When I was a new lawyer, I often found it difficult to look beyond a discrete assignment. I would (try to) do whatever a senior lawyer had asked me to do and then would go back to wondering how I would develop into the counselor and advocate the more experienced lawyers I saw seemed to be.
For those in a similar position, I offer tips I’ve found useful for relating to judges and clients and also the view that you should treat everyone with whom you work as a judge and a client.
It’s simple advice, but it’s vital. The judge on your case is busy. A federal judge might have four hundred pending cases. A state-court judge might have four thousand. If you do not tell the court exactly what you’re requesting, it is very unlikely to give you what you want. Though there are no guarantees in litigation, clarity in the request dramatically improves your odds. The goal is to be clear enough that the court cannot possibly misunderstand. A side benefit: until you make the request that clearly, you might not understand clearly enough.
Prepare for every interaction with the Court—even if it is “just” a status conference. Part of preparing is anticipating questions the judge might ask. When the judge asks a question, stop—immediately! Answer the judge’s question. With a “yes” or “no,” if at all possible. Answer honestly. Perhaps the chief asset a lawyer has is his or her reputation as a straight shooter. Zealous advocacy is one thing. Misrepresentation to avoid bearing bad news is quite another. Consciously or not, a judge evaluates a lawyer’s credibility and weighs or discounts the lawyer’s assertions accordingly. Protect your credibility.
This is the key insight. Law practice is not a law exam. The person who hired you has needs and desires outside of your engagement. The more you focus on your client, the person, as opposed to a discrete legal task, the better lawyer you will be.
You might litigate a case differently depending on whether your client’s chief interest is in pushing the law in a particular direction, doing business again with the adversary, or simply freeing up executives’ time.
What gets your client going in the morning? Figure out how you in particular can help. This tip complements the previous one. Accomplish the task the client has articulated and think about your client’s ongoing concerns and unarticulated needs.
A good lawyer anticipates issues and proposes resolutions, based on judgment, insight, and intuition born of experience both practical and learned.
Client development is as much or more turning clients into friends as turning friends into clients. An excellent lawyer not only completes the task at hand, investigates the relevant facts efficiently, and uses experience, learning, and judgment to anticipate issues, but also engages with the client as a fellow person, amicable acquaintance, and, ultimately, as a friend.
The seeds of friendship can be planted in the moment of informal chit chat at the beginning of a meeting. By establishing a more personal, human connection, the lawyer increases a client’s comfort. That both facilitates the discovery of facts relevant to resolving the dispute at hand and makes repeat business more likely.
In-person meeting facilitates conversation. It may be the ability to read body language. It may be the natural tendency to focus on the person visible in front of you more than you would focus on a disembodied voice. Often, meeting in-person is infeasible, especially these days in the midst of a pandemic. As fatiguing as online video conferencing can be, there’s good reason to think that certain meetings are most effective when the participants can see one another. Similarly, there’s reason to think that people exchange information more efficiently in real time than they do using asynchronous communications like letters or emails.
It’s easy to assume that your only client is a paying client. Think more broadly about who your clients are, because a lawyer – especially a new lawyer – has many “clients.”
As a new lawyer, your “client” might be more senior lawyers in your firm (or a judge in whose chambers you serve as clerk). So just as a successful senior lawyer might check in on her external clients to ask what is on their minds, the successful new lawyer will befriend others at her firm and keep their goals in mind, and offer help proactively. If you discover an authority that you think might help a colleague, pass the case along. Even more helpfully, briefly summarize the authority and why it may be useful.
Your newness as a new lawyer may offer you several ways to help your clients—internal or external. The junior-most lawyer is most likely to be intimately familiar with the facts of the case. Depending on the size of the case, you may be able to know literally every relevant document or witness. Knowing what happened is also the best way to ensure you are involved in the future of the litigation. If you are the person most likely to know if a deponent is lying, then your team really needs you at the deposition.
Another thing for the junior lawyer to do is to know the relevant rules, especially local rules and a judge’s individual practices. Print them and study them as soon as you have the matter. That’s the kind of thing that you can do that others may not have time or interest to do.
