Vol. 42, No. 5
In and Around the Bar
CBA President's Message to Members
Some Advice for the Law School Graduating Class of 2013 (and Anybody Else Who Will Listen)
by Mark A. Fogg
Congrats! Way to go! Good luck on the bar exam!
Former Chief Judge Jeff Bayless taught me "passing the bar" refers to being able to proceed past the railing in the front of the courtroom, a place reserved for lawyers and their clients. Actually he taught that to a Cub Scout pack I happened to be leading on a courthouse tour.
There are many challenges ahead.
Some things you don’t learn in law school.
Welcome to the profession.
With all that being said, I’m going to do what old lawyers do—give advice to new lawyers. I hope this won’t come off as just another Boomer (born 1946–64) preaching to Millennials (born after 1980).
A Profession in Change
The profession is in a state of flux. The information revolution has been the primary factor in creating major contradictions in our profession that must be resolved by you. For example, there are millions of lawyers overseas who are willing to do outsource legal work for $25 an hour, yet we are still the major exporter of legal services in the billions of dollars; globally, many of the world’s lawyers have a borderless practice with other countries, yet the United States still has state licenses; there are too many lawyers, yet 70% of the U.S. population cannot afford the civil justice system; and general population predictions are that individuals will hold ten to twelve jobs by age 40, yet most of our law firms are still built on a pyramid structure assuming that associates will loyally "put in their time" and enjoy all the fruits of becoming partners (and overhead).
There are some things I want to give advice on that I don’t think will change and some things I think should change. Some of the advice may be conceptual, some may be practical. As my proofreading sticky note usually says: "accept or reject as you see fit."
Don’t Let Us Define You
We Boomers have always thrown our weight around and many seasoned lawyers have been known to make unfair complaints about younger lawyers, alleging that they prefer to use IT tools rather than personally interact, that they don’t want to work as hard as we do, or that there is no loyalty to a firm or company. The reality is that things have changed in our society and profession, and we Boomers and many Gen Xers don’t understand it.
Our box should not be your box. You are the most knowledgeable generation that has existed on the planet. New problems need new solutions. I do think, though, that there is truth in the claim that we have become more isolated and need to overcome the "silo" effect that has plagued the profession and develop stronger, transparent partnerships among the judiciary, practicing bar, bar associations, and law schools, instead of many times blaming each other for our woes. Otherwise, we will not be able to organize and direct change, but only react to it.
It’s a Profession, Not a Business
We take an oath. "I will use my knowledge of the law for the betterment of society and the improvement of the legal system. I will never reject the cause of the defenseless." We have legal, moral, and ethical duties to others. Last I checked, we don’t have a fiduciary duty to make a profit off of our clients. However, at any partner’s meeting, there is the continuous debate that creates a tension over whether practicing law is a profession or a business. Of course, the reality is that it is partly both. You have to keep the doors open to do any good works. Still, more and more we see the law being treated simply as a business. It’s not. We have the unique opportunity to provide services to others, which have the potential to have an incredible impact on their lives. This is a privilege not given to many.
We’re W-2 Professionals
One of my physician clients referred to himself as a "W-2 professional." I thought that was pretty descriptive, especially as I write this article at tax time. The vast majority of us won’t get wealthy practicing law, but most of us will make a comfortable living—at least compared to 99% of the rest of the planet. I know this last fact is becoming increasingly doubtful to many, given a still tight economy and larger law school debt. But having a law degree and being a lawyer will have rewards—economic and otherwise.
There is a flip side to the last problem. Some of us have developed unhealthy (as in unhealthy for the profession) income expectations. A recent editorial by Steven J. Harper, "The Tyranny of the Billable Hour,"1 speaks to the perpetuation of the law firm pyramid system, with minimum billable hours reaching an extreme and resulting in a lop-sided work–life balance for the associates trudging up the firm ladder. This has to change. Young lawyers deserve to be able to enjoy their relationships and their kids, and have a healthy perspective about their job. I’m confident the new generation of lawyers will work smarter and resist working longer.
Forbes recently reported on a jobs list compiled by a job website, CareerBliss, ranking an associate attorney position as "the unhappiest job in America."2 Reasons given included law firms being heavily structured environments without much flexibility and heavily centered on billable hours. Of course, the bar may be pretty high, coming from a website called "CareerBliss." I also don’t think the law firm culture is as negative in Colorado as in some other jurisdictions. However, those of us who don’t believe that there are issues as reflected by this survey are putting our heads in the sand.
