Colleagues criticize me because, when pitching to handle a case, I don’t “sell myself” enough.  It’s not just that I don’t sell my own experience or skills well enough, but also that I sometimes don’t paint an overly optimistic picture of the case.  What it’s going to cost.  How we’re virtually guaranteed a great outcome.

These may be valid criticisms, but I’ve always preferred the notion of being conservative about the expected outcome of a case.  I also never want to be accused, at the end of a case, of having misrepresented what it will likely cost to get the desired result.  I’ll admit such honesty has probably cost me business.

It turns out, though, that such honesty may be the very best thing when vying for the role of the trusted advisor.  At a recent conference, I learned that, based on comments gathered from general counsel at major corporations, the perception that an outside lawyer was being honest, potentially against his/her own interests, was actually a relationship “accelerator.”

So, when do opportunities arise for outside counsel to “accelerate” their client relationship through honesty at any cost?  Here are just a few:

1.  “I might not be the best lawyer for this particular case (or deal),” and I know that means you may not hire me.

2.  “I want to make sure you have a realistic idea what this is going to cost,” even though you might decide then not to sue or to settle instead.

3. “Your chances of winning are probably not going to improve by doing this additional discovery,” even though a scorched earth approach is vastly more profitable for me.

In addition to sleeping better at night, an incidental benefit of this kind of honesty is that, while I might not be the perfect lawyer for this particular case, or you decide not to sue this time, I know you are going to trust my judgment.  That’s really what I want, to be the trusted advisor, so you’ll think of me next time, and the time after that.

I’ve written about dealing with difficult or overly coaching counsel when trying to conduct a deposition.  Considering that the entire purpose for taking a deposition is to gather evidence, and a coaching or otherwise difficult opposing counsel can undermine this goal, this is an important issue.  Unsurprisingly, Professor McElhaney, in his excellent Litigation (aka the Bible), offers a wise strategy for dealing with these situations.  In a chapter entitled “Pit-Bull Depositions,” he discusses The Wedge.*  Because I cannot say it better, here’s a quote: “[T]he lawyer is coaching the witness because he is afraid of what the witness might say.  That means he has not adequately prepared the witness for the deposition.  It also means he is afraid you are getting close to something that might help your case or hurt his. . . . [T]here are probably better things to do than run to the judge when a lawyer coaches a witness during a deposition.  One of them is to drive a wedge between the lawyer and the witness.”  (Id. at 53.)

How to do this? Professor McElhaney suggests you change the dynamic of the deposition, so that the witness begins to see how her attorney is interrupting her and preventing her from telling her side of the story.  The witness will likely already be irritated that her lawyer did not adequately prepare her for the kinds of questions you are asking (or perhaps did not prepare her at all).  Capitalize on this dynamic by encouraging the witness to finish telling her story.  In addition to the above, I would add that a calm, prefatory response to the attorney might also be useful.  I’m thinking something along the lines of, “Counsel, you and I both know that what you’re doing is against the rules and making the deposition a miserable experience for your client.  That’s not my goal.  It’s also going to make this take much longer than necessary because I have to re-ask the question every time you do it.  Your client is entitled to tell her own version of the events, let her do it. We can hash through your technical objections later with the judge.”

This, of course, requires the examiner to maintain a calm, professional composure throughout.  Raising your voice, or even scowling will tend to reinforce the Us vs. Them dynamic and cause the witness to cling to her lawyer, regardless how poorly she was prepared for the deposition.

*McElhaney credits New York lawyer Patricia Hynes for this strategy.  That either renders this post triple hearsay or I owe Ms. Hynes a royalty.

This is my second blog.  I first blogged when my wife and I took a sabbatical to travel throughout Asia from the Fall of 2006 to the Spring of 2007.  I really enjoyed my blog, even when we were in China and I had to figure out workarounds to enable me to publish posts despite government internet censorship, or while in more remote parts of India where just getting on the net was a challenge. I tried to post everyday and it allowed me to keep in fairly immediate touch with friends and family.  I even remember rather vividly pounding out a post from an internet cafe in Nepal and glancing out the door to watch a painted elephant stroll by.

