I started this blog to have a venue for social and political commentary. It fell into the latter, with the former taking a supporting role. I suppose politics profoundly impact society, so any political commentary implicitly addresses social issues.
This entry takes a different tack, being a collection of lessons which I’ve learned in thirty-five years of practicing law. I don’t know who will find these musings helpful. Rather than “young”, I might stress “new”. Practicing law poses challenges that transcend the age when you commence. By the same token, I can only speak as a woman; male lawyers might encounter different issues or view the same questions from the unique perspective of their gender.
I find the practice of law to be a continuing challenge to my sense of morality. Each time I turn on my computer, even now, with only a few cases open in my Missouri practice, I cringe at the thought of work left undone or deadlines not docketed. Though I don’t do much hourly billing, I also have the Loren G. Rea Mantra playing in my head on a constant loop: Keep track of your time; keep track of your time; keep track of your time. The immutables of law intertwine with the my old boss’s cardinal rule. What deadlines cannot be extended? Statute of Limitations; anything jurisdictional. What else??
Have a good docket system, people. Dual-docket, with each of them created from original sources, not each other. Electronic or paper doesn’t much matter. Do what works. Bear in mind that systems only work as well as the people using them.
Acknowledge that which you do not know. Most times when I have guessed without confirming my suspicion, I have been wrong in some material aspect. How long do you have to file that motion? Do you count the last day? The first? If you know the rule by heart, you still need to be sure it hasn’t been amended since you committed it to rote recollection. As my tax professor said, the first rule of statutory construction is read the statute. The second rule? Keep reading.
No judge will accept as authority the lawyer down the hall from you, or someone you once watched try a case. In most jurisdictions, every action you undertake on behalf of your clients has already been attempted and contemplated by a rule, a statute, a regulation, or an interpretative appellate decision. The lawyer who fails to ascertain deadlines, procedures, and controlling principles flirts with disbarment or worse: prejudice to your client.
Yes, I said that prejudicing your client would be worse than disbarment. We owe our clients a fiduciary duty, and, as you know, a fiduciary duty stands higher than any known to the law. Fail yourself, and you have to find a new way of earning money to meet your obligations. Fail your clients, and they suffer in immeasurable ways. They lose property, money, causes of action, and rights. Some of that loss cannot be reclaimed, even by your malpractice insurance. Guard their rights more closely than you protect your own livelihood. Bear in mind that protecting them serves you as well; if you don’t commit malpractice or ethical violations, you keep your ticket.
Disdain controversy. If you scratch your head at that notion, go back to square one, to a pre-bar-exam state of mind. The lawyer who says he or she intends to be in court every day overlooks the monumental evidence that trials lead to wins and losses but hardly ever at a level which compensates for the outlay in money and emotion. You hear about huge verdicts, true; but you don’t hear about the over-turned awards, the hung juries, and the defense victories. The percentage of successful appeals wouldn’t fill a quart jar compared with those in which the trial court’s decision passes muster.
The slim potential of a knock-out stands as only one reason that you should promote settlement. The costs and attorneys’ fees eat at the gross recovery. Emotional toil and length of time before payment add to the analysis in which you should engage with your client before recommending that they reject a reasonable offer. Even more true for a family law client: If you are in court every day for anything other than putting a stipulation on the record or attending a status conference, in most cases you’re doing it wrong. Oh, there are situations where no settlement can be had in a family law case, but few — the marriage tainted by abuse or addiction come to mind.
Avoid controversy on a micro-cosmic scale as well. Never choose a course of action in order to irritate someone, increase their legal bill, or thwart legitimate progress in litigation. Get along with your colleagues, the judges and their clerks, and those on the front lines — court reporters, bailiffs, and administrative personnel included. In my darker years, I failed to understand the importance of good cheer to my survival in the practice. People remembered me as the girl with the scowl. It took decades to mellow; more importantly, it took many years for me to learn how to prevent my difficulties from poisoning the well of my greater world.