The scheduling order, together with the local rules and judge’s standing orders or rules of practice, is one of the new lawyer’s secret weapons. It lays out key steps in the case—steps that the court or judge considers key. A scheduling order—or, even better, a scheduling order compared with similar orders in different cases and courts—offers the new lawyer a sort of checklist. That checklist allows you to anticipate what will happen in the matter, which in turn allows you to anticipate what should be done and when. Similarly, model jury instructions—available for most common causes of action, often compiled by the court or a court-affiliated committee-offer a checklist of the key elements parties will need to establish on motions for summary disposition or at trial.
Within a few weeks of starting practice, “checklists” like the scheduling order and jury instructions allow you to begin anticipating what needs to be done next in a litigation. This allows you not only to plan your schedule but also to be the sort of proactive counselor and advisor that clients—internal and external—find helpful. It gives you time to think about tricky logical issues, prioritize and discuss complicated strategic ones, and investigate important factual ones. It’s important to spend time and effort getting a handle on these issues early in the engagement. That confusing doctrine a partner mentions in an early meeting, the contradictory assertions the client makes in the first interview, the aspects of the client’s industry you really don’t understand—any or all of them may become crucial later in the case. Better to get ahead of them when you have time so they don’t spring up unexpectedly the day you’re also dealing with an emergency motion. Figure it out before then.
Just as tips about client development apply to both external and internal clients, tips about presenting to a judge apply equally to presenting work product to others.
For example, think about written and oral work product to senior colleagues as forms of advocacy. Say clearly and repeatedly what you think your audience should do next, anticipate questions and be ready to answer them, and answer questions clearly and honestly as quickly as possible. When planning for a meeting, anticipate potential questions, plan answers to them, and outline what you want to say. When meeting (or calling), answer questions immediately, directly, and with a yes or no answer whenever possible.
Even in what might seem to be more informal work product, it’s helpful to propose the conclusion up front. If you think it’s important to call the client to get certain information, say so, and tell the partner why. Like a judge, the partner is unlikely to do something simply because you asked her to. So you need to be clear about what you think should be done and explain why it’s important.
When I was a new lawyer, I often hesitated to declare what ought to be done even if I had a rationale. But you do your clients—both internal and external—a disservice if you don’t raise issues because you’re afraid to speak up. But be mindful that the client may have other objectives beyond the litigation—such as critical company meetings coming up that are monopolizing its focus in the short term.
One way to retain credibility as a new lawyer, which is particularly important to the new lawyer, has to do with the timing of work product. A new lawyer does not want to have a reputation for being late without warning.
One approach to avoid is the one I took as a new lawyer. I would try to signal the latest possible time at which I planned to get a task done. (E.g., “Will do no later than tomorrow COB.”) I was told, not incorrectly, that it came off as if I were saying, “I’ll do it tomorrow.” But one also doesn’t want to promise things by an impossible or even unlikely deadline. The best approach, I’ve found, is to acknowledge, as soon as practicable, your receipt of and intent to complete an assignment. If a deadline is included in the assignment, flag as soon as you can if it’s not practical. You win yourself nothing and lose much if every week you promise work product by Monday and then on Monday at 5 o’clock announce it will be Tuesday or Wednesday. Better to clarify timing by Monday at noon (or Friday at noon).
Finally, the new lawyer should exercise qualities of a good client and a good judge. I’d like to emphasize two. First, a good lawyer—new or experienced, advocate or judge—uses her judgment, mostly to investigate facts, to weigh indicia of credibility, and determine facts relevant to the dispositive law. Second, like a judge unafraid to ask what seem like simple questions, you as a new lawyer must not be afraid to ask questions to which you don’t know the answer, especially if you don’t know how otherwise to find it. If your client or partner mentions something as if you are supposed to know what it is, the best course usually is to ask!
These are all tips I’ve learned from senior lawyers with, for, and around whom I have had the privilege to work. I hope you can find the tips as useful as I have, and that they will benefit you as you progress along the way in your career.
