Go ahead, make my day. No, really. Make my day. Make me happy. Joyous, ecstatic, giddy, delighted. Like a clam. It’s the one thing I ask.
Difficult? Not really, although perhaps it seems so. Lawyers are notoriously unhappy. We complain. We lash out. We criticize. When we’re busy; when we’re not. When we lose; sometimes even when we don’t.
Complaining, after all, is a cornerstone of the profession. People come to us to complain. Then we complain, for them, to others, about others. Indeed, we start a lawsuit by filing a complaint. And if we don’t do a good job of it, other people complain about us.
With so much to complain about, how could anyone be happy? I say don’t be such a cynic. See, yet another complaint. No one wants to be unhappy, at least I don’t.
So make me happy. How can you do it? What’s the secret to happiness—that is, what’s the secret to making me happy? I’ll tell you.
It’s not schadenfreude. No, it’s this: Make my life easier. That’s all. Help me—truly help me—and you will make me happy.
Come Early; Stay Late
And how do you do that? Let’s start at the beginning. Timing. When I first started practicing, I asked my boss what time I should show up for work. “Before I do,” he said. And when should I leave? “After I do.” If I did that, he advised, I’d be ready to find a copy of a case, write a motion, or sit in on an interview, whenever I was needed. If a client called late in the day with an emergency, I’d be there to help. Indeed, there were many Friday evenings when a client would call and I’d run down the hall, legal pad in hand, to start work on a new case. As a result, I got better opportunities than the folks who ducked out a bit early or otherwise made themselves scarce.
It’s unfortunate, I know. There will be long days and nights, working weekends, conference calls taken on vacation, sometimes stealing precious time from family, other times from a beach where you’d rather be working on your tan. Sometimes it won’t even seem fun—I’d be lying if I said it all is. But people are depending on us to help them, and this is often what it takes.
So, if you see that I’m staying late to work on something or that I’m coming in on weekends, ask me what you can do to help. Chances are I’ll shrug and say not to worry, I’ve got it covered, but I still may need help finding a case, reading a brief, or tracking down that exhibit from a deposition that is just a faint memory.
When I was a young lawyer, I’d ask, and even if someone said not to worry, sometimes I’d hang around just in case. People noticed. Now when I’m working with a younger lawyer who is finalizing a brief, I stick around until it’s filed, just in case that attorney needs me.
This is, of course, not a hard or inflexible rule. What sort of monster do you take me for? There will be doctor’s appointments, school performances, dates, and other things that need to be done. Those things are important too, and if you’re unhappy because you’re missing them, you won’t be doing a good job here. But 80 percent of success is showing up. So come early and stay late, when you can.
Timing Is Everything
Timing is not just about when you come to the office and when you leave; it’s everything. For example, if I ask you to write a motion to dismiss, it needs be filed 21 days after our client was served with the complaint. But it may be that we weren’t hired until 14 days after our client was served. It may be that we can’t get an extension. So, no matter when it turns out to be due, it needs to be “finished” well before that. I will want to read your draft. After all, I might have an idea or two about what we should say or the way we have said it. Our client will likely want to read it as well. And I’ll certainly want to read it before we send it to the client.
It won’t do to send your draft to me on a Friday when it needs to be filed the next Monday. I’d rather not spend the weekend, if I can help it, revising the draft. The client won’t want to, either. The sooner you get your draft to me, the sooner I will get comments to you, and the sooner we will be finished, which will mean we’re well prepared for all the other things that will inevitably interfere with what we’ve got planned.
Don’t think this is just for me. If you can deliver your draft to me early, then you won’t have to sort through my comments over the weekend when you’d rather be doing something else too.
This applies equally, perhaps more so, to things like discovery. When we get document requests or interrogatories, read them. Send them to the client. Develop a plan for how we’re going to respond and what we need to accomplish to do so. Do we need to interview anyone to prepare the responses? Who? Call them. How quickly can we schedule an interview? They have plenty to do other than help us with the case. Maybe they’re traveling for business. Perhaps they’ll be out of the country or on vacation. Who knows? We need to ask and we need to ask quickly.
