A Tale of Two Futures

[. . .] I graduated from [elite university] with a B.A. in [social science major] in 1994. I was on scholarship, so I managed to graduate with no debt. Not that these things matter 20 years after the fact, but I had a 3.6 GPA and a 178 LSAT. I worked for [politician] between college and law school. I graduated from [top ten law school] in 2000. My GPA was a 3.5, which was well above the mean but not good enough for law review. I clerked for a federal district court judge from 2000-2002, during which time my law school loans were in forbearance. My point is that, although my resume wasn’t printed with gold ink when I began my legal career, my credentials were good.

[. . .]

I was laid off in late 2010, and I have been out of work ever since. There were no accusations of misconduct, no complaints about my work. The law firm was downsizing, and that was that.

[. . .] Since I was laid off, I have floundered around, applying for jobs, representing a few clients as a solo practitioner (not that that has been lucrative – think very low five figures per year), and trying to figure out “What happens to all of the lawyers?” [. . .]

From www.insidethelawschoolscam.blogspot.com, February 26, 2013

If you’ve been online at all within the past couple of years you are probably familiar with posts like the one above, from Professor Paul Campos’ Inside the Law School Scam blog.  The problem of lawyer and law graduate unemployment have been covered recently in the Wall Street Journal, The Huffington Post, US News and World Report and the New York Times, and the bloggers at Above The Law have been discussing it for years.  It’s a complicated issue having to do with, among other things, the cost of going to law school, the fact that student loans are not generally dischargeable in bankruptcy, and the ongoing effects of the Great Recession.

Now here come the books, although the doom and gloom is not limited to recent graduates’ prospects.  First to hit the shelves was Richard Susskind’s Tomorrow’s Lawyers: An Introduction to Your Future (Oxford Univ. 2013).  In fairness to Susskind, who is a British IT consultant, he wrote about many of these issues in his earlier book, The End of Lawyers: Rethinking the Nature of Legal Services (Oxford Univ. 2008).  The relative newcomer to this genre is Steven J. Harper, a former partner at Kirkland & Ellis and now author of The Lawyer Bubble: A Profession in Crisis (Basic Books 2013).  (Both men share, apparently, a fondness for subtitles.)

Harper’s book is more autopsy than prescription, so we begin with it.  The Lawyer Bubble limits itself to discussion of law schools and the largest law firms (so-called BigLaw), but what it has to say about the state of the profession is pretty scathing.  Harper points to Christopher Columbus Langdell, Harvard Law School dean and founder of the case method of law school instruction, as the “essential foundation” of the problem – and the problem is that there are too many lawyers.  He says that the case method permitted law schools to abandon the time-intensive lecture-and-internship model that held sway before 1890 and turn to “mass production of attorneys.”  In turn, law schools became profit centers for their universities, all the while having little incentive to turn away applicants because student loans became essentially non-dischargeable in bankruptcy in the 1970’s.

Both the American Bar Association and the US News & World Report law school rankings have a share in the blame, according to Harper.  The rankings have become hugely influential and law school deans, although initially reticent, have embraced them.  According to Phillip J. Closius, former dean of the University of Baltimore School of Law, “[m]illions of dollars [are] riding on students’ decisions about where to go to law school, and that creates real institutional pressures.”  Yet Harper argues that the rankings are deeply flawed.  He cites incredible examples, including one in which a dean circulated a law school ranking survey similar to the one used by US News, and respondents rated the law school at Penn State as a mid-level school despite the fact that Penn State at the time did not have a law school.  He describes efforts at the University of Illinois College of Law to bolster its incoming GPA and LSAT numbers, which count for twenty-five percent of a school’s rating, which resulted in the blatant falsification of the numbers.  (The employee responsible for submission of the information was blamed, and although the law school dean was absolved of wrongdoing, the ABA censured the school, imposed a $250,000 fine, and required that the school submit to compliance monitoring for two years.)

And then there is the employment data.  Before 2012, the ABA applied an extremely broad definition of “employed,” so that when law schools provided graduate employment data, they made no distinction between working in a law firm as an associate and working in a coffee shop.  Many schools reported employment figures as high as ninety-three percent even during the recession. Yet in 2012, according to Harper, only sixty-six percent of the class of 2011 worked in jobs requiring bar membership, and many of those were part-time or temporary positions such as clerkships.  Schools made a practice of offering paid temporary positions to graduates that conveniently started before and ended just after the window of time set for employment data gathering.  When, in 2012, the ABA began to require that schools disclose such arrangements, several low-ranked schools revealed that they employed more than fifteen percent of their own graduates.  All of these factors led to a flood of incoming law students and the creation of a “lawyer bubble” not unlike the real estate bubble of the mid-2000’s.

