Posts Tagged ‘Legal Profession’

How to be a good lawyer: Keith Lee’s “The Marble and the Sculptor”

Tuesday, November 5th, 2013

The Marble and the Sculptor

Keith Lee

American Bar Association, November 2013, 180 pages, $24.95

 

I don’t like self-help books. They usually contain a single insight, repeated fifteen different ways, and padded out with anecdotes to fill a couple hundred pages. What might have made an excellent magazine article or blog post becomes a dreary monotone of “omg-check-this-out-guys!” hype.

I don’t like books on the practice of law. When they aren’t just plain foolish, written by marketing types who don’t get the concept of a learned profession, they’re banal. And I’m leery of anything written specifically for the “you are special” audience. They tend to skimp on hard truths and practical wisdom.

Keith Lee has written a self-help book for the “you are special” audience, on the practice of law. And I love it.

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Lee’s book is a primer for those just starting out in the profession. And it’s full of sound advice.

Taking his title from a quote by Nobel Prize winner Alexis Carrel — “Man cannot remake himself without suffering, for he is both the marble and the sculptor” — Lee wastes no time in making his point that becoming a good lawyer takes daily diligence, hard work, and a certain amount of self-sacrifice. Being a lawyer isn’t some job you go to, so you can live your real life after hours and on the weekends. Being a lawyer is your life. A certain amount of transformation is going to be necessary.

Fortunately, Lee has sound guidance on just what kind of transformation is necessary. Showing wisdom beyond his years, he lays out precisely the skills, habits and ways of thinking that lawyers need to have.

There is little fluff here. The chapters are short and sweet. He doesn’t repeat himself, but makes his point and moves on. He actually has a lot to say, and he seems impatient to get on to the next bit. This is a good thing.

Of course, you can’t have everything. His focus on concision means less introspection and analysis. He focuses more on the “what” than the “why,” so sometimes his assertions seem a bit conclusory, and at times I felt like I was left hanging. (In one example, for instance, he warns that the commoditization of legal services can become “overwhelming and dangerous” and then moves on, without describing those dangers. It wouldn’t hurt to include a paragraph or two explaining something like high volume efficiencies may work for routine, nonvarying services, but the second someone has a unique situation requiring creativity or thought, you’re setting yourself up for disaster — either you can’t spend the time and resources to give that client the individualized services he requires, or you do but at the expense of your other clients. Maybe in the next edition.)

But this is more than made up for by the good, sound advice that fills page after page of the book. Frankly, there are tons of books out there exploring all the reasoning behind each of his nuggets of wisdom. If you want deeper analysis, you can find it. But if you want a simple, straightforward “what do I need to know? what do I need to do?” then you can’t beat this book right here.

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As I said, the book’s chapters are short and sweet. Rarely more than a couple of pages each. They are organized into four neat sections: Law School, Fundamental Skills, Clients & Client Service, and Professional Development.

The section on law school leads off with a chapter provocatively titled “Do Not Go to Law School.” But don’t let that fool you. Lee is someone who clearly loves the law, and for all the right reasons. He wants you to go to law school, just not for the wrong reasons. The other chapters in that section are full of advice, not so much for doing well in school, but for taking advantage of those years to prepare for a rewarding career afterwards. A major theme in this section is that you probably aren’t as awesome as you think you are, because you’re too ignorant to even realize what you don’t know… so put in the effort.

The section on fundamental skills is meant to set out the rudiments of legal practice, the basic skills every lawyer must have just to do the job (and which must continue to be practiced and improved throughout one’s career). Here, Lee focuses on writing well, speaking well, and dressing well. Although I agree with all three, I probably would have chosen a more comprehensive set of necessary rudiments — Knowledge of the law itself in one’s field, the ability to do thorough research and meaningful analysis, clarity of thought, and the ability to communicate and persuade in writing and orally. These skills underlie everything lawyers do, from drafting a will to negotiating a deal to arguing in court.  I’d be the last to argue that dressing well is not important, but it is not a fundamental skill required for the practice of law. Oddly enough, I’d have preferred this section to be less detailed and more conclusory — the bits on rhetorical devices and the such are necessarily incomplete given the nature of the book, and a more simple “here’s what you need to learn, now go learn this stuff somewhere else” might have sufficed.

The section on clients and client service should be required reading for every new lawyer before being sworn in. The first chapter says it all: “The Privilege of Being a Servant.” We are here to serve our clients, first and foremost. If anything is sacred in this world, it is our duty to those who have put their lives and livelihoods in our hands. And we are honored to be given that duty. But Lee doesn’t just mouth this lofty ideal; he gets into the practicality of actually carrying it out. How the heck do you serve that client? For that matter, how do you get that client in the first place? He does so without trivializing the relationship, or turning it into a salesman’s mantra of leads and conversions. Recognizing the wisdom of others, Lee makes sure to share insights gleaned from others in the profession. (As he says elsewhere, watch others to see what works, and make it yours. He does a fine job of it here.)

