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.  Image

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.

I am currently preparing to take the Virginia bar exam. Although many states allow lawyers admitted elsewhere to “waive in” without taking the bar exam or to take a shorter “attorney’s exam,” Virginia requires the exam unless you plan to move to the state to practice full time.

So almost sixteen years after I graduated from law school I’m studying criminal procedure again. It’s all very different this time around, now that I have a busy practice, three children, two dogs, and an old-ish house we bought six years ago because it was a deal and we could do the renovations ourselves.

One of the quirks associated with the Virginia process is that folks taking the exam must do so in full “business attire,” which according to the dress code helpfully posted to the examiners’ website means “suit or jacket and tie for males, and a suitable dress or suit (pantsuits are acceptable) for females.”

Let me first remark that in the year 2013, it is no longer necessary to specify that pantsuits are acceptable for women. Seriously, if you are living someplace where pantsuits are not acceptable for women, you are probably living someplace where elbows are also not acceptable for women.

But that isn’t really my point. What irritates me about this requirement is that it takes no account of the fact that this is an exam, not a court appearance; no judge, jury or representatives of the press will be there. The bar examination is essentially two nine-hour days spent sitting at a wobbly hotel table in a poorly-lit ballroom with three hundred people, some of whom are really nervous and prone to excessive wriggling and vomiting. No one should care what any of these poor souls look like, and no one needs to remind them how momentous the occasion is. They already know it’s a big deal because they’ve invested three years of their lives and $120,000+ of their money (in non-dischargeable student loan debt) getting to that ballroom. Did I mention the vomiting?

I don’t want to blow this all out of proportion. I won’t dwell on the fact that the dress code smells a little Southern good ol’ boy to me, although it does; I have additional thoughts on that possibility but I won’t elaborate further.

I do want to point out that, to my mind, what’s missing in this scenario is discretion.

There’s a lot of buzz on the web right now about making law schools more practical and economical. Some states are considering, and at least one has already decided, to allow students to take the exam during their third year so they can hit the ground running once they graduate. Some are calling for schools to eliminate the third year altogether. Many argue that law schools need to provide more real world legal and business skills. Thousands of law grads from the past few years are either unemployed or underemployed right now; certainly something needs to change, and these are good suggestions.

None of the suggestions, however, account for the way the practice of law itself seems to be changing. So-called lower end services such as will drafting are becoming more and more commoditized. Why pay a lawyer even $100 for a will if you can fill in the blanks on a site like LegalZoom for $50 (or whatever it costs; I haven’t checked and don’t really want to). “Virtual practice” and “unbundled services” are just other names for comoditization. They are ways to provide widgets at low cost to people who need widgets.

And when you hear business people complaining about lawyers or the corporate legal department, what are they complaining about? They complain that the lawyers are unnecessarily risk-averse, that they shut creativity down, that they don’t listen.

I have had the opportunity to work with some really fine lawyers. What impressed me about these lawyers was not that they could consistently bill twelve hours a day but that they knew what to say, how, when, and to whom. They exercised discretion and judgment in advising their clients, and the clients always appreciated it. They understood the global picture for the client, including the way that a particular problem fit into the client’s world, and they understood that the best means for solving the client’s problems weren’t always litigation even if litigation would be terribly lucrative for the firm.

A discrete person is capable of considering all of the relevant facts and, having considered them, making the best choice among various courses of action. A discrete person is trustworthy. Law schools cannot teach discretion. Experience teaches discretion. This is why I’m concerned that so many recent grads are being shuttled into solo practice. Practicing by oneself requires the highest kind of discretion because there are no built-in checks and balances. I’m just not convinced that a guy who was a frat boy just a couple of years ago is ready to assume that kind of responsibility.

Rigid rules, guidelines and dress codes only bolster the notion that law is a sort of computer code: enter the right characters in the right order and you’ll get yourself a verdict, or a contract, or a divorce. The Virginia bar dress code suggests to the people taking the exam that if they put on the suit, they’re lawyers. Because lawyers wear suits.

But the law is not a jacket; you don’t don it one day and take it off the next. Sometimes being a lawyer means wearing jeans and a t shirt while you dig through moldy documents in a warehouse somewhere, just as it means sometimes advising your client against a course of action because you know that ultimately it won’t be good for the client. Discretion.

I’ve never been a fan of conformity for conformity’s sake, and no doubt that sentiment is at the bottom of my thinking on this. Some will read this and think I’m being ridiculous. That’s okay.

I do think, though, that dress codes and the like are emblematic of a kind of legal culture that needs to fade away for the sake of the profession. We are entering an era in which the ability to discern will distinguish us from outsourcers and software. Merely dressing the part will not save us.