Harper heaps his wrath upon BigLaw firms as well, arguing that they have increasingly abandoned the traditional “true partnership” model for a pure business model that values profit over anything else.  When income determines all, he argues, individual lawyers adopt a “what’s in it for me?” attitude and move freely between law firms, taking their lucrative books of business with them.  In order to hold on to their most valuable business-getters, firms offer higher salaries (or, as in the case of Dewey & LeBoeuf, salary guarantees); to make the numbers work, they cut support staff and attorneys considered less valuable to the firm.  The result, Harper says, is that BigLaw firms have become oligarchies where a small number of attorneys achieve exceptionally high earnings and the lawyers who find themselves shut out become demoralized. Harper devotes more than a few paragraphs to lawyer suicides, such as the suicide of Mark Levy in 2009.  He also details several case studies, including Dewey & LeBoeuf as well as Finley Kumble, whose failure in the late 1980’s mirrored Dewey’s.

Harper advocates for several changes: abandonment of the billable hour and “eat what you kill” systems; implementation of true “partnership” schemes within law firms to encourage loyalty and real mentorship; and implementation of mandatory retirement policies so that younger attorneys have an opportunity to move up the ladder.  He also suggests that businesses such as Axiom and other out-sourcing vendors should encourage firms to streamline their processes and learn to better utilize technology.

Technology, and the way it will change the practice of law, is squarely within Richard Susskind’s bailiwick.  Tomorrow’s Lawyers is less an indictment of the way things have been done than a prediction of how they will be, and if Susskind is correct the future looks very different.  (However, it’s worth pointing out that Susskind is most familiar with the British legal system, and that system differs from the United States’ system in significant ways, including in permitting non-lawyer investment in law firms.)

Like Harper, Susskind argues that the billable hour has had its day and should be retired.  But this would only represent the first of a number of transformations he proposes.  More traditional “legal” work should be performed by non-lawyers, in much the same way that certified nurse practitioners have taken on many traditional physician functions.  Susskind would include within this category document review in litigation, due diligence work, basic contract drafting and basic legal research.  This is work that involves more “process than judgement” and should, in time, be further commoditized so that it is performed entirely by computers.  Another proposal would permit clients with similar interests to “collaborate,” and set up a shared fully-owned “law firm” to serve their mutual needs.  He uses banks as an example, and claims that they could own a shared “service centre” to undertake compliance activities at reduced costs.  (He does not address here, I note, any conflicts issues that might come up, although presumably those could be dealt with in the firm’s operating documents.)

Much attention is devoted to the idea of commoditizing legal services.  Susskind breaks down (or “decomposes”) litigation into specific tasks, such as document review; research; strategy; tactics; negotiation; and advocacy.  He claims that although strategy, tactics and advocacy, at the least, have traditionally been the province of lawyers, he is “increasingly hearing from General Counsel that alternative providers can now take on the remaining tasks at lower cost and to a higher quality than traditional law firms.”  In some cases this involves outsourcing work to a third-party.  In others, work may be subcontracted from one law firm to another.  Susskind raises the possibility that, in the future, many legal problems will be crowd-sourced before they are ever presented to a lawyer for consideration.

Most of Susskind’s predictions involve the elimination rather than the creation of legal jobs.  He closes the book, however, with several positions he believes will be created in the future: the “legal knowledge engineer,” who will program the software necessary to perform commoditized legal work; the “legal technologist,” who will “build the foundations upon which legal service is built and the channels through which non-lawyers can access the law,” and as for what that means, your guess is as good as mine; the “legal hybrid,” who will be both family lawyer and marriage counselor or commercial lawyer and strategy consultant; and the “legal project manager,” who will oversee a project once it has been “decomposed” and outsourced to ensure that its various components are completed on time and within certain quality parameters.  (There are more, but I am finding this exhausting.)  Susskind rather grudgingly concedes that there will be “Expert Trusted Advisers” and “Enhanced Practitioners” in the future, but there will not be many of them.  He closes with advice to young lawyers, or those considering law school, to follow the example of Wayne Gretzky and “[s]kate where the puck’s going, not where it’s been.”