The final section actually takes up the entire second half of the book, and shifts away from clients and the profession to talk about you. Your own personal fulfillment. How to succeed as a lawyer. But it’s anything but touchy-feely. The advice here is really about how to be good at what you do. What disciplines, habits, and choices are going to make you awesome — and by extension, make your life as a lawyer awesome? The chapter titles are brilliant (“To Sharpen is to Destroy,” “Personal Branding is Stupid,” “5 Basic Mistakes to Avoid in Your First Job,” etc.) and just reading the table of contents feels inspiring. The thoughts he shares follow through on that promise. Ending with “There Has Never Been a Better Time to Be a Lawyer” and the most essential truth of all “Chance Favors the Prepared,” the reader has to feel ready to run out there and be that great lawyer right away.

So get the book. Read it. Take those nuggets of wisdom and make them your own. Then go out there and be that great lawyer.

Too Many Lawyers?

Monday, August 19th, 2013

Keith Lee posted an interesting chart on his blog today, comparing how fast the number of lawyers is growing to how fast the general population is growing. The U.S. population has grown at a slow and steady pace since 1945. The lawyer population, however, has grown at a much faster rate since the 70s.

People have been complaining about “too many lawyers” since at least the 70s, if not earlier. This data would seem to explain some of that feeling, as the lawyer population has grown faster than the general population.

But how accurate is that complaint? Are there too many lawyers?

Not too long ago, you could say “no” and back yourself up with a convincing supply-and-demand argument. The market demanded more legal services, so more lawyers were coming out of school to fill that demand. If there wasn’t demand for a lawyer’s services, he’d soon find something else to do.

It’s not as if lawyers create their own work, after all — personal injury lawyers don’t go around causing traffic accidents; transactional lawyers don’t draft contracts because they feel like it; criminal defense lawyers don’t make people go out and commit crimes. It’s the clients who want to sue each other, who have deals that need to be structured, who get in trouble and need help.

So if more and more lawyers were out there, it wasn’t the legal profession’s fault. It was because the rest of you were suing each other more often. It was because life, business and government were getting more complex, and you needed more help in navigating your affairs. It was your fault, not ours. Simple supply and demand.

There weren’t too many lawyers. There were exactly as many lawyers as you, the clients, wanted there to be.

Actually, the growth in lawsuits and wills and ordinary lawyering wasn’t really ballooning. Ordinary lawyering was keeping pace with the population, for the most part. What was really growing, starting around 1970, was the demand for corporate transactional work. That’s what created the big firms, what drove the big fees.

But this new corporate demand wasn’t a permanent shift in the demand curve. It was a bubble. Actually, it was a series of bubbles — the M&A bubble of the 70s, the real estate bubble of the 80s, the dot-com bubble of the 90s, another real estate bubble in the 00s — Wall Street percolated with all kinds of demand for more corporate work. Each bubble burst, as they tend to do. But so long as Wall Street kept percolating, there were always new bubbles coming along. Overall, it was constant. And it drove higher and higher fees, higher and higher salaries, secure and steady work. And that drove more and more people to go into the law, looking to get some of that steady work and high pay. (Which is the exact wrong reason to go into the law, but that’s what happened.)

But then, about six years ago, it stopped. The demand for the high-pay big-firm corporate work dropped significantly. The profession tried to ride it out, keeping all those high-pay lawyers around for when the work came back. But it didn’t. And a year later they realized they couldn’t keep paying all those high salaries without the same level of fees coming in. So they started shedding lawyers.

Those were good lawyers, of course. These firms had only hired the best of the best. Which was great if you weren’t a top student from a top school — with those guys competing for the Wall Street-driven jobs, there was more room for you on Main Street. But once those guys started competing for the Main Street work, there was less demand for graduates whose grades or schools weren’t stellar.

And so you saw an awful lot of students who had entered law school expecting an easy job market graduate with no job (but plenty of debt).

If you asked one of those new graduates if there were too many lawyers, you’d probably hear a resounding “YES!”

But that’s because there were more lawyers competing for fewer jobs. The actual number of lawyers working as lawyers was still exactly as many as you, the clients, were demanding.

The job market took that hit in 2008, and it hasn’t really changed much since then. But law school applications — which had been steadily falling up until then — now shot up, rising faster than before for the next couple of years. Presumably well-educated college-graduate adults saw law school as an attractive option, despite all the evidence to the contrary. A lot of these applicants looked on law school as a default — the economy sucked, so this was a great way to ride out the recession and have a good-paying, steady, upper-middle-class career on the other side. They didn’t want to be lawyers for the right reasons, but they wanted to go to law school.

Supply and demand being what they are, if more people wanted to pay good money to go to law school, there were going to be more seats for them to fill. And so the number of law students continued to rise. And so even more fresh graduates came out to face the same job market that had NOT been growing at the same pace.

If you ask any of these new graduates if there were too many lawyers, you’d probably hear a resounding “YES!”

Supply and demand being what they are, of course, people eventually stopped applying to law school in such numbers. They’ve resumed their downward path. In fact, applications are going down faster than ever, and are probably at their lowest point in thirty years. Meanwhile, those who couldn’t find work as lawyers have mostly found something else to do. So this oversupply of fresh graduates is in the process of shaking itself out.

