The Curmudgeon’s Guide to Practicing Law

The Wall Street Journal law blog is featuring Mark Herrmann’s The Curmudgeon’s Guide to Practicing Law this week.   The series started today with a review and an excerpt from the book on defending depositions, and the blog promises that excerpts will continue through the week.  If you’d like to go whole hog and buy the book now, you can find it on Amazon for a better price than the ABA website offers.  (As a sidenote, Amazon pairs it with Bryan Garner’s The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts, another terrific resource.)   I’d resisted posting about this book primarily because it seems that everyone else has already done so, but the tidbits that the WSJ blog promises this week will likely help readers decide to purchase the book.

When I began working at Jones Day, Herrmann’s marvelous article This Is What I’m Thinking: A Dialogue Between Partner and Associate . . . From The Partner (published Fall 1998 in Litigation magazine and, sadly, unavailable online) was provided to all associates.  I can’t even guess how many times I referred to that article and several others Herrmann wrote about brief writing; The Curmudgeon’s Guide expands on the kind of tips provided in those articles and, indeed, attempts to introduce the reader with the principles that will permit her to have a successful and rewarding career.

I highly recommend the book because it’s an easy and enjoyable read, and it’s packed with useful advice.  And, in the end, The Curmedgeon’s Guide delivers an unwavering focus on the importance of excellent client service, an appropriate reminder for every lawyer.  Check out the excerpts on the WSJ law blog, and then pick up your own copy.  This is one of the rare law practice how-to books that belongs on every lawyer’s shelf.

Public perception of lawyers

Someone recently found this blog with a search on “All Lawyers Are Assholes.”  Yes, complete with the initial caps.  After I quit laughing (and got over being briefly miffed that this search implies that I, too, am an asshole simply because I’m a lawyer), I started wondering whether the searcher was looking for confirmation of his/her assertion.  I’d love to know whether s/he found that confirmation.

Years ago, after I’d been in practice for a few years, I spent a weekend with a college roommate and met a bunch of her friends.  As I introduced myself and admitted that I’m a lawyer, people’s attitudes shifted subtly.  Sometimes, I’d get hit with a request for free legal advice: “Y’see, I have this problem with my [employer, service provider, spouse, whatever] and I’m wondering….”  Others, especially medical professionals who weren’t doctors, would almost shudder and back off.  (Seriously, I’m not making this up, and I’ve never even worked on a med mal case!)  And a few would ask about my practice, continue the conversation, and eventually circle back to law by saying, “You know, you just don’t seem like a lawyer.”  I never knew quite what to do with that, or even whether it was intended as a compliment or an insult.

It’s always seemed to me that it’s a privilege to be a lawyer.  We have the ability to effect change in society more directly than many other professionals, we have the skill and training to recognize when something just isn’t right and to work to make it right, and we have the opportunity to help people who need it.  Strangely, that isn’t how the public usually perceives lawyers, and sometimes I wonder whether it’s how the profession perceives itself.

Attorneys sometimes behave as if practice is a burden, a horrible way to make a living because of the competing demands of practice and life and satisfying clients.  And, no doubt, sometimes it is a burden, but it’s a voluntary burden and it’s important for us to recognize that if the burden is too heavy, if it outweighs the privilege, plenty of other jobs are available that would reap the benefits of a law degree without actually requiring practice.

Too often, we view our work as hours to be put in, a way to make more and more money.  Reaping financial reward isn’t wrong.  But I submit that something is off-kilter when a profession becomes all about money, and I’d argue that something has gone very wrong when the public perception is that a lawyer can be bought, that the outcome of a legal dispute depends most on which party has the higher-paid lawyer.  This is a bigger problem than I’m prepared to address today, not only because of the public perception but also because so many new lawyers face the squeeze of student debt and salary lower than they’d been led to expect.

Finally, there’s a huge negativity surrounding legal practice.  We lawyers both propogate and, in my view, suffer from this negativity.

What lawyers believe about practicing law has a huge impact on how we behave, and how we behave has significant influence on how we are perceived.  Are you contributing to a positive or negative public perception of lawyers?

Working hard vs. working smart

Have you heard this distinction before?  All sorts of management experts talk about how people can work more efficiently, more effectively, maximizing the results of time.  Some of them even have good ideas.