 

Monday Morning Hearsay: Research, Deep and Wide

Lawyers do a lot of research.

It might surprise you to learn that poets also do a lot of research.

We tend to assume that poetry springs from the mind of the writer like Athena from the mind of Zeus: fully formed.  But not so much. 

From Jeffrey Skinner’s “The 6.5 Practices of Moderately Successful Poets: A Self-Help Memoir” (Sarabande Books 2012), two quotes from writers who are more than moderately successful:

I need to ground my work in particulars.  In my case this usually means a material object such as a book, or a manuscript, most recently lace.  Often a historical moment, or a specific person.  Not a made-up character – I could never be a novelist – but I try to understand all aspects of the person I am writing about the way a playwright or an actor might.

– Susan Howe

I’m usually more comfortable dealing with atmospheres and sensations than irritably reaching after facts.  “American Myth” began, really, when I was a kid, dipping into books I didn’t understand on my parents’ bookshelves.

– Kathleen Ossip

Lawyers tend to be pretty good at the first sort of research because it is the sort of research that develops answers to specific questions.  A client wants to know whether he has a cause of action based on a discrete set of facts.  We plug the facts into the Westlaw search bar and come up with an answer.  This is deep research: time spent accumulating information responsive to a specific problem.  Like Susan Howe, we “ground” ourselves in the facts presented in a client’s matter.  What we learn might be helpful to us again at some point in the future, or it might not.

Kathleen Ossip, on the other hand, relies on what we might call wide research.  She doesn’t start out with a topic to write about necessarily; instead, having read widely she draws upon what she has accumulated and comes up with something interesting, a connecting line between two points that no one else has spotted before.  And she writes about that.

Now I am going to suggest something that the lawyer marketing gurus would probably consider heresy.  Which kind of research is more important to a lawyer’s success?  I say the second, and here’s why.

The fact is that anyone of moderate intelligence with access to Westlaw or Lexis or Google can answer a distinct legal question.  It may not be the most polished answer, and you won’t want to bet the company on it, but realistically as information has become readily available online it has become less and less necessary to pay a lawyer for access to the information.   We are no longer gatekeepers because the fences are down.

The value a lawyer brings to a particular transaction is no longer information but knowledge.  Knowledge is to information as a shopping cart is to the items on the shelves at the grocery store.  A person with knowledge understands which items are relevant and necessary, which are too costly or of too poor quality, and which should be purchased and stored for future use.

This is why I pointed out in an earlier post that Justice Scalia is wrong to critique the “Law and . . .” seminars offered by law schools.  Yes, it is important to understand legal subjects in depth.  It is equally important to bring the contexts of history, culture, psychology, politics, and economics to bear on legal issues.  No legal problem exists in a vacuum.  It is nonsensical to expect that its solution should.

My background is in literature and I continue to read a great deal.  I probably average two or three novels a month, sometimes more, sometimes less.  I am certain that my reading informs my work and my thinking.  Personally I believe literature is the best source for understanding all of those contexts I mentioned in the preceding paragraph.  You might not, and would prefer to read pure history.  Or maybe you are a film buff.  Do whatever just so long as you are acquiring breadth as well as depth.

The better able we are to think and reason and exercise discretion, the better prepared we are to practice law.  These are skills not taught in law school or any CLE and not available for purchase online.  They are acquired over a lifetime of learning and they are exquisitely valuable.

 

Why Are Lawyers So Terrible At Advising Themselves?

A gentleman by the name of William E. Brown is the subject of a show cause order in North Carolina because he failed to comply with the terms of what you might call a licensing plea agreement.  (I have no idea whether Mr. Brown has been charged with any crime, and am not suggesting he has been or should be).  Something happened to bring Mr. Brown to the attention of North Carolina disciplinary authority, and it apparently involved women.  As a result, Mr. Brown’s license was suspended for three years, but the suspension was stayed so long as Mr. Brown refrained from representing women (or talking to them, or coming near them, in any professional capacity, which really makes you wonder what went on in the underlying disciplinary matter).