But even with this momentary oversupply of fresh graduates, the number of lawyers actually working is still going to be however many you, the clients, demand. The answer to the question “are there too many lawyers” is still “no.”

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Of course, what people are really complaining about when they say “too many lawyers” is that there are too many bad lawyers. Nobody complains about the good ones. But that’s a subject for another time.

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 Since I got off on this from looking at some graphs, I thought I’d make some of my own. Look at these and ask yourself if there really are too many lawyers:

Why Are You Here?

Saturday, February 9th, 2013

The other day, the Charleston School of Law was kind enough to invite me to speak to its student body as part of its Professionalism lecture series. My theme was, of course, professionalism in the law. But in the context of why we practice law. If you’re interested, have a look:

 

 

P.S. – If you want to skip the dean’s kind introduction, just go to the 5-minute mark.

Statistical ranking of defense lawyers? Maybe, but not this way.

Wednesday, January 2nd, 2013

It’s an intriguing notion: that one can objectively assess the relative effectiveness of a given lawyer. With hard data, and sound analysis. In the real world, it’s nigh impossible to tell how good a lawyer really is. You can look on Avvo and see what people here and there may have subjectively thought about him, but that doesn’t tell you whether any other lawyer would have done as well (or been just as dissatisfying). You can ask around and get a sense of what other lawyers generally think of him, but that’s just as subjective. There’s really nothing out there to tell you for sure whether that lawyer gets better-than-average results or not.

So Wake Forest professors Ronald Wright and Ralph Peeples — to their great credit — tried to see if it could be done. In their recent paper, “Criminal Defense Lawyer Moneyball: A Demonstration Project,” they conclude that it can be done. They may even be right about that. But not from the data they gathered, sadly.

[Warning: The internet’s gonna (more…)

Answering Your Most Burning Questions

Friday, December 14th, 2012

Google analytics is a great tool. Among other things, it shows the search engine queries people use to find this blog. Which is a good way of figuring out who its audience is, and what they need to know.

The queries aren’t as entertaining as they are over at Popehat, but then again neither is this blog.

Nor are they all that varied. In fact, just looking at the top 2000 searches so far this month, almost every single one is a variation on a few basic themes. These are the questions people apparently want answered right now. So I’ll address them briefly — very briefly — here.

1. Should I become a lawyer? / Do I have what it takes to be a lawyer?

To answer questions like these, you first have to understand what lawyers do. Once you know that, it should be (more…)

100%

Thursday, May 17th, 2012

The call came, as they always do, at the last minute. “I’ve been charged with a crime, and I have to be in court in two days, and my lawyer isn’t doing anything, and I’m scared.” The caller came in to meet with me in person, as they always do when they’re legitimately scared and not merely irritated or price-shopping.

Most of the time, after hearing them out, we tell such folks that it’s probably not wise to change horses in mid-stream. Much as we’d love to help them, it doesn’t sound like their present lawyer’s doing all that bad by them, and there’s not enough time for us to catch up. But once in a while, the emergency is legit, and it sounds like we might be able to help. The client signs the agreement, forks over the retainer, and we get to work. There isn’t a minute to lose.

(Before they go, however, we sometimes half-jokingly ask why they didn’t just call us first. The answers vary, but it always boils down to money. There’s nothing wrong with that — price is a legitimate concern. And our services aren’t exactly cheap. So it makes sense that we wouldn’t even be considered an option until other things suddenly became much more important. Unfortunately, people often don’t realize it until the last minute, or until it’s too late.)

There isn’t a minute to lose, and we’re going to spend the next couple of days trying to accomplish all the things that should have been done already — gathering evidence, analyzing data, speaking with prosecutors, etc. Usually, of course, the first call is to the original lawyer. Nobody likes to get those calls, but it’s usual enough in the criminal world — clients jump ship all the time for various reasons, it happens to all of us — and the lawyers are usually collegial and gracious about it.

But not this time.

This time, the lawyer was outraged. Couldn’t believe that this was happening. This wasn’t mere shock, as from a new lawyer experiencing it for the first time. It was anger and betrayal. We began to wonder if perhaps we’d mis-read the facts, and maybe this lawyer had invested a lot into this case.

That thought didn’t last long. “Can you shoot me a copy of your files?” What files? The lawyer only had the accusatory instruments. “What’s the prosecutor’s take on the case?” Who knows? The lawyer hadn’t called to ask. A few questions more, and it became obvious that zero work had been done on the case, and the client’s fears were fully justified.

Our silence must have been eloquent. The lawyer started protesting that the client couldn’t expect ass-busting in a case like this.

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Ah. Yes. Of course. No client could expect their lawyer to be busting their ass on a routine little case.

Except that’s absolutely wrong. Clients can — and should — expect their lawyers to be out there busting there asses on every single case.

It doesn’t matter whether the client’s looking at a murder rap or a farcical summons. The lawyer’s job is to give 100% to defend that client. The client paying next to nothing gets the same level of care as the one who’s carrying your practice for the year.

