What's a Résumé?

David Brooks complains that kids today, at least those coming out of elite colleges, are too perfect. A big part of his lecture to prospective employers is about their résumés and cover letters:

If you work in a white-collar sector that attracts highly educated job applicants, you’ve probably been flooded with résumés from people who are not so much human beings as perfect avatars of success....

When you read these résumés, you have two thoughts. First, this applicant is awesome. Second, there’s something completely flavorless here. This person has followed the cookie-cutter formula for what it means to be successful and you actually have no clue what the person is really like except for a high talent for social conformity....

Reward cover letter rebels. Job seeking is the second greatest arena of social pretense in modern life — after dating. But some people choose not to spin and exaggerate. They choose not to make each occasion seem more impressive than it really was. You want people who are radically straight, even with superiors.

I don't want to overstate the case, as traditional résumés and cover letters still play a role in a lot of hiring, but the trend is toward having an initial review of job applications performed not by a person but by a computer, and also toward LinkedIn, a site where employers and recruiters can look for people who may be interested in a position, see their experience, review endorsements, and look for connections who they might trust to give a candid appraisal of how the person is likely to perform on the job. And that's on top of the long-standing issue, "It's not what you know, it's who you know", with roughly 80% of jobs being obtained through connections.

As others have argued, one of the reasons why the graduates of elite colleges have résumés that are similar in documenting certain forms of high achievement is that the colleges have defined those classes of achievement as the path to admission. If colleges and employers change the criteria, applicants will conform to the new criteria.

Would you prefer that applicants have lower GPAs? Ask it, and those students will show up at your door. Do you want them to not have any global travel experience? Ask, and the next batch will assiduously avoid or hide it. If you control something incredibly valuable and name a price, don’t be surprised when those willing to pay show up at your door. Make “experienced a major life setback” a requirement for admission to Yale, and you can be sure that parents will get their kids hooked on meth so that their kids can explain how they struggled with and eventually overcame the problem. Businesses will set up summer meth camps to make it easy. The next David Brooks column will complain about applicants being uniformly perfect avatars of success in this newly defined way. “The I learned I lot from my meth habit” will become the new “I learned a lot from helping those people in Mozambique.”

Brooks also misses the primary reason why arbitrary criteria are used to distinguish between job applicants. Employers cannot interview everybody, so when swamped with applications they will find ways to narrow the applicant pool to a reasonable number of candidates. It may be that the criteria are in many ways arbitrary and unfair, that a job doesn't actually require a college degree or a high GPA to assure good performance, but if you're looking for a quick way to reduce a stack of applications setting a minimum education requirement or a minimum GPA is one way to do it, and may be better than the alternatives. Sure, that may mean that somebody who has overcome significant life obstacles is ruled out, even if he might be a perfect fit for the job, but how can you (or your keyword-scanning filter) identify such a candidate as a promising applicant from hundreds of other candidates applying for one job? Odds are, even if you were to look for it, that information won't even be present in the candidate's résumé or cover letter.

As Brooks has previously pointed out, there's another side to the coin -- the "perfect" résumé may indicate that the applicant is a good cultural match for a job. Now it may be true that getting some new blood, some different ideas, into a stiff and moneyed workplace could actually improve the workplace, that's not necessarily what employers want:

Smart high school students from rural Nebraska, small-town Ohio and urban Newark get to go to good universities. When they get there they often find a culture shock.

They’ve been raised in an atmosphere of social equality and now find themselves in a culture that emphasizes the relentless quest for distinction — to be more accomplished, more enlightened and more cutting edge. They may have been raised in a culture that emphasizes roots, but they go into a culture that emphasizes mobility — a multicultural cosmopolitanism that encourages you to go anywhere on your quest for self-fulfillment. They may have been raised among people who enter the rooms of the mighty with the nerves of a stranger, but they are now around people who enter the highest places with the confident sense they belong.

Back then, Brooks was describing this as the result of meritocracy, with students striving to distinguish themselves through their accomplishments. Now Brooks is arguing that the very same students are not distinguishing themselves, but are conforming to an arbitrary and often meaningless set of standards that may not mean much in the workplace. He may be correct about the standards, but it simply cannot be the case that the students are simultaneously distinguishing themselves and rendering themselves indistinguishable. As Brooks then noted, the brand name of the institution can be more important than the relative qualification of the graduate -- an arbitrary standard that Brooks does not touch in his new essay.

There's a message for employers within Brooks essay that is valuable, and I think it can be boiled down to this: Don't focus on arbitrary criteria instead of figuring out if you're hiring the right person. Particularly with college graduates, odds are you're hiring somebody who is going to grow into the job, who will have to do a lot of learning during his or her early years of employment to become a significant long-term asset to your company. If you focus on other factors, even those that seem objectively reasonable, you can end up with a highly qualified person who simply isn't a good fit with the job, the company, or both.

Law school graduates may appreciate this argument:

You could argue that you don’t actually want rich, full personalities for your company. You just want achievement drones who can perform specific tasks. I doubt that’s in your company’s long-term interests. But if you fear leaping out in this way, at least think of the effect you’re having on the deeper sensibilities of the next generation, the kind of souls you are incentivizing and thus fashioning, the legacy you will leave behind.

In many law firms, being able to document that you are an excellent drone is what gets you your first job, and large law firms require a constant inflow of new drones. You can worry about your soul if you make partner.

Too Many Desperate Law School Grads Spoil the Broth....

I learned something interesting from an executive from a large health care organization, the other day. She receives 200-300 job applications for any available position within her organization -- not much of a surprise given the economy and the fact that it's an attractive employer. But she indicated also that, for a lot of positions, they are flooded with applications from recent law school graduates -- to the point that hitting the entry for "law school" toward the top of somebody's résumé results in a near-automatic rejection of the application. (Odds are that the initial screening is done by computer....) It's not that a law school graduate with an appropriate job history or qualifications couldn't do some of the posted jobs, or couldn't learn the position over time. It's that so many desperate law grads are applying for the jobs that hitting a reference to law school or a "J.D." suggests that there's a very low possibility that the candidate is qualified for the position as posted.

No matter what you hear from people who claim that the law degree is a flexible degree that allows you do do more than practice law, unless you have confirmed both that it's true for the industry in which you hope to work and that the industry is hiring recent law grads, don't believe it -- and if you find such an industry, consider how small it is and how few graduates they hire before choosing law school as a path to employment. If you're interested in working in an industry that does not regularly hire people with law degrees, find out what degrees they prefer and get one of those degrees instead of a J.D.

I'm not optimistic about the future of the legal profession, or the potential for law school graduates who aren't able (or aren't willing) to pursue BigLaw careers to find remunerative work in smaller legal practices. Some will manage to do so, either starting their own firms or finding their way into legal jobs that allow them to create a foundation for later promotion or lateral moves. But from what I see, despite the reduced numbers of students attending law school, the future of the profession doesn't look particularly bright -- and if you're not going to end up working in law, in my opinion for most fields your three years of law school are either going to be a neutral or a detriment.

Medical Malpractice Litigation Really Isn't All That Special

One of the common threads you see in the criticism of medical malpractice litigation from the medical community is that medicine is special - it's so complex that it's just not reasonable to trust malpractice litigation to a jury of laypersons. We are told that we need "health courts", an undefined concept that generally appears to translate into "courts where people like me get to decide what is or is not malpractice." And all of that is fine, insofar as it goes, except...

There's actually nothing special about malpractice litigation. Many incredibly complex cases are resolved within the jury system. An argument could be made that all technologically complex cases should be removed from juries, but that's really an argument for the abolition of the jury system itself - and disregards a long and involved history of how we came to have juries in the first place, why we protect the right to trial by jury in the Constitution, and why we have perpetuated that system into the modern era. The fact is, not all malpractice cases are complex. You're supposed to remove the patient's diseased, left kidney, and you instead remove the patient's healthy, right kidney? That's not difficult to understand. And sometimes what one might assume to be simple cases, let's say a car accident, can end up involving experts in engineering, accident reconstruction, economic damages.... Let's not forget, also, that juries are called upon to decide incredibly complex cases involving business disputes, environmental contamination, intellectual property, antitrust.... There's simply nothing about the complexity of medical malpractice litigation that meaningfully distinguishes it from other types of litigation.

Dr. Robert Centor argues,

We need special health courts. The jury process induces lawyers to couch their words, use sophistry, and work hard to present part of the story. This is clearly true for both the defendant and the plaintiff legal teams. If we had special health courts, then we could have a nuanced discussion of all the details of patient care. A jury trial leads lawyers to focus on details and try to “make mountains out of mole hills”.

I've tried to engage Dr. Centor in the distant past about what he means by a "special health court", to no avail. Pretty clearly, his concept of the "health court" would be a non-adversarial court system, and would not involve a jury. Perhaps he's thinking of something akin to a coroner's inquest (of the type that does not use a jury), or some sort of inquisitorial tribunal system. One can only guess.

It's not at all clear, though, why he believes such a system could be created and yet be completely non-adversarial. It's difficult to imagine a doctor, accused of malpractice, beaming with delight at the thought of having his case tried in a "health court" as opposed to a regular trial court, or being content with lawyers who argue, "We're not actually representing you - our duty is to help the court find the truth, even if that means you're found to have been culpably negligent." All you have to do is look at the effort that doctors and the insurance industry have invested in keeping confidential the results of peer review in malpractice cases to recognize that the medical profession is not interested in placing all of the facts on the table.

We presently have trials that don't involve juries - bench trials - and although the conduct of the trial can be affected by the absence of a jury, even in medical malpractice cases the litigation remains adversarial. There are pro's and con's to the adversarial system, certainly, but on the whole parties like to be represented by advocates who zealously represent their interests.

Dr. Centor, himself, highlights a significant flaw with his apparent notion of a "health court", in that no "health court judge" or tribunal will be expert in every area of medicine:

Some physicians will testify in cases about which they really understand little. Reading the depositions of some other physicians saddened me.

I will continue my personal philosophy of only accepting to testify in malpractice cases for which I believe I have clear expertise. Over the years I have accepted less than 10% of offered cases. I had testified once previously approximately 25 years ago, and had been deposed once in another case. But generally, I avoid malpractice cases because I do not consider myself qualified.

If you have judges, even specially trained judges, presiding over a trial where the proposed medical experts are testifying outside of their area of expertise, how is that an improvement over the current system? The judges can't