A long time ago, in a galaxy far away, when I wore the clothes of a much younger lawyer, I sat in a courtroom waiting for the Law and Motion Department clerk to call my case. All of 26, I had my license to practice law for a year. Sitting in the Law and Motion Department, waiting for the clerk to call your case, allowed a young attorney to learn by watching the other attorneys and the judge. On most days when I found myself in that situation, I learned about substantive and procedural law; I also learned how to present information and argument to the court and how to deal with the occasional questions the judge asked in connection with pending motions. I enjoyed the process and the manner of learning. The writing rarely matched up to television courtroom drama, but it became my favorite reality show for a time.
In those days, almost everyone I ran into in court had more experience than I did, so I saw them all as potential role models. As I watched and waited, they sorted themselves into good and bad role models, and I judged them based on my impression of their performance, the judge’s reaction to them, and the outcome of their motion.
I do not remember either the motion or the case I had that day,, but that poses no problem, as neither is relevant to the point of my story. The most important lesson I learned that day had nothing to do with substantive or procedural law but everything to do with practicing law.
While almost every attorney I saw in court in those days had a few to a lot of age and experience I had not yet acquired, most still found themselves in their primes or at least continuing to function adequately. I did occasionally encounter exceptions. This was a day for an exception.
As I waited and watched, the clerk called one case after another. When the clerk called a case, the practice required the involved attorneys to stand and identify themselves to the court, state which party they represented, and proceed to the counsel tables in front of the judge’s bench. On that day, one of the attorneys who rose to address the court looked to be even older than I am now, some 50 years later. He seemed confused and out of place like he did not know what to do or what to say. I did not think he did much of a job representing his client. The judge quickly pointed out his numerous errors and denied his motion. I made a comment under my breath, referring to him as a “doddering old fool who should know better than to be in court trying to represent a client.” The attorney sitting next to me, who I judged about 40 years old and knew, casually waited for me after his case. He told me about the older attorney, explaining that while he was now in his late 80s and long past his prime, years before, he practiced well and effectively, earning the respect of other attorneys and the court. My new mentor explained that in the last several years, this individual had rapidly gone downhill, becoming less and less capable of practicing law competently. He left his firm (apparently involuntarily) and continued to try to practice.
Apparently, this aging warrior had no clue he should hang up his sword, lay down his shield, and retire; or, if he did, he ignored it. After he disassociated from his firm (which might have served as a clue), either nobody told him he needed to retire, or he chose not to listen to whoever might have offered that bit of wisdom to him.
As I left the courthouse that afternoon, I told myself that I would never be the “doddering old fool” that some young attorney sees stumbling and bumbling through a hearing. I will share with you the fact that the image of that unfortunate soul remained with me for the rest of my career. In fact, I can still picture the scene in the court that afternoon as freshly as if it occurred much more recently. Because of that experience, I planned ahead for when to retire and monitored myself for signs that the time had arrived. I am convinced that most attorneys if they put the time, effort, and thought into it, can determine with reasonable accuracy when they need to call it quits. That said, I will share with you that you don’t really understand how hard it can be to let go until you go through it, even when you know you should.
I think the problem stems from the fact that lawyering does not just represent an occupation for most practitioners. It not only constitutes what we do, it states who and what we are. I enjoyed practicing law most of the time. I always liked being an attorney. I still do, and I still call myself an attorney, even though I have pretty much retired from representing clients. I say “pretty much” as occasionally, I will still take on something small to help someone out, although that happens less and less as time passes.
For those of you who do not know this, I passed the bar in California when I was still 24 and got sworn in as an attorney six days after my 25th birthday in 1973. Basic math will tell you that I turned 75 on my last birthday and that it has been more than a half-century since I got my license. I had originally planned to practice law until I turned 70, then stop representing clients and continue doing some work as an arbitrator and mediator until I turned 75 and then stop completely.
As a young lawyer, I learned that going to trial could and usually was a physically and mentally exhausting process and that as much as I enjoyed it, I needed to give myself some recovery time, especially after a longer proceeding. I happily did that for many years. When I reached my late 60s (67, to be precise), I tried a case and, after the trial, felt more tired mentally and physically than I had ever felt after a trial. It took me longer to recover as well. I took that as a sign from my body that the time had come for me to think seriously about retirement. I sort of listened to my body. I started the process of moving into retirement by working fewer hours each week and taking more time off for rest and vacations. To achieve that, I rejected more work and reduced my caseload, particularly regarding litigation matters. I did not want to retire yet; I did not even want to stop litigating. I thought about that afternoon so many years earlier, pushed it aside, and kept going, albeit at a slower rate.