That means putting in time, of course. And if one has a high-volume-lowest-fee business model, there probably isn’t any extra time for that. There’s barely enough time to just show up on the assigned court date and take whatever plea gets offered. Any more work than that would mean one has no time for taking on all the other cases required to pay the bills. So too bad, so sad, but that time is not going to be invested.

And so here’s another client who’d hired a lawyer, thinking the lawyer would protect them and defend them the way lawyers are supposed to. And instead got a lawyer who saw the client as just another routine widget to be processed through the machine. A lawyer who isn’t there to protect and defend, but to grease the wheels of the machine that destroys reputations and lives. And now the client is starting to realize that, and the client is beginning to panic. For damn good reason.

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The lawyer didn’t end the call graciously. But it ended. And then we got to work.

Over the next couple of days we got the alleged victims’ stories from the prosecutor, fleshed out the prosecutor’s assessment of the case, located and interviewed three eyewitnesses, and helped the prosecutor dramatically reassess the case in the client’s favor. From a heinous incarceration case to essentially “go forth and sin no more.”

This is not self-congratulation. It didn’t happen because of any particular skill or ability we have. It took no brilliance whatsoever. This is precisely what would have happened anyway, had the first lawyer done his job right. Any lawyer who had bothered to take the time would probably have gotten the same result. It really was a no-brainer at the end.

No, this is not self-congratulation — this is a complaint. A complaint about lawyers who don’t feel like a particular case deserves 100%. Every case gets it. Every client deserves it. If you don’t have the time, too bad — that is not your client’s problem. Every client gets 100%. Period.

And if you don’t agree, then what the heck are you doing here?

More Reason to Increase Legal Profession’s Barriers to Entry

Thursday, April 19th, 2012

When people complain that “there are too many lawyers,” what they really mean is that there are too many bad ones. There is always demand for good lawyers to deal with the intricacies of modern life. If anything, people need more good lawyers than ever before — smart, wise, honorable people to help navigate the increasingly byzantine regulations, to make sure the complex business deals actually work, to represent all the non-lawyers who keep suing each other in our litigious society. And of course to prosecute and defend those accused of crime.

The problem is that it’s way too easy to become a lawyer. If you’re not picky about where you go to school, you can get a J.D. despite having little aptitude for it. And the bar exam is a very low bar, believe it or not — you only need the equivalent of a “D” and once you get that “D” you never need to take it again. There are a lot of misguided people out there who go to law school for the wrong reasons, and graduate to keep filling the ranks of the “too many lawyers.”

So it made us uneasy to learn that people with high LSAT scores are significantly less likely to even apply to law school these days, while those with lower scores are still applying almost as much as before.

It’s not surprising, of course — obviously, smarter people are going to be more likely to realize that it’s harder to get a job as a lawyer these days, and decide to go elsewhere. But the upshot is that the proportion of “good” lawyers is only going to shrink, and the “too many” will become even more numerous.

The solution is to make the profession more picky about who can and cannot become a lawyer. The problem is how to do it.

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Back in the bad old days, of course, the problem was that the profession was more picky. Just in a bad way. Minorities were not welcome, women were not welcome. Hell, folks who needed to work for a living were not welcome — we didn’t want their kind, or their night schools. (Many of the ABA’s more bizarre accreditation requirements are holdovers from these bad old days.) So there are some historical negative connotations to making it harder to be a lawyer.

Nowadays, though, people who get upset at barriers to entry don’t really cry racism, sexism or classism any more. Instead, they cry protectionism — that those who have the jobs want to protect them from competition. Or they cry up the free market — let anyone try it who wants to, and let market forces shake out the chaff.

The protectionist argument is one of the stupidest arguments, ever. Increasing the number of sucky candidates isn’t going to have much of an effect on the hiring of qualified people. Seriously, nobody is afraid that sucky JDs are going to come along and take their jobs. Letting more of them in will only cause more competition for low-tier jobs, making the complainers’ problem worse. This argument tends to be made by dissatisfied law grads who find themselves unable to compete in the modern market, and making it kinda demonstrates why.

The free-market argument isn’t so much stupid as unwise. Those who make it tend to see the law as a business rather than a profession — they fail to realize that we have clients, not customers. Clients don’t just drop in, pay for a service, then leave; clients entrust lawyers to handle important life matters. Lawyers don’t sell commodities; they put aside their own interests to serve their clients, and the client’s interest comes first. We are fiduciaries, advisers, confidantes, and we are trusted to make decisions on our clients’ behalf.

This is not a relationship that free-market forces can regulate. Clients of bad lawyers suffer, but there is not much the market can do about it. In a free market, it’s nigh impossible for clients to tell a good lawyer from a bad one — asking around is only as useful as the people one knows to ask. Bad lawyers sometimes thrive, simply because their name is known. The way real people find lawyers in real life is essentially random. A free market also needs quick reaction to bad service, but bad lawyering may not have consequences until years too late to make a difference to the lawyer’s reputation. And clients who are unsophisticated enough to hire a bad lawyer in the first place aren’t as likely to realize that they got shafted. The free market just cannot work to price out bad lawyering very efficiently, if at all — and in the meantime what about the clients who suffered? It’s not like they can return their counsel like damaged goods — they’re stuck with the consequences. Relying on the market to price out the bad and reinforce the good is a recipe for injustice, and would make things even worse.

