From the Bench: Mentoring—What is Our Message?

Vol. 38 No. 3

 

The author, an associate editor of Litigation, sits on the Third Circuit U.S. Court of Appeals, Newark, NJ.

 

In our profession, when we contemplate the term “mentor,” it conjures up the notion of a one-sided relationship that reflects a sort of seasonal changing of the guard. If it’s summer, it must be time to break out the war stories or last year’s lectures on how to improve your writing, your oratory skills, your persuasiveness, or your [fill in the blank]. There is no urgency, no fresh thinking, no desire to change the message or even to tailor the message.

Establishing a mentor relationship is not essential to our daily existence. This is in large measure because it is not quantifiable. How do we determine the success or relative worth of the endeavor? While that uncertainty is somewhat disconcerting, it speaks to why it is so critical.

Our law schools appreciate the importance of the mentor/mentee relationship. Students are schooled from the very start of their classes as one-Ls to strive for judicial clerkships if they’re so inclined. Clerkships are touted in large measure because the relationship establishes an entry into the profession.

But what happens after the clerkship, and what happens to those uninterested in that path?

Consider the relationship between Socrates and Plato, which focused on broad, far-reaching, philosophical principles. It represents the kind of mentor/mentee relationship that we as a profession should encourage. We desperately need mentoring relationships grounded on a broader, more engaging discourse and on specific, important questions.

But most of the time we lawyers establish and nurture mentoring relationships by sharing the nuts and bolts of the profession. We freely pass along Five Tips for Taking a More Effective Deposition, or Fifteen Likely Objections at Trial, or Three Surefire Ways to Write a Better Brief.

Sure, much of what we do requires skill and savvy that comes only with experience. Those with whom we share these precious gems are grateful and eager to put the newly learned principles to the test. Regrettably, opportunities to ply our trade are rarer than ever, because the lack of trials makes all the other opportunities for oratory outside the office—oral arguments, depositions, client meetings, cocounsel conferences—just too precious to dole out to the uninitiated.

 

 

The Downside of Technical Focus

 

In our mentoring, particularly of young lawyers, we typically focus on the tasks of attaining or improving upon technical proficiency. But what has this reaped for our profession?

The focus of our young colleagues is invariably on remuneration, student loans, billable hours, and unhappiness. These days, I hear from law students, long before their graduation, about their exit strategies and their goal to parachute out of the legal profession. After graduation, their determination only intensifies.

Is this focus on money and the dark side of law something that we must chalk up to the inevitable progression of the overcrowding of the law generally, the focused obsession from the first day of law school with getting a job, or the intensity of the internecine battles within the profession?

Am I surveying the landscape from my ivory tower, now blissfully unaware of the realities of practice?

While the halcyon confines of the courthouse allow for such ruminations, the question remains: Does this malaise really infect our profession?

To each of these propositions, I hope the answer is no.

If our profession is to take on a different feel or aura, part of that change must be in what we relate to our mentees and in the legacy that each of us thereby establishes. To accomplish this, we should embrace a different paradigm for how young lawyers and law students think about our profession.

Along with teaching the technical grounding—the instructions, the nuts and bolts—we should share with our mentees the answers to our deeply essential, and deeply personal, questions:

How did we come to the law?

Why did we come to the law?

Why do we stay in the law?

And why should others follow?

Why are the answers to these questions so critical? Law schools around the country are filled with students who come to the law by default: “I couldn’t get into medical school.” “The job market is too tight; I’ve got to bide my time.” “The risk/reward in law is better than in other pursuits.”

But, as the song asks, is that all there is?

When I was a summer associate, many years ago, Simon Rifkind—a name partner, former federal judge, and true doyen of the bar—addressed me and my fellow law students at lunch one day. He shared with us how exciting it was for him to see that, year after year, young people who shared his fervor and ardor for the law followed him into the practice.

He analogized the endless procession to young people’s obsession with fire: Although danger lurks, the curiosity never subsides.

That day, he shared with us a few stories. We laughed—sometimes heartily, sometimes politely—but, in the end, we saw before us a person who truly, passionately, and authentically enjoyed his work and profession.

 

 

Why Do We Love the Law?

 

His passion and commitment left an indelible impression on me and my colleagues. That recollection prompts me now to ask: Why do we love the law?

Ask yourself: When was the last time you told your story of how you fell in love with the law? You know, that moment when you said, “Yes, I can do that.” Or, better still, “Yes, I want to do that.” Or, even better, “I feel compelled to do that.”