I tried my last case shortly before COVID-19 shut the world down. The trial lasted a week. We did well, and my client got almost everything he wanted for damages, plus punitive damages and attorney’s fees. While I liked the result, I did not feel the exhilaration that a successful trial historically provided me. I simply felt tired.
In some respects, the COVID-19 pandemic helped me. It slowed me down even more, and it gave me time to contemplate the information my body had sent me. I started paying more attention to the messages my body sent me. Ultimately, a catastrophic event made the decision to stop litigating easy. I had suffered some minor hearing loss as I aged and addressed the problem successfully with hearing aids. A few weeks following my second dose of the COVID-19 vaccine I woke up one morning and could hear nothing through my left ear. Fortunately, some of the hearing returned after several months of medical treatment, but only about half of it. Hearing aids helped, but not enough that I felt comfortable continuing to litigate. I did not want to take the chance of misunderstanding a critical statement in a deposition or, worse, in a trial. Fortunately, most of my mental faculties remained intact, and this time, I listened to my body. I decided that I would not try another case. I went out on top as a litigator; my last effort concluded with a nice win. I ended my career as a litigator, as my body told me that the time had come to do so. Although I stopped litigating, I still resisted the idea of closing shop, even though I had passed my 70th birthday, my original “sell by” date.
I reasoned that ending my career as a litigator did not require me to give up practicing law as I could still do other things that did not require me to go to court. I continued to do the business advising I had always done and continued to do some of the transactional work I had done throughout my career. I also continued to do work as both an arbitrator and a mediator, with much of the work moving online due to the pandemic. Assisted by hearing aids, I had no issue hearing the discussions in mediations and arbitrations online. Because of my age, then 73, and my previous plan to stop representing clients at 70, the pandemic became the point of demarcation. I stopped taking new clients or almost any new business from existing clients. By the time the world re-opened after the pandemic, I had, for most intents and purposes, closed my office. My new plan became to have no more clients after my 50th anniversary as an attorney (the week following my 75th birthday) and to arbitrate and mediate until I am 80 or my body says I have had enough. I almost made it; I am wrapping up my last client matter as I write this. Yes, several years later than I originally planned, but I am going out while still a respected and competent attorney (last year, I was again selected as a California Super Lawyer, and I continue to enjoy a Martindale-Hubbell AV Pre-eminent rating). Someday, I may turn into a doddering old fool, but at least it won’t occur while I continue to practice law.
I learned the importance of keeping your mind active a long time ago. I don’t want to simply retire from everything and plant a garden to tend. I could not stand that form of retirement. Rather, I will continue to act as an arbitrator and mediator as long as I feel comfortable doing so and can satisfy myself that I continue to do those jobs well or until I turn 80, whichever first occurs. I have developed objective means of judging myself in those categories. As a mediator, the job description calls for settling the case. I don’t expect to settle them all, only the overwhelming majority of them. When I started practicing law, my mentor and the senior partner in our firm had a sign behind his desk that read: “The world does not care about the storms you encounter. The question is: “Did you bring in the ship?” Regarding mediation, I evaluate my work with the answer to that question. If I continue settling cases at a high rate, I judge myself fit to continue mediating since I continue to bring in the ship. When that stops, so do I.
As for arbitrations, I have rarely concluded an arbitration without receiving compliments as to my handling of the arbitration. Yes, I get that attorneys may wish to try to improve their results by pandering to an arbitrator’s ego, so I give little credence to that. I do, however, pay attention to three things: (1) how many attorneys on the losing side write favorable reviews; (2) how frequently I get selected by parties to serve as an arbitrator; and (3) how often I get asked to chair the panel in a three-arbitrator proceeding. When those results start to deteriorate, I will know that I need to stop.
My advice to you when it comes to closing your practice and you feel resistance to the idea is to listen to those around you: law partners, trusted secretaries, doctors, spouses or functional equivalents, friends, and clients. More importantly, listen to your own body. I believe that you will have an innate sense of when it is time to quit. You may not listen to it, but you will have it. It will help if you accept the fact that retiring from the active practice of law does not represent the end of the world or even your own personal end. Many retired attorneys go on happily for some time without shuffling off their mortal coil. Help yourself stay vital and remain interested and interesting by finding mentally challenging or just interesting things to do with your time. Consider any or all of the following:
For whatever value or interest it may have for you, I have done the above and will continue to do so for the foreseeable future. These activities have kept my mind active and functional. I have kept myself sufficiently busy doing these things so that, to my surprise, I have not missed practicing law. FYI, it won’t hurt to add some physical activity to the mix. Rumor has it that a reasonable amount of physical activity can improve your health physically and mentally.