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The solution is to be, not protectionist, but (more…)

The Legal Profession Needs More Bars to Entry, Not Fewer

Tuesday, October 25th, 2011

On the New York Times op-ed page today, Clifford Winston asks the question “Are Law Schools and Bar Exams Necessary?” The writer, an economist with the left-ish Brookings Institution think tank, answers with a resounding “no.” They only increase the cost of entry into the profession — and thus the cost of legal services — while doing nothing to ensure the quality, honesty and accountability of the lawyers performing said services.

His diagnosis is on the nose, but his prescription is bad. He is right that simply graduating from an ABA-accredited law school and passing the bar are not sufficient quality control. But his solution — eliminating such barriers to entry — is the exact wrong approach. If anything, the barriers to entry need to be higher.

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Law school, as experienced by most law students, is an enormous investment with little application to the actual practice of law. The first year is great for teaching how to spot issues and do the necessary legal research to answer questions, and for instilling core principles that underlie our jurisprudence. But beyond that first year, the time spent in class after class could be better spent in an apprenticeship where one learns how the law is actually practiced — and more importantly, acquiring the experience and judgment required to advise and deal with clients. Apart from the exceptional few who truly get a lot out of their continuing studies as preparation for real life — in particular, those who take advantage of clinical programs — law school after year 1 is a bit of a wasted opportunity for the run-of-the-mill students

The cost of law school is staggering, but only in part because of the requirements of maintaining ABA accreditation. These costs could be trimmed. The law library is the single greatest mandatory expense, what with the required accumulation of endless paper volumes of statutes, regulations, case law, treatises and their myriad pocket parts and updates. It’s a required expense, but not a necessary one, especially as everything’s been available digitally since forever.

Most of the cost of law school is not mandated, but the result of simple supply-and-demand. Tons of people want to go to law school, either to fulfill a calling or to make money or get status or just kill time until they find themselves. The demand drives up tuitions. Add to that the subsidy of student loans, and the price gets driven ever higher. Costs, on the other hand, remain fairly low. Staffing is not an enormous cost, considering. The ratio of students to professors is huge. When you figure 400 students in a section, each paying however many tens of thousands of dollars in tuition, the salaries of the handful of professors teaching them account for a minor fraction of it. Because of this, and the apparently endless supply of prospective students, law schools are a veritable cash cow — which is why so many have popped into existence in recent decades.

One byproduct of all these new law schools is a dilution of the quality of legal education, and thus the quality of many graduates with a JD. This is not to denigrate those with degrees from lower-tier schools, many of whom provide better services than some top-tier grads after gaining greater experience in the trenches. But whenever someone complains about “too many lawyers,” what they’re really complaining about is “too many bad lawyers.” Making it harder to get into law school, and then making it harder to actually get one of those JDs once there, would weed out many of the incompetent and misguided before they can do any damage to a real client.

The solution is not to abolish law school, but to make it harder and more relevant. Change the accreditation standards away from expense for its own sake (which, like several other such ABA standards like those for evening students, are actually holdovers from an earlier time when they existed to discourage minorities and those who needed to work for a living from joining the profession), and instead make the accreditation turn on selectivity of admissions and the quality of education provided. Require clinical courses (another astronomical expense, but one which makes sense). Require a uniform grade curve, so that performance can be measured accurately across multiple schools. Require practical courses alongside the general and theoretical, especially in the second and third years. Require more rigorous training in practical ethics, not just the bare-minimum survey everyone’s been doing since the ’70s.

Don’t eliminate the barrier; make it meaningful.

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With respect to the bar exam, as we’ve said before, nobody in their right mind believes (more…)

Modern Law Ain’t Modern Art

Tuesday, September 6th, 2011

Technology freed art to transcend itself.  After photography took on the job of realistic imagery, art was free to explore new forms of expression.  New ways of visualizing things.  New things to visualize.  Using technique or color or shape to fire the viewer’s neurons in new and unexpected ways.  Art evolved, for a time, to a place where art itself was no longer the point.  The greatest artist could be one who created no art, but only his persona.  As James Salter put it, “an artist freed from the demands of craft, an artist of concepts, generosity; his work is the creation of the legend of himself.  So long as he is provided with even a single follower he can believe in the sanctity of his design.”

A fair number of lawyers seem to think the same way about the law — that the technology of the internet has allowed us to transcend experience and craft, and create a superior facsimile online.  Success comes not from hard work done well, but from connecting with people online.  Reputation comes not from the results earned for one’s clients, but from the number of Twitter followers one has.  Praise yourself online often enough, and get enough other similar artistes to praise you, and you too can be great.

