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February 09, 2022 Column

SIDEBAR: Change—Some Things Don’t

Law is not a carefree, sedate profession. There’s stress, 100-hour weeks, motions, and trials, which sometimes we lose.

Kenneth P. Nolan

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We forget, of course. I live in a Brooklyn neighborhood, Bay Ridge, which was once known as Yellow Hook (another part of Brooklyn is Red Hook). Around the 1850s, the name was changed because the residents—real estate developers, no doubt—didn’t want the area associated with yellow fever, a virulent disease that devastated the 18th and 19th centuries. Every year well into the 20th century, cholera, tuberculosis, polio, smallpox, yellow fever, and the like stole thousands of lives. Through the brilliance of virologists and medical researchers, these scourges mostly disappeared in post–World War II America.

Just when we thought we were indestructible, COVID crashed the party, killing millions, upending lives, and exposing vulnerability. We hid, afraid to hug those we love, afraid to shop, afraid to go to work. We piled on masks, soaked our hands with sterilizer, and spent every waking hour staring into a screen. Fear and anxiety consumed us as we whispered the names of relatives and friends who were buried without ceremony or celebration. Sadly, we realized that a virus can rob us of livelihood and laughter, that even in our secluded suburbs or sprawling summer homes, we’re not safer than those living in cold-water tenements 150 years ago.

Even after vaccination, fist bumps replaced kisses, crowds were shunned, and we reached for a mask whenever we stepped into a deli. COVID has changed everything; the world will never be the same, we’re relentlessly told. Especially in law. No longer do we have to go to the office, travel to counsel clients, sit in a sterile conference room for a deposition, appear in court. Mediations, arbitrations, even trials will be virtual. The way we practiced will disappear as surely as the carbon paper used when I was first admitted. The days of discussing strategy with colleagues while you scarfed down a pepperoni slice are no more. Instead, you’ll mutter into your computer as you pick at a wilted salad.

Yes, how we practice has changed, but our practice has not. Law is based on simple, but timeless abilities: to communicate clearly; to convince with expertise and common sense; to solve difficult, intricate problems; to advise and reassure. Cicero’s “docere, delectore, et movere”—to teach, to delight, and to move—is as relevant as ever. We must prove our thesis while captivating and convincing our audience, be it client, adversary, judge, or jury.

If we analyze our worth, we must acknowledge that the qualities that make us valuable to our clients, to society, have not fundamentally altered even as we sit squirming on the 10th Zoom of the day. Indeed, this nasty pandemic, with its isolation and reliance on technology, has, undoubtedly, made our job more nuanced, more challenging.

Life always changes, yet COVID’s impact was sudden and dramatic, altering where you live and work, how you mourn and celebrate, but not whether you do so. So it is with law, where our ability to advocate and advise remains essential, although how we do so is different. This, too, is not new. When Ted Lasso asks the hotel clerk if they have a fax machine, a woman says, “A fax machine, hey? Are you sending something to the year 1997?” Those weaned on avocado toast have probably never seen telex machines, electric typewriters, and crowded courthouse phone booths. Today, you can argue a motion from your ski house in Whitefish, Montana, but you still must use words—written and oral—to persuade. And although COVID has changed much, the soul of our profession has not.

Communication. The ability to speak and write clearly and credibly permeates every aspect of our craft. Words convince clients to hire us; and their skillful use can guide and instruct, win motions, and sway juries. More importantly, words can demand justice for the innocent, the helpless, the uneducated.

Words alone, however, are often insufficient. That’s why I always opted to sit in the kitchen, pretending to like the big slobbering mutt, while I reassured the client, evaluated the witness, guided the expert. I needed to see their shoes, their eyes, whether they were stand-up people or whether they were like an early client whose arm injury made him “absolutely helpless” until the settlement was placed on the record, only to ask: “Can I go bowling tonight?” Body language, gestures, and intonation educated and comforted me.

Trying to discern whether your advice is understood is much more difficult through Zoom with poor lighting and kids wailing in the background. How do you hold a client’s hand when you’re a time zone away? How do you discern what aspect of your argument resonates when the judge’s face is shadowed and her eyes mere specks?

