Other members of the class served as judge and jury.
While I learned how to introduce evidence, lay a foundation, examine and cross-examine witnesses, object, respond to objections, etc., there was none of the extreme pressure, i.e., fear factor, that comes with trying to introduce evidence, examine a witness, etc. in a real court of law, in front of a real judge, with real facts, real victims, real defendants and real consequences. Plus, even though I “tried” a theoretical case during class, there were no bragging rights that came with completing my Trial Ad class; I couldn’t tell prospective employers in an interview that I had any real courtroom experience because, like most law students, I had no real courtroom experience. But imagine how impressive I could sound during an interview if I could say I’d cross-examined a witness in a preliminary hearing!
As it happens, one of the professors at Loyola (at least at that time) had created a special program in conjunction with his connections at the LA City Attorney’s office. Instead of one semester, this trial advocacy class was a full year, the first semester being classroom training much like I received, and during the second semester students would spend a day or two (I can’t remember which) “embedded” in a City Attorney’s office and acting as a prosecutor for criminal preliminary hearings. The cases weren’t all that sexy or complicated–drug possession, perhaps prostitution–but this was the perfect training ground for a future civil litigator or criminal lawyer to develop crucial skills, only with real victims, defendants, witnesses and judges. Even better, while the professor would determine students’ grades for the first semester of classroom training, it would fall to the Deputy City Attorneys to propose a participant’s grade for the second semester. (I never heard about anyone getting below a B, and As were the norm.)
The catch? Of course the program was only open to a limited number of students, and a student who wanted in had to interview for a spot. You know the rest of the story, right? You’re thinking I signed up, totally choked on the interview and didn’t get invited. Or that I missed the deadline to sign up. Or I got in but was kicked out for some ghastly reason or another.
Nope. It was none of these. Instead, even though I recognized it was a great opportunity, I purposely let the time come and go to sign up and interview. Why? Because I was insulted by the fact I was required to interview. I thought it was ridiculous–a needless imposition. It seemed to me that, if I was paying the same tuition as everybody else, I should automatically be allowed to take the class.
In other words, I let some lame, unrealistic expectation stand between me and an opportunity I knew even then was a golden one. Of course my law school girlfriend signed up, interviewed and got in. And she loved it. Learned a lot and had a blast. And she got an A both semesters.
Hear this: I made this mistake so you don’t have to. Don’t do it. Whether it was immaturity, hubris, unconscious fear of rejection (or fear of success)–whatever the reason–don’t let something stupid hang you up and prevent you from seizing a golden opportunity. Don’t disappoint me; I’m watching.
I was really impressed by a recent post at Philly Law Blog, in which Jordan Rushie discusses a humbling experience he had early in his law practice. What was so great about the post (and I highly recommend it, as well as the blog generally) was Rushie’s brave willingness to expose the kind of judgmentally-impoverished immaturity most of us have when we first start out. I bet many of us who have graduated into our second, third or fourth decade of practice could, if we were brave enough and our memory was up to it, recall an instance where we used similarly poor judgment.
I can’t speak for doctors or other professionals, but I know the first couple of years practicing law can be a challenging time. I think it stems largely from the following: when we start out (1) we’ve invested 3 years and a pile of money to get a degree which suggests we know what we were doing; (2) our employers and/or clients hire and (hopefully) pay us because we’re supposed to know what we’re doing; (3) the professional and ethical obligations imposed on us are premised on the assumption that we know what we’re doing, BUT (4) we don’t really know what we’re doing. When we get into a situation we’re unprepared to handle, we want so badly not to admit or show that we don’t know what to do, we often punt. While it works sometimes, other times punting can get us into a predicament that’s embarrassing, or worse.
This is compounded by opposing counsel who, if they have any experience at all, will figure out pretty quick that we are brand new and don’t really know what we’re doing. Some will exploit this.
