What would you do if you weren’t practicing law?

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One reflection exercise I suggest to disenchanted lawyers is to contemplate what they’d be doing if not practicing law.  The reason is not to identify the lawyer’s next career, but instead to get in touch with what might be preferable and why, and then to consider whether that quality could exist in a legal practice.  Finding the joy the long way around, really.

For instance, one client said she would teach if she weren’t practicing law.  She said she’d enjoy imparting knowledge, challenging her students, and getting the intellectual high of an exchange about principles.  She said she’d want to teach something on the college level, maybe above, where her students would really want to be in class and would be more likely to be engaged.  We explored what she thought she’d like about that kind of teaching, what benefits she felt it would bring, and so on.  When we turned to see whether she could find similar experiences in the law, she indeed found them — not, as you might be expecting, as an adjunct professor (though that would have been a good choice) but through doing training in her firm for new associates.  She found that she got energy from working with these fresh-faced idealists and that she was able to bring that energy back to her practice, with the added benefit of knowing something about which associates she’d like to work on her matters.

So, if you’re unhappy — or even if you are happy, but you’re willing to explore what could be even better — I challenge you to play with this idea.  What would you be doing if not practicing, why, and can you get that “why” in practice?   What steps must you take to do so?

Gender discrimination and work/life balance

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One common thread in the work/life balance conversation is the extent to which the issue can and should be cast as a female issue or a mother’s issue.  So perhaps it’s no surprise that a female shareholder has now sued her law firm for sex discrimination.

Alyson J. Kirleis, a labor & employment litigator, began work at Dickie McCamey & Chilcote as a law clerk in 1986 and eventually became a shareholder.  A mother of two, Kirleis alleges that the chair of the firm’s board of directors told her that she was spending too much time working and not enough at home, that “women whose priorities were straight were those who relinquished their status as shareholders in the firm and who worked part-time so as to be able to spend more time with their husbands and children.”  She claims that she was also told that the firm’s “gals” would prepare cases for trial, but male attorneys would actually try them.  The suit includes other allegations of rather blatant discrimination.

Kirleis is working at the firm while the case is pending and, according to her attorney, would like to continue though she seeks different treatment for herself and for the other women at the firm.

The firm has issued a statement denying the allegations:  “We’re diappointed that one of our shareholders, not an employee but an owner in the firm who has worked with us for 18 years and who still works at our firm, has chosen to take this course. . . . We do not and never have discriminated against anyone on the basis of gender or in any other way.”

Carolyn Elefant shared the story in mid-November. Joan C. Williams, a professor at UC-Hastings College of Law who teaches employment law, cites some surprising statistics in an ABA article (no longer available):

“There’s been a 40 percent increase in this type of case in the past 10 years,” Williams says. “We’ve documented more than 800 lawsuits based on family responsibility against employers in general, and we’ve found 32 other lawsuits of this type against legal employers. Of those 32, it’s a mix of attorneys and staff, but most of the cases have been filed by attorneys.”

“It certainly looks as if [family responsibility] cases are the new face of discrimination law based on the fact that they’re growing so rapidly, when employment discrimination cases have fallen 23 percent, based on our research,” Williams says.

The article also quotes Diana J. Veilleux, a DC-based employment lawyer, as questioning whether there’s been an increase in “family responsibility” cases and suggesting that those that are filed are taken more seriously now than in the past.

Although I’m just barely conversant in employment law, I find this trend interesting.  Why are “family responsibility” cases any different than garden-variety sex discrimination cases?  Does it mean something different that some law firms talk positively about work/life balance on the one hand and discriminate on the other, or does it simply add texture to an already-existing problem?  The allegations that Kirleis has made that don’t concern direct work responsibilities include claims of sexually explicit entertainment at firm functions, visits by the firm’s male attorneys including members of the executive committee to topless bars, and that a male attorney exposed himself to her during a firm golf outing in the early 1990s.  These sorts of claims are nothing new, unfortunately.  While it’s shocking (if true) that any firm, much less one that practices labor & employment law, would permit such activity and behavior, it’s hardly news that such behavior does occur in some workplaces.

It’s unfortunately difficult for me to envision what this case would look like if the plaintiff were a man, though it could happen.  If it did — if a male lawyer had been told that fathers belong at home and that men would be responsible for preparing cases and women would try them, if members of the firm sponsored sexually explicit entertainment at firm functions followed by visits to a male strip club (does Chippendale’s still exist?), if a woman had exposed herself to him — would we be calling this a “family responsibility” case?  Or would we simply see it as a sex discrimination case?  And would it matter?

