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Litigation Journal

Summer 2021: Crisis

Having It All

Kenneth P Nolan


  • Does the law, with its eternal hours, its demand for complete devotion and fidelity, make significant commitment to family impossible?
  • It is essential for our profession to allow parents the flexibility to practice and raise children.
  • The excuses of finances and firm culture are no longer valid, if they ever were.
Having It All
sturti via Getty Images

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Trapped by the pandemic, my lovely bride, who has never tossed out a card, photo, or baby shoe, decided to rummage through the many boxes stored in our basement. A ticket stub from a 1976 Sinatra concert, every card from our wedding 47 years ago, menus from our 1975 cruise to the Bahamas with friends where two couples slept in a tiny room to save dough. . . . I really wore that many three-piece suits? What a nerd! Memories, so many and mostly good.

In the boxes were tons of stuff from when our kids were young, including a pre-K description of me. Sometime around 1990, my daughter Lizzy said that I was 20 years old, 10 feet tall, and weighed 9 pounds. She knew I was a lawyer, and my favorite food was “steak, I think, I don’t know. I don’t see him eat.” For favorite TV show: “He watches at nighttime. I don’t see him.” A few years later, Claire said I was 29 feet tall and weighed 36 pounds. “He’s a lawyer, he types on the computer, writes, staples. At home, he watches basketball and sleeps and reads to me. He comes home at 9 o’clock.”

I smiled at the hilarious portrayals and studied the photos of when my daughters were so innocent and my hair so dark. Every few days, we pore through another box, straining to hear the laughter, see the smiles. Inevitably, the conversation is the same. Me: “Wasn’t it . . .” Nancy: “No, it was . . .” We sit and reminisce for we have time, too much actually. No longer are we running to work, restaurants, shows, planning trips and parties. Instead, we sit home Zooming, binging 30 Rock and Seinfeld for brightness, and spending too much time alone. This has caused me to do what I’ve always avoided and feared: think about my life.

“I don’t see him eat. . . . I don’t see him. . . . He comes home at 9 o’clock.” Somehow, I had convinced myself that I was there for dinner, school recitals, when their fever hit 101. Out of the mouths of babes. Our four have turned out fine, thanks to Nancy. Yet, as I sit here in the midst of this stinking pandemic, I argue—in silence and only to myself—that I was a hands-on, family-first dad. It’s true, I swear, Your Honor. Look at Exhibit A where Claire said I read to her. See? I was a devoted father. I really was.

Like most men, however, I ceded child-rearing to my wife, allowing me to focus on career rather than weekday meals, baths, and bedtime stories. There was always another deposition or trial, a client to interview, a meeting to attend. Even after an exhausting day, I would sit on the nasty subway reading advance sheets, searching for relevant decisions. I was a zealot, working incessantly, building a practice, trying cases, traveling. I networked, joined bar associations, volunteered in the community. I was determined to succeed professionally and financially. And I did, at least in my parochial world.

But did I really? Can you be a valued, dedicated litigator and a good parent and spouse? Or does the law, with its eternal hours, its demand for complete devotion and fidelity, make significant commitment to family impossible? And by trying, are we simply fooling ourselves, setting us up for failure at both? Should we mirror the Catholic priesthood, forbidding marriage and children for we can only worship our one, true God—the law?

Many legal positions, of course, are consistent with good family life—those in small firms, in government, as in-house counsel. These jobs appeal to many, especially those who prioritize children. Indeed, my daughter tells of a bright, personable friend who recently changed to a “parent-friendly job,” working for a municipality. Now she’s home for dinner and weekends, available if her daughter has a sniffle. Yes, her salary is less, but so is the stress, for when she loses a case, she doesn’t lie awake with regret, because the municipality is usually at fault and “it’s only about money.”

And it’s not only law. Just yesterday, a friend’s daughter, big on Wall Street, resigned to raise her two daughters. “Sometimes, you know, she had to travel to Australia.” In my daughter’s high school annual report, two women members of the board of trustees, both with PhDs, put their careers “on hold” to focus on family. Raising children full time is an admirable choice, but, in almost all situations, both parents must earn a living to pay the bills.

