September 01, 2013

Sidebar: Change

A description of the ways in which lawyers need to change to function in a changed legal landscape.

Kenneth P. Nolan

Download a printable PDF of this article (membership required).

I hate change. I’ve always lived within five miles of where I was born. I’ve practiced with only one firm since law school graduation in 1977. Many close friends are people I met more than 50 years ago in Holy Name grammar school. And I always order penne with lobster sauce whenever I dine at Gargiulo’s in Coney Island.

I’m not a Neanderthal or anything—I love my iPhone and texting and the instant video of my grandson Luke taking his first steps. What would we do without GPS, E-ZPass, Google, or the new TaylorMade golf clubs that occasionally help me find the fairway? Even typing this article is ecstasy compared with using manual typewriters and medieval printing presses, which were dirty and slow when I worked at the New York Times. From driving a car to watching TV, technology has made life so much easier, better, and more efficient.

I even understand those who move to the sunshine states. Who wants to pay $7.50 to drive through a tunnel to Manhattan while bundled against the annoying cold? Who wants to dance through the potholed, poop-stained streets, or make the Federal Bureau of Investigation’s most wanted list by selling a 16-ounce Pepsi (even though every saloon serves 16-ounce beers)?

The gated communities of Florida with their soothing lawns, charming palm trees, and civility are, I’m sure, wonderful. Low taxes, too. But no thanks. I’m kinda stuck in my ways, and even though I love to complain about New York’s craziness, I take comfort in familiar streets and sights, in having the checkout woman at the supermarket order me to grab another container of laundry detergent because “your wife always buys two.” I delight in seeing Muslim girls in their hijabs adorned with green when they march in the Bay Ridge St. Patrick’s Day parade.

Even though I’d prefer to be 14 again playing three-on-three in the schoolyard, I realize that change is life. I read books on a Nook, keep up with my many cousins on Facebook, and email or text rather than converse. Even my Brooklyn, once dangerous and derided, has become oh-so-trendy, although I’ve never been accused of being a hipster. The most drastic and rapid changes are not in gentrified neighborhoods, or in how we communicate, but in law. It’s not only the dearth of jobs but also an attitude that questions our very purpose.

The Transformation of Law

Perhaps it was inevitable, the radical transformation of our profession. The recession, which seems interminable, has scrutinized not only our practice and how we resolve disputes but also whether our services are essential, productive. Is law a fulfilling career? Why are legal fees so high? Why litigate for years only to settle on the courthouse steps? What is the value of a law school education, and is it worth a hundred grand of debt? Why do law firms work associates like mules? Is law compatible with raising a family? Has the proliferation of lawyers throughout society and, in particular, government been beneficial? All of a sudden the stock answers seem a bit shallow.

When times were flush, these questions were dismissed or, more likely, not raised. In trying times, families, businesses—unlike government—examine every expenditure and cut waste. I wore hand-me-downs from my brother and cousin until I was in high school. It’s not helpful, of course, for Dewey & LeBoeuf to promise enormous salaries, borrow like a crack addict, and then go belly up. Or for DLA Piper emails to read, “churn that bill baby,” “the bill shall have no limits”—highlighting a perception of greed and waste. Or for specious law school statistics to promise a rainbow of jobs when few exist. One columnist compared law school to a Ponzi scheme.

Just recently, we hired a firm for its expertise in an unfamiliar area of law. A motion or two had to be made, a few court appearances and some telephone conferences. We received a discounted bill, but if we were billed the normal rate, the cost was prohibitive. At $250 an hour, it would have been equal to 700 hours of work. Even at $500 an hour, no way you could spend 350 hours on this relatively straightforward issue. Some big-shot litigators bill at $1,150 an hour. I’m a capitalist and believe everyone should guzzle Dom Perignon, but c’mon, we’re killing the goose that laid the golden eggs.

We need to change and quickly. Like me, you can cling to the past and deny the inevitable, but the old ways of unquestioned bills, jobs galore, and unimpeded growth have vanished like the stickball games of my youth.

Needed Changes

Small is good. Clients are scrutinizing and negotiating legal bills. Some refuse to pay for work done by first-year associates. They examine staffing and object to court appearances by a partner and her entourage. Lawyers remain indispensable, but the proclivity to pay limitless amounts has subsided. And we must adapt. Law firms will become leaner, and even those that are successful will not grow as in the past.

Profits can be maintained as costs are cut, but let’s be honest, income will shrink. We’ve seen it in newspapers, music, banking—what was once lucrative is no longer. Wasn’t Newsweek sold for one dollar? Law is no exception.

Stop working associates to death. Most young attorneys at large firms hate their jobs. Stressful work, 16 hours a day, on anniversaries, holidays, grandma’s 75th birthday. Don’t get me wrong. I don’t feel sorry for them. They knew the deal and are earning a ton of money. Making partner at Skadden, Davis Polk, or Cravath ain’t so bad. Perhaps less pay for less work is a solution. All I know is bright, personable, diligent lawyers are miserable—truly and profoundly.

Be honest. From law schools to bar associations, we must admit the obvious—law is rough, demanding (and rewarding) work. When I started, the promise, mostly true, was that you could live comfortably writing wills, doing divorces, or handling fender benders. Today I don’t know. It’s like every other job—you may not make it; you may fail. There are too many of us. Teaching, walking a beat, repairing cars may be not only more satisfying but more lucrative.

Law school is too expensive. Where I grew up, everyone was cheap. A neighbor, now retired, said he turned down a half scholarship to Yale Law to accept a full ride at Brooklyn Law. Why pay when you could go for free? It certainly didn’t prevent him from having an interesting and successful career. The only advantage of an Ivy League education is the contacts you make. At Brooklyn Law, I sat next to intelligent and hilarious classmates, but not John Roberts or Hillary Clinton.

A law school education is invaluable but not worth incurring debt that will take decades to repay. If it doesn’t become more affordable and more practical—like learning how to draft a contract, take a deposition—law schools will shrink and some will close.

Litigate economically. Try to resolve issues before going to war. At times, full-blown litigation is inescapable. Yet, the expense of litigating for years followed by a month-long trial is prohibitive. Hence the growth of mediation. Not as exhilarating as a jury trial but quicker and cheaper. Judges demand a speedy resolution, ordering mediation shortly after issue is joined, and then again and again. Trials will become scarcer, especially on the civil side. Oh well, most litigators don’t try cases anyway.

Email and the Internet have created tons of new electronically stored information. But technology will eventually allow you to locate that smoking gun document in a nanosecond, making obsolete hordes of lawyers spending weeks thumbing through files. Less time spent in discovery means, for most, less income, which means fewer jobs.

In the future, our profession will contract and be less profitable. Thankfully, the need for our ability to analyze, to write, to persuade, to question a witness, to argue an appeal—the essence of a trial lawyer—will always be there. Individuals and industries will continue to seek our counsel to resolve a dispute, protect their rights, resolve complex problems.

We must accept this new normal and sever those nostalgic bonds to the past, which is so difficult for those like me. I never want to hear about our world what was said to a print journalist on The Simpsons: “Ha, ha, your industry’s dying.” We are essential to business, to government, and to each other. Embrace change; conquer it.

Kenneth P. Nolan

The author, a senior editor of Litigation, is with Speiser, Krause, Nolan & Granito, New York City, and the author of A Streetwise Guide to Litigation (American Bar Association 2013).