More satisfying than the ability to immediately communicate our amazing experiences, though, I found the blog to be a really great creative outlet during those months.  Like many lawyers, I always dreamed of being a novelist.  When I hadn’t found my voice by the end of college, I figured I better find a more . . . er, reliable way of making a living.  (This was obviously a different era, when becoming a lawyer still seemed like a reliable way to earn a living.)  But I’ve never let go of that longing to write, though I won’t be quitting my day job anytime soon.  Thankfully, blogging–even if only to a small audience–provides a great creative outlet.

Maybe I was destined from a young age to enjoy blogging.  When I was around 8 or 9, I used to hunt-and-peck on the typewriter to create a small newspaper, covering such gripping topics as our cat’s health.  Using carbon paper, I’d make several copies, which I then delivered on foot or by bicycle to many of our neighbors within roughly a 2 mile radius of our house.  (I also went door-to-door offering to shine shoes, so it’s not clear that I was really any more destined to write a blog than to shine shoes or sell vacuum cleaners.)

After the Spring of 2007 and the purpose for my first blog evaporated, I flirted for a couple of years with starting a new blog, but didn’t do it.  I couldn’t think of anything that interested me sufficiently to write about it several times a week (and it’s just lame to start a blog, publish a couple of posts, then let the thing wither and die).   Then, one night I had dinner with one of my wildly successful college buddies and he suggested I start a blog as a business development tool.  At that point, I knew about a few interesting law blawgs, but I didn’t follow any religiously. I also had my doubts about whether blogging is a good business development tool.  Still, I enjoy writing, and I respected my college buddy and decided to give it a try.

I struggled for months with what kind of blog to write.  Since I really focus on employment issues in my law practice, should my blog simply track employment law developments or best practices? There are tons of these already out there, and not every new or changed law is interesting enough to write (or read) about. I also wanted some flexibility.  There are some really excellent blogs with a really narrow focus, but my interests, even within the profession, tend to drift.  After trying on a few different hats, I settled on the blog you’re reading now.  It marries my appreciation for litigation that is practiced ethically and practiced well, with my interest in the business side of the profession.

Now, re-reading the last two paragraphs, I see that I need to clarify something.  While it was a suggestion from a friend (who writes an enormously popular blog) that got me to revive my then-dormant desire to start a blog, I don’t write this blog for business development purposes, or even consider blogging a particularly good client development tool (perhaps a subject for a different post).  In truth, I use business development as an excuse to maintain a blog, which is itself just an excuse to write.

In case this term is foreign to you, a “running objection” is sometimes offered by a party taking a deposition (or during a hearing or trial) when it appears that they are going to repeatedly encounter the same or similar objection.  Here’s an example of how it would arise:

Examining Attorney: “Why did your supervisor finally decide you should receive discipline?”

Defending Attorney: “Objection, calls for speculation, lacks foundation.”

Examining Attorney: “Counsel, why don’t we just agree you’ll have a running objection, so you don’t have to keep interrupting?”

Defending Attorney: “Thanks for the offer, but I would prefer to address each question separately.”

There are probably a wide variety of reasons why attorneys offer running objections.  I’ve even done it.  First, on the surface they would seem to streamline the deposition process, saving both time and money, since each individual objection consumes time and transcript space.  Why not give/take a running objection and cut down on the interruptions, shorten the deposition and transcript?

But I almost never accept the offer if I’m attending or defending a deposition.  Why? First, while I’m not interested in impeding the search for truth, I don’t view my job at a deposition to include making the examining attorney’s job an easy one.  If he/she asks a crappy question, it’s his/her fault, not mine.  If this results in repeated or even frequent objections, then he/she should hone his/her deposition skills.  It’s not my goal to interrupt the examiner’s flow–which is inevitable every time I make an objection–but it is an incidental benefit of objecting to protect the record.  If the examiner want’s to reduce the incidence of these interruptions, he/she should ask proper questions.

Second, the principal purpose of making an objection is to preserve the objection so the judge can later consider it and make a ruling if the deposition transcript is used at trial (or as evidence in another capacity, say in support of a motion for summary judgment).  The examiner has a choice, upon receiving the objection.  He/she can push forward (assuming there has been no instruction to the witness not to answer) and require the witness to respond.  Or, he/she can consider the objection, conclude it may have some merit and rephrase the question.  The benefit to me, as the attorney representing the witness, is that my witness will potentially get a proper question.  This is important where the objection to the question is that it is vague and ambiguous.  While such an objection may not be ultimately sustained by a trial judge, it might prompt the examiner to rephrase the question so that my witness is responding to a question that is less vague, less ambiguous.