Would the Kirleis case be any less strong without the allegations that she was encouraged to relinquish her status as shareholder and to take a part-time schedule?  Would it be any less strong without the claims that she was told women would prepare cases and men would try them, and without the claims of sexually explicit entertainment and harrassment?  I suggest that the answers are no and yes, respectively.  And that’s why I question this categorization of the case as a “family responsibility” matter.

But, people more knowledgeable than me have so categorized it.  What does that mean?

I’m curious whether it means we need to treat the desire that some lawyers have for a work/life balance that respects and facilitates a personal life as a gender-neutral issue.  In the desire to retain women in the profession, it may be easy to over-invite a woman to a part-time schedule so she can fulfill her family responsibilities, possibly then making her feel that she “should” take that route whether she wants to or not — in the words of the ABA article title, that she’s being forced onto the mommy track.  Presumably, most of us would recognize the line between encouraging a parent to attend to her (or his) child as s/he feels appropriate, whether that involves taking a part-time schedule or making other changes, versus sex discrimination masked as concern.  But no one wants to open the door to a lawsuit, especially if on a cause of action that’s in vogue and getting lots of attention.

Wouldn’t it make sense, at a bare minimum, to treat this as an issue for parents and not for mothers?  Although biology does dictate that women will always take time from work to bear a child, caring for the child after the mother has recovered from childbirth may fall to either parent, or to both.  Wouldn’t we be operating from a more robust reality if we were to recognize that, and to understand that some men will want to stay home with children?  And wouldn’t that help to separate work/life balance from invidious sex discrimination?

A fun link

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What’s better than a really funny lawyer joke?

Funny cartoons by a lawyer, about lawyers/practice, using “insider humor.”

To find out what I’m talking about, visit Scribble-in-Law.  I guarantee a smile.

Transition in the practice of law

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In April, I’ll be presenting at the NALP annual conference along with 3 colleagues.  Our topic is titled, “Facilitating a Successful Transition from Student to Lawyer.”  Our proposal identified a number of issues that confront new lawyers, and we’ve also identified ways that law schools and law firms (our primary audience) can support those going through this transition.

My transition to practice occurred in 1993 or 1995, depending on whether a clerkship should count as practice for these purposes.  However, I had a second transition when I moved from Georgia to Florida, complete with another bar exam and needing to learn a completely new set of local customs and local rules.  Frankly, I think the state-to-state transition was more traumatic than the school-to-practice transition, simply because after practicing law for 10 years, I’d learned how to do the things that constituted a part of my practice and I was comfortable with those.  I knew what I knew, and I also knew what I didn’t know, so I’d moved past the stage of needing to look up every procedural step to be sure I was doing it correctly.  Ah, but that was no longer applicable!  I suddenly learned that local custom (not rule, which is written, but custom) required service of original discovery, something that was simply unthinkable in my home jurisdiction.  That, and seemingly hundreds of other differences, tripped me up on a regular basis after I moved to Florida, making me feel like a newbie all over again.

We’ll discuss at NALP what schools and firms can do to assist in lawyer transitions, but today, I’d like to consider what lawyers can do to facilitate their own transitions.

1.  Be prepared to learn new habits.  This seems to elementary, and in some ways it is, but I’d submit that it’s tough to change basic habits without a significant effort.  Taking my discovery example, I had to stop each time I was going to serve requests or answers and think about what I needed to ask my secretary to do.  My habits couldn’t stand.  And, frankly, I resented having to remember to check the rules I’d learned so long ago!  But after a few months — notably, after I was willing to relinquish my resentment — the new habit took over.

2.  Find a mentor or colleague you can ask for help.  Whether you’re a new lawyer or just new to your current jurisdiction, you need resources.  Someone who’s been in practice for a few years can be an invaluable ally to help you learn everything from the quirks of particular judges to which lunch spot will guarantee you a stomach ache.  Ideally, you’ll have more than one person to ask, but do yourself the favor of locating at least one friendly and knowledgeable colleague.

3.  Accept that you’re going to feel clueless for a while.  Especially if you’re going to a new jurisdiction, you’re likely to feel that everything you’ve known is suspect, if only because you’re going to have to keep checking the local rules or the new (new to you) state law.  This period is called Conscious Incompetence — you know what you don’t know.  Know that it passes.

4.  Spend extra time getting to know your new city, firm and/or jurisdiction.  This is the time for you to find and read past issues of the local business journal, legal newspaper, firm newsletter, and so on.  You can’t substitute for the knowledge that comes with being in a place over time, but you can begin to create your own database of knowledge.  It takes time, and that time will be well-spent.

5.  Declare your expectations for yourself.  This is specific way of saying, set goals.  Sometimes getting acclimated to a new environment is the top priority; sometimes you’ll be thrown right into a big project and showing your mettle is even moe important than learning your way around.  Super heroes may be able to do everything, but the rest of us have limited time and energy.  You’ll make the most of yours if you make conscious decisions about what you want and need to do as you transition into your new practice.

