“I think in this age, optimism like that … it’s a revolutionary act.” — Jerry Maguire

Transparency in the practice of law was not included in my law school curriculum. Was it in yours?

In fact, it wasn’t until I launched a solo practice, 20 years in, that I began to appreciate, as I never did as an associate or Biglaw partner, the value clients place on transparency. No longer representing large, well-heeled or well-insured companies, in which my contact sits in his air-conditioned cubicle at the Home Office in Indiana or wherever, comfortably removed from the collateral damage and financial pain of a lawsuit, these days I deal daily with local mom-and-pop employers for whom the costs of litigation alone could spell financial ruin. These clients not only desire transparency — they feed on it.

What do I mean by transparency? Since I’ve already alluded to litigation costs, let’s start there. My clients from the days of yore nearly always demanded extensive and detailed budgets, often keyed either to the American Bar Association Uniform Task-Based Management System Litigation Code or something more proprietary. These days, my clients — small manufacturers, restaurants, retail and property management concerns — are typically unaware it’s even appropriate to ask for a budget.

Well, it is. And they should.

My argument here is not purely altruistic. If anything was hammered into my head during my two-decade apprenticeship for solo law practice, it was this: I’ve got to get paid! Businesses unfamiliar with the messy business of litigation, who aren’t burning off insurance, are invariably in for a rude awakening when they receive their first bill. If small business owners get heartburn when they receive their lawyer’s bill for negotiating a lease (they do), the bodily response to a litigator’s bill can be more like a heart attack.

This is not to suggest we haven’t legitimately earned our fees, or even that the business owner begrudges paying us — the topic for a different discussion. Rather, it may be they just can’t, and neither of us knew that until he opened my bill.

Sometimes the problem is definitional. Each of us has our own idea of what “expensive” means. Take, for example, an out-of-state deposition. When I tell a client, “we could do that, but it’s likely to be ‘expensive,'” I could be thinking, but leaving unsaid, that $8,000 means “expensive” (my last out-of-state deposition, to Nome, Alaska — literally!). Having no frame of reference for the cost of a lawyer traveling to Alaska and taking an important deposition, my client might be thinking a third or half of this amount is still really “expensive.” When he opens my bill, it’s time to call 911. Fire up the hearse!

Speaking from my own experience, I find my biggest reluctance in being transparent about the anticipated costs of doing something beforehand (it’s all too transparent on the invoice afterwards), results from a fear that the client won’t agree to something I think is necessary. This fear is legitimate. I want to win and some steps are necessary to win (like a deposition in Nome, where the plaintiff lives).

On the other hand, unless I’m prepared to do the work pro bono for my client’s estate (remember it was my invoice that killed him), I’m simply deceiving myself. If anything, the solution to this dilemma is greater, not less, transparency. By this I mean spelling out in writing the recommended action, the reasonably anticipated cost, and the expected consequences if the action is not undertaken. If the client can’t or won’t pay for it, that’s a discussion to have before my plane touches down in Nome.

Strategy is another area where clients appreciate transparency. Hearken again back to my days representing Fortune 500 companies. While my client may have been emotionally removed from the pain and cost of the lawsuit, he or she was usually intellectually involved in the development of our strategy. Detailed reports, including both a discussion of the strategy and the likelihood of success, were de rigueur.

My small business clients are all over the map on the topic of strategy. Some demand to know every detail and want to collaborate, while others just want to sit in the back seat, blissfully unaware whether what I’m doing — and what they’re paying dearly for — is reasonably calculated to actually work. I understand this thinking, and it actually makes my job easier, but I don’t generally countenance it. Why? Because the only surprise worse for my client than opening that bill for the Nome deposition is learning, as we file into the courthouse for closing arguments, that our case isn’t so good.