Each of us has such a story. The genesis may differ, but the outcome is the same.

Most of us went to law school, not because of the money, but rather because of some notion of responding to a calling to do law, to help in achieving the greater good, to engage in the pure intellectual challenge of law, or—perhaps—some or all of these and other admirable motivations.

I remember my property professor—Professor Donohue—who told us on the last day of class, “Good luck. But if you’re going into the practice of law for the money, go do something else. There are many easier ways to make money.”

Upon hearing his sage advice, many of my classmates promptly eschewed the law for investment banking! (But, alas, where are they today?)

My own story of a love for the law began in a manner that can only be described as folly. As a teenager, I considered a trip downtown to be a real treat. I loved the hustle and bustle of New York. I loved the way lawyers dressed—suit and tie, white shirts, shoes shined, and a briefcase. That was a uniform that appealed to me.

In college history classes, I learned stories of true American heroes: Thurgood Marshall, Charles Hamilton Houston, Robert Carter, Constance Baker Motley, Jack Greenberg, and countless others.

I was absolutely sold on the law. The book Simple Justice by Richard Kluger examined the genesis of Brown v. Board of Education in great detail. For me, Simple Justice became a second bible. I read it over and over. It was in that book that I was first introduced to Charles Hamilton Houston, whose extraordinary story affected me profoundly.

Charlie Houston was a man of incredible talent and intellect. A Washington, DC, resident, he was a Phi Beta Kappa graduate of Amherst College and, in 1921, the first African American to become an editor of the Harvard Law Review, in a time preceding anonymous grading.

Despite these achievements and a Marshall scholarship, Charlie Houston could not find work upon graduation. Instead, he joined his father in a struggling practice in DC. A stellar career followed: dean of Howard Law School, head of the legal team of the National Association for the Advancement of Colored People, and principal architect of the desegregation strategy leading up to Brown v. Board of Education.

His lifetime of sacrifice and service left an indelible impression on me as a college student that remains with me today.

The quote most often attributed to Houston is: “[A] lawyer’s either a social engineer or he’s a parasite on society.”

Not surprisingly, Charlie Houston and other men and women of extraordinary achievement were a great inspiration. And, in each of their stories, there is a striking commonality—a fundamental and personal love for the law.

 

 

Experiences That Sold Me

 

The U.S. Attorney’s Office nurtured that love of the law for me. Countless experiences in that office sold me on our life’s work, but two are worthy of note—one individual and one communal.

The communal experience was the reconnoitering of the criminal division on the fifth floor to relive the courtroom drama of the day. Whoever happened to be on trial that day always came back to recount rulings, testimony, and oratories, all to great effect and fun. But more importantly, it was an incredible opportunity to learn.

The individual experience was that the office allowed one to experience, on occasion, that surreal moment when, in the middle of an examination of a witness or a closing argument, one says to oneself “My God. I love this.”

Of course, today, hardworking and heavily stressed lawyers may look at me and think, “Well, Judge, you’ve got lifetime tenure, the best job in the world. You’ve been fortunate to have these other experiences. Of course, you love the law. It’s easy for you to proclaim these platitudes.”

To be sure, I and my colleagues occupy privileged seats of service and have much to be thankful for professionally, but we have not cornered the market on recognizing and enjoying the beauty of the law.

And, with that in mind, how can we mentor if we impart only technical professional proficiency and not the passion for the law? How can we hope that the best and brightest come to our profession and maintain their enthusiasm for the law unless we inspire them?

Our profession is in crisis. The vicissitudes of the business world encroach on our ability to focus as we should on our life pursuit as principally a noble pursuit rather than a monetary one. If our role as mentor to those who come after us focuses merely on the technical and not on the inspirational, we fail ourselves and our profession.

At our core, we are teachers. In a very real sense, we teach clients, judges, colleagues, adversaries, and juries. We should, and indeed must, do more than the perfunctory imparting of our knowledge to others.

We need to share our passion for the profession. If we do not, undoubtedly our profession will become one unduly populated by fungible drones—unhappy and miserable with our profession generally and their existence in particular.

When I think of the future of our profession, the words of Felix Frankfurter come to mind: “The law is a jealous mistress.” The import of that phrase is not merely that the law requires a slavish devotion and hard work. That is only part of the message.

The law is not just about the work; it is also about the passion. If we impart that passion to new members of the bar and those studying law, we can rest assured that our profession will grow in respect, stature, and contentment.

 

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