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January 01, 2015

Unhappy Attorneys and the Expectations-Reality Gap

Recapturing the nobility that should accompany the lawyer’s role requires serious consideration of why so many attorneys are unhappy and what can be done about it.

Steven J. Harper

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Many attorneys admit to the ultimate regret in choosing a career: They’re sorry they became lawyers. For each of them, it’s a personal tragedy. When such sentiments pervade an entire profession, it’s a societal disaster. Recapturing the nobility that should always accompany the lawyer’s role in a civilized world requires serious consideration of why so many attorneys are unhappy and what can be done about it.

First, let’s try denial. After all, unhappy attorneys aren’t new. Back in 1923 Archibald MacLeish explained the conflicting emotions that still burden many attorneys today:

The law is crowded—interesting—full of despair. It offers its own rewards, but none other. As a game, there is nothing to match it. Even living is a poor second. But as a philosophy, as a training for such eternity as the next hour offers, it is nowhere—a mockery of human ambitions.

Only a few years after graduating from Harvard, MacLeish abandoned a successful but unsatisfying legal career in a prominent Boston law firm to pursue his literary ambitions.

Perhaps discontent is just more visible today. Social media and the Internet—yes, Above the Law, I’m looking at those vitriolic online “comments”—have amplified the negative voices. Maybe the ease with which anyone can publicize a complaint simply makes attorney dissatisfaction seem more intense and ubiquitous than it was in MacLeish’s time. Things aren’t worse; they’re more publicized.

Denying the existence of widespread unhappiness permits rationalizing the malcontents as outliers who merit no special concern from the rest of us. We can all relax and move on to more pressing matters, such as law schools producing too many graduates with too much educational debt or big law firms using metrics that enhance partner profits while undermining personal well-being and institutional stability. Wait a minute. If attorney unhappiness is, in fact, more widespread today, could those law school and big firm trends be contributing factors? We’ll return to that question.

Ultimately, facts undermine the denial strategy. The precise scope of the problem—attorneys’ regret at having gone to law school—is unclear. But a basic point is incontestable: Many lawyers admit to dissatisfying careers. The most recent and supposedly optimistic analysis comes from three professors who analyzed the After the JD study group of 4,500 attorneys who graduated in 2000. Ronit Dinovitzer, Bryant G. Garth & Joyce S. Sterling, Buyers’ Remorse? An Empirical Assessment of the Desirability of a Lawyer Career, 63 J. Legal. Educ. 211 (Nov. 2013). “[T]he overall trend,” they found, “is that more than three-quarters of respondents, irrespective of debt, express extreme or moderate satisfaction with the decision to become a lawyer.” Id. at 12.

Even if their estimate is accurate, a 75 percent positive outcome—a C in my classroom—is no reason to boast. It leaves hundreds of thousands in the ranks of the dissatisfied. If you’re wondering how that compares with other occupations, the answer is that grading on a curve won’t help us. Attorneys are among the leaders in contests that no one wants to win: incidence of depression, alcoholism, substance abuse, and overall career dissatisfaction.

Moreover, the Dinovitzer study has significant limitations because it includes only graduates from the class of 2000. Whether reported attitudes from that cohort are relevant to the fate of today’s graduates is an open question. In 2000, law school tuition was less than half of what it is now, student debt was dramatically lower, and new attorneys entered the job market in the midst of a financially rewarding run for lawyers generally. Attorney head count in the nation’s largest and most lucrative firms—the NLJ 250—grew from about 25,000 in 1978 to 133,000 in 2008. Thereafter, the number dropped, and it has yet to return to pre-recession levels. Neither has the median salary for new graduates joining law firms of all sizes.

If the Dinovitzer report is the good news, what does the bad news look like? The most recent ABA national survey was in 2007, before the Great Recession produced widespread associate layoffs and partner de-equitizations. In that survey, six of 10 attorneys who had been practicing 10 years or more said that they’d advise young people not to attend law school.