Without in-person meetings, court conferences, and depositions, COVID has made written communication more critical. Your disarming charm and wit, evident in a courtroom, are nonexistent on a screen, making reliance on briefs and supporting documents even more meaningful. This is why every law firm’s first request to an applicant is this: “Can I see your writing sample?”

This in an era in which schools have forgotten to teach speech and writing, instead concentrating on STEM and economics programs. Learn something useful, a major that will help you land a job at a start-up or hedge fund. Forget grammar or spelling—it’s the idea that counts. Hey, there’s always spell check. Both in high school and in college, speech and composition were required, where even the shyest student had to speak in front of the class or read his essay aloud. Law demands these antiquated skills. Spend time developing them.

Hard work. Yes, litigation with its anxiety and inhumane deadlines demands nights and weekends. Not a secret, by the way. If you want to succeed, prepare thoroughly and diligently. Always. Yes, there will be tears when you cancel your vacation to Sicily with its majestic ancient ruins, its delicious pasta con le sarde, and Etna Rosso. Law is a time-intensive career. No silly virus will ever change that.

Happily, COVID eliminated your commute, something I often dreamed of, having spent years on the foul subway traveling back and forth to midtown, ignoring the panhandlers and the homeless, cursing the sick passenger who caused the delay—how rude to have a heart attack during my morning commute! But arranging a virtual mediation or deposition requires more coordination and time, especially for those who didn’t have an iPad in pre-K. Easier at home, of course, but I always took comfort in walking down the hall, sitting in a partner’s office discussing strategy, seeking suggestions, exchanging gossip.

Time in the office will undoubtedly decrease because working from home is more compatible with family life and, quite possibly, more productive. Flexible work will be the norm with an enjoyable 20-second commute, but along with that comes the isolation, the loss of learning from the white hairs, the loss of firm culture. I’m a litigator, so sitting in a silent room all day without another present constitutes cruel and unusual punishment.

Professionalism. Yeah, your house is a disaster, your sweats are stained, and you feed the kids powdered mac and cheese to stop the whining. I get it, but a pandemic doesn’t excuse arrogance or disrespect. At any PTA or town meeting, it’s a given that one esteemed member of the bar will throw a tantrum. Personal attacks, venom, and “I’ll sue” are all too common. It’s as if we have an aggressive gene that we can never turn off. COVID has heightened fear and avoidance. Whether you’re responding to an unfair accusation or steaming because the guy next to you refuses to wear a mask, polite, measured assertions are more effective than a diatribe. Courtesy is never out of style.

Sometimes it’s agonizing to treat adversaries—and co-counsel—with respect and propriety. I truly despised some and wished them every horrible misfortune, but litigators must work with all sorts of people, few like St. Francis of Assisi. Humility and humor will make these challenges easier.

Think twice before you send that email or tweet. So easy to write a quick, nasty response that you’ll later regret. Draft it and leave it for the morn. As Warren Buffett said, quoting Thomas Murphy, you can always tell them to go to hell tomorrow.

Generosity. I hope you realize how fortunate we are. Nurses, cops, supermarket workers, truck drivers didn’t have the luxury of sitting home on their computer as the virus raged. They donned a mask and went to work—they were essential, and courageous. I hesitate to contemplate how society would have functioned had they shirked their duty.

Law is not a carefree, sedate profession. There’s stress, 100-hour weeks, motions, trials, which sometimes we lose. Consider the alternatives—waiting tables, hammering nails, tossing trash into a huge truck. I wouldn’t trade my career for those, nor would you. Regrettably, the pandemic has increased need and poverty. We have an obligation, however, to use our intelligence and skill to feed a family, alleviate abuse. Tutor failing students, volunteer at a soup kitchen, mentor a child in foster care. Be magnanimous with time and talent.

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Kenneth P. Nolan

The author is the author of A Streetwise Guide to Litigation (ABA 2013), and counsel to Speiser Krause, Rye Brook, New York.