On November 19, 2011, on the front page of its business section, The New York Times published an article by David Segal entitled, “What They Don’t Teach Law Students: Lawyering.” The article quoted Jeffrey W. Carr, a consumer of legal services, who said about new law school graduates, “They are lawyers in the sense that they have law degrees, but they aren’t ready to be a provider of services.” Segal’s article went on to connect the downturn in hiring of new associates by large firms to the fact that recent law school graduates simply don’t know how to practice law.
The Need for Mentoring
Nearly every legal publication I pick up these day contains a section or an article dedicated to mentoring. One national publication I read recently focused entirely on what it called “sponsorship.” The relationships these publications promote between experienced lawyers and newer aspirants to law practice appear to differ from what I’ve always known as “mentoring,” largely in their intensity and level of commitment.
I don’t think it’s coincidental that the promotion of “mentoring” or “sponsorship”—the ubiquitous effort to match inexperienced lawyers and even students with lawyers who’ve been around the block—is happening precisely when economic times have taken their toll on members of our profession. I’m sure you’ve heard about the class action lawsuit against a number of law schools for skewing their post-graduation employment numbers in order to elevate their place in the U.S. News & World Report law school rankings. It is just plain fact that current law graduates are finding the market for legal jobs as dry as the Sahara. Record numbers of new lawyers—having fought to get any job in the law and come up empty—are deciding to give up their job search and hang out their shingles.
“So what?” you ask. “Caution,” say I. I fear there are stormy seas ahead, not only for these newly minted lawyers but their more experienced opponents, the judges and juries assigned to their cases, and worst of all, their clients. If you’re a lawyer of a certain vintage, ask yourself how much you knew about writing a complaint—much less managing litigation from meeting the client (intake) to accepting the decision of the trier of fact or the appeal court (closing the file)—when you received your law degree however many years ago.
I am not ashamed to confess that I knew precious little about law practice when I donned that hood. A year of clerkship with a brilliant appellate court judge did wonders for my analytical and writing skills and my knowledge of the rules of procedure (both trial and appellate), but learning to actually take the helm of a case took years of hard lessons, further study of navigation, memorizing a map of the heavens, and long service under a variety of ship’s captains. Even though I have now been steering my own cases for years, the ship-to-shore lines still buzz when I feel I need a different view of the approaching weather.
Thus, looking out over an ocean teeming with brand new “Nemo” lawyers, I can’t help but think they’re heading into shark-infested waters. Who will look after them? Review their work? Talk with them about how to actually accomplish the thousands of tasks you need to know to really practice law? Whom does one serve and with what? Where does one apply to be a notary and what’s the point? How does one decide what is appropriate to plead in a complaint and what is not? How do you avoid becoming an incurable workaholic or an abuser of a more damaging substance?
Even the simplest tasks we do—writing complaints, preparing an engagement letter, interpreting contracts, and advising clients accordingly—are better learned if someone coaches you how to go about them in a real-life context. It’s very disturbing for me as an experienced litigator to worry that the newbies who have not been smiled upon by the fierce job market will be swimming alone. Given how much these new lawyers need to learn, they don’t need mentors so much as lifeguards. Who’s going to help them? We are.
Co-Counseling in Cleveland
Quite by accident, I hit upon a small—but I hope, significant—contribution I can make all by myself to help solve the problem. The Cleveland Metropolitan Bar Association is a great organization, and the Women in Law Section is a particularly active part of it. Sometime in the autumn of 2009, a year and a half after I started my new law firm, a friend from the Women in Law Section telephoned to ask me to speak at a monthly meeting—with several other women—on a program called “Women in Transition.” All my friend asked of me was that I tell the story of my jump from a large law firm (100+ lawyers) to “just me”—and to bring a checklist of the things one must do to open a solo practice. Because I had recently published an article in the ABA’s Litigation journal on the same subject (including my own checklist), I brought some photocopies of my article to leave on the table at the back of the room. I stapled my business cards to each article. During my short presentation, I suggested that if anyone had any questions or even just wanted to talk, she should feel free to telephone or e-mail me and I would do whatever I could to help.
Only a few days went by before I got my first call from that invitation. I can’t remember what it was about. I do remember that, over the next several weeks, I received somewhere between eight and ten similar calls from other new or newly solo lawyers asking for my help with this idea or that pleading or this discovery. I always obliged. Soon, one of the brightest of my accidental mentees asked me to serve as co-counsel with her on a matter she had originated but that she was not convinced she had the skills to handle alone.