Fixing the Problem

How did we reach this point? No one selects a career expecting that it will lead to misery. How do some attorneys escape what has become a lifetime regret for so many others? The reasons are as varied as the types of personalities who become lawyers and the practice settings in which they labor. But from personal experience and observation, I have developed a theory: Attorneys who lead lives that more closely resemble their pre-law dreams are more satisfied than those who don’t. The wider the gap between expectations and reality, the greater the likelihood of disappointment that contributes to a dissatisfying career. If I’m correct, the problem suggests its own solution: Narrow that gap. It’s easier said than done, but the hypothesis offers a potentially useful basis for analysis and remedial action.

The expectations-reality gap theory certainly explains me. Like most pre-law students today, I went into the law without any thought that it could lead to disappointment. Like the expectations of most aspiring lawyers, my expectations ran in the other direction—intellectually challenging work in a prestigious profession that offered individual autonomy and financial security. My work experience fit most of my pre-law notions about what being a lawyer meant. That’s not because I had unique insights into a typical attorney’s workday. I didn’t. What I thought I knew about a legal career started and ended with iconic images—from Atticus Finch to Perry Mason. Without exception, those literary and television attorneys were always performing important work, usually in the courtroom and on the “right” side of a case. They also wore expensive clothes, worked in nice offices, lived in comfortable homes, and never worried about money. All of that looked pretty nice compared with my middle-class upbringing.

Almost immediately after I graduated from law school, life began to accommodate my career expectations. Sure, I worked hard and did a lot of boring document work on big cases. But my firm also took on smaller matters, giving me opportunities that don’t exist for today’s young lawyers. Barely three years out of law school, I found myself in the right place at the right time and, as a result, the lead attorney in a courtroom arguing cases to juries, just as my role models in the media had. My low hourly rate made it possible for firm clients to use me on their relatively insignificant cases. Those cases weren’t insignificant to me; talented mentors used them to make me a trial lawyer. Only years later did I appreciate the thin line of fortuity separating a profoundly rewarding career from what could have become a lifetime of regret at having invested the time and money required to get a JD. Today, attorneys in increasing numbers seem to be on the wrong side of that line.

My expectations-reality gap theory prompted me to start an undergraduate pre-law course that has evolved into a living experiment. One of my findings is that the Internet age of universal information hasn’t altered a fundamental truth: Most of today’s undergraduates track themselves to law school without any real understanding of what being a lawyer will actually entail. In an anonymous questionnaire distributed on the first day of class, I’ve asked students for a response to this statement: “I don’t understand what lawyers do every day.” Over the seven years that I’ve taught the course, two-thirds of them have said they do not understand. Yet, in that same questionnaire, more than 90 percent said that they plan to attend law school.

According to recent surveys, about one-third of law students make the decision to become an attorney in high school; another third reach that conclusion during their freshman or sophomore college years. For many of the remaining one-third, getting a JD is the last bastion of the liberal arts major who can’t decide what to do next. That’s not new, but it has become an increasingly expensive way to buy time, and it produces an uncertain outcome. For at least the past several years, only about half of today’s graduates have obtained full-time, long-term jobs requiring a JD. As average law school tuition has doubled every 10 years for the past three decades, 85 percent of today’s new attorneys graduate with more than $100,000 in educational debt. At many schools, three years of tuition and living expenses can approach $300,000—the equivalent of a sizable home mortgage but without the house. Even so, the financial expense may be the least of the difficulties for the attorney who never finds fulfillment in a legal career.

Where Expectations Come From

The seeds of attorney dissatisfaction take root long before a person enters law school. The process starts with unrealistic expectations about both the law school experience and life as a practicing lawyer. A contemporary example is the hit television series The Good Wife. The leading character, Alicia Florrick, leads a remarkable life as an attorney. After a decade away from the law, she returns to a firm where she immediately finds herself embroiled in fascinating cases. Every week, she conducts a key trial examination. Sure, she sometimes has to do a little work after getting home for dinner with her kids, but she has it all: big salary, nice clothes, great relationships with her teenage children. And it’s certainly not her fault that she became a single mother after her philandering state’s attorney-husband went to jail in a sex scandal. What a miraculous recovery she made! What a career! What a life!