Finally, it can be cumbersome to obtain a ruling on a running objection.  For example, in the context of an all day deposition, imagine I accept the offer of a running objection at 11 am, which ends up on page 45 of the transcript.  The examiner continues to ask objectionable questions for the remainder of the day, but I stay mum based on the running objection.  Later, the case proceeds to trial or a motion for summary judgment is filed, and a bad, objectionable question from late in the day is about to see the light of day.  I want to obtain a ruling on the objection, but it becomes a cumbersome exercise, as I have to point the court back to a much earlier part of the transcript, where I obtained a running objection.

This is not to say that running objections are a bad idea.  I just prefer, if I am defending a deposition, to deal with each question individually.  If you do agree to a running objection, be sure to remain vigilant.  If a question is objectionable for an additional reason not addressed by the running objection, it is important to raise the additional objection or risk waiver.

A recent post at the excellent Bow Tie Law’s Blog illustrates, in the realm of E-Discovery, the importance of explaining “why” to the judge.  Specifically he discusses the importance of explaining why it is not possible, for reasons of cost or undue burden (or some other important reason), to access and provide Electronically Stored Information (ESI), such as email communications.  While the focus of the post is on what kind of showing would be required to defeat a motion to compel production of ESI, it illustrates a larger point that bears repeating–make sure the judge understands “why.”  Never presume it’s enough that you’re asking for relief and it seems like a good idea, or that the other side doesn’t have a good argument against it.  While a case (or a string of cases) supporting the relief you’re seeking is always nice, it’s equally if not more crucial to explain why the court should rule your way.  Why you’re asking for exactly the relief you’re seeking.  Why you need it now.  Why you didn’t wait too long to seek relief.  Why there’s no reasonable alternative.  Why the opposing party will not suffer prejudice when the relief is granted.

An illustration that’s closer to home.  A little over a year ago, I had to seek an emergency continuance of a trial because I had been diagnosed with a detached retina which required immediate surgery and a month of recovery.  One of my colleagues, knowing our judge well, said he thought there was only a “50/50” chance the judge would grant the continuance.  This meant he thought there was a 50% chance the trial would not be continued! 

I’m not sure how I could have simultaneously undergone invasive eye surgery and made an opening statement, but you can imagine how important it was to me that the judge grant my application for a continuance.  Not only did I explain in my declaration, step by step, how my vision had rapidly deteriorated over the last few days causing me to insist on an emergency appointment with my doctor, I also attached a doctor’s note (which I had to basically dictate to his assistant) and a series of articles from the internet discussing my condition, how emergency surgery is required to avoid almost certain blindness, and how my head would need to be positioned face down during the recovery period.  Fortunately, the judge granted the requested continuance, my surgery was successful and I won the trial!  The point is to never assume the judge understands and will adopt your position just because you say she should–it’s crucial to explain why.

I previously wrote that I disagreed with the proposal to amend the California Code of Civil Procedure to limit depositions to 7 hours.  Well, now we’re stuck with it.*  So, I thought I would explore strategies to deal effectively with this new rule.   I developed these strategies from trying to take effective plaintiff depositions in employment cases pending in Federal District court.  The Federal Rules of Civil Procedure have long limited depositions to 7 hours.  (Fortunately, the new California rule has a carve out for depositions in employment cases.)

As I said before, it seems to me that most depositions in most kinds of cases should be reasonably capable of completion in 7 hours or less.  This is probably a radical overgeneralization, but it’s been my experience that most witnesses don’t have more than 7 hours of relevant testimony in them.  For those other cases and witnesses, in which it will be hard to finish in that time, here are 5 strategies that should help: 

1.  Give yourself more time to prepare.  Like everything in litigation, preparation is the key to success.  If you typically spent a day preparing for an all-day deposition without the time limitation, spend a day and a half preparing now.  If you generally eschew using deposition outlines in favor of a “come what may” approach, consider making at least a rough outline of topics you absolutely must cover.  The alternative is to risk running short of time without having covered crucial topics.  The argument against using an outline is that, using an outline causes us not to listen carefully to responses; this can be overcome with effort.