Be a Giver
Okay, okay, if I haven’t convinced you on the whether practicing law is a business or profession thing, you have a unique opportunity as a lawyer to be extremely productive in either a profession or a business by focusing on the service aspect of the practice of law. Adam Grant, a professor at the Wharton School of Business, has written a very interesting book called Give and Take: A Revolutionary Approach to Success.3 In the book, Grant describes individuals as "Givers," "Matchers," or "Takers." He states that Givers, who are the ones selflessly giving the most without asking for anything in return, are substantially more successful in business than either the Takers, who look at every request made of them from the perspective of what they will get out of it, or the Matchers, who look at each request on an individual basis to determine whether they will at least get an even (if not better) deal out of it. The majority of the population are Matchers because, unlike lawyers, they are not able to continually witness first-hand what the effect their work is having on others. Grant believes that service is the highest motivator to make people happily successful. This isn’t an argument for the Aristotelian "virtue for virtue’s" sake, but for what he refers to as the "self-interested Giver." By performing community and everyday client service, pro bono work, consistently treating others well, and doing favors, the Giver lawyer amasses such a large following of loyal recipients that he or she will achieve success.
Take Leadership Positions
I sat on the hiring committee for my law firm for ten years. One of our core criteria was whether the candidate’s history included leadership positions, even going as far back as high school. Usually, this reflected three very positive things: a bent toward community service, the unique skill sets of being a leader, and the fact that leaders usually make the best business developers.
Get on Your Feet
Take the opportunity to stand up and speak anywhere, whether it is at a trial, a hearing, a meeting, a lecture, a social gathering, or being a lector at a church. Developing stand-up speaking skills will serve you well in every aspect of the law, whether you want to be a litigator, a transactional lawyer, a teacher, a judge, a public service lawyer, or an in-house counsel. Another important skill to learn early on in your career is how to run an effective meeting. Sadly, many lawyers never learn this, which makes for many painful experiences.
Be Perceived as a Lawyer
This may date me, and many may disagree with me, but I think you need to look like a lawyer. A lot of new lawyers have sought my advice on business development and I always tell them that I believe the vast majority of clients, even though they may have "casual days" five days a week where they work, expect their lawyer to look like one. It does not have to be a suit or dress every day, but every work day you need to have a professional appearance. Hand-in-hand with this is the ability to obtain the confidence of the client or prospective client in the first half-hour of the first encounter. If the prospective client does not say to himself or herself very early on, "I want that person as my lawyer," your chances of retention go way down. It also is important for you to be able to summarize your strengths very succinctly, which will change at different points in your career.
Seek Out Mentors
Easier said than done. Our model of mentoring is rapidly changing. The day of the partner down the hall providing everyday advice is vanishing for a lot of reasons. This is something I truly hope we can effectively recapture in some form. There is nothing more important than having good mentors. My successful, seemingly painless, transition from law school to the Denver District Attorney’s Office was because of the everyday great mentors I had, along with a well-thought-out stepping stone process of challenging me, but not throwing me into the fire.
My transition from public service to private practice was much more difficult. The first deposition I saw was one that I defended a few days after I started. I was out six years and I guess everybody, including myself, assumed it would be an easy-go, considering my litigation experience. Substantively, I did fine, but having just done a lot of grand jury work, I didn’t know that the client couldn’t consult with me on every question before answering. Thankfully, I had an indulgent opposing counsel who, after the fifth time the client whispered and asked me what to say, told me in a very understated way, "You know, you can’t do that." Instead of saying "show me the Rule," I took him at his word.
Face and Control Your Fear
Practicing law can be very scary. Trying a case can be especially scary. However, in either case, if you lose your fear, you can lose your edge. If you can’t control your fear, you may not make the best recommendations to your client because of your fear. Every lawyer needs to recognize this and find the right balance to make them an effective advocate. Lawyers, like everybody else, react to fear by aggression, denial, or education. Aggression and denial can be highly dysfunctional; resolve yourself to embrace the learning opportunities.
Enjoy the Seasons of Your Career
David Wood, a great lawyer from Fort Collins who recently was acknowledged for his fifty-year CBA membership, told me that what he enjoyed most about being a lawyer was the ability to have so many careers within his career as a lawyer. He was a DA, a civil litigator, a transactional lawyer, and an in-house counsel.
Early on in our careers, the learning curve can be steep, but it usually is fascinating. As time goes on, resist—as best you can—getting caught up in the beastly treadmill to the detriment of your relationships or families. Strive for no regrets. Look forward to all you can do.
One Final Story
I was at a conference last week where two Millennial lawyers did a long PowerPoint® presentation on what I started this article out with—asking that older lawyers not stereotype their generation. After inviting questions, an 80+-year-old lawyer came up to the microphone and made comments about the evils of e-mails, texting, and other digital communication. He finally asked if the lawyers ever actually spoke with each other in coordinating their presentation. The two lawyers looked at each other, conveying that they could not really remember one way or another. They did a great job on their presentation.
1. Harper, "The Tyranny of the Billable Hour," The New York Times (March 28, 2013), available at www.nytimes.com/2013/03/29/opinion/the-case-against-the-law-firm-billable-hour.html?_r=0.
2. Weiss, "Associate attorney is the unhappiest job in America, survey says," ABA Journal (April 1, 2013), available at www.abajournal.com/news/article/why_a_career_website_deems_associate_attorney_
3. Grant, Give and Take: A Revolutionary Approach to Success (Penguin, 2013).
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