I’ve been thinking about what it means to say that practicing law is hard work.  I don’t have any question that it is challenging and demanding, for reasons that I’ve mentioned numerous times.  What I find myself wondering is whether it’s possible to “work smart” in practice; I think the answer is a qualified yes.

Working smart means managing your physical environment.  If you take the time to keep your desk clear, so it’s always easy to locate the files and the resources you need.  Nothing wastes time like clutter.  The simple act of taking an extra 5-10 minutes to clear and tidy your work area at the end of the day can yield significant time savings.  I had to learn this the hard way, but having learned it, it’s become a standard for myself in the office.

Working smart means managing energy.  If I’m exhausted and I try to power through rather than resting, chances are good that it’ll take me more time than usual to accomplish anything.  If I’m on a deadline, the adrenaline will carry and cancel the “dead woman drag” — but if it’s an average Wednesday, I didn’t sleep well, I have a headache, and I notice that I’m reading things three times and still not registering, taking a pause will be well worth my time.  When I have plenty of energy and get in the flow of work, I often find that my productivity shoots up and I’m able to accomplish remarkable tasks, so I do my best to take advantage of my energy rhythms.

Working smart means managing commitments.  It’s easy to say yes to every demand, but it isn’t smart.  Making intentional and purposeful decisions about which commitments to accept and which to decline allows me to avoid the frazzled, frantic pace that undermines good work.

Working smart means managing people.  Good delegation enhances effective work.  Whether it’s requesting research from a more junior lawyer or asking an assistant to draft routine communications for my review and editing, my time is freed up so I can concentrate on doing the things that others can’t do.

Does any of this mean that it’s possible to take shortcuts and reap the rewards of practice without putting in plenty of time and effort?  Absolutely not.  But attention to smart management will make the time and effort you put into your practice pay maximum rewards.

Look for what’s right.

It’s often easy, and rather in vogue, to think that practicing law is a drain, a burden, incompatible with having a personal life.  Sometimes that’s true.  If it’s more often than not true for any individual lawyer, there’s a problem that needs a solution — a new way of approaching practice or managing your energy, a new job, perhaps, or a new area of practice, or possibly a career other than practicing law.  But it’s a continuum, with “perfect” untouched on one end and “unbearably horrible” untouched on the other end.

Where on the continuum are you?  Very often we diagnose based on what’s wrong.  But today, I’d like to suggest a different set of questions.  What’s right in your practice?  What do you enjoy?  When are you at your best in practice?  What gives you the rush, the thrill, the joy of being a lawyer?  And how do you get more of the good stuff?

It’s just as important to evaluate what’s going well as it is to identify and correct what isn’t.  In fact, it may be more important, simply because we tend to find what we expect to find.  Practice is challenging, but if you expect it to be unpleasant, chances are strong that it will be.  With that in mind, it makes sense to spend some time identifying the good parts of practice so you have a better opportunity to expect and recognize the recurring good things.  For examples of what some lawyers see as being right in practice, visit Stephanie West Allen’s Legal Highlights series here, here, and here.

“Work-life balance nonsense”

JD Hull has a terrific blog called “What About Clients?(tm) ”  You can probably guess the focus, and I encourage you to check it out.

A recent post titled WAC?’s Usual ‘Muscle Boutique’ Rant Gains Currency? includes the following:

It’s time for lawyers with the right credentials . . . [to] chuck . . . your work-life balance nonsense (the first 8 to 10 years for associates, and lawyering done right after that, should be hard work even for the gifted) . . . .

Work/life balance isn’t the focus of Hull’s post, but I was struck by his comment because I think it typifies the negative view of work/life balance that I described here, in which “work/life balance” is taken to mean a desire to work less and still reap the rewards of working hard.

We all have some work/life balance.  By definition, whether it’s 50/50 or 90/10, there’s a “balance” even if the ratio is markedly uneven.  The question then becomes, what does each lawyer want his or her balance to be?  What are the lawyer’s priorities and values?  As I said in my previously-cited post, work/life balance can never outweigh the need to provide robust, excellent client service.  But it’s possible (and necessary) to adjust the balance in whatever direction is most desirable for a particular lawyer and still to provide excellent service.   Such an adjustment will lead to certain consequences, whether it’s rapid advancement in career, a deeply satisfying personal life, handsome or sub-optimal earnings, burnout or boredom, or most likely some shifting mix of these and other consequences.