2.  Don’t be wed to a chronological or other artificial order of topics–get what you absolutely need first.  Speaking personally, I generally have an order I use over and over in taking depositions.  It is one that follows logically from how I see the case.  This can be a problem, though, when time is limited.  Then I have to prioritize based on order of importance, rather than imposing a chronological or other more familiar order of topics.  If, for example, there’s an especially important affirmative defense available, I reorder my examination in order to cover what I need to invoke that defense at the beginning, even if it doesn’t seem to make sense.  (This has the collateral benefit of “throwing off” opposing counsel who expected you to begin at the beginning.  It’s fun to see them look confused.) 

3.  Make a record that will support a motion for more time, if that becomes necessary.  You may need more than 7 hours regardless how you prepare and how smoothly the depo goes.  If this is the case, begin early creating a solid record to support judicial relief from the limit.   The new section, CCP 2025.209(a) includes this language: “The court shall allow additional time, beyond any limits imposed by this section, if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination.”  There’s a lot of room here.  Either “witness XYZ cannot be ‘fairly examine[d]’ in 7 hours because . . ., ” or “as demonstrated in the transcript of the first session of her deposition, XYZ [or her lawyer] impeded and delayed the examination by . . . ”   Videotape of the depo may help illustrate evasive responses, long delays or lengthy, meritless or talking objections.  In one case, we relied heavily on the videographer’s time-keeping records to show long delays.

4.  Resist the tendency to fight opposing counsel on the record.  As a reminder, taking a deposition need not be a contact sport.  This is especially true if you’re trying to get useful testimony and don’t have enough time.  Unreasonable objections or instructions not to respond should basically be ignored until after the deposition, when it’s time to “meet and confer” prior to filing a motion to compel responses to questions and/or a motion for more time.  Focus, don’t get distracted! 

5.  Go off the record whenever there’s going to be “dead air.”  If you hand a witness a document that will take a few minutes (or more) to read, go off the record while the witness reads it.  The same is true if you need to re-group or review your notes or a document between questions.  Just take a break. 

I hope these help.  Good luck.

Cal. Code of Civ. Proc. 2025.290 becomes effective Jan. 1, 2013.

Each year I’m faced with the decision which, if any, industry conferences to attend.  A shortage of time and money dictates that I cannot go to every conference I would like to attend.  Even if I could cobble together enough money to attend more conferences, my time is severely constrained and every hour spent at a conference is an hour that cannot be spent working for a client.

I’ve attended Defense Research Institute (DRI) conferences just about every year I’ve practiced, even though I’ve migrated committees from Young Lawyers, to Products Liability, to Commercial Litigation, to the Labor & Employment conference.  I’ve found these are well-organized and pretty useful.  I would recommend a DRI conference to colleagues.

A couple of weeks back, though, I attended a completely different kind of conference, which was an exponentially better use of my time.  I’m not going to discuss the specifics, because I was a guest and, unlike DRI or ABA, this industry group doesn’t maintain a website, publications and huge membership.  But it is precisely because of this concentrated scale that the meetings were so productive.

First, actual membership in the group is limited to in-house general counsel or legal staff members of companies in industries that routinely face the same or similar employment issues.  Actual members can bring guests who are outsiders, but membership will never be available to us “outhouse” lawyer.  This alone sets it apart from large industry or bar association conferences.  There are no sponsors or exhibitors.  More importantly, the conference does not become a “feeding frenzy” where hundreds of outside lawyers showboat or compete for the time and attention of a handful of in-house counsel.  There may be some marketing component to the conference, but it is low-key–limited to maybe buying someone dinner–and definitely not the focus or sole reason to attend.

Second, the group is smaller, but it is also comprised of industry leaders.  Sure, war stories are traded, but they tended to be fresh, relevant and real.  Because of the tighter group size, it permitted the agenda to be loose and unstructured in a way that permits the group to spend more time on topical topics.

Another advantage of the limited group size was that the actual members (and some of the guests) knew each other pretty well.  I observed that this led to a candidacy of the discussion that I would never expect to see at a larger group function.  Anyone who’s tried to build a better mousetrap by committee knows that familiarity breeds comfort which tends to lead to better end product.  That’s what it looked like to me, anyway.

It was a good experience; I hope I am invited back.  I would surely counsel anyone lucky enough to be invited to attend one of these smaller, more concentrated industry conferences to jump at the chance.

Ok, these are actually two separate “secrets.”  Think of the extra as a bonus.  As you’ll see, however, these are related and flow from the universal truth that pretty much every client likes to think and feel that he/she/it is the only client in your professional life and the only one you care about.