As I see it, three main reasons prevent us from being completely transparent with our clients on our strategy and chances of success. First, some clients would just prefer to keep their heads in the sand. As I’ve said, this tendency must be resisted. Second, we don’t feel comfortable trying to explain legal strategy to nonlawyers. Every lawyer has experienced this discomfort in his or her career; some experience it daily. Trial lawyers need to get over it, though. If we can’t confront the difficulties of explaining how we intend to apply the law to the evidence to a business owner, how can we reasonably expect to succeed in teaching these principles to jurors, who are only vaguely interested and often less sophisticated, when it comes time for closing argument? The third reason why we shy away from being transparent with clients about strategy is that we haven’t developed a strategy yet. Let me gently suggest that this could be a problem.

I want to suggest that transparency is not a lofty, or overly ambitious goal. It is as important for lawyers as it is for clients. Not only does transparency reduce the frequency of unpaid legal bills, it instills confidence. Long-term clients generally prefer to play the role of partner, rather than purely customer, and transparency fosters feelings of inclusion in the decision process. Finally, for those of us looking for another way to stand out among our peers, appreciating how our clients appreciate transparency is an excellent opportunity.

[This article originally appeared in the Los Angeles Daily Journal]

When I was a law student, I understood BigLaw to be the holy grail of law practice in America. A complete stranger to the profession, all I knew was that getting an interview and a chance at a prestigious, high-paying summer clerkship at a well-respected powerhouse, say Skadden, or O’Melveny, was what (it seemed like) everyone wanted.

Sure there were rumors that young associates sold their souls and worked 90 hour weeks, but that came with the territory, didn’t it? Weren’t we all going to work hard?

Well, a BigLaw interview and offer eluded me in my early years, but I was still lucky enough to get a good job at a boutique litigation firm, and instead of making $80,000 my first year out, I made about $57,000. No big deal. But I continued to remain irrationally impressed with the big firms. And why not? They paid better–especially in the late 1990s, when the Silicon Valley challenged New York’s historical leadership in the race to throw huge sums of money at newly-minted lawyers who could barely sign their own name. Big Firms got the bigger, more interesting work. Sitting in court, it even seemed like judges accorded Big Firm litigators an extra measure of respect.

Naturally, then, I felt a combination of pride and “I’m not worthy” glee when, in my 10th year of practice, owing to a complicated series of mergers and acquisitions, I found myself elevated to non-equity partnership in an AmLaw 150 law firm. That was just over 10 years ago. As anyone who reads this blog already knows, I just recently said goodbye to BigLaw to launch my own solo law practice.

In the weeks since I announced this plan, I’ve been repeatedly asked why I’m leaving BigLaw to go solo. I think this is a reasonable topic to address. First, I’ve been disabused of the notion that the brightest minds belong in large law firms. While I felt nothing but pride in the intelligence and skills of my colleagues at Dykema, I’ve come to realize that there are amazing lawyers everywhere, not just in big firms. In house lawyers, government lawyers, sole practitioners, small partnerships, public interest lawyers–there’s no shortage of legal talent throughout our profession. 

But, more important to my professional goals, I came to realize that a large law firm was not the proper platform from which to pursue the kinds of clients that increasingly interested me: small businesses. BigLaw firms are indispensable when global titans want to sue one another over a patent violation, or when a company like Facebook goes public. I recognize these are extreme examples and there are plenty of smaller lawsuits and transactions in which it is handy to have 8-10 (or more) high quality lawyers available at the drop of a hat.

But I do think that, in most instances, small businesses have no business hiring a BigLaw firm, even a second or third tier BigLaw firm with rates that are less than stratospheric. This is because, at least in my experience, the goals and priorities of small businesses are fundamentally at odds with the BigLaw mentality. Sure, a small business can engage a mammoth firm to handle an isolated business or employment dispute. In all likelihood, the business will get stellar representation. But, whether the client realizes it or not, both the client and the matter are the firm’s lowest priority–even if the BigLaw partner handling the matter feels differently. Unless the isolated small business dispute is a “one off” situation for the BigLaw partner, he or she is trying to build a book of business from the wrong platform. Simple fact.

