Still Practicing to Get It Right
Originally published in Virginia Lawyer, Vol. 60 | April 2012
What do lawyers actually learn from years of practice?
Many senior lawyers have heard the old joke, “When are you going to stop practicing law and actually start doing it?” Well, I’ve been practicing law for a while now, and I’ve finally come to understand that if I stop practicing, I won’t be able to do it at all. If there were just one right answer for each problem, we lawyers might be able to reduce what we do to a standard formula. But since each case is unique, we need to apply what we’ve learned from experience and still keep a wary eye on what challenges lie ahead.
It may be easier to defend the time we’ve spent than the value we’ve added, but it’s the latter that really counts.
Just because we’ve been practicing for a long time doesn’t mean we know how to do everything right. Being aware of our limitations is one of the traits of good lawyers at every age. But especially if we have concentrated our practices within particular legal specialties, we’ve become acutely aware of how much there is to know and how much we don’t yet know.
If we’ve been paying attention along the way, we’ve also picked up a lot of really useful information that falls outside our particular area of expertise. This knowledge can be enormously beneficial to our clients. On the other hand, by practicing for a long time, we may have forgotten or disregarded issues of which our less experienced colleagues are keenly aware. How we accommodate each of these realities can make our future practice either enormously frustrating or deeply satisfying.
What We Have Learned Through Experience
We’ve probably learned a lot more than we think. Although my own practice has concentrated on labor and employment relations, I’ve picked up significant ancillary knowledge through the years. For me, it has been one of the great joys of law practice to get paid for absorbing information. Some of this information has been organizational industry knowledge, such as the structure and processes of different types of businesses. Some of it is practical know-how, such as what happens to a log from the time it is cut in the forest until it is made into a piece of paper.
Other Areas of Law
Through the years, I’ve also had the opportunity to learn important general principles in other areas of law. I’m not a criminal defense lawyer. Yet more than once, I’ve had to tell a client: “Do not talk to anyone about this matter. Do not talk to your wife, do not talk to the police, and do not talk to an investigator. If anyone asks you about this, tell them to call me.” Of course, in such situations, I always suggest retaining a criminal defense lawyer, and in fact I’m neglecting my duty if I don’t give a client that advice.
Neither do I consider myself a corporate lawyer. However, I’ve had to tell executives that owning anything less than a majority interest in company stock guarantees nothing. It’s surprising how many executives have expressed astonishment when told their stake did not mean they had control and that the company was not obligated to buy them out for whatever they thought their stock was worth.
The longer we practice, the more we unconsciously pick up information that we incorporate into our knowledge base. Experience makes us more sensitive to the patterns of how situations unfold and the processes for resolving legal differences.
A Sense of Timing
Experience is the best teacher when it comes to developing a good sense of timing. Cases have rhythms. A dispute may be hard to evaluate or impossible to resolve until each side gets a sense of its own strengths and weaknesses. What looked Like a terrible idea at the outset of a case may turn out to be exactly the right thing later on. How many times have we had to explain why we rejected an idea before the depositions were taken, but are now advocating that same idea after discovery has closed? This insight isn’t brilliance; it’s experience.
Some clients are angry and spoiling for a fight. They may see a lawyer as a paid gladiator. There are even times when a client has been wronged and figuratively punching the opponent in the nose is what needs to happen. But at other times, the right thing is to avoid the fight altogether. In law school we learned the rules of the legal arena. In our early years of practice, we learned the techniques and strategies of legal combat. But time has taught us that sometimes even stepping into the ring is a big mistake. A fight is always a choice. That well-honed sense of timing allows us to advise a client to make a preemptive strike, to wait, or not to engage at all.
When doing nothing is the right thing to do, suggesting that the client “stand fast” may deliver a more encouraging message.
The Relationship Between Time and Value
When I co-founded a law practice many years ago, my partner warned, “Never confuse activity with accomplishment.” Ultimately, clients hire us to help them achieve their goals. Since I had been trained to keep my eye on the billable hour, my partner’s comment brought me up short. I had been led to believe that enough activity would produce the desired result. But the truth is there is no relationship between time and value. Something I know off the top of my head may be worth thousands of dollars to a client, while my spending ten hours researching a project may not advance the client’s cause at all. It may be easier to defend the time we’ve spent than the value we’ve added, but it’s the latter that really counts.
What Challenges We Face
Law practice presents constant challenges to senior lawyers. While experience may give us an edge, it can trip us up as well. The most obvious example is simply keeping up with changes in the law. Fortunately, our CLE requirement should keep us current on the most recent developments in our areas of practice.
New Research Options
As younger colleagues remind us, we may have delegated legal research projects for so long that we’ve forgotten some of the fundamental principles of research ourselves. When we were new to legal practice, we didn’t stop our research when we thought we had found the answer. Because we weren’t as sure of the correct answer, we pushed our research to the point where nothing new came up. Our research was more complete, and we could better defend our conclusion if we were challenged. While I’m grateful for having pored over case digests and learned the substance of employment law, I find keeping up with it is an altogether different task.