What a fantasy. Such popular images of attorneys have framed aspiring lawyers’ expectations—and clouded their view—for a long time. At some level, most pre-law students surely realize that such glamorous portrayals are far-fetched. But what psychologists call “confirmation bias” is a powerful force. All of us have a tendency to see what we want to see, believe what we want to believe, and ignore facts and data that contradict our preconceived notions. As Nobel laureate Daniel Kahneman observes:

The confidence we experience as we make a judgment is not a reasoned evaluation of the probability that it is right. Confidence is a feeling, one determined mostly by the coherence of the story and by the ease with which it comes to mind, even when the evidence for the story is sparse and unreliable. The bias toward coherence favors overconfidence. An individual who expresses high confidence probably has a good story, which may or may not be true.

Don’t Blink: The Hazards of Confidence, N.Y. Times Mag., Oct. 19, 2011.

In other words, we are constantly telling ourselves stories about how the world is. Unfortunately, we develop those stories through the filter of how we want the world to be. The resulting confidence in our “knowledge” becomes difficult to shake, even for those determined to do so. For idealistic pre-law students, the resulting confirmation bias becomes even more problematic. It can lead to bad decisions about whether a legal career should become a lifetime pursuit.

That takes me to a group about whom there is little hard data: the 40 percent of all law school graduates who aren’t practicing law today. Proponents of the “versatile JD” cite this statistic in arguing that a law degree opens doors to other productive pursuits. As law school applications continue to plummet, deans are really pushing that line now: “Look at all the members of Congress with law degrees! Look at the lawyers who lead prominent companies! Look at Lloyd Blankfein, Harvard Law grad who became CEO of Goldman Sachs!”

Such examples make great anecdotes, but consider this: No other profession trains students to develop skills and perform tasks, only to have a mere 60 percent of graduates go to work in jobs for which the schools have specifically trained them. Among the remaining 40 percent, how many would have skipped three years of post-graduate legal education (and the resulting debt) to get a degree that they didn’t really need for their eventual jobs? How many realized too late that they’d chosen a career that was a bad fit for their personality, interests, or goals, and just bailed out? How many were victims of their own confirmation bias? How would they respond to survey questions about their attitudes toward their degrees? No one knows.

One approach to bridging the expectations-reality gap is to tackle the expectations side. That’s why I developed an undergraduate pre-law course at Northwestern. When I describe the class to fellow attorneys, all respond the same way: “That should be a required course for every pre-law student on every campus. I wish I could have taken your class before I went to law school.”

My goal is not to talk anyone into or out of a legal career. Students sense my genuine enthusiasm for the profession, but they also pause to rethink in light of its challenges. Our 10 weeks of reality therapy gives them the tools to make more informed decisions. The vast majority of my students go on to law school, but they approach it differently, or so they tell me. My hope is that by reframing their expectations about a legal career before they head into the profession, they will become happier lawyers when they confront a reality that is less jarring than it might be for their less-informed contemporaries (and was for their uninformed predecessors).

Changing the Reality

Another approach to closing the expectations-reality gap could focus on changing the reality side. That’s a more daunting proposition. Again, it’s worth taking a closer look at Alicia Florrick. After only four years as an associate, she became an equity partner in her firm. During her fifth year, she was offered the position of managing partner. Astounding—and, of course, impossible. But the more important point comes through only obliquely: The other fourth-year associates in her firm didn’t advance to equity partner because they would have diluted equity partner profits to unacceptably low levels. That story line is a metaphor for a real-life truth: The road to success inside large law firms has become more difficult. As a consequence, the already large gap between aspiring lawyers’ expectations and the harsh reality of life inside most big firms has grown.

From my observations, the modern trend of attorney career dissatisfaction accelerated in the 1990s as surveys began documenting attorneys’ unhappy attitudes about their work. A new phrase—“work-life balance”—became a shorthand description for what many regarded as a potential fix. Especially in big firms, loosening the reins of billable hour requirements so that attorneys could spend occasional dinners with their families seemed like a good idea. Better morale made better workers.