There were other aspects of BigLaw practice–or any firm practice–which I came to feel were incompatible with my personal and professional goals. I alluded in an earlier post to the “squeeze” lawyers experience when trying to balance a law firm’s productivity demands with the time commitment necessary to building a book of business. Unfortunately, there are no easy solutions to this, since each member of the firm must generate a certain amount of revenue if the firm is going to be profitable. Until a lawyer is controlling and leveraging substantial business, he can only be profitable by billing hours (at least in the BigLaw model).

Another aspect is the substantial overhead necessitated by offices in many states (or countries) along with a substantial infrastructure available to service the needs of several hundred lawyers. Anyone who has done the math knows that we work a substantial part of every year supporting our salary and the firm’s overhead before we generate a dime of profit. I am pursuing a solo practice because (1) I can control my own firm’s overhead, which (2) makes it possible to build a book of business without feeling the aforementioned productivity time-business development time “squeeze.” Or at least the squeeze seems more tolerable.

Make no mistake: I value the experience I gained as part of a BigLaw firm. If I had not had the experience, I would always have wondered what I’d missed. But, in the end, every lawyer must find the platform from which he can best build a profitable book of business. I’m betting my immediate future on a solo practice platform.

As the launch date for my solo practice approaches, I find myself obsessed in a way I never was before in my law practice about the subject of process. I have developed the belief that my own practice is far more likely to be both successful and satisfying if I establish a solid set of systems for how my business will operate.

This isn’t brain surgery, of course. I’ve been influenced by blogs I’ve read and the excellent law practice start-up books by Carolyn Elefant and Jay Foonberg. Specifically on the subject of process, however, I learned a lot from The E-Myth Attorney, by Michael Gerber, Robert Armstrong and Sanford Fisch.

The central notion of The E-Myth Attorney, about which I’ve previously written, is that law firms, whether a solo practice, small partnership or large firm, should adopt and meticulously implement specific systems for every single thing the business does, from greeting clients, to filing papers to making coffee. Ideally, under the E-Myth model, these systems will be reduced to a handbook that can be handed to every new employee as they walk in the door. As Gerber, et al. write:

“With the right systems, your law firm will . . . reflect your vision about practicing law. What is going to make your firm unique? Why should prospective clients pick your firm over all others? What special place will your practice occupy in the community?

In the beginning, maybe it was just about the money. Get the clients in the door and start generating as many fees as you can. But we all know that’s not a sustainable business model and, more importantly, will not ultimately serve you or your clients.

But when you implement systems, you create the machine that can work independently of you. You give your employees the roadmap they need to do the things that need to get done.

•  This is how we greet clients.

•  This is how we draft documents.

•  This is how we take a deposition.

•  This is how we prepare for trial.

•  This how we manage our finances.

•  This is how we generate leads and convert them into retained clients.

•  This is how we hire great people.

And so on and so on . . .” (Id. at 66-67.)

Applying this concept to my own world, what kind of systems am I developing for my new practice? First, a major priority for my firm is to be as paperless as possible while maintaining a reliable filing system. While litigators in California are still required to serve documents in paper by mail (in addition, perhaps, to email or fax service), I think this practice will soon be history. Already most courts I deal with do fax and electronic filing. Most lawyers I deal with prefer to receive documents by email. So, I suspect there will be only limited need to serve or hand-deliver anything in paper form before too long.

Embracing paperless practices, if done systematically, will reduce overhead associated with having a file clerk (or, gasp, doing it myself), and it will reduce storage space (and attendant cost). Using the system I’m developing will, moreover, make it easier to instantly access a document without the need to carry large, bulky files with me wherever I go. So, the system will be to convert any document I receive by mail, fax or email into a pdf file that can be saved–and is immediately saved–in an appropriate sub-sub-sub folder created for a particular client, matter, category (discovery) and sub-category (interrogatories). Again, I recognize that this isn’t rocket science, but it is one example of how I’m focusing lots of energy at the outset in developing systems for each aspect of my practice that can be reasonably systematized.