A three-year suspension is essentially career ending.  I don’t know how North Carolina’s process works, but in many jurisdictions a suspended lawyer must petition for reinstatement to the bar and bears the burden of proving his or her fitness to practice.  Clients don’t hang around for three years, and neither do referral sources.  It is a very serious sanction.

So the fact that Mr. Brown was able to negotiate a stay of the suspension was a gift.  He should have recognized it as such and conducted himself accordingly.  Because now he’s looking at suspension again, and the board will not likely be so lenient this time.

Why is the disciplinary board now looking at revoking the stay?  I don’t pretend to know the details of the situation, but if you read the order it’s nothing earth-shattering.  It doesn’t sound like this lawyer deliberately disregarded the spirit of the stay order by going out and soliciting women clients left and right (at the local Sephora perhaps?  I can get away with that because I’m a woman, see?)  Instead it looks like Mr. Brown committed several technical violations of the order, by failing to keep his practice monitor informed and failing to provide information about certain files concerning women. 

My point is, why are lawyers often so stupid about this stuff?  I don’t do any criminal work, but I imagine lawyers who represent defendants instruct their clients to follow the terms of their plea agreements to the letter.  The same goes for other kinds of settlements.  My clients sometimes ask me about how strictly they should follow the terms of confidentiality agreements – can they tell their mothers, their spouses, their next door neighbors, and so on?  I say no.  The likelihood of getting caught is low, but the agreement itself is too important to endanger with something so trivial.  Let your neighbor figure it out on her own. 

Why is it so difficult to take our own advice?  I’m not exempting myself from this inquiry.  I have sometimes allowed myself to become emotional about issues that the lawyer-me would ignore. 

There’s no way of knowing why any given lawyer represents himself or herself.  Sometimes it’s because the lawyer really thinks he can do it better than anybody else and to my point of view he deserves whatever he gets.  Sometimes there’s no available E&O insurance, or the lawyer is too scared to report the proceeding to his carrier (which is also going to lead to trouble eventually).  I know that some lawyers seek refuge in friendships.  Sometimes the friend is a good licensing defense lawyer, sometimes not.  I wonder if some bar associations are able to provide volunteer defense lawyers for members who need them.  Or set aside a fund for defending these lawyers.  I think it’s a good idea, one that I’m prompted to take a closer look at.

 

Books of Note

The Careerist recently posted an interesting interview with Joseph M. Hassett, Hogan Lovells attorney and Yeats scholar.   I like.  Hassett’s book, W.B. Yeats and the Muses, is available on  Amazon.   A little pricey, but there are a few used copies available for $ 30 less. 

I plan to pick up a copy of Woman Lawyer: The Trials of Clara Foltz.   Foltz was the first woman lawyer on the West Coast (we in Maryland are proud of our own Margaret Brent), leader of the woman rights movement and the first person to advocate state-sponsored counsel for indigent defendants.  The author, Barbara A. Babcock, is no slouch herself. 

Law students or those considering law school should read The Jim Report: My Life in Law School, by Jim Reavis.   A collection of funny emails composed by Reavis while he was in law school, it ends with Reavis’ 2010 decision not to take the bar examination.  It’s not 1L, but it’s worth a read.

 

A Tongue in Cheek, By No Means Complete List of Books Lawyers Should Read

1.  The Lord of the Rings trilogy, J.R.R. Tolkein

Remember all those freaks and geeks you gave swirlies to in high school?  They run Google now.  (Some of them write geeky law/lit blogs, but you’re not marketing to me.)   

2.  Gravity’s Rainbow, Thomas Pynchon

After this, every corporate structure deposition you ever attend will seem witty, enjoyable, and deeply fulfilling.   

3.  Lord of the Flies, William Golding

This is what happens when depositions are not witty, enjoyable or deeply fulfilling and few judges will accept telephone calls from the conference room these days.

4.  Babbitt, Sinclair Lewis

You know why.

5.  Ulysses, James Joyce

Opposing parties are sometimes pro se and they love to handwrite their pleadings.

 

A Lost Generation?