The exploding demand for legal services forced clients to accept annual increases in hourly rates, so adding a little slack in associates’ leashes didn’t even slow the surging growth in firms’ profits. Average equity partner profits for the Am Law 50 in 1985—the first year Steven Brill published his new rankings—were $300,000. That’s about $700,000 in 2014 dollars. Today, they exceed $1.6 million. (As explained later, the current average masks a profound shift in the internal distribution of incomes within equity partnerships, another problematic trend.)

To the surprise of many, “work-life balance” initiatives didn’t soften the crescendo of lawyers complaining about their lives. Griping continued into the new millennium until the Great Recession made every bad thing worse. Growing financial pressure to maintain higher and higher equity partner profits displaced any consideration of “work-life balance” as a valued element in the culture of most firms. Partners and associates alike feared what the next annual review might bring for those who weren’t carrying their own weight.

Meanwhile, making that determination—carrying one’s own weight—became deceptively simple, and it sprang from an ironic twist. In the early 1970s, detailing the time spent on matters came in response to client demands for greater transparency. Instead of one-line invoices “for services rendered,” they wanted to know what specific activities had produced the final bill. The resulting itemizations need not have led to the unfortunate culture that now pervades most big firms, but it did. As law firm management consultants encouraged senior partners to adopt business school–type approaches, billable hours became embedded as a misguided metric that purported to measure productivity. Of course, adding inputs (time) without regard to the beneficial impact on outputs (client outcomes) is the opposite of true productivity. But as equity partner profits continued to rise even during the Great Recession, managing partners had no incentive to revisit this perversion.

Indeed, adherence to billable hours and other metrics of short-term profitability became corollaries to a single overarching management theme: “We’re just running the law firm as a business.” The resulting incentive structures created a work environment that ate away at attorney career satisfaction. The data are unambiguous and the underlying metrics are unforgiving.

Every big law firm partner knows that the leverage ratio is the number of all non-equity lawyers in a firm divided by its equity partner owners. In 1985, the overall leverage ratio for the Am Law 50—the first-ever ranking of firms by size and revenue—was 1.76. For every equity partner, there were almost two salaried non-equity attorneys. Today, that ratio has doubled. Stated differently, it’s twice as difficult to become an equity partner today as it was 30 years ago. Law firm leaders have convinced themselves that this longer and more difficult climb to equity partnership is fair. Squeezing every last cent out of the prevailing leveraged pyramid model, they now hold younger attorneys to standards that they themselves never had to meet. In the end, they’re pulling up the ladder on their own kids.

Meanwhile, the relatively few winners of the equity partner contest enter structures in which most of them don’t feel much like partners. Twenty years ago, top partners in a firm typically earned three or four times the income of the lowest paid fellow equity partners. Today, it’s common for a few at the top to earn 10 or 20 times more than their lowest-paid fellow equity partners. Analogous to our society at large, the middle class of equity partners is disappearing, leaving no one in a position to challenge the relatively small group of leaders who run firms to maximize their own personal wealth, power, and prestige. For those not seated at the captain’s table, rocking the boat may lead to unpleasant consequences in an upcoming compensation review. Of course, no equity partner at any level generates sympathy; the public correctly views all of them as rich.

Today, the youngest generation of attorneys feels the greatest pain, thanks to senior attorneys who complain about generation Y and millennial “whiners.” It’s a timeless lawyer move: blame the victim. Among many aging partners, it has become an article of faith that today’s young lawyers operate from a sense of entitlement without a willingness to exert the effort required for achievement. This misguided notion that our children suffer from a basic character flaw that we avoided—i.e., laziness—also glosses over an important fact: Many partners have become increasingly unhappy too. (And don’t get me started on the attitude of entitlement that many senior partners exhibit.)