Just so you know, it doesn’t work that way.  Other lawyers aren’t going to refer their next big codefendant to you based on your Klout score, but on whether you’ve got the real-life skills and experience to do the job well.  Clients who retained you based on your self-puffery aren’t going to recommend you to others once they find out (and they will) that you were out of your league.  Lawyer referrals and client references are the two biggest sources of new business you’ll ever have.  If you’re investing all your time on building a killer online presence and maximizing your social media, you might want to reconsider.  A better investment of your time would be (more…)

So You’re a New Lawyer Hanging Out Your Shingle? Here’s Some Advice

Friday, August 19th, 2011

(Our last couple of posts about law school and recent graduates were a bit negative, focusing on those who are entering the profession for the wrong reasons.  But what about those who are doing it for all the right reasons?  They are in the majority, after all.  Well, this one’s for them.)

There’s plenty of talk around the blawgosphere these days of fresh young law graduates looking to start their own practices.  Some are hanging out their own shingle because they couldn’t find the right kind of job out of law school.  Some are doing it because that’s what they always wanted to do in the first place.  Either way, it’s a decision that takes a certain kind of entrepreneurial mindset.  Most lawyers we know would rather not own their own practice, because at least working for someone else you’re making steady reliable money with which to pay for such things as rent and debt.  When hearing of someone starting their own practice, they often say nice things like “how brave” or “that took some guts,” to which the new solo typically responds (in his head) “really?”  The kind of person likely to go solo isn’t the kind of person who thinks it’s a brave thing to do; they do it because it feels right for them.  Maybe they’re happier being their own boss.  Maybe they’re risk-takers by nature.  Whatever the reason, it’s what they’re comfortable doing.

So if you’re one of the newly-minted JDs thinking of going solo, hats off to you.

That said, however, there are some things you probably ought to be aware of.  There’s been a fair amount of foofaraw online about the ethical and disciplinary pitfalls out there.  All the warnings are true.  Read them and take heed.  These warnings are not threats.  They are not the crazed jabber of old farts trying to keep you out of their territory.  Ignore those who say otherwise; they are displaying poor judgment.

Lawyer ethics is not a trap for the unwary.  It is not a minefield of hidden dangers.  It’s pretty much common sense for anyone who has a sense of the law as a profession, rather than a business.  The rules are very simple:

  1. The client comes first.
  2. Know what you’re talking about before you open your mouth.
  3. Only take on a case if you can actually handle it competently.
  4. Never misrepresent anything to anybody, ever.  This includes what you say or imply about yourself online.

It’s not hard.  If you think these are scary rules, or that they’re designed to make it harder for you to make a buck, then please do not practice law — you have missed the whole point.  If you understand that your role as a lawyer is to protect the interests of your clients, who have entrusted to you matters that are of great importance in their lives, then these rules should elicit nothing more than a “duh, of course” from you.  You should wonder why such rules even need to be mentioned.  They are obvious and self-evident.

So enough of the rules.  We’ll presume that you have the necessary mindset to go it alone, and practice ethically.  What more do you need to know?

Although the practice of law has changed a bit over the past 15 years or so — with the rise of the internet, email, computerized research and all that — you don’t care about any of those changes because you’re just starting out.  The last thing you need is someone telling you how things work in the digital age.

What you probably don’t know, however, are some of the nuts and bolts of building a successful law practice.  So here are a few things to get you started:

-=-=-=-=-

First, make sure you (more…)

On the Usefulness of Law Reviews

Friday, August 12th, 2011

Okay, see that XKCD cartoon up there?

That’s not how law-school academia works.

Law school academia is more like this:

It’s not exactly news that law review articles don’t carry the same weight in their relevant field as, say, scientific papers published in a peer-reviewed journal.  Ask any practicing lawyer how many law reviews he subscribes to, and the answer is likely to be “zero.”  Ask any practicing lawyer how often he cites law review articles in his motions or briefs, and you are likely to hear either “seldom” or “never.”  Ask any practicing lawyer the effect that law review articles have on the practice of law and the advancement of jurisprudence, and he is likely to laugh condescendingly.

It’s not exactly news, but it’s something people have been talking about this summer, after Chief Justice Roberts disparaged the usefulness of legal scholarship at this year’s Fourth Circuit Judicial Conference.

Pick up a copy of any law review that you see, and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th Century Bulgaria, or something, which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar.

Law professors, of course, rushed to defend the relevance of their articles.  But pointing out that occasionally a law review article might actually get cited in a footnote, to support an argument that was already being made, isn’t quite the strongest defense of relevance.

And it’s foolish for legal academics to make such a defense.  Nobody expects them to believe their articles are relevant to actual legal practice any more than one would expect a postmodernist paper in an academic literature journal to be relevant to the publishing industry.  Academia and the real life it studies are rarely the same thing.

And it’s foolish for legal academics to even imply that their writings ought to be useful to practicing lawyers.  There are only two kinds of law review articles that are of any use whatsoever to lawyers and judges:  One is the summary or survey of an area of law as it actually is right now this very moment.  The American Criminal Law Review‘s annual survey on white-collar crime is a good example, and there are a fair number of brief summaries of more discrete areas of law as well.  The most useful of these are the ones that deal with areas of law that are in flux, describing recent changes, which can help the practitioner or judge test the wind to see which way things are trending.