According to recent surveys, lateral hiring of associates is picking up and is expected to grow through 2011.  http://www.abajournal.com/news/article/legal_recruiters_see_more_hiring_but_laid-off_associates_arent_in_demand/  

This is excellent news for law school graduates of the years 2005 through 2007 or so.  These associates began working during while real estate, mergers and acquisitions, and litigation practices were still going strong, and thus far they have survived the post-2007 layoffs, deferrals and general malaise of legal practice circa 1998 through 2010.  While most associates will never make partner at AmLaw100 firms, with those credentials and a healthy dollop of experience they will be poised to move to boutiques or in house or to strike out on their own within the next ten years and can probably expect actual legal careers for themselves.  Good for them.

More troublesome is the outlook for associates who graduated after 2007.  In 2008 practically an entire class year went unhired or deferred, meaning that firms pushed back their start dates by a year or more.   Some associates deferred in 2008 have never made it back.  A lot of recent grads are doing document review, which means they sit for hours and hours staring at pdf pages of documents checking for privilege issues and coding them for later use.  It’s horrible work, boring, unappreciated, poorly paid with no benefits, and a reference to it on a resume often taints the lawyers who do it so that they can never go on to full-time employment.  Honestly, it’s a bit like sweat-shop work, with no likelihood of a Triangle Shirtwaist fire to improve working conditions going forward. 

I wonder what will become of this generation of lawyers.  Many of them are burdened with enormous student loan debt ($ 150,000 and more), and since student loans aren’t generally dischargeable in bankruptcy they’ll be stuck paying these loans for the rest if their lives.  A higher percentage of recent grads than usual has gone into solo practice right out of law school.  I cheer the entrepreneurial spirit of these lawyers but I also worry about whether they’ll be able to cut it.  I haven’t exactly been practicing for a century but even I can see that the nature of practicing has changed drastically over the past few years.  People are STRESSED.  Lawyers who might have been willing to take the less experienced under their wings a few years ago are too worried about the bottom line right now to do that.  Judges are overloaded with foreclosures and bankruptcy filings, and let’s face it: a judge who just oversaw a tearful foreclosure proceeding five minutes ago is not going to have patience for the pleading you mistitled. 

I’ve been reading a lot of articles on this topic, and I suppose understandably there’s a general rah-rah spirit to most of them.  Solos are doin’ it for themselves! the captions cry, and stories are passed along about the lucky lawyer who practices out of his mom’s house who somehow landed a Supreme Court case and so on.  That’s all very uplifting, rather like watching It’s a Wonderful Life, but in reality the townspeople don’t show up with baskets of cash and lawyers don’t land career-making cases in their pajamas.  I like Carolyn Elefant’s blog My Shingle, for instance,  but Ms. Elefant got her start at a large, national firm, built client relationships there, and then moved to solo practice, which she’s quite upfront about.  Opening up right out of law school is hard, which is why historically it wasn’t done much. 

Not only that, but it’s difficult to turn away work when you’re getting up and running, and some work should be turned away, absolutely.  Lord knows I did really dumb things during my first few years, but I was lucky to have more experienced associates and bosses to keep me from doing anything worse than blushing from time to time. 

Here in Maryland, where I practice, a move is afoot to make CLE mandatory.  We are one of the few states remaining who haven’t already done so.  There is support for the change in some quarters, but strenuous opposition from bar associations, small firms, the plaintiff’s bar, and so on, all of whom argue that mandatory CLE will impose an unfair burden on them while generating income only for for-profit entities.  There is some merit to this, certainly.  But I do wonder if requiring CLE wouldn’t help a whole class of legal orphans get integrated.  Help them make contacts, get some much-needed mentoring and support.  I think we owe it to them.  We created the business model that rejected them.

 

Beware, Beware: The Advertising Client

Now hold on there.  This post is not about solid clients who, because of the economy or because they just want value for their hard-earned dollars, are interested in re-negotiating attorney fee agreements.  The lawyer-client relationship is ideally a symbiotic one.  The lawyer helps the client to resolve a problem at reasonable cost, and in turn hopefully earns the client’s loyalty.  When a client is feeling the effects of a recession, the lawyer should be willing to re-define “reasonable.”

No, I am prompted to write because of an advertisement currently running in the local legal paper’s classifieds section.  It says:

Litigator Needed: experienced litigator to accept two cases for $ 75/hour.  Possibility of additional work.

This advertisement is a grievance just waiting to happen.  It has been running for two weeks or so, and I console myself with the thought that it is still running because no one has responded.  Otherwise, the responding lawyer may well become my client. 