Of course, not everything can be done according to a system. Part of the reason lawyers are in demand and charge a financial premium is that we are taught not to think one dimensionally about a legal problem. In other words, the solution to a problem that best serves my client might not be the most obvious solution. It might require an innovative approach that is exactly the opposite of what our system would prescribe. But this is not an exception that swallows the rule. Rather, it is by subjecting tasks that are logically capable of systematization to a rigorous system, that we are freed up to devote time and mental energy to solving our client’s most complex problems in innovative ways.

Almost exactly two years ago, I enrolled in the excellent 14-week class, provided by the Women’s Economic Ventures (WEV) organization in Santa Barbara, on how to write a business plan and start a business. You see, six months earlier, while recovering from emergency surgery to repair the first (of two) detached retinas, I had a vivid and exciting dream about leaving my firm and opening a solo law practice. Well, on March 1st, I’m finally doing it!

My wife had taken and absolutely loved the WEV course to develop her own business plan (to start a unique school for adult women). When I told her about my plan to open my own law practice, she absolutely insisted I take the WEV class, even though I’m . . . not . . . really . . . a woman. Q’est que c’est?  you’re wondering.

It turns out that, despite the moniker, the Women’s Economic Venture classes are open to men. Or men who are brave enough. Out of a class of 30, only 3 or 4 us were men. But I really found the class to be practical and useful. It forced me to think about all sorts of important things crucial to successfully starting a business that I would probably not have thought about until I was 15 months in and potentially struggling.

Like what, you ask?

For starters, there’s cash flow. Even if I am lucky enough to have a plate full of paying work the day I open my doors, under most billing models I have to do the work, submit an invoice, then wait to get paid. I might wait 30 days, or 60, or 90, or . . . Unless I had a bottomless well of cash (if I did I’d lawyer pro bono, or do something else entirely), doing a cash flow analysis as part of a business plan was the only way to have the slightest clue how much I’d need to set aside to get started. And even then I can only forecast how much I’ll bill, how much of that I’ll collect and when I’ll collect it. Educated guess work, but guess work none the less.

Then there’s a marketing plan. I’m not foolish enough to think that being a good lawyer is enough. According to the State Bar website, there are 181,474 active lawyers licensed to practice in California. I’ve got to somehow differentiate myself from the other 181,473 lawyers in order to get hired. Unfortunately, being tall isn’t enough. But the WEV program provided a lot of help in this, including some excellent written materials and exposure to marketing professionals who volunteered their time to help students shape marketing plans.

These are both critical pieces of the puzzle of starting a business from scratch that I could have foolishly skipped over, thinking that two decades of practicing law was preparation enough to jump ship and start rowing. Or swimming. Or treading water. Or . . . Apparently, I’m not alone. While Carolyn Elefant, writing in Solo by Choice (Decision Books 2008), which many consider the Bible of launching a solo law practice, advocates starting with a business plan, she also recognizes that not all solos share this view. She writes:

“For other lawyers, though–especially new or aspiring solos unable to identify immediate sources of revenue–a formal business plan might seem like an exercise in futility.” (Id. at 246.)

But, again, Carolyn urges against falling into this trap:

“Quite the contrary. A ‘business plan’ (which is just business-speak for a simple outline that helps you look ahead, allocate and prioritize resources, and identify future opportunities) will be extremely helpful whatever your circumstances.” (Id.)

One part of the business plan that I would easily have skipped, had I not been doing a class, is the development of a mission statement. It’s not that a mission statement is such a foreign concept. It’s just that I see a mission statement as the kind of guiding principle for larger entities, corporations and nonprofits. Why would a solo employment defense lawyer need a mission statement?