My first deposition was a classic example. I was a first year lawyer, working at an insurance defense firm. While not nearly as prestigious (or well-paying) as BigLaw firms, starting your career representing insured clients in a variety of cases has tremendous value as a training exercise. While you’re not litigating Apple vs. Samsung, you generally get the chance to take depositions, argue motions, handle arbitrations, mediations and settlement conferences–in short, lawyering–from your very first day.
I had sat through a couple of depositions taken by partners in the firm–because God knows you’re not taught deposition skills in law school–and then let loose to take my first deposition of a third-party witness in a fender-bender case. It was so hokey, I think we took the depo at the witness’s home. In any event, I got there first and waited on the doorstep for my opponent to arrive. She did, and seemed friendly enough at first. She had a harried appearance, in her mid-late 40s. I must have looked really green, because pretty early in the conversation she asked “Is this your first deposition?” What was I going to do? Lie? Get offended? Tell her it was none of her business?
The court reporter arrived and swore in the witness. I did fine through the admonitions. But once I started getting to the meat of the testimony my opponent quickly adopted this habit of interjecting, either when she thought my question wasn’t clear or good enough, or to “clear something up” after the witness responded. She never objected to my questions, just went through and “fixed” them as we went along. Of course she fixed them in a way that rendered useless any testimony that might have been useful to my client. I remember thinking at the time that this didn’t seem right, that it wasn’t how the depositions I’d watched had gone, but I didn’t have the balls (at the time) to shut her up.
In the end the transcript of the deposition was pretty useless for purposes of my client’s defense. But it wasn’t the end of the world. If the carrier paid $8,900 to settle the case instead of $8,500 because we didn’t have a great third-party witness deposition to use at trial, it didn’t seem to bother the partner who’d sent me on the depo. He just laughed when I talked to him about it. He said, “Next time, tell her it’s your dime and she’ll get her turn.”
I ran across this post by Karen Koehler, at a blawg I really like, The Velvet Hammer, which highlights something I’ve known for a long time: you’re far better off trying a case against an experienced, high quality lawyer, than someone who’s a newbie or careless, or both. Karen draws on her experience trying a case against a really poor defense lawyer. She won, but in the post-verdict discussions with the jurors she learned that they felt so sorry for the defendant because she had such a bad lawyer that they felt they had to “even things out.”
I echo this sentiment, but I would also broaden it to include everything from the filing of a complaint through trial. “Challenged” lawyers make our job harder–and the case more costly–from day one. They don’t know the value of the case, its strengths or weaknesses, so they can’t every talk realistically about settlement (forget about actually reaching an early resolution). They don’t follow the rules, so it’s up to the responsible lawyers to comply with the rules, including venue-specific or judge-specific procedural nuances. It seems like they’re never available to address anything substantively. They fight battles over the wrong things–again wasting time. They file improper briefs, like sur-reply briefs, complete with brand new evidence, which fouls up the entire process.
We all started somewhere. I was fortunate to have great mentors and some really great training (which didn’t prevent me from still making some stupid mistakes). But the goal should be to improve and try to learn from mistakes, not to keep making them.
Lawyering is like tennis in that the quality of your opponent brings out the best in your game. I’ll take a Federer or Nadal any day.
Learn MoreIn the last post I talked about the concept of a “managerial” judge. Some have suggested that having an overly involved or controlling judge may not be a good thing. Having litigated several cases before micro-managing judges over the years, I’ve come to believe that, in most instances, my clients will tend to benefit from our case being assigned to a judge who employs “hands-on supervision of cases from the outset, using various procedural tools to speed the process of dispute resolution.” Here’s why.
First, parties and lawyers involved in a civil dispute need someone to take charge and crack a whip. Picture, if you will, a giant sandbox filled with sand toys. In each corner there is a 3 year-old who is told by his/her parent to “do whatever it takes, but be courteous” to capture all of the sand toys. The ensuing exchange among the toddlers–admonition to “be courteous” notwithstanding–would soon turn ugly. This is what many lawsuits turn into, despite the involvement of lawyers who are reputed to be educated, ethically duty bound professionals. Without a strong, hands-on judge, a dispute over the breach of a contract will too often turn into the equivalent of a toddler sandbox fight. Even with a strong judge lawsuits frequently devolve into bare knuckle brawls. (I still have bruises.)