The shift from analytical digests to electronic word searches has changed the learning process. It’s not enough to become competent in the Boolean search method; now we have to look for law in different places. While some of these places may not be as reliable, the information is easily available. Google can be a useful, if shotgun-style approach to finding an answer. A Google search will bring up anything from useful analyses of current developments by informed lawyers to totally mistaken information. But often the information found on Google can provide the research entry point that the case digest once offered.
Ironically, while the new generation of lawyers may have introduced us to the legal information freely available on the Internet, our experience gives us the advantage in using it. Our reservoir of background knowledge makes it much easier for us to separate the useful from the ridiculous.
I recently spoke with a group of law students about what they thought they knew that more experienced lawyers did not fully appreciate. Many of these students were working part-time in law firms. Several of them pointed out that some senior lawyers had forgotten not only what the Blue Book is, but that it has undergone some changes since they graduated from law school. Other new lawyers said that while some senior lawyers are pretty good at legal research, they weren’t reading the legal blogs that discuss the most current developments. Pacer, they reminded me, allows inexpensive access to federal court filings. So it’s now much easier to find a particular brief than it once was. One student said disdainfully “My boss asked me to look someone up in Martindale—the paper version, no less. Just Google the lawyer and you’ll find a lot more. And it’s free.”
Client’s Point of View
As new lawyers, we were nervous about meeting clients for the first time. We didn’t know much law and were unsure about what clients might really want. Now we’re comfortable meeting with a brand-new client—though maybe we shouldn’t be. Have we forgotten how nervous our clients might be? What we now view as a routine contract dispute we’ve seen many times before might feel like a threat which could destroy the very businesses they’ve mortgaged their homes to launch. Clients have no routine cases.
My most memorable lesson about the client’s perspective came from my first visit to an oral surgeon. My dentist had found a small lump inside my mouth and sent me to an oral surgeon. Waiting in his office, I was already worrying about what kind of cancer it might be. The surgeon came in, took one look, and said, “No problem.” But he also said the lump needed to be biopsied. “Biopsy” was the only word I really heard. In the days before my follow-up appointment, I was scared. When the oral surgeon finally informed me the tests proved he had been right, I was greatly relieved, but I’ve never forgotten how nervous I felt waiting for those appointments.
When it dawned on me that my clients might have the same feeling waiting for me in my office, I made myself focus on seeing things from their point of view.
Senior lawyers rely on experience to envision how a case is likely to work out and how they can devise a strategy to achieve the best result. This thinking comes almost automatically, even unconsciously. The problem is that this result may not be the result the client actually wants. While we may believe what the client wants is either unreasonable or unattainable, we have to respect that it is, nonetheless, what the client wants. If we miss that, we’re missing the reason the client came to us in the first place. While experience can certainly enhance creativity, the opposite can also be true. Resisting the urge to impose the tried-and-true solution could open the door to a more creative and satisfactory resolution.
Appropriate Dress
When I began law practice, a senior lawyer reminded me to always wear my suit jacket outside the office: “JB, you want to look like a lawyer, not a drug store clerk.” (I think he actually meant outside the door of my own office, but I interpreted his words to mean outside the building.) I have actually repeated that same advice to new lawyers. Looking the part is still good advice, though the look has changed. While some firms have vacillated between “casual Fridays” and business casual every day, the trend is generally toward more casual dress every day. Just as we looked around to see what the dress code was when we started our careers, it’s not a bad idea to look around again to see how it has changed.
I refer to a suit and tie as “my lawyer costume.” A costume helps us play a role, but that role is subtly changing. While the traditional costume may give us credibility in the role, if it starts to look old-fashioned, then we’re sabotaging ourselves.
Changing Employee Relationships
Just as the dress code may have changed over the years, employee relationships have changed as well. While the published organizational chart may suggest a hierarchy, the reality is that nowadays, we all have fewer bosses, fewer subordinates, and more peers. The vertical authority structure has flattened out. A client’s manager may have more authority than the preceding manager with the same job title. Functional departments may look more like teams of equals than levels of managers with direct reports.
Our newer lawyers are comfortable in this world; it’s the world they know. In our own firms, this affects how new lawyers relate to us. They expect teammates rather than bosses. More subtly, however, this affects how we interact with client organizations. So we must beware of looking for hierarchies where they do not exist or misinterpreting the scope of an executive’s role and authority.
Building and maintaining a law practice is not an easy task. It requires spending long hours in legal research and acquiring the reputation as a person who can handle a referral with competence. In these recent years of recession, law practice has become more difficult, even for experienced lawyers. But there is a whole group of new lawyers who have known nothing but recession in their years of practice. They’ve jumped into the field with no assurance there will be a payoff.
Our experience teaches us to assume things will inevitably improve. Yet maybe we should distrust this impulse. It might be better to assume things will just continue changing, and we’ll have to continue practicing in order to get it right.