- You will always get another client.
- Sustained stress is not good for lawyers or other living things.
- Market yourself.
The best speech I ever gave was based on a verse from “If I Had a Boat” by Lyle Lovett. In the song, the “mystery masked man” is smart because he has Tonto, who does “the dirty work for free,” much like a young law firm associate. But Tonto turns out to be smarter than the average young associate when he says, “Kemo sabe / Kiss my *** I bought a boat / I’m going out to sea.” Lyle Lovett, If I Had a Boat, on Pontiac (MCA/Curb 1987). The speech, addressed to a group of soon-to-be-graduating law students, described several common dilemmas facing new lawyers under pressure from law firm partners, judges, or clients to do the wrong thing. After working through each dilemma, my advice was to make the right choice while telling the “pressuror” to “kiss my [grits] I bought a boat / I’m going out to sea.” Id. (with apologies to Lovett for substituting his word with “grits”). That advice, naturally, came from my own failures—but not my only failures.
What do I wish I had known as a young lawyer? When I began in 1976, I wish I had known that one day you could practice law while sitting on a beach in Fiji using a handheld computer that also makes phone calls. Granted, that would not have been useful information at the time; but my law partner had taken out a second mortgage on his house to pay $25,000 for a desk-sized computer to print out real-estate closing documents, and it would have been fun to say, “Hey, why don’t you wait 45 years?”
In contrast, there are a few things that I wish I’d known that actually would have been useful.
As a young lawyer in a small firm, I wound up with some terrible cases because I thought, “If I don’t take the case, I may never have another client. And, if I never have another client, the world will end and me with it.” The cases that I took for fear of the end of the world always cost me money, created professional anxiety, and featured the most ungrateful clients.
By terrible cases, I mean cases that lawyers often refer to as “dogs”—although that does a disservice to dogs, who at least are loyal, no matter how flea-bitten. Telltale signs of terrible cases include earnest people bearing rumpled folders of documents, tales of injustice by every judge handling prior incarnations of the case, and unrealistic expectations of multimillion-dollar verdicts. Also, the fact that three other lawyers have told the guy to take a hike is significant. Seeking advice from more experienced lawyers about the merits of a potential client’s case is always a good idea, but an older lawyer may have referred this particular canine to you, thinking it would be a good learning experience.
I wish I had known that you can safely turn down a potential client. If clients persist in knowing why you won’t take the case, tell them you’re bound by section 3-501.16(a)(2) of the Nebraska Rules of Professional Conduct and usher them out the door. The rule states that you should not represent a client if your mental condition will impair your ability to represent the client; I interpret this to mean, “My sanity impairs my ability to handle your case.” Send the rejected nonclient a letter stating that he should consult another attorney promptly because the statute of limitations or other procedural barrier to his claims may arise at any moment. (If you know for sure what that risk is, be specific.) You may wish to tell the nonclient about a local attorney referral service but should not direct him exclusively to another lawyer—unless there’s one who really annoyed you recently. (No, no, you can’t do that.) Remember: The difficulty of withdrawing from representation when a good case turns bad means that when deciding whether to take on new clients, assume that you will not be permitted to withdraw but will be zealously representing them until the work that you promised to do is concluded.
What I know now is that, based on the universal experience of lawyers, another client will walk in the door (or, today, contact you online) after you “regretfully” decline to be involved in the nightmare case. And you’ll do a better job with the good cases and the good clients when you are not bogged down in ones that you never should have taken.
While it is impossible to practice law without stress—the stress of deadlines, opposing counsel, judges, and, yes, clients themselves—I did not recognize as a young lawyer that I and many of my contemporaries were experiencing more stress than we could safely handle. The stress of 10-hour days in the office, six or seven days a week and year after year, when you rarely take true vacations untethered to the office can be fatal. (I’m tempted to use the frog-in-boiling-water fable—the workaholic lawyer knows she’s in boiling water but can’t, or won’t, jump out—but it has been thoroughly debunked.) Then there is the stress of 18-hour days during trial, which is unavoidable but does fade in the breaks between trials. And although stress caused by procrastination may be richly deserved, stress is cumulative.