Avoid taking a case in which you have no experience solely because you need the money. I’ve done that. Make no mistake about my advice. To a one, this essay contains lessons learned by trudging down my own rocky road. If you add your incompetence to the troubles which besiege your client, you do them no favors. Get experienced co-counsel; second-chair hearings and trials on a volunteer basis; observe; read; learn. Enroll in CLEs designed to broaden and deepen your knowledge. You can take a case with which you have little familiarity as long as you make full disclosure to your clients and do not charge them for your learning curve. But as Professor Jim Jeans observed about objections, nearly everything we do in the practice of law can be resolved with two questions: Can you? If you can, should you?
My best advice applies to every situation in life. Figure out what your client needs. Employ tactics and strategies that provide maximum potential for success. Compute a fair charge. Tell your client everything; fully disclose the good, the bad, the difficult, and the distasteful. Never guarantee result. Promise only hard work. Don’t overplay your talent or the chances for success. Apply yourself with diligence, thoroughness, and dedication. Know when to recommend a change of course or goal.
Keep your client informed. Send copies of what you do and of what you receive. Return telephone calls. Listen to what they have to say. If you don’t want to serve humanity, change careers or find a position which allows you to sit in an office and eschew contact with the recipient of the end product.
Check your arrogance at the door. I tell this story often, so if you’ve heard it before now, my apologies. I once dated a PhD / MD candidate at Washington University in St. Louis. He took me to his department’s Christmas party. On the way home, he looked sideways at me in the darkness of the car.
“I saw you talking to Dr. So-and-so,” he remarked. “What did the two of you discuss?”
I grinned and gushed. “Oh, he was a good conversationalist! He asked about my graduate work and my job in Jeff City. I told him about my volunteer work and my writing.”
The car fell silent. My friend finally asked, “Did he happen to tell you that he just won a Nobel prize for his research?”
The truly accomplished rarely need to brag. Don’t put on airs. Being an attorney is your profession. It took hard work to get your law degree and your license. But it doesn’t give you quality of character. Your dedication to a sound set of values dictates your worthiness of respect. Every job keeps the world functioning, whether it be waiting tables, unclogging toilets, or brain surgery. You aren’t better than others just because you finished law school. I don’t use “Esquire” or “J.D.” after my name, nor do I use the label “attorney” as a title. I don’t want anyone to think that I consider myself superior to them on any basis, least of all the supposed relative merits of our occupations.
Surround yourself with people who follow these rules. The righteous road doesn’t have to be lonely. Despite public sentiment as evidenced by the plethora of lawyer jokes, most attorneys just plod away, surrounded by piles of paper that they despair of managing. They wake in the night terrified of the dire consequences of those stacks of untouched files. They race to the office at dawn, work furiously til late afternoon, then fall upon greasy carry-out like starving hyenas. At dusk they limp back to their houses and fret through the evening. At holiday gatherings, they endure the cackles of their cousins who needle them about how rich they must be. They silently calculate how much they make by the hour, taking into account all the hours for which they cannot bear to bill.
I’ve been a lawyer since 1983. I find this profession to be immensely satisfying. Nothing quite beats walking on land that you’ve saved from foreclosure, or shaking hands with a family just made larger by adoption. The gleam in the eye of your client when the puzzle pieces fall into place makes the anguish worthwhile. I consider myself a helper, someone who thrives on assisting people to overcome their burdens. The trappings of what I call “fancy law” never appealed to me — the luxurious office, the expensive suits, the cocktail parties, and the country clubs. At the end of the day, I wanted every client who entrusted me with a segment of their lives to be glad that they did. Win, lose, or settle, if your clients don’t regret hiring you, you’ve probably done your best.
The practice of law can be a field of landmines through which you must gingerly navigate, holding your client’s hand and calming the beating of your frantic heart. When you collapse on the other side, your victorious relief will be sweeter if your good name and your client’s case survived as well. Step carefully, my friend. And remember: We’re all bozos on this bus.