Responding to document requests may be a real burden, or it may be that we don’t have any documents to produce. But we won’t know if we don’t ask. Since we can’t just push out boilerplate objections to things like this anymore, we need to know. And the sooner we figure it all out, the better.
One last word about timing—yours. Tell me what you’re doing with your time. What you already have agreed to do for others. When you’re going on vacation. If you’re in the middle of preparing for a preliminary injunction hearing, tell me that you can’t help me with my new case. Recommend someone else you think might be able to.
If you’re really busy with other work—if your dance card is really full—please say so when I ask you to do something you don’t have time for. If you’re overcommitted, your work will suffer. When you overpromise, you’ll come up short. When you do a poor job or can’t finish what you’ve said you will do, I will be unhappy. The others you work with will be too.
The corollary to this rule is that you need to say no to others if you’re busy working with me. There are few worse things that a young lawyer can do than agree to work on a case, only to later say that he or she is not available to help because other things have “come up.” There of course will be times when that is unavoidable. It may be that a case you’ve worked on for a long time that had gone dormant suddenly becomes active again. But if you’re constantly telling me that you can’t work on our case because you had to write a memo or do some other spot “emergency” assignment, it will make me think that I can’t depend on you. And I’ll be right.
Much better that you prioritize those assignments and projects that are long term and that you began working on first, and tell others you don’t have time for a new assignment. They will be able to find someone else—with your help—and they’ll understand because they will expect you to do the same when their matters should take priority.
Sweat the Small Stuff
Beyond timing, let’s move on to the importance of things both big and small.
First, the small stuff. Sweat it. Master the basics. Know the rules. Make sure we’re following them. Point them out to me, if and when I stray from them. The funny thing with rules is that they’re always changing. I confess that I sometimes forget what has been changed.
If I ask you to draft initial disclosures and you don’t know what initial disclosures are, read the rules, ask me for an example, talk to another lawyer down the hall, and pick up Wright & Miller or Moore’s if you have more questions. Come back to me. Check to make sure that the local rules or judge’s procedures don’t require us to do anything different. And if there is something about which you simply cannot find the answer, leave a placeholder and ask me what you should do.
Whatever you do, don’t just leave something unaddressed and assume that I’ll notice. I’d like to think that I would, but I might not, and others you work with might not, either. Our client will not be happy about having to pay for a mistake. Oversights make me unhappy. Because I know that we could—and should—do better.
Proofread like it really matters. Because it does. Period. Pore over every word, comma, and semicolon. Make sure my subjects and my verbs agree. If I’ve used a word incorrectly, say so. We all make mistakes, but we’re paid well for what we do, and our work should reflect that.
Check citations. Not just to make sure that we’ve abbreviated a case name as the Bluebook directs but also so that we know that the cases we’re citing say what we say they do, that the outcomes are ones that favor our position, and that there aren’t better cases we could be citing. If we’re trying to win a summary judgment motion, don’t cite cases in which the judges denied summary judgment motions. If we do, it will make for easy fodder for our opponents.
Judges and law clerks notice the little things. We don’t want them distracted by an incorrect pinpoint cite, because then they’ll begin to ask what else we’ve gotten wrong. If you have a question about whether a case is good law, ask. But try to figure it out for yourself first. I trust you.
Now, on to the big picture.
The Big Picture
You are a cog in a machine. I mean that in the nicest way. I am too; we all are. Just don’t act like it. After all, my cases are your cases too. They’re our cases. The moment you passed the bar, you could legally do everything I can. And although I realize you haven’t yet had the same experiences I have, that doesn’t mean you’re not an important part of our team. When you wake up in the morning, I want you to think about how we’re going to win.
So how do you do it?
