Archive for category: For new lawyers

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.

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”.

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.

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.