I charged a significantly lower rate than usual in order to give her a boost. She did almost all the preliminary work while I reviewed everything that ever emerged from our collective counseling arrangement. To my surprise, the arrangement worked beautifully! The only disappointment (for the mentee) in that representation was that the trial was scheduled—written in stone—for a time she had planned a trip to Europe with her husband. So she missed what would have been her first trial.
Soon I had entered into professional relationships with a number of young women with whom I regularly co-counsel. When we’re working on a case together, I usually take the first deposition with my co-counsel present, she takes the second one with me in the supporting role, and she can take flight on her own when we agree she’s ready. We don’t double-charge the client but set flat fees that we then divide according to a prearranged formula. I handle hearings until the fledglings can do it alone. I ask them to attend CLEs I give on “How to Prepare a Complaint” or “Discovery Strategies and Skills” so that they know that what I say to them is the same wisdom I share with participants in CLEs. They have to be taught every single skill, but so did the associates I worked with when I was in large firms. My relationship with these young women is virtually identical to those I had with associates, even insofar as I suggest an appropriate division of labor rather than assigning tasks. And although sometimes the fees can seem quite meager, I am not doing it for nothing. We share small payouts. Moreover, the relationships don’t disappear when the case does. They know I am still available to consult on particular questions that might arise in future. And I’m generous with my time because it will keep my finger in the pie when these former mentees have larger cases that they want to include co-counsel on. Maybe as they progress in their small practices, they’ll land a big matter and ask me to help again.
That’s the benefit to me. The benefit to the new lawyers—not to toot my own horn—is extraordinarily valuable. They get counseling, coaching, editing, explanation, comfort, and confidence that their skills are improving by other means than just trial and error. They don’t have to suffer the embarrassment of making mistakes, small or large, when they have me looking over their shoulder. They get it right the first time. Their discovery requests are cogent, well thought out, and ask for what they really want. They learn how to follow up when an opposing party doesn’t respond appropriately to our discovery or wants too much information in theirs. They learn how to practice law.
In preparing this article, I’ve asked a few of them what problems, if any, these relationships have caused them. One said she had trouble explaining to a client why he needed two lawyers, instead of her alone, for what seemed like a simple matter. That she had never handled a matter in court before wasn’t a reason she particularly wanted to share. Another said she wasn’t thrilled with the original terms of the fee splitting—which we revised anyway—but that when the case came to an end, she felt that she had gotten more benefit from the relationship than our revised agreement really compensated me for. My reaction? It all comes out in the wash.
Calling All Lifeguards
There’s no reason why what I’ve done on a small scale can’t be reproduced and institutionalized on a larger scale. County and city bar associations are ideally placed to match new solo practitioners with experienced solos in their vicinities to join their efforts. New solos can sign up for the program, and the bar associations can seek out senior lawyers who are willing to spend the time (and not for nothing) to get a new solo off to a fair start. Taking a deposition can be scary, and everyone feels he or she will mess it up the first time. You can’t learn certain skills from books or CLEs. (Workshops that last several days are another matter—they can be invaluable.)
The Utah State Bar has a mandatory yearlong mentoring program for new lawyers “to match new lawyers with more experienced lawyers for one-on-one guidance in acquiring the practical skills, judgment, professionalism, ethics and civility to practice in a highly competent manner”. Newly admitted lawyers in Ohio must complete 12 hours of “New Lawyer Training” in the first biennium after they begin practicing. Other states have similar requirements or are contemplating imposing them.
But my message is simpler. The time you invest in mentoring new lawyers is not only for the purpose of helping them. The entire legal system will undoubtedly benefit from any program, formal or informal, that pairs new lawyers with experienced ones in working a case. There is no substitute for actual lawyering—with the guidance and oversight of a veteran in a real case in a real court (or a real deal in a real boardroom)—to impress upon a new lawyer how his or her legal knowledge translates into good counsel or advocacy. If you’re a veteran lawyer yourself as you read this, find a new graduate and offer to help them learn the ropes. If you’re a newcomer to the practice of law, make sure your contact list includes a few helpful souls who are farther down the road. Pair up. Work together. Learn from each other. Nothing else can accomplish the same results.