Most of the “progress” in law practice during my career has tended to increase stress, including the radically different business model, especially in larger law firms; the smothering amount of electronic discovery in civil cases; and the pace of communications (from snail mail to the expected instantaneous response to texts). Shortly after email became ubiquitous, I asked an English barrister friend if he was using this new technology. “Oh, no,” he said, horrified. “I never even mail a letter the same day I write it. I like to think about it overnight, in case something was omitted or my tone was not quite right.” Those were the days.
The legal profession has responded over the last 20 years to the stress situation by emphasizing lawyer wellness, including efforts such as the Nebraska Lawyers Assistance Program. While I was fortunate to have avoided addiction or another form of self-sabotaging conduct, if I had known how many of my friends were headed that way due to the stress they were facing or, perhaps, causing themselves, I hope I could have been more helpful. At least, I could have recited the Stoic (also Hindu and Buddhist) mantra that you are only responsible for your effort, not the outcome.
My favorite stress-reduction tactic also increases productivity: have a “bolt-hole,” a British term for an animal’s burrow or den, a place of escape. For lawyers, a bolt-hole is a refuge where you can concentrate on one task at a time, without interruptions from phone calls, emails, and drop-in visitors. It could be a local law school library, a coffee shop, or the food court at a nearby mall, where I find the background buzz to be perfect white noise. In Jonathan Harr’s A Civil Action, defense attorney Jerome Facher’s hideaway is the ultimate bolt-hole:
He didn’t spend much time in his office anyway. He would stop there in the morning to check the mail and phone messages and then he would vanish to one of his many hideouts, as he called them, where he could work without interruption. He had hideouts on several different floors, but his current favorite was on the twenty-first, at the end of a windowless corridor, behind a heavy steel door. The door opened into a large, dimly lit storage room that served as a warehouse for the firm’s moribund files. . . . Near the center of the room, in a pool of lamplight, Facher had assembled three large tables to form a desk on which more paper—depositions, briefs, motions, affidavits—had accumulated. Piles of legal memorandum had taken root on a sagging, threadbare, mustard-yellow couch, a piece of furniture that would never be exposed to the soft lights and thick carpets of a Hale and Dorr reception room.
Facher would sit amid these files in his shirtsleeves, the breast pocket stained by a leaky pen, his collar and cuffs frayed. He looked like an aging clerk caught in the backwater of a large bureaucracy, yet one hour of his time would cost a client several hundred dollars and he earned more than he could ever spend.
Jonathan Harr, A Civil Action 89 (Vintage Books 1995) (The last quoted paragraph is not relevant to bolt-holes, but it’s one of the best paragraphs of all time.).
After I began practicing law and lawyer advertising was first permitted, we held a firm-wide meeting to discuss whether putting the law firm name in bold type in the white pages was appropriate. The conclusion was that good work and word of mouth from satisfied clients would bring us all the clients that we could handle.
Marketing was thought of as being active in bar associations, playing golf with clients, and running for office. There were other nostrums for “growing your practice.” One of my friends was told that joining a church was a good way to get business. Based on no market research, he joined an affluent Episcopal congregation, which was overrun with lawyers already. “Dress for success” was another marketing idea. I now freely admit that my late ’70s green polyester suit was a fashion mistake—as well as a serious fire hazard.
I knew that writing law review articles was a form of marketing, in the same sense that the Bataan Death March was a form of exercise. Today, the internet’s blogs and forums and websites and YouTube and all those social media platforms that I’m not on furnish exponentially more outlets for short, informative written pieces, podcasts, and video—aka “content” that is visible and useful to clients.
In those ancient days, I once represented two franchise clients, a franchisor and a franchisee in different businesses. The work was interesting, and I thought it would be a great specialty. Based on my limited understanding of marketing, I came up with a topic for a law review article. That was the end of that. It was my failure of imagination. New lawyers today instinctively know about the many outlets for marketing; they were blogging in high school. If only there had been a website back then listing franchising clients looking for a lawyer with whom to play golf.
Of course, for a new lawyer, admitting a weakness is as hard as telling a client that you don’t know the answer instantly. It’s difficult to believe that clients are actually comforted when you say, “I haven’t handled this exact issue before, so let me research it briefly and I’ll get back to you.” And, nowadays, if you’ve spent a zillion dollars for your law degree and will be paying off student loans long after we’ve abandoned the dollar and gone to a currency redeemable in quarts of clean water, you should, after all, be supremely capable. You’re not; none of us is.