And it’s important to recognize that work/life balance doesn’t necessarily mean working less.  Just as there are lawyers who want to work only a 40-hour week, there are lawyers who would hate such a restricted practice, a point that Stephanie West Allen makes vividly in her post Hot Worms and Workaholics: Let the Workers Be!  Work/life balance is all about finding what works for each lawyer, whether that’s working a “little” or working a “lot”.  The question is what makes for a satisfying life; practice is one component of that for lawyers, but how much of a component will vary from person to person.

I agree with Hull that good lawyering is hard work.  There’s no question that practicing law well is demanding.  It requires consistently excellent performance with very little margin for error, it’s intellectually rigorous, and it’s tough to keep up with the needs of multiple clients and to work effectively in what often feels like not enough time to do all that needs to be done.  And client needs are and must be paramount.  Even so, the suggestion to chuck “work/life balance nonsense” doesn’t ring true to me.  I’d say instead, chuck the fantasy that practicing law is easy.  Look for a way to have a satisfying career and a satisfying personal life, but don’t expect it to be an easy or static path, and don’t expect what works for one lawyer to work for another.

Emotional intelligence for lawyers

Emotional intelligence (EI) refers to the degree to which one is:

*  aware of one’s own feelings,
*  able to discriminate among those feelings and to manage them to faciliate appropriate responses,
*  able to motivate oneself despite feelings of self-doubt, inertia, etc.,
*  able to recognize others’ emotions based on various cues,
*  empathetic to others’ feelings, and
*  skilled in handling interpersonal relationships and conflicts.

Research by Daniel Goleman, who brought EI to public attention with his book Emotional Intelligence: Why It Can Matter More Than IQ, shows that 85-95% of the difference between a “good leader” and an “excellent leader” is due to emotional intelligence.  Goleman’s new book, Social Intelligence, examines neuroscience to further support the idea that humans have a biological tendency to be empathetic, cooperative, and altruistic.  It’s no secret that we’d all prefer to work with and for nice people rather than jerks, and EI is a measurable way to describe how a a “nice person” behaves and to help pinpoint the areas for individual improvement.

Googling on “emotional intelligence” will turn up over 3 million hits; Googling on “social intelligence” turns up about 38,500 (but Goleman new book was released only in late September, so that will surely change).  Stephen Seckler has provided a link to a very well-written Altman Weil article on EI for lawyers, complete with a quiz to reveal your EQ.  Check it out.

Timesheet habits: don’t procrastinate.

Timesheets routinely come up as a bemoaned part of practice, something that no one likes to do.  Many lawyers develop the habit of doing timesheets in bulk, usually at the end of the week but sometimes at the end of the month.  That’s a terrible habit for a wide variety of reasons.

Unless your notes are truly spectacular (i.e., timesheet quality at least in substance), you will lose time because it simply isn’t possible to remember every single call made or received, every in-firm conversation, etc.  I’ve seen some studies showing that lawyers who do end-of-month timesheets can lose up to 30% of their time.  That’s bad for the firm and for the attorney.

Approaching billing with this habit of procrastination makes what could be a fairly simple and straightforward task into a Huge Effort.  Timesheets become the constant millstone.  Sure, you get to ignore them for a month at a time, but then you’ll have to devote at least a full morning and probably longer to reconstructing your time.  The longer one waits to prepare timesheets after actually doing the work, the harder it will be to recreate the time and the longer it’ll take to prepare the timesheet.  Bad for the firm, bad for the attorney.

Moreover, it appears that clients may move from accepting monthly bills to wanting the ability to monitor lawyers’ work in real time using e-bills.  Technology may enable clients to demand not only a budget but also real time updates on how the budget is being used, whether it’s being exceeded, etc.  While that system isn’t in effect in the US today, it’s apparently coming in the UK, and lawyers would be well-advised to adapt their habits to minimize the pain if, or perhaps when, e-billing crosses the pond.  See also Tom Collins’ posts discussing the reasons for the move to e-billing and describing the software support that will assist in meeting clients’ demands.