It turns out that this process of formulating a mission statement, even if it’s never communicated to anyone, is a good exercise for understanding why you’re launching your own practice at all. While I recognize there are lots of new lawyers who might be going solo out of necessity, if you’re making the move from a comfortable position in a large or small firm to the uncomfortable, but exhilarating, position of a small business owner with no safety net, it’s a good idea to think about why you’re doing it and what you want your business to look like.  Carolyn Elefant echoes this sentiment:

“A mission statement embodies all that you hope to accomplish in starting your firm. It articulates your vision of what you want to create. Most of all, a mission statement serves as a beacon for your practice, a light that helps illuminates [sic] your path on those days when the judge tears you apart in court, when opposing counsel drives you to tears with insults, or when a problem client brings a disciplinary action against you.” (Id. at 251.)

And my own mission statement? Are you interested? Here goes:

“The Craigie Law Firm exists to provide small and mid-sized companies with a cost-efficient alternative when facing an employment claim or lawsuit. By combining skilled lawyering with a clear explanation of each step in the dispute resolution process, and a sincere willingness to work under alternative fee and billing arrangements, the Firm strives to bring confidence and predictability to the challenging circumstances of a lawsuit.”

It’s kind of weird to read it again after some time has passed. On reflection, I would probably change it slightly. Specifically, I’ve always prided myself on being a litigator–a courtroom lawyer–who’s strongest skills are dispute advocacy. Hence, the mission statement’s focus only on clients “. . . facing an employment claim or lawsuit.” In the two years since I crafted this statement, however, I’ve really come to appreciate the preventative role an employment lawyer should play in his client’s business. So, a revised mission statement would probably give dispute prevention equal billing with dispute advocacy.

I’m candidly elated at the prospect of launching my own practice. Wish me luck.

The Wall Street Journal ran an article yesterday discussing the ongoing debate whether the traditional course of study for a law degree, which is a prerequisite in most states for admission to practice, should be reduced from three years to just two. Even President Obama, who is both the product of a traditional three-year Juris Doctor program and a former legal educator, weighed in somewhat in favor of a change. The biggest factor spurring this debate seems to be the skyrocketing costs of law school.

I approach this question with the following background. I graduated from a high second-tier law school in 1993. I paid my own way through law school, amassing about $80,000 in loans. I had accepted an offer at an insurance defense firm where I had been clerking for 2 years; my starting salary was $52,000. It took me about 11 (painful) years to pay off my student loans. I give this background to make clear that I don’t come at this issue from the perspective of the academic elite, nor did I finish school without a job.

My experience working for various small firms, mid-sized litigation firms, and now at an AmLaw 150 firm tells me that reducing the amount of training, whether it is Socratic classroom lectures or on-the-job clinical training, will not serve anyone’s interests. Beyond reducing the cost/debt of law school, it will not benefit newly-minted lawyers, who would spring from the costly but generally encouraging womb of  law school with even less to offer than at present. It will not benefit most law firms that (unlike my own) do not or cannot afford to invest in providing their lawyers with systematic, ongoing training on how to write, argue, advocate at trial or negotiate. Most importantly, it will not benefit clients who find themselves saddled with a new lawyer that was not sufficiently trained before being ejected from the nest.

The rising cost of law school, and resulting debt for students who may or may not be able to secure a job that exploits their training and compensates them accordingly is a real problem. It’s a terrible problem. But I do not believe that the solution lies in grinding future lawyers harder during their first two years, then turning them loose to commit malpractice at the expense of unsuspecting clients any sooner.

I have written here and here that law schools should increase the amount of real-world experience students receive before they graduate. If this can be done in a way that reduces the expense of the third year of school, then it would be a win-win. Even after I secured my first paying job as a law clerk, I still did some pro bono work in a law clerk capacity, both because it made me feel good and I gained experience I could include on my resume. Providing there is adequate supervision, many third year students could earn credits performing similar activities, which should both reduce their education tab and boost access to justice for the underserved.