There are only two sorts of lawyers who will likely respond to such an ad.  The first is the recent law school graduate who needs work, any work.  I feel for this person.  He or she will probably make a fine lawyer some day, but has not yet learned to spot the clients to be avoided at all costs.  Also, he or she will not be experienced, but may be retained anyway because no one more experienced applies.  I can almost picture this client in my head.  He (sorry, but I suspect it’s a he) will avoid scheduling a meeting with the lawyer, and instead will mail a large stack of papers, probably including pleadings from a case that has been lost at the trial level, as well as a  five page letter describing all of the reasons why the case was lost (almost certainly because the previous lawyer “bungled it” or actively conspired with someone to lose the case).  You get the picture.

Young Lawyer will read the stack of papers and think, “Aha!  This is a meritorious case!  I know that Precedent X applies here, how could the trial court have gotten this so wrong?”  And Young Lawyer will discover that the time for filing an appeal has lapsed, or that there are only a few days remaining, or something along those lines. 

Young Lawyer will compose a letter to Client.   In it, Young Lawyer will convincingly argue for a certain position, whether it is to file the appeal, or the lawsuit, or the administrative complaint, and to take such and such a strategy.  Client will respond with a mostly illegible fax within five minutes of reading the letter, instructing Young Lawyer to proceed immediately!  And Young Lawyer will.

But as Young Lawyer begins to delve more deeply into the matter, he or she will discover that all is not as Client had represented.  Perhaps Client has already litigated to the SCOTUS certiorari stage (if so, this is really a bad one).  Or Client may be on the FBI’s Most Wanted List.  The problem could be many things, but whatever it is, the likelihood of success on the matter will be greatly reduced. 

Young Attorney will be worried, however, about disappointing Client.  Young Lawyer will also be worried about fees, because Client will almost certainly not have forked over any money at this point, and Young Lawyer has student loans to pay.  So Young Lawyer will forge ahead towards doom.

And when things go bad, Client will blame Young Attorney much as he blamed Former Attorney.  A grievance will be filed.  A pro se malpractice complaint may also be filed.  Now Young Lawyer has to contact his or her professional liability carrier (this is true, generally speaking, even if there is a deductible).  But Young Lawyer cannot afford a higher insurance premium and attempts instead to settle with Client.  But because Client and Young Lawyer are now adverse, Young Lawyer will probably violate an ethics rule in doing so, and things will continue downhill from here. 

The other sort of lawyer who would possibly respond to this advertisement is the more experienced but down and out lawyer.  His best days are behind him (five years ago he was a partner at a well-respected firm but left rather suddenly to form a solo practice, quite possibly out of his home).  Hopefully his student loans are paid off, but he has a mortgage and children in private schools.  He is wise enough about these things to know that this will be a problem case, but he needs the money.  In fact, he probably asks Client to pay him an “engagement fee” which he will deposit directly into his operating account even though he has performed no work.  Experienced Attorney will rarely return phone calls or respond to faxed requests for status on the case.  He might file necessary papers, or he might not.  He will likely tell Client, when he does communicate with him, that the papers have been filed.  Client will call the court to verify.  And then, another downward spiral. 

I am not making fun of these attorneys.  At all.  I genuinely sympathise with them.  But they never seem to take my advise, and become repeat clients.  This I regret.

The advertisement should set off all sorts of warning bells for you.  First, it’s a blind ad in the legal paper.  This means Client has telephoned or written to all of the lawyers in his general area and no one wants to take the case.   Not good. 

Second, Client has two cases, apparently.  That could be legitimate.  People sometimes get involved in business disputes while they are simultaneously divorcing, etc., etc.  But how many of your non-institutional clients have ever had more than one case at a time?  And how many people with business disputes are looking for $ 75/hour representation?   Not many.  Not good. 

Third, Client is only willing to pay $ 75 per hour.  This suggests either that Client hates lawyers, considers their normal fees to be usurious, and wishes to “show them who’s boss”.  Or, Client is extremely cash-strapped, and if that’s the case, Client is unlikely to pay you or to be able to provide a satisfactory retainer.  Both, not good. 

Fourth, and finally, Client suggests the possibility of “future work.”  This suggests that Client is extremely litigious and/or does bad things so often that he is frequently sued.  Maybe, you say, Client is a business and needs a collections lawyer?  But I don’t think so.  Such lawyers generally work on commission, and if the sums to be collected are so low that they’re not worth paying commissions on, they probably shouldn’t be pursued.  The debtors won’t pay, the judgment will have to be collected on, and eventually Client will grow infuriated that his legal expenses outpace his likely recovery.  Hmm.  Not good. 