The first is: Be Responsive.  Whether you communicate with your clients by telephone, email or even text messages, immediacy or ASAP is the name of the game.  Obviously, if you can take a phone call (without violating the second “secret” of this post below) that is best.  If you can’t or your client initiates contact by email, I like to follow the rule of responding within 2 hours.  If it is not possible to respond substantively within 2 hours (very often the case), I like the approach of responding with an email that (1) acknowledges receipt of the client’s communication; and (2) promises to get the answer and/or provide a substantive response within 24 hours.  The important corollary to this policy is not to forget to follow-up with the substantive response within a day.  If you can make this a pattern, and follow it, it helps to lead clients blissfully believe they are you only–or at least most important–client.

Second: Be Present.  For some reason, I find it easy to shut off the world around me when I am with my 4-year-old daughter.  I like to think I’m completely present with her.  This helps me feel like, even though I work a lot and can’t spend as much time with her as I’d like, at least the time we spend together is high quality time.

I try to apply this same principle to time spent with clients, albeit for different reasons.  It’s not that my clients are adorable now and will some day grow up and become, if not less adorable, at least less available.  Instead, I try to put myself in my client’s shoes.  Anyone who pays a few hundred dollars an hour for my time deserves my complete attention.  That’s what I would expect, and that’s what my client should expect.  This means in most instances I do not, when with a client, answer my phone, check the stock market, read and respond to email concerning other matters, or use my iPhone to check the paltry stats on my blog.  In fact, I’m not adverse to leaving my phone in the car or turning off the ringer when I know my undivided attention will be appreciated.  The only exception is when I’m with a client and there’s down time and the client starts checking his or her own email.

I’ll admit it’s challenging to apply both of these habits.  In other words, it can be hard to quickly respond to calls, emails or text messages when I’ve elected to shut off or ignore my phone to be present with a client.  But it’s important, and if practiced with care, is bound to engender client trust.

It is my considered view that litigation lawyers fall broadly into two categories: (1) those that adequately prepare their clients to testify in deposition and trial, and (2) everyone else.  I have crossed both types of advocates and, without exception, lawyers who did not spend the time to properly prepare their client (or other witness) for testimony were corner-cutters most everywhere else in the case.  Like most defense lawyers, I eat corner-cutters for lunch.

There may be barriers to proper preparation of a client for deposition or trial testimony.  The biggest is usually the client.  Clients who are not often involved in litigation have a difficult time understanding the need for serious testimony preparation.  It’s time-consuming, expensive, repetitive, exhausting and generally irritating.  After all, these clients reason, I’m just going to be asked to tell the truth, right? How hard can it be?

Reluctant clients need to understand the importance of adequate preparation.  A deposition that goes bad, if it’s an important witness, can be a game-changing event in a case.  Fortunately, many clients will heed our advice and take testimony preparation seriously. 

Experienced lawyers differ on timing and methodology of testimony preparation.  I recently heard a “rule of thumb” of 2 hours of preparation for every anticipated hour of testimony.  This might work as a general guideline, though we seldom know beforehand how long a deposition is going to last.  I prefer allowing lots and lots of time for preparation, and scaling back the actual time spent based on the client/witness progresses.  Some clients/witnesses are naturally good at the process, others are not so good.  I like to think I know how to improve those who are not so good, and I’ve also developed various methods, which I might share later, for helping increase a client’s comfort level in giving his or her testimony.  Typically, practice alone—using credible mock deposition or cross-examination questions—makes a client more comfortable.  When a client or other witness is comfortable and relaxed, he or she not only gives better testimony, but he or she feels better about the process.  This, in turn, tends to build client trust in my skills. 

Our conduct in defending the deposition itself can also engender (or erode) trust.  Our clients need to know we’re there, alert and in control throughout the deposition.  Effectively maintaining control of the process, strategic objecting, etc. are subjects for other posts.  However, in addition to being alert, I think it’s important to maintain and convey a sense of calm throughout the deposition, even if opposing counsel is nasty or taunting.  I’m of the mind that it is preferable to terminate a deposition that has become uncivil (and seek a protective order), rather than subjecting my client to angry arguments between the lawyers.  It is rare, I’ve found, that a heated argument among counsel during a deposition will accomplish much beyond unnerving my client and leading to potentially harmful testimony.