Second, I find that hands-on, managerial judges tend to be more consistent in their rulings than judges with a more laissez-faire style. It is much easier to plan and execute strategy when you know how your judge typically handles a particular issue. Managerial judges often issue their own set of rules regarding how they want pretrial matters handled. Get these rules and follow them religiously! You will likely remain in pretty good stead with the judge. In fact, following a managerial judge’s rules is a great way to gain an advantage over a disorganized opponent who fails to strictly follow the rules.
Finally, managerial judges tend to put a lot of energy toward settling cases. A laissez-faire judge will allow a case to take its own course and the parties to enter settlement negotiations whenever they feel the timing is right. This is almost always in the days or weeks just before trial. The problem with this approach, and the reason a managerial judge is better in my view, is that parties can save a lot of fees and costs if they are forced to explore settlement earlier. Also, when cases settle earlier it helps free the clogged courts. This, in turn, allows other cases to get to trial (or otherwise resolve) sooner, which gives judges freedom to give more individualized attention to their dockets.
Make no mistake, appearing before managerial judges can be difficult. They develop and impose their view of how the case should progress and the parties go along for the ride. On balance, however, I think there are benefits to a heavy-handed judge which outweigh the difficulties, and I’d pick one over a hands-off, laissez-faire judge any day.
Learn MoreFollowing 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!
Learn MoreThe 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!
Learn MoreOne of the first things I look at when I get involved in any new case is who is my opposing counsel. Though I’ve never practiced in a small town, the legal community in Southern California is smaller than you’d think when it comes to lawyers who concentrate their practice on a particular area, such as employment discrimination or product liability lawsuits. If the lawyer is someone I’ve come up against before, I generally have a pretty good idea what to expect. But if the name or the firm is unfamiliar, I like to do some research, to find out who I’m up against. Here’s what I look for, why, and where I look to find it:
1. Firm or solo practitioner. Is he or she a part of a partnership or a solo? This is usually evident from the caption of the complaint or letterhead if we’re in the presuit stage. Why do I care? If it’s a mega-firm, I expect the opponent is well-funded (by their nature, big law firms tend to be expensive, though not always) and I’m likely to encounter a “team” of lawyers on the other side. This doesn’t make the case easier or harder to win–it’s just a factor. If it’s a smaller partnership or solo, and the case is one taken on contingency (where the lawyer fronts time and expenses) the ability of my opponent to properly fund the case, through trial if necessary, may become a factor. Sometimes I will see an anomaly. If, for example, a partner from a high-powered BigLaw firm has taken a small case on contingency (a rarity), it suggests he or she may have some personal stake in the outcome. Perhaps the party is a family member or close personal friend. In either event, the lawyer may not be as objective about the case as if it was an arm’s-length representation.
2. Bar number. How seasoned is my opponent? Assuming they were not previously admitted elsewhere (a dangerous assumption), I can make an estimate based on Bar number. Whether I’m facing a new lawyer or a veteran does not, by itself, make the case harder or easier to win. But I know from experience that a sole practitioner fresh out of law school will tend to exercise different judgment than someone who has been practicing for a few years or longer.
3. Website. I access the opponent’s web site. I still sometimes encounter lawyers working by candlelight who have not invested in a website. When this is the case I picture (perhaps unfairly) a caveman (caveperson) lawyer on the other side. The problem is that some cavepersons really do know how to build and try a case (and connect surprisingly well with jurors–some of whom are also cavepersons), so it’s not any automatic comfort. Assuming there is a website, this provides a wealth of information. For example, do they focus their practice or dabble in every area under the sun. Do they have a professional picture, or are they wearing a flowered Hawaiian shirt?
In Part II of this post, I will explore additional sources of information and what kind of information I consider useful and why.
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