You don’t need this work.  Trust me.  You don’t.  Walk away.

 

The Ship of Pearl

Oliver Wendell Holmes, Jr.’s The Common Law has fallen well out of favor.  Richard Posner and the Chicago school pretty much relegated it to the dustbin and I think that’s a shame.  Whatever side of the fence you’re on, you must admit that economics and law deal with individuals in markedly different ways.  When economic principles are invoked to influence behavior, they are invoked on behalf of whole classes of people: labor; the well to do; the “welfare class” (whatever that means); the middle class.  We don’t apply monetarism or game theory to Joe the Plumber.  (Sorry, I couldn’t resist that one.)  We apply those principles to huge clusters of individuals and concern ourselves little with the effect of a given policy on one person.

The law is not applied that way.  As a forward-thinking, behavior influencing set of principles it is helpful to think of the effect of laws on classes of people.  But the law is only partly forward-thinking.  Unlike economics, the law is inevitably called upon to decide the rightness or wrongness of acts which have already occurred.  Thinking of law in strictly economic terms, or for that matter, in terms of gender or race, is interesting but of no practical use in enforcing the social contract. 

Holmes was a leading American proponent of legal realism around the turn of the twentieth century.  The law at that time was being asked to accomodate a whole new set of social problems.  Railroads in particular made it necessary to craft new protections for workers and their families.  Accidents on the tracks influenced the development of contributory negligence principles, the notion of the “standard of care”, the existence of the duty to use due care, and causation.  Who doesn’t remember the fact pattern from Palsgraf?  Well, if you went to law school, anyway.  If you didn’t, you can read about it here:  http://en.wikipedia.org/wiki/Palsgraf_v._Long_Island_Railroad_Co.

You are wondering what any of this has to do with pearls.  I don’t blame you.  I am getting to that now.

Holmes the legal philospher and Supreme Court justice was the son of one Oliver Wendell Holmes, the doctor.   Dr. Holmes is remembered today as one of the Fireside Poets, a group which includes Henry Wadsworth Longfellow, John Greenleaf Whittier, and James Russell Lowell.   Dr. Holmes’ claim to fame is one poem and really one poem only.  It appears in most middle school or high school English textbooks and it is called The Chambered Nautilus.   

Like most poems of its time it is written in a pseudo-Classical style in regular meter and neatly rhyming lines.  The Fireside Poets are also called The Schoolroom Poets because their poems are well suited to memorization and recitation.  In other words, they are orderly.  There are no oddball near rhymes or rhythm shuffles to be worried about.  The reader or reciter can be assured that all will go well and that the appropriate applause will follow.   (How astonishing to consider that so few years separate Dr. Holmes and e.e. cummings!)

Dr. Holmes celebrates in his poem the “ship of pearl” that had “sail[ed] the unshadowed main” – nautili live in the deep waters of the South Pacific and Indian Oceans – and arrived at the shore only by reason of its death.  He considers that the nautilus, dead now, had built each chamber of the shell to live in as it grew, abandoning the smaller for the larger year by year.   Then he moves on to the “moral” portion of the poem so regrettably common to the Victorians and declares, famously: “Build thee more stately mansions, O my soul,/As the swift seasons roll!”  Dr. Holmes argues that the chambers of the shell represent intellectual and possibly spiritual levels of growth, to be discarded at death when no longer needed. 

And Justice Holmes seems to take a cue from his father in The Common Law:

The life of the law has not been logic; it has been experience…The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.

The Common Law (1881) at 1. 

For Justice Holmes, the law was the ocean, an undulating thing to be inhabited rather than mastered.   Concepts should be taken up and applied as appropriate and for the common good, but discarded when no longer so.  He advocated for what you might call judicial restraint, although I think his concept would not be recognized by the Scalias of today.  Holmes believed that judges too often inserted their own vision for the approach favored by the general population; and in fairness to those who critique him, he authored the Buck v. Bell decision, finding constitutional a statute that permitted the forced sterilization of the mentally retarded.  (If any decision argues against the legitimacy of true judicial restraint, this is it; unfortunately there are others, Dred Scott among them). 