This is probably the easiest step outside lawyers can take to gain client trust.  Whether we represent a corporate defendant in a business or employment dispute, or an individual accused of a crime, every kind of client appreciates being kept up to date.  I try to resist the temptation to think that a hearing or filing was too trivial to inform the client.  This is especially important with clients for whom lawsuits are not a normal occurrence.  Unlike litigation veterans, these newbies are not yet numbed to the sturm und drang of a lawsuit, and like to feel involved at every turn.

Also, I find that if I make it a point to keep my client informed of just about everything that goes on, every development, I am far less likely to let something major slip by–say, the filing of a dispositive motion or a settlement overture–without alerting the client.  I’ve found surprises tend to be disfavored.

Unless a case is in front of a judge with some kind of “rocket docket,” there will typically be periods in the life of a case when it gets quiet.  Even when this happens, most clients still like to know you’re not asleep at the wheel.  One way to let your client know you’re still in the game is to drop a note (i.e., email or even a letter) giving them an “update.”  Even if the update is nothing more than a reminder of the next anticipated event in the case, coupled with a brief explanation of its significance, it lets the client know you’re still on the job.  A nice way to raise the goodwill quotient is to record the update as a “no charge.”  Just an idea.

Ok.  Since trust and honesty go hand-in-hand, this seems pretty obvious and not such a “secret,” right?  The problem is, I’m not referring in this post to the “Don’t-Commingle-Client-Funds-With-Your-Own-Money,” or “Don’t-Say-You’re-Licensed-To-Practice-Law-When-You-Were-Recently-Disbarred” brand of honesty.  Anyone who is a prospective or existing client assumes you’re licensed to practice and not going to commingle funds.  It’s not an opportunity to gain trust.

When I speak of honesty as an opportunity to gain trust, I’m referring to the candor that comes into play when lawyers pitch to get a client or to get a case, and the temptation arises to be overly optimistic.  For example, do you ever find yourself making statements like this: “There’s a good chance we’ll win!”  Or, “Don’t worry it won’t cost much.”  Or, “There’s a good chance we’ll win and don’t worry it won’t cost much!”

I’ve been criticized by colleagues because I’m not much of a salesman.  I try not to oversell myself as some kind of miracle-worker, and I don’t oversell a case, even if it’s a good one.  After all, every piece of litigation carries risks for both sides, particularly if it’s ultimately arbitrated or tried.

I’m not much on puffing.  But I do try to provide a candid assessment of the risks, strengths and weaknesses of a case.  I do this at the outset.  And then I try to do it as the case progresses.  I like to reassess at critical junctures.  A juncture can be critical because it represents a strategic turning point; more often, however, the opportunity (or obligation) to reassess arises because we are about to invest heavily in the case.  These junctures are typically: (1) before filing the action, (2) before undertaking discovery, (3) before escalating discovery or initiating depositions, (4) before filing or responding to a dispositive motion, (5) before a mediation or other serious settlement negotiation, or (6) before commencing final trial preparation (when things tend to get really costly!).

I’ll admit that complete honesty about the risks of a case and/or the potential expense has led some prospective clients to look elsewhere.  I have had prospective clients pass after my “pitch” wasn’t as sugar-coated as they hoped, only to have them contact me later after the lawyer they ultimately hired disappointed them.  I have not, however, had a client complain at the end of a case because I didn’t make them aware of risks or candidly discuss potential costs.  This is the kind of honesty I believe builds a client’s trust in his or her lawyer.

Another potentially thorny area comes when clients look to us for immediate answers.  Sometimes, when an honest answer is “I don’t know,” we are tempted instead to punt.  With mixed results.  I prefer, and attempt to make it a practice, to be candid if I don’t immediately know the answer to a question, and promise to find out.  Even if it’s a question to which I feel I should know the answer, I remind myself that we’re all only human, and a delayed but absolutely correct answer is better than a prompt, but incorrect, one.

A final thought: sometimes the challenge in being honest about the risks or expense of a case comes, not from any intend to deceive, but from a failure to be completely honest with ourselves about the “warts” of a case or what it’s going to cost.  We want for the costs to be reasonable and the odds of winning to be strong.  We want it so badly that we lose touch with reality.  But, as counselors of law, part of what we’re hired to provide is a reasoned, objective evaluation of the merits of a position our client plans to take.  We can’t do that if we’re not honest with ourselves.

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).