BigLaw firms like my own have increasingly become involved in pro bono initiatives in which they “partner” with client legal staffs to tackle larger pro bono opportunities. This is clearly a win-win for the law firm, which gets to show off its lawyers’ skills, and for the beneficiaries of the pro bono projects, who enjoy enthusiastic, top drawer legal talent. Perhaps such “partnering” could be expanded to include third year law students, creating a win-win-win, as students get to interface with law firm leaders while showing off their enthusiasm and talent. Just a thought.

I applaud educators and others in the profession for trying to improve the situation for folks who want to practice law, a goal which should be pursued with boundless verve. On the other hand, snipping off that third year with no better substitute would be a regrettable choice.

I had a great dinner last night with someone I’ve known off and on for several years and who qualifies as one of the true luminaries of the Los Angeles Bar. Part of what made it a special meal was the food (lemon white wine-poached branzino). But a bigger part was our jovial conversation and his stories about his practice and his travels. It was such an uplifting discussion, in fact, that I spent some time today reflecting on it and I think I’ve put my finger on why I came away feeling so good. It’s this: my dinner companion was first admitted to practice law in January, 1969. Yet, now, after more than 44 years of lawyering, he still enjoys it!

He actually said, “I love what I do.” I don’t know about your friends, colleagues and acquaintances, but I don’t meet too many lawyers who’ve been doing this even just 25 or 30 years who still really seem to enjoy it. Or who enjoy it enough to declare, without the slightest hint of irony, “I love what I do.” Do you love what you do?

Like those researchers who desperately want to unlock the secret to longevity in a culture like Sardinia, Italy or Okinawa, Japan, his words caused me to wonder whether he had stumbled upon some little known formula to continuing to find law enjoyable after over four decades. I haven’t uncovered any secret formula, but after some thought I’ve identified a few factors, habits or traits, if you will, that could help explain how my friend has managed, not only to go the distance, but to do it joyfully. Without further throat-clearing, here’s what I’ve gathered:

Balance

As tempted as you might be to snicker at the notion of “work-life balance,” particularly now when everybody is supposed to feel lucky just to have a job and the new buzz phrase is “lean in,” don’t dismiss this too quickly (that includes you, too, Scott H. Greenfield). When my friend described his notion of balance, it did not mean always leaving work at a “reasonable time” so he can enjoy his life and time with family. His practice is litigation-oriented, specialized and in-demand, so he’s not working what used to be called “banker’s hours.”

But he did stress that he both “works hard and plays hard.” His meaning was that, while there may be some nights that he’s responding to emails in the early morning hours, there are lots of other nights when he’s having dinner with intriguing folks like me. This is the kind of balance I, too, have tried to find in recent years, recognizing that it’s not always going to work to leave the office at 6, or 7 or whenever. But for every time I get stuck working into the night, I make sure there are many more nights when I’m doing something I really enjoy–like spending time with my daughter.

Vacation/Travel

When I first met this man in 1996, he told me he routinely took 5-6 weeks off annually, and spent much of it traveling abroad. When I reminded him of this comment last night he smiled and said, “now it’s more like 11-12 weeks off.” Wow. Just wow.

I fully recognize that most lawyers simply cannot, financially or logistically, afford to take 2 or 3 months off every year. So bear with me, because my point is not that we should all make that a goal, but something a little more fundamental.

For my friend, he loves time off and he loves to travel. So he structured his professional life so that it enables him to maintain a thriving practice while taking a substantial (by anyone’s measure) amount of time off. He is also really good at what he does, so he is in demand and charges a premium.

But, here’s the reason I bring this up: he has found something he loves outside the law and he pursues it and will not let anything, including his practice, prevent him from doing that thing. And we can all learn something from that. We don’t have to disappear for months at a time and visit faraway lands. But I do think having a life, interests and activities outside the law–and making time to enjoy them–may be one of the important keys to a long, enjoyable legal career. One that can last over 40 years! But it won’t happen without some serious effort toward that goal.