First, start at the end. When you get a new case, read the pattern jury instructions, understand the elements of the claims and defenses, analyze what we need to prove or try to disprove. Read a treatise, an article from Litigation, a blog post, the leading cases. When you’re reading a rule of civil procedure, read the commentary from the advisory committee and assess how it fits in with the other rules. That will help you to make sense of it all.
Then become the master of the facts and the documents. Nothing will make you as important and indispensable as being the unparalleled master of the evidence. All of it—the good, the bad, and the ugly.
I know that reviewing documents sounds mundane, and it can be, but it’s vitally important. Otherwise, we won’t really know the story, just what people tell us the story is. And to be able to present the case effectively, we need to know not just what people say but also what the documents show.
Dig deep. Why did people do certain things? When did they do them? How did they do them? We need to know whether the story our client told us is one that stands up. Sometimes people don’t remember things quite the way they happened. Some people lie—don’t be surprised; it happens every day. We want to know the facts to make sure we can catch the other side if they’re stretching things, and we need to know if our own client is doing the same.
So, when you’re reviewing documents, don’t just click through them. Read them. Analyze them. If there’s something you don’t understand, look for other documents that explain it until you do. Think of yourself as a detective or an investigative reporter. Take the loose emails and documents, use them to build a chronology, and set about figuring out the real story. It’ll be fun. I promise.
Then put it all together. Assemble the details. See the big picture. If you know the law, you’ll understand which facts are important. And if you know the facts cold, you will be indispensable. You’ll know when a witness’s testimony contradicts what she said in an email. And you’ll be able to nail that witness for it. You’ll know the documents that make our case. And you’ll take great joy in finding those too.
So will I. It will make me very happy.
Once you know the facts and the law, think about how we can tell our story. You may have found a killer document, but what if it’s hearsay? How are we going to get it in? Is there an exception? Can you find another way to prove the point? Must we depose another witness?
We’re trial lawyers, after all, even if there aren’t many trials anymore. By preparing for everything as if the case will go to trial, we’ll be better off than 90 percent of our opponents. Often that will make the difference—the difference between victory and defeat or the difference in settlement.
The more you think about things like these—what we can do to better the odds—the more it will make me happy. I’ll know that you’re getting it. That I can ask you to do something and be confident in what you do and say, because you’ll have asked the hard questions and thought about how to answer them.
There is one other thing you need to do to make me happy: Make me mad. Tell me when I’m wrong. Why I can’t make a certain argument. When I’m not making any sense. Don’t assume that just because I’ve been doing this longer than you have that I’m necessarily right. Push back, and push back hard; nicely and respectfully, but firmly and confidently. Do not be bashful or apologetic about it.
When you do so, it will cause us both to think about the strengths and the weaknesses of our arguments. Of our case. And when you do have to tell me that we can’t make a certain argument, don’t stop there. Give me some options and alternatives. Tell me what else you’ve considered and why it might or might not work. How you think we can make it work.
Also tell me what we’re not doing but should be doing. Tell me what arguments we should consider but haven’t. Your ideas may be better than mine. I’m interested to hear them. I will challenge you when you do, ask you if you’ve considered this or that, or how this fact or case affects your view. Be prepared to answer. I may not agree with you in the end, but I will tell you why, and along the way, I will be impressed by you, and our work will be the better for it.
By the way, tell me when you’ve made a mistake. Tell me sooner rather than later. Don’t worry—we’ve all made them. Don’t blame others when you do. I will not blame you. We are a team. Someone once told me that there isn’t much in the law that you can’t fix. She was right. If we accidentally produce a privileged document, let me know and tell me how we’re going to fix it. If you cited a case that was overruled and neither of us caught that, don’t wait until the day before the hearing to tell me. Let me know and we’ll come up with a plan. Together.
In the end, all unhappy lawyers resemble one another, but each happy lawyer is happy in his or her own way. And now that you know how to make me happy, enjoy the ride. Happy trails.
Copyright © 2019, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).