If creating timesheets contemporaneously with completing the work is helpful for capturing time, saving time, and preparing for what sounds a lot like the next step toward client awareness and management of the performance of legal services, where’s the downside to developing strong habits?  Explore your billing software to see whether it has a timer function — most do.  If not, at least use your calendar to mark down your time as you work, and transfer it to a timesheet at the end of the day.  This one habit will increase both your productivity and your apparent productivity significantly.

Consistency in marketing, Guerrilla-style

I ran across a fascinating marketing tip sheet recently.  It’s written by Jay Conrad Levinson, who has achieved notoriety as the author behind the Guerrilla Marketing series.  What I found is the 15 Secrets of Guerrilla Marketing (no longer available).

I will admit up front that I haven’t read a single Guerrilla Marketing book or even an article.  However, one of the “secrets” caught my eye as being potentially true for everybody, but right on target for lawyers engaging in client development activities.  Levinson says:

Commitment: You should know that a mediocre marketing program with commitment will always prove more profitable than a brilliant marketing program without commitment.  Commitment makes it happen.

I hope it’s immediately apparent to you why this is applicable to lawyers, but just in case it isn’t, consider this:

Suppose you’re researching an area of law to get a feel for it, knowing that you’re going to need to affiliate with someone who’s an expert in the area.  Would you be likely to contact someone who keeps popping up as an articles author on your topic, someone perhaps with a treatise to boot, who’s spoken on the issue at a number of CLE meetings?  Would you be more or less likely to contact someone whose name comes up once as an author, once as a speaker, perhaps as a member of a relevant committee, etc?  I’d be willing to bet that you’d be more eager to speak with the first lawyer.

Commitment pays off because it increase the depth of your experience and credentials in a particular area.  Whether it’s writing as in the example above or in pro bono work, doing a client development activity once is unlikely to make a significant impact.  But if you do it over and over, make it a regular part of your schedule, you will begin to gain some traction, to know people in the relevant area and to be known, and potentially to acquire a reputation as an expert.  Each of these attributes requires a sustained effort.

As you consider your client development plans, consider how committed you are to the plans you’ve set out.  Are you stretched too thin?  Do you need to let some activities go so you can work deeply in a limited number of areas?

Or perhaps you need to step back even a bit further.  Maybe you don’t have a client development plan or strategy.  You might make an unfocused effort to attend networking meetings, to agree to write an article if someone approaches you, to speak on a topic in which you’re competent but which is not central to your practice.  While any of these activities will get you exposure, this group of plans isn’t enough to get you consistently in front of the people who need to know about you and your practice.

Consistency demands that you evaluate your client development plans, select a limited number of activities that you will plan to accommodate in your schedule.  Then, schedule them and take part regularly.  Be sure you’re building a reputation that will serve you well; be sure your consistent, committed client development activities are directed toward helping you to build that reputation.

And, because I’m curious… Has anyone ever read Guerrilla Marketing?  And/or applied it to client development in the client context?  Interesting stuff, and I’d be curious to hear the results.

Peak or valley? Performing a realistic and meaningful self-evaluation

Just about every firm has some formal mechanism for evaluating associates.  The format varies, but the general idea is always the same: to collect feedback on how well each associate is performing and to pass that on to the associate, preferably with some comments about how the associate might improve.  Fair enough, except that the method of communicating the results of that exercise to the associate often undercuts the effectiveness and benefit that an evaluation is supposed to convey.  Toward the end of the year (traditional evaluation time), I’ll discuss this topic in more depth.

For now, let’s consider self-evaluation.  A number of large firms are using the self-evaluation model to help associates determine their career path.  Again, the format varies, but generally the associate is asked to fill out a form that asks for the associate’s self-evaluation in certain areas and sets plans for the future.  If taken seriously, these programs can be very useful in helping to guide associates’ professional development.

The challenge arises, however, when the associate may begin to feel his or her path diverging from the firm.  Because the truth is that the self-evaluation and professional planning programs may benefit the firm just as much as they do the associate.  I encourage lawyers who are completing these self-evaluations to go through the process twice: once, without censoring anything, and a second time with an eye to how the firm might perceive her comments.  For instance, an associate might be unhappy about work/life balance, but it’s wise to pay careful attention to how that issue is raised.  Commenting that she’d like to focus on becoming even more effective in her use of time is palatable; commenting that she’d like to reduce her in-office hours is not.  But it’s possible to develop a lot of useful information in responding to the self-evaluation and planning forms that the firm provides.