A Team

If you’re wondering how my friend can escape a thriving law practice for months at a time, the answer is that he doesn’t do it alone. When I met him in 1996, he had an associate and a fantastic paralegal. Now he has a few “of counsel” lawyers and a paralegal. Again, he didn’t build this practice overnight, but as it grew he early recognized the need for help. We talked briefly about his team last night and he was complementary of their skills, which led me to believe that, when he takes time away, he is confident that his clients’ needs are being protected just as if he were in town.

Here, again, vetting and training a team who could competently manage his practice when he travels must have been a challenge. But, knowing he wanted a life outside the law, he spent the necessary time and energy. I don’t know, perhaps he was also very lucky with the people he found and hired. Perhaps he treats them well. But the upshot is that he’s able to take (a lot of) time away and do so comfortably. I’ll leave it to you to ponder whether this is one of the keys to his longevity.

A Practice He Loves

I do relish a good circular argument. But, the fact is, my friend loves what he does because he does something he loves. If you don’t find an area of the law that you “love” to practice now, you’re probably not going to love it in 25, 30 or 40 years. And I don’t think you have to love it at all, but if you’re going to spend four decades doing an activity many hours a week, it will really help if it’s something you find stimulating. I will readily admit I don’t love my practice, but I do find it stimulating, and I’m hoping it will stimulate me at least until my daughter finishes college.

Have I discovered the career longevity equivalent of Sardinian olives? I don’t know. But I can point to one person whose been practicing for 44 years and is still going strong. I hope I will be able to say as much.

Could licensed lawyers ever go the way of the Dodo and S & H Green Stamps?

I came across this recent article in the Wall Street Journal about the growing interest by non-traditional law school students in signing up for selected law school courses and seeking non-JD graduate-level law degrees (i.e., a Masters) in discreet areas of the law, such as health care, etc. The article got me wondering whether anything could ever bring about a long-term shift away from a world in which graduate students incur huge debt to obtain JD degrees, sit for an arduous 18 hour bar examination, get their license, only to learn that: (1) there are too few available jobs for newly-minted lawyers; (2) many lawyers will only use a fraction of the information we learned during law school; and (3) although we are “fiduciaries” only about 31-38% of the public trusts their lawyers–anything could cause a glacial shift away from this world into one in which tasks and responsibilities traditionally handled by licensed lawyers are done instead by non-lawyers who may (or may not) have specialized training to enable them to assume that responsibility or perform that task.

While I’m just musing, some wonk has surely crunched the numbers and stands ready with a handy statistic about how much this change has already occurred. After all, NOLO has been around since the 1970s. LegalZoom and similar providers have (apparently successfully) developed products and services specifically designed to omit lawyers from supposedly “simple” transactions such as corporate formation, or the drafting of a trust or will. Sophisticated organizations, including realtor associations, already provide for arbitrations with non-lawyer industry experts serving as the neutrals to resolve a dispute. I also know of potentially expensive and protracted divorce disputes that were resolved with reduced time, expense and pain through the involvement of psychologist-lawyer mediation teams.

Let me be clear about what I am not talking about. Professors, bloggers and writers have discussed ad nauseam the disruptive and earth-shaking changes in the business of law (along with the “business” of teaching lawyers their trade) which have largely occurred over the past half-decade. I neither pretend nor want to contribute to this discussion. This is not about The New Normal, whatever you may think of that label. I don’t care whether or how NOLO or LegalZoom might impact the annual Profits Per Partner at Skadden (it won’t) or the profits of a sole practitioner in Visalia, California (it might), or will cause some random law school to shut its doors.