Could partners who complain about associates be victims of their own confirmation bias—remembering what they want their earlier efforts to have been, rather than recalling them as they actually were? There’s no need to waste time pondering that question because the partners complaining about the latest generation of attorneys set the rules and control the game. Their view of themselves, others, and the world around them dominates their firms. Few ever consider how their own advances would have stalled without mentors who trained them and shared, rather than hoarded, clients and opportunities. The implications for young attorney morale are obvious, especially with big law firm associate attrition averaging 80 percent after five years.

Changing the reality side of the expectations-reality gap requires reversing the trends that have created an increasingly harsh environment for most attorneys in big firms. That means doing many things differently—abandoning compensation systems that give so-called rainmakers outsized rewards, closing enormous internal gaps within equity partnerships, refraining from law firm growth for the sake of growth that benefits neither partnerships nor clients while sacrificing a sense of community, encouraging collegiality by creating incentive structures that reward loyalty and mentoring as much as client billings, and running institutions for the long haul rather than the short run. In most firms, those things are not happening now. As Richard Susskind observes, “[m]ost law firm leaders that I meet have only a few years to serve and hope they can hold out until retirement. . . . They are more focused on short-term profitability than long-term strategic health. . . .” Tomorrow’s Lawyers: An Introduction to Your Future 61 (Oxford Univ. Press 2013).

But those leaders may have no way out of the dilemma they have created. Recently, I spoke with the managing partner of a firm that has avoided many of the destructive prevailing trends associated with the current Big Law business model. His clear, consistent efforts have preserved important attributes of partnership that other firms have lost—namely, collegiality, mentoring, and sense of a community among those engaged in a common mission that involves more than maximizing current-year profits. When he meets with other managing partners who are curious about the success of his approach, he shares his insights. Occasionally, his own partners wonder why he’s so willing to help competitors in that way.

“Why do you give away our secrets?” they ask him.

“Because they couldn’t change, even if they wanted to,” he replies with a knowing smile.

He’s right. A law firm’s culture—both its good and bad elements—is cumulative. For the past several years, the big law firm segment of the profession has experienced a lateral hiring and merger frenzy. There’s no other way to describe it. Firms pursuing aggressive growth without regard to the effect that the strategy has on anything except top-line revenue will find their partners responding predictably: maximize billables (and pressure others to do the same); hoard clients, forget mentoring (because it’s not billable); and protect their personal client silos, lest they, too, seek to move on to more lucrative pastures. All of this is a prescription for institutional instability. If Keynes was right that “in the long run, we are all dead,” some law firms will find the long run arriving sooner than they think. Meanwhile, they remain trapped in boxes they’ve built for themselves. As Thomas Paine wrote in the introduction to Common Sense:

A long habit of not thinking a thing wrong, gives it a superficial appearance of being right, and creates at first a formidable outcry in defence of custom. But the tumult soon subsides. Time gains more converts than reason.

Common Sense at xxvii (Fall River Press 1995) (emphasis in original).

All of which takes us back to today’s pre-law students. Eventually, some of them will rise to the top of the profession. Many will find themselves advising sophisticated corporate clients with complex legal problems. Some will even become managing partners of big law firms. By then, what will those firms look like? No one can say. But if tomorrow’s lawyers retain the attitudes that my undergraduates voice as they proceed to the nation’s top law schools, things will change. They’re taking a close look at the evolution of the profession’s most lucrative segment, and they don’t like what they see.

My students and their colleagues will have to clean up their predecessors’ messes. They are coming to appreciate that the currently prevailing model isn’t the only one and that it’s fragile. They see that the triumph of short-term metrics over reasoned judgment is a recent menace. They recognize the wisdom in the phrase “Not everything that can be counted counts, and not everything that counts can be counted.” They understand the dangers of the expectations-reality gap and the power of individuals to shape their own lives and workplaces. If today’s law students retain their present determination to do things differently, the profession could look much better in 30 years. And if that happens, fewer attorneys will regret the decision to accept the law’s noble calling. 

Steven J. Harper

The author is an associate editor of Litigation, an adjunct professor at Northwestern University, and the author of The Lawyer Bubble: A Profession in Crisis (Basic Books, 2013).