What’s your best tip for transitioning?

Happy Thanksgiving, all!

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Sorry for the silence of late; my workload over the past week precluded sleep and blogging was a secondary casualty.  (Balance in action, you know.)  Substantive blogging may resume later this week, certainly by Monday.  At the moment, I have a pie in the oven, cranberry sauce on the stove, flourless chocolate torte cooling on the counter, and a turkey getting ready to be brined, and my husband and family clamoring for an advance taste of the goodies.  The work/life balance pendulum has swung firmly into the “life” category.

In the meantime, I wish all readers a happy Thanksgiving, spent over good food and wine with friends and family — or a bucket of KFC and good football, as you prefer.

Because I am at times a sentimental, traditionalist sap, I’ll share a list of my blog-related gratitudes here:

*  The many people I’ve met over the last 10 months as a result of my blogging
*  The new ideas and perspectives I’ve been exposed to in the blogosphere
*  The opportunity to develop a discipline of writing on a (more or less) regular basis
*  The fun of watching my readership grow
*  Having an opportunity to have a voice in the problems and solutions in the profession
*  The joy of working with each of my clients and watching them succeed

For these and so many other things, I am truly grateful.

Happy Thanksgiving!

What sets you apart?

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Imagine for a moment being a client, trying to select a lawyer for a representation in a case you may or may not fully understand, in which you likely have no expertise at all.  And imagine that your case is one of your top priorities: a divorce or child custody case, a bet-the-company business case, or setting up the business you’ve been building in your mind for years.  How will you choose a lawyer you can trust?

The U.S. is blessed (or cursed, depending on your perspective) with huge numbers of lawyers, many of whom are skilled in their practice areas, who strive for excellence in everything they say and do in service to their clients, who seek to provide exceptional client service.  And yet, to the outsider, lawyers in the same practice area tend to sound very much alike.  How does a client choose?

A question for you to consider this morning: what sets you apart from other lawyers?  Is it your expertise in a very narrow niche?  Is it the perspective you bring to your cases?  Is it the dedication you exhibit to your clients?  Or something else?  How would a client see what you identify as your distinguishing mark?  (Maybe you should ask several clients — and if that suggestion feels even slightly threatening, ask yourself why.)  And really drill down.  Don’t allow yourself to accept a weak, watery distinction.

This raises and important and sort of an existential question: What do you stand for as an advocate?  How would a client know?

Explaining decision-making authority

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In my experience, newer associates often have challenges in determining what they do and don’t have the authority to do.  Some may take on too little authority, undermining their usefulness to more senior lawyers who need not be consulted about every decision, and others may take on too much, possibly compromising strategic decisions that should be the senior lawyer’s call.

Senior lawyers bear much responsibility for these missteps, because they should have the foresight and ability to define what authority the lawyers they supervise may exercise.  However, all too often, everyone assumes that everyone is in agreement on what’s appropriate — right until the assumption comes crashing down in a rant of frustration at being disturbed yet again “for nothing” or a ballistic explosion at finding out that an incurable decision has been made without a full appreciation for its impact.

I’ve been reading a marvelous book recently: Fierce Conversations: Achieving Success at Work and in Life One Conversation at a Time, by Susan Scott.  In addition to setting forth a valuable approach to conversations that facilitate exploration of the truth and collaborative problem-solving, Scott sets out a Decision Tree that supervising lawyers can use to explain a junior lawyer’s scope of authority — quickly, simply, and in a framework that permits easy shorthand reference in the future.

Scott’s Decision Tree comprises 4 categories of decisions (quoted from page 119, Fierce Conversations):

Leaf Decisions: Make the decision.  Act on it.  Do not report the action you took.

Branch Decisions: Make the decision.  Act on it.  Report the action you took daily, weekly, or monthly.

Trunk Decisions: Make the decision.  Report your decision before you take action.

Root Decisions: Make the decision jointly, with input from many people.  These are the decisions that, if poorly made and implemented, could cause major harm to the organization.

It’s quickly apparent how these categories can be used in the practice setting.  In the context of litigation, for instance, a partner might identify deciding whether documents are relevant and thus to be produced as leaf decisions, deciding what witnesses to interview as branch decisions, preparing discovery requests as trunk decisions, and deciding whether to move for a temporary injunction as a root decision.  As the associate advances, more and more decisions will become leaf and branch decisions, which is a strong indication that the associate is becoming more skilled and thus merits more authority.