The second kind of useful law review article is the kind that doesn’t so much restate the law as explain why it is the way it is.  These are more rare, but can be very valuable for those trying to make a policy-based argument.  A well-done article of this kind takes all the disparate decisions out there and tries to provide an underlying policy that explains most of them.  Such a thesis is useful when dealing with an area of the law that is changing, or that one is arguing ought to change.

These useful articles are not useful as something one would cite as part of one’s primary argument.  If cited at all, it would be in a footnote.  Their value is not as an authority to be cited, but as a guide to help focus or expand one’s own thoughts.

But such articles are few and far between.  The overwhelming bulk of law review publications are of little to no use to anyone besides the author.

This is because law review publication does not serve the same purpose as other kinds of academic publication.

-=-=-=-=-

Law reviews serve two purposes: One is to provide an outlet for career academics to publish something — anything — in order to achieve tenure.  It’s a pointless exercise, as the quality of one’s articles is of no importance; it is the fact of publication that is important.  Having been published often, and recently, is all that is needed to put a check mark in the right box.

The fact of publication is itself no guarantee of the quality of scholarship, that’s for sure.  That’s because of purpose number two: To give better law students a way to further distinguish themselves.  We do that by having law students pretty much run the show.  Students select which articles are published.  Students do the fact-checking, making sure the cited sources actually say what the author claims.  Students check the grammar, spelling and bluebooking.  It’s a lot of work, and shows that one has the ability to juggle responsibilities beyond one’s caseload, and shows an aptitude for the kind of work often assigned to young associates, so it’s fairly prestigious and rightly so.  But it is not peer review, and it is no guarantee that the articles themselves are any good.  Grammar and cite-checking are not the same as substance.

Neither of these purposes is to provide a useful product for practicing lawyers and judges.  So because it is not their purpose, it doesn’t really make sense to knock them when they fail to do it.

-=-=-=-=-

Still, wouldn’t it be nice?  You know, if legal scholars were given tenure based on actually contributing something to our jurisprudence?  If it was the rule, rather than the exception, for law-review articles to be useful summaries of the law or explanations of the unnoticed policies that explain why the law is and where it is likely to go?  Then perhaps one might see them being cited a little more often.  Being read by someone not involved in the publication process.  Making a difference.

Don’t you want to make a difference?

Answering Your Most Pressing Questions

Saturday, July 16th, 2011
Real nice, Google.

Because we were bored out of our skull this afternoon, we checked this blog’s stats on Google Analytics.  Browsing through the various keywords people have used to find this blog over the past year, all we can say is “The hell is wrong with you people?”

Leaving aside the freaks and weirdos (and possibly some of their clients), however, it seems that most people find this blog by asking Google the same handful of questions.  The number one search engine query that get people here, every month this year, is something along the lines of “why become a lawyer.”  Number two includes variations on a theme of “can a cop lie about whether he’s a cop.”  The top five are rounded out by queries about what crimes Goldman Sachs may have committed, connections between Adam Smith and insider trading, and what one should say to a judge at sentencing.

We’re not sure that we’ve actually discussed all of these topics here.  Then again, we might have, and just forgot it (which is a distinct possibility — these posts are all written in a single pass, without any real editing, and usually are not given another thought once they’re posted.  If you ever wondered what “ephemera” meant, you’re looking at it right now.)

Still, in the interests of alleviating our boredom public service, here are some quick answers to our readers’ most pressing questions:

1. Why Should You Become a Lawyer?

Because you feel a calling to serve others.  Because you want to make a difference in the lives of others.  Because you are genuinely interested in the rules by which human society functions, why people behave the way they do, and the policies and interests underlying it all.  If those are your reasons, then you belong.

Not because you want to (more…)

Where will all the extra lawyers go?

Tuesday, June 28th, 2011

 

The New York Times had an interesting data crunch yesterday called “The Lawyer Surplus, State by State.”  Economic consultants EMSI estimated how many new jobs for lawyers there are going to be each year, in the near future, in each state.  Then they used the actual number of bar exam passers each state had in 2009 to figure out how many new lawyers would be competing for those jobs.  The results were worthy of remark.  Every single state except for Nebraska and Wisconsin is projected to produce more new lawyers than lawyer jobs.  (D.C.’s data was included, but isn’t comparable, as most simply waive in there.)

The results are worthy of remark, but they are hardly surprising.  Back when we were in law school in the mid-’90s, it was “common knowledge” (if uncited) that America had “more law students than lawyers.”  We recall reading that there was a surplus of lawyers back in the ’80s.  We wouldn’t be surprised if the same things were said in the ’70s and even before we were born.  And we’d expect to keep hearing such things for as long as the profession endures.

The number of lawyers at any one time, however, is probably just about right.  It’s simple supply and demand.  A practicing lawyer is only practicing because his services are demanded by someone.  If there is no demand for all the lawyers out there, market forces will ensure that the excess supply finds themselves pursuing other careers — whether they want to or not.  When people say there are “too many lawyers,” they usually mean “too many bad lawyers.”  (Which leads us to wonder how come you never hear that about other professions or occupations?  Nobody ever says there are too many doctors, or too many electricians, though surely there must be too many bad ones out there.)