If your firm doesn’t engage in this process, or if you sense that your professional desires may be leading you away from the firm fold, you may want to consider these questions.

1.  How satisfied are you with your practice setting?  Are you aware of any reason why a different practice setting (larger or smaller firm, sole practice, in-house, government, or public service) might be preferable for you?

2.  How well are you perceived in your firm?  Do you need to make an effort to raise your visibility?

3.  Are you taking advantage of what your firm offers in terms of training, professional networking opportunities, social/cultural opportunities, etc?  Are you cross-selling to your clients, and are other lawyers cross-selling your services to their clients?

4.  How well are you working with support staff?  Are any changes necessary?  Are you communicating clearly with the staff?  Are these any tasks you can effectively delegate?  Any procedures you could institute to make things run more smoothly?

5.  How are you doing in terms of skills development?  Is there any kind of training you need?  If so, what’s your plan for getting that training?

6.  Are you satisfied with the quality and quantity of assignments you’re receiving?  Is your level of responsibility increasing appropriately?  If the answer to either question is anything other than an unqualified yes, what have you done to rectify the situation?  If you’re not receiving an adequate quantity of work, is that because business is down generally, or is there a chance that it’s a reflection on your work or on how you’re perceived within the firm?  What do you need to do differently?

7.  Are you satisfied with your level of client contact?  What can you do to provide better service to your clients?  Do you have a client development plan, and are you working it on a regular basis?

8.  How is your relationship with the lawyers who supervise your work?  What can you do to make it stronger?  How do they perceive you?  What changes would you like to make?

9.  What are your career goals for the next three years, both in terms of substantive/skills development and in terms of your position with the firm?  What’s your strategy for reaching these goals?

10.  Are you satisfied with your work/life balance?  Are any changes desirable or necessary?

These are, of course, just a sample of the range of questions you might ask.  The most critical part of your self-evaluation is to take a realistic look at where you stand professionally now, to reflect thoughtfully on where you want to be professionally in at least the next one to three years, and to think strategically about what adjustments you need to make so you can reach those goals.  You may find it particularly valuable to perform this kind of self-evaluation with the assistance of a mentor or a coach, either of whom can help with each of these three steps.

PMBR Infringed NCBE’s Copyright

Though most readers likely took and passed the bar exam some time ago, perhaps this post will be of interest nonetheless.  This may be old news to some, but it was new to me…

On August 22, Judge Fullam of the Eastern District of Pennsylvania entered an Order and judgment on behalf of the National Conference of Bar Examiners, against Multistate Legal Studies, Inc., Robert Feinberg, and Dona Zimmerman, better known to scores of bar-takers as PMBR. The Court found direct evidence of copying (which, for those not familiar with copyright law, is quite unusual in an infringement case) under striking circumstances.  Feinberg took the Alaska bar exam five times before barely passing it on his sixth attempt, and he was caught removing a sheet of scratch paper with notes on it at the conclusion of the afternoon session of his third try at the bar.  The Court concluded that “nearly all” of the 113 PMBR questions challenged by the NCBE as infringing were substantially similar to copyrighted MBE questions, and imposed a variety of remedies including nearly $12 million in damages.

When I took the Georgia bar in 1993, most students took only Bar/Bri.  But when I took the Florida bar in 2005, I quickly discovered that most students took both Bar/Bri and PMBR.  I took the 3-day PMBR course described in the Order and found it useful.  (For anyone planning to take the bar, working as many questions as possible is critical preparation, in my opinion.)  I was of course attracted by the promised similarity between the PMBR questions and what I’d find on the actual bar, though I did view that claim somewhat skeptically.  But when I took the bar itself, I was surprised to find substantial differences between it and the preparatory questions I’d worked.  Not just a lack of repetition; the format of the questions bore little resemblance to PMBR’s practice questions or to the questions released by the NCBE.  And now I know why: in July 2005, the NCBE reprinted the exam because PMBR’s copyright infringement “had compromised the initial version.”

I have no bones to pick with PMBR.  I passed the Florida exam and went on my merry way.  But I do find this story fascinating… And I wonder what PMBR’s enrollment statistics will be for the next bar exam prep period.