Perhaps the pandemic and its resulting confinement has caused us to question our goals, our careers, our profession. Perhaps both parents working from home while children learn remotely has caused us to realize that writing a winning brief is not as fulfilling as watching Susie take her first steps, that having your adversary’s case dismissed is not as rewarding as having Tommy fall asleep in your arms.

Watching my kids and their families juggle work and school without strangling each other has made me appreciate how my wife protected and nurtured not only me but my career. A selfless generosity that, quite frankly, I couldn’t duplicate. Yet, little has changed in the 30 years since my children were young. Despite the many feminist advances, child-raising is done primarily by women. The reasons, and whether this is advantageous, I’ll leave to others. But, from my experience, women continue to sacrifice more for family.

And the result is a torrent of articles about working women leaving the law—30 percent or so. Our profession, especially the men who run it, accept the loss of ability and intellect that generally occurs during the prime career-building years, 35 to 40. How can this constant turnover be beneficial for a firm or profession? In Big Law, women comprise only 20 to 25 percent of equity partners. They leave because of family commitments, stress, the emphasis on billable hours and business generation. And we all know that some young women aren’t even hired for fear they’ll eventually take maternity leave. All this—and more—applies to women of color.

Perhaps it’s my three daughters, but women are more talented, more sensible, smarter. Yet, they still aren’t paid or treated equally. We were five or six couples in a hotel elevator on our way to a black-tie dinner. An elderly couple entered and the woman, scanning the tall array in tuxedos, turned to her husband and said with a smile: “We don’t have to worry with all these big, handsome men here.” One friend—a hospice nurse, a mother of five who would later take in her father for a few years when his health failed—answered with conviction: “Useless, they’re absolutely useless.”

I guess by now you realize you can’t have it all. Not as a lawyer, especially a litigator. Too many cases, too much pressure, too many demands. If you focus on money and prestige, relationships suffer. Yes, you can find a better balance, but law is very exacting with strict deadlines, clients, judges, and partners to satisfy. And if you cut corners—don’t prepare thoroughly—you can lose.

I don’t buy the argument that if you value family, quit now and do something else, anything. Nor is law so horrible that you should kidnap your kid so she can’t take the LSATs. You work with computers, not shovels, in air-conditioned offices, not in blistering heat or piercing cold. You’re not running into burning buildings or having to make a split-second decision as to whether that guy’s holding a gun or a phone. Plus, you can earn a very nice living.

Yet it is essential for our profession to allow parents the flexibility to practice and raise children. Even in this COVID era, law firms thrive, making oodles of money. The lack of flexibility is simply a failure of resolve, a lack of vision. The excuses of finances and firm culture are no longer valid, if they ever were. Now is the time. The world is upside down in so many ways, let’s use this upheaval to create some good. Working from home is not only possible but efficient. Allow those who choose to work from their kitchen to do so, to work as many hours as they please, to work in the middle of the night. Let them craft their own schedules. Consult working parents to formulate strategies and guidelines to allow them to remain active attorneys while being there when school is dismissed. The trade-off is less money, but that’s not an issue for most.

Sure, jury trials must be in person, but they are as rare as a snowy white owl in Central Park. Non-jury trials, mediations, even arbitrations can be done remotely, never mind conferences, motions, and depositions. In a post-pandemic world, Bill Gates predicts that 50 percent of business travel will disappear as will 30 percent of days in the office. I valued studying another’s eyes, examining body language, and evaluating the other’s voice. But how many years did I waste commuting on the subway two to three hours each day?

Our amazing technology can allow us to work and be with little Ryan. It’ll never be ideal. Nothing is. But we have an opportunity to transform, to allow a dad to eat dinner with his children. If we are creative and accommodating, law will benefit. Our brightest and most efficient will no longer walk away, never to return. Instead, they will add value and intellect to firm and family.