I’m talking instead about the future of our profession. The future of the idea that we are a civilization that needs expensive intermediaries, people specially trained to do our thinking, drafting and arguing for us. That we are a civilization in which two people who reach an agreement need two (or more) comparatively expensive people to reduce it to writing. Or that we lack the ability to argue effectively on our own behalf, without a mouthpiece, about anything more serious than a small debt or a traffic ticket. Are we still going to be that civilization in the future? Or could we ever evolve into a civilization in which lawyers are those jokers they talk about in history books? “I once saw one!”

What, if anything, does it say about the interest, ability and willingness of the public to commit to become more do-it-ourself with regard to tasks and responsibilities formerly handled exclusively by licensed lawyers? By the same token, what could it say about the interest and willingness of people who once thought they wanted to be a licensed lawyer to elect instead to focus their education on a sub or sub-sub-speciality of law (saving $100,000 + in tuition in the process)?

I’m not suggesting any of this could happen soon. Our systems are not ready for it. For example, while citizens are presently free to represent themselves in civil and criminal courts, I can’t even begin to suggest that it’s a good idea for anybody. I’ve been practicing in courts for 20 years, but it would never (ever) occur to me to represent myself in any criminal matter beyond a speeding ticket (and even then). But, like all things, this could change. If criminal and civil courts ever became pro se-friendly . . . (Don’t laugh. Stop it.)

I’m also not taking the position that a civilization without a legal profession would be better or worse than ours. Just different.

It’s amazing how I rushed into law school with no real idea what I would be doing every day of my working life. I had an inkling I would be on the litigation side of things (though I’m not even sure I knew what the word “litigation” meant). Like anyone whose imagination was nourished on a steady diet of television, I thought being a lawyer meant my days would be spent emasculating evil, dishonest witnesses in a packed, captivated courtroom. That is, when I wasn’t driving my Porsche . . . or playing golf . . . or having a power lunch at the Club . . . or whatever.

Imagine my surprise when I graduated, passed the bar and reality set in! In truth, I figured out long before graduation that most days I would be the one getting emasculated, chained to a desk, eating my power lunch at the downtown YMCA. (Don’t laugh. . . the YMCA is a Club, isn’t it?)

What’s interesting, though, is not that those golden trial-lawyer-as-cross-exam-Ninja moments are so few and far between, but rather how varied my job description can actually be from day-to-day. While I do spend the majority of my working hours litigating (i.e., complaining, pleading, advising, calendaring, moving, appearing, arguing, deposing, drafting, researching, responding, conferencing, serving, trying, introducing, direct examining, cross-examining, re-direct examining, re-cross examining, filing, noticing, negotiating, appealing, taxing, counseling, averring, answering, BILLING, reviewing, revising, disclosing, amending, second-amending, designating, counter-designating, etc.), it is surprising how much of my working day I actually spend doing none of these things.

What else do I do? It depends on the client. But in some ways I’ve come to think of it as a service as important (if less lucrative) as any of the -ing activities I listed above: I act as a Resource to my clients. More specifically, as a lawyer I gain unparalleled backstage access into my client’s “kitchen” (not just restaurant clients, either). And it turns out that what they often need is not a hired gun to fight legal battles, but rather an objective sounding board or a referral source. This part of the job is particularly rewarding with new or emerging companies because I’m bringing value by my involvement that a “hired gun” litigator just can’t bring. The more intimately I get to know a client’s business, the more interesting all aspects of my job become.

I take great care when I refer clients or contacts to other professionals. Every referral reflects ultimately on me, and I feel I have a stake in the outcome. So, while I might explore and involve myself in a variety of networks for the specific purpose of making contacts and business referral sources, I take pride that any decision I make to connect a client or contact with a professional is informed by the kind of cold, objective judgment I would use in selecting a doctor to treat me or my family.

When we take our role as a resource to our clients as seriously as we take the role of practicing lawyer we create the possibility of going past a mere attorney-client relationship. We partner. We jointly venture. We approach the most coveted role any lawyer can ever hope for: the Trusted Advisor.

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.”

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.”