But “too many lawyers” has a different meaning when spoken by law students and freshly-minted lawyers.  It means there are not enough jobs out there for everyone who’s going to be passing the bar.  Again, it’s a refrain we’ve heard before.  When we graduated from law school, just before the dot-com boom, we knew plenty of smart capable young lawyers who had a real hard time finding a job.  Everyone was bitching and moaning that people were racking up all this debt with no means in sight to pay it off.  Ditto a few years later when that bubble burst.  And now some years later when the finance bubble burst.  The only difference we can see between then and now is that these days the students and graduates are trying to blame everyone (except themselves) for their bad luck.  As we discussed a couple of posts ago, all that happened was a long-term shift in the demand curve, to which the profession reacted late and to which the law student population has yet to react.

Because young adults continue to flood into law school.  There’s been a bit of a dip here and there this year, but the numbers are still strong.  So it makes us wonder what’s going to happen to all of them as they enter a market that has no room for them.

The EMSI numbers seem reasonable.  They predict a nationwide surplus of more than 27,000 young lawyers each year for the foreseeable future.  We’re not talking about people who didn’t make the cut, people who went to law school but washed out.  We’re talking abotu JDs who actually passed the bar, and still won’t have a job waiting for them.

What are 27,000 surplus lawyers going to do each year?

Some of them will hang out their own shingle and (more…)

No Jobs for Your JD? An Economist Explains What Happened.

Monday, June 6th, 2011

Where did all the law jobs go?  And are they coming back?

Good questions.  More on that in a second.  But first, we have to say that we’re frankly tired of hearing law students and newish JDs moaning about the dearth of lawyer jobs to be had.  Particularly grating are the complaints that it’s somehow somebody else’s fault that they’ve got all this debt and no six-figure job to show for it.  Most of these put the blame on law schools for hoodwinking them into thinking the job market for attorneys was awesome.  We don’t get that — people who go to law school are grownups, adults with college degrees, but these ones are acting like they’re still kids.  Come on, at some point you have to be responsible for your own decisions.  Childhood ended a long time ago.  Anyway, one would think that someone intending to become a lawyer would have had the basic ability to research what the real job market was like.  A simple Google search would have turned up a plethora of articles and discussions about it, going back to mid-2008.  If they really had no clue what they were getting into, then they really need to re-think whether they’re in the right profession.

And if they’d bothered to research just a tad more, they’d have found that this ain’t the first time law jobs have been harder to come by.  This kind of thing happens every now and then.  It’s cyclical, just like anything else.  Demographics, economic cycles, and the coming and going of fads have all affected whether there’s enough hiring going on.

One need not understand why it was happening.  But for college-graduate adults to not even know that it was happening?  And to make life-changing, debt-incurring decisions based on law schools saying their graduates had good-paying jobs?  (Or worse yet, based on a fantasy that has never been true, that anyone but the top grads from the top schools would be making the big bucks right out of law school?)  That’s just idiotic.  Such complaints call into question the very ability of the complainer to have practiced law in the first place.  It makes you sort of glad they didn’t find a job, kinda.

Although one need not understand why it was happening, however, it’s still worthwhile asking the question.  We’ve had our own theories, but they’re based more on intuition and anecdote than on any rigorous analysis.  So it’s good when, from time to time, someone pops up with an explanation.

With respect to the latest turndown, our basic understanding was always (more…)

Can Computers Replace Lawyers?

Thursday, June 2nd, 2011

 

In a post on the future of law schools, Josh Blackman predicts that “many legal services that are created today through individualized, customized efforts by toiling associates, will be replaced by information products that can be downloaded on demand, like a commodity.  …  This transform no doubt would dramatically change the skills attorneys of the not-so-distant future will need.”  That’s not quite true.  Automated legal advice is not workable in the foreseeable future.

But he does have a valid point.  A huge amount of the law really is formulaic.  Whether it’s tax law, or commercial law, criminal law, or what have you, a lot of it breaks down to a series of “if-then” statements.  So can software really replace what lawyers do?

Actually, yes.  It can replace a lot of what judges do, too, for that matter.  Rulings, etc.

Software cannot replace the judgment and creativity required for coming up with effective strategies, adapting the law, or persuading others.  Spotting the actual issue from a mess of facts, notwithstanding what the client happens to think the issue is. Figuring out what needs to be done and how best to do it. Coming up with the right questions, to get the most accurate data.  These are all human skills that algorithms just can’t handle at the moment.  These are the high-level functions that you’ll still need a lawyer for.

But a lot of lawyering really can be done by flowchart.  Once the issue’s been identified, it’s just a matter of selecting the correct law to apply, plugging the relevant data into that formula, and seeing what the answer is.  For a lot of junior associates, this is a big part of their job description.  The flowcharts can branch intricately, but that doesn’t make them any less formulaic.

It’s wrong to suggest, however, that people will be able to replace their lawyers with (more…)