My biggest weakness as a lawyer, then and now, is that I’m a terrible negotiator. My effort to deal with that weakness was to admit it, for example, by telling an insurance adjuster, “I think this case is worth $10,000. Now, I could start by saying it’s worth $20,000, and we’ll wind up at ten; but I’m a terrible negotiator, so let’s not waste time—pay my client $10,000.” The adjuster, naturally, thought that I would settle for five if I started at ten, so he offered $2,500, which means that I could never get it back up to ten. Yes, I read books about successful negotiation techniques; but I also read about Einstein’s theory of relativity, and that didn’t make me a physicist.
My second biggest weakness—probably related to the first—is that I was awful at actually collecting fees. I assumed that when I successfully concluded a matter, the client would pay up cheerfully. It took far too long to realize that, in fact, the better the job I did for clients, the less likely they were to pay up. This makes no sense, and it hurt my feelings, making me wonder if I had failed somehow. (The only failure may have been in not lowering the clients’ expectations enough so that they would fully appreciate the amazing outcome.) Today’s solution is to require clients who can’t pay in advance or supply a reasonable retainer to pay by credit card.
The way I compensated for both of those weaknesses was to make sure that I had a partner who was unemotional about money and had the haggling skills epitomized in bazaars. Identify your weaknesses and make sure you’re compensating for them.
There is a great lawyer story about a new attorney in a small town who called opposing counsel, let’s say “Mr. Smith,” to introduce himself because he was representing the defendant in a case filed by Smith. Smith said, “Here’s all you need to know about that case. My client says your client is a son of a bitch. Your client says my client is a son of a bitch. They’re both right.” Clients may not always be civil, but lawyers can, should, and must be.
Like most Nebraska lawyers, I had the innocent, almost lyrical experience of starting my career in a legal community where civility was instinctive and what we heard about lawyers in large eastern cities was the bar’s equivalent of the bogeyman. During the worst days of the Rule 11 mania, I consulted with lawyers in Los Angeles in a securities case where every other filing sought sanctions and attached dozens of daily faxed letters full of insulting invective between counsel. It made me physically ill. The best advice about civility I ever heard was from a Los Angeles lawyer, Frank Rothman, who said, “You should never file a motion if you can send a letter, and you should never send a letter if you can make a phone call.”
As with lawyer wellness, bar associations now seek to promote civility because they understand how corrosive hostility between opposing counsel damages the image of the profession and, coincidentally, increases lawyer stress. The Atlanta Bar Association sponsors a “Take Your Adversary to Lunch” program. (In Atlanta, the program depends on everyone knowing that “Jeet?” is actually a southern sentence meaning “Did you eat yet?”) Such a lunch may not result in opponents becoming instant buddies, but it will increase trust and allay suspicions. We all experience the tension of dealing with a lawyer we don’t know through initial correspondence, stilted and lawyerly. But after we meet in person the first time, the tension disappears even before we get to know much about the other person. Natural lawyer camaraderie overcomes almost all suspicions.
Civility between judges and lawyers is also important. One modeling of such civility is in the U.S. Court of Appeals for the Fourth Circuit, where the judges step down from the bench and shake hands with the lawyers after each argument. This practice has spread to New Jersey; and in at least one Florida appellate court, the judges take a coffee break with lawyers arguing before them.
The Savannah (Georgia) Bar Association hosts the annual Admiral Harvey Weitz Boat Ride [login required] for lawyers and judges, who board a harbor cruise boat for a daylong, slow cruise down the Savannah River and up the Intracoastal Waterway, meandering through marshes to Hilton Head, South Carolina, and back. Harvey, the dean of the Savannah Bar, invited me each year when I was dean of Atlanta’s John Marshall Law School, and it was the best perk of the job. Lunch, drinks, and ice cream are included, as is a corner poker game with Georgia Supreme Court judges. Laughing, storytelling, and friendship are everywhere. Just thinking about the fellowship on those boat rides, like the hubbub in the hallways during the Nebraska Bar Association Annual Meeting, makes me smile.
When I have my boat, I want only lawyers on board when I’m going out to sea.