This same principle is useful in a wide variety of other settings.  Suppose, for example, that you had decided to embark on a marketing program, and you decided to mail firm literature to some unidentified people and to invite others to lunch, to accept some requests to speak at CLE meetings or to write articles, and to use your box seats at a sporting event to thank or to woo particular clients.  The Decision Tree formula would permit you to delegate this process to a large extent to your assistant by explaining which steps you want her to undertake on her own without reporting back (sending out the marketing materials to new contacts), which you want her to do and to let you know about (setting up lunches with those in a designated group), which you want her to filter and then check with you about (“I don’t think you’ll want to speak at these conferences, but client XYZ always attends this one, so you may want to consider that”), and which decisions require input from you and perhaps others (which clients and colleagues should be invited to the playoffs).

Think today about how you can use Scott’s Decision Tree to clarify your own scope of authority and that of others with whom you work.

How important are your clients?

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It should go without saying that client service is the bottom-line, critical piece of practice that cannot be overlooked.  Unfortunately, that message does seem to be overlooked in some areas.  At the risk of stating the obvious, clients are an attorney’s lifeblood.  Without clients, practicing law is impossible.  That makes your clients pretty important, doesn’t it?  And yet, lawyers all too often unintentionally teach their clients that they aren’t important.  Failing to keep a client up-to-date on the latest developments in his case (or letting her know that there aren’t any developments, and why), returning phone calls slowly if at all, rushing during conversations, and the like will quickly convince a client that you’re not interested in the client or his case.

I’d intended to write a post to discuss ideas about how lawyers can provide consistently excellent client service, but while going through my Bloglines subscriptions, I ran across Dan Hull’s What About Clients? 12 Rules of Client Service.  These rules deftly require a seamless blend of “client service activity” with everyday work.  (In other words, it’s about how to “be” excellent client service through the work you do and the way you do it.)  While I don’t necessarily agree with all aspects of the rules (contrary to Rule #1, for instance, I do think a lawyer can provide excellent client service to a client she doesn’t like, probably even to a client she actively dislikes, though that’s certainly not fun and quite challenging), living by these rules will lead to truly great client service.

Post # 100… Discussing my own work/life balance

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I’m astonished to be hitting post #100 this morning.  How time does fly!

I’ve been thinking lately, with something between amusement and horror, about my own work/life balance.  One of the things I’ve learned as a coach is that I very often end up working with people who face the same issues that confront me.  No idea why that is, but I’ve observed it repeatedly.  Lately, work/life balance has hit at the top of that chart.

I thought it might be helpful to be open about my own work/life balance challenges just so you readers will be aware that I’m not writing about work/life balance from a white, fluffy cloud somewhere in the sky that allows me to observe the issue without ever being embroiled in it.  Some days, I wish that were the case!

Because this is a me-centric post (using self as an example), I’ve taken the unusual step of breaking the post here.  If you’d like to know more, read on.  And otherwise, see you in Wednesday’s post!

Read more

Litigation pet peeve

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It’s come to my attention again that many, perhaps most, litigators step all over one of my pet peeves.  My pet peeves aren’t a big deal to anyone but me, but committing this particular error should be.

I hate, detest, despise hearing an attorney, especially a litigator in a jury trial, refer to his or her client as “my client.”  It’s nails on a blackboard.

Before you dismiss this as a bizarre quirk, let me explain why this is so.

Litigators spend a great deal of time thinking about how they come across to a jury or a judge, and they often coach a client on what to wear, how to sit, how to react to what unfolds in trial, and so on.  Although exceptions exist for every rule, generally the lawyer’s job is to stand with and for her client, and there’s a certain identification that occurs between client and attorney.  Counsel is sharp, intelligent, respectful, etc., so the client might be seen to be so as well.  There’s a game of sorts played out in this: the jury sees the lawyer and the client and their interaction, and to the naked eye it should appear that the lawyer is entirely convinced of the merit of the client’s case, that the lawyer stands with the client without hesitation.  (Indeed, that’s how it should be, not just appear, but that’s another post.)

But the moment a lawyer references “my client,” the game is over and the image is shattered.  The lawyer isn’t acting on his client’s behalf because the client is right; the lawyer is being paid.  There’s an immediate distancing that occurs as soon as “my client” is uttered, and the lawyer becomes less an advocate and more a paid mouthpiece.  I’ve heard some really marvelous arguments splintered by those two words.

Think about the final moments of a criminal trial, when the jury foreperson is about to announce the verdict.  The judge asks the defendant to rise.  And who stands?  The defendant and counsel.  That simple act defines representation to me.  No, counsel won’t serve time alongside a convicted defendant, but for that one critical moment of trial, counsel and defendant operate as one.   The same principle applies in a civil case.  Uttering “my client” is, to me, antithetical to that bond between lawyer and client.

It should be a privilege to represent someone.  Don’t stain that privilege by verbally breaking the wholehearted advocacy with  a reference to “my client”.