In my mind, though, Holmes’ saving grace, and the saving grace of his approach to law, was his willingness to be flexible in the interest of the common good.  No doubt this will draw fire.  Jurists like Scalia argue that inflexibility is the only way to ensure, if not justice, then at least rationality.  The rich man will be deprived of a right – or granted a privilege – no less and no more than the poor man.

In reality that rarely happens.  People like Mark Dreier evade justice for as long as they do because their connections and wealth buy them time.  Justice Holmes’  common law would demand more of Dreier and his ilk than from the guy selling papers on the street.  His plea to jurists and lawyers alike:   “Don’t be ‘consistent,’ but be simply true.” 

 

 

Edgar Lee Masters and the Big Sea Change: We’ve Been Here Before

The great myth about the good old days – of law practice and in general – is that there were good old days at all. 

The media has of late been declaring Biglaw dead.  Downward pressure on the hourly rate is encouraging partners to depart for smaller firms.  Even white shoe firms are talking about alternative fee arrangements.  The notion that clients should not be billed for the time of inexperienced associates is understandably gaining some traction.  Firms have laid off and deferred associates, slashed summer programs, and cut back on hiring.  A vocal if disorganized bunch of law students and never-associates are grumbling online about the law school “scam.”    

But realistically nothing has changed.  That’s what I think when I read Edgar Lee Masters’ Spoon River Anthology. 

Masters was a prolific writer with novels, biographies, and plays under his belt, but he is best known for his collection of poems memorializing the residents of a fictional town.  Spoon River was set in Fulton County, Illinois, not far from where Masters spent most of his life practicing law.  For about five years – well before the Scopes or the Leopold and Loeb trials – Masters partnered with Clarence Darrow.  (Darrow himself, despite his reputation today as a hero of labor and the underdog, once represented a Chicago landlord in his effort to have a tenant committed to an insane asylum because she had not paid her rent.  Not really relevant, but an interesting fact.)  During this time, most biographies of Masters report simply that he “defended the poor.”

But as lawyers we know this means he probably collected very little money.  The two quarrelled; Darrow’s indictment for perjury and jury tampering didn’t help things (although Masters conducted depositions in Darrow’s defense.  See the transcript here: http://darrow.law.umn.edu/trials.php?tid=17 .)

Masters and Darrow parted ways and Masters formed his own firm.  During this time Masters began writing the poems that would become Spoon River Anthology. 

The poems were serialized before they were collected and published.  It’s not the sort of thing you read in a single sitting.  Although Masters befriended the likes of Carl Sandburg and Theodore Dreiser, his own poems, I think, reflect a wry lawyer’s pragmatism about the people he represented.  No modernism here.  The voices of Spoon River sound like the voices of the people who flow in and out of any law office, as clients or otherwise. 

Keep in mind that while Masters was practicing law and writing his poems, the Bolsheviks were seizing control of Russia, the Boer Wars were being fought in South Africa, Standard Oil was under antitrust scrutiny and unionized labor was transforming the American economy.  Women in the United States and Britain were demanding the right to vote.  The Constitution was amended to permit a federal income tax.  The Federal Reserve was created.  The Lusitania was sunk.

It was a time of unprecedented change.  But what concerned Masters in his poetry were people like “Jack McGuire”, who would have been lynched if his lawyer hadn’t struck a back room deal with a judge – http://spoonriveranthology.net/spoon/river/view/Jack_McGuire.  Or Lydia Puckett, whose spurned lover “stole the hogs and went to war” – http://spoonriveranthology.net/spoon/river/view/Lydia_Puckett.  Or Doctor Meyers, who went to prison for performing an illegal abortion –http://spoonriveranthology.net/spoon/river/view/Doctor_Meyers.  Personally, I imagine each of these characters sitting in a chair on the other side of Masters’ desk, although that probably isn’t fair to him as a writer. 

There are plenty of parallels in our modern world to the early twentieth century.  I like to think that Masters’ focus in the midst of all this social and economic turmoil was in the right place.  Lawyers have seen change before.  It comes in cycles.  We call it outsourcing or contract lawyering or what have you, but what matters now is what mattered to Masters: the relationship between lawyer and client, lawyer and lawyer, lawyer and community.  We bring boats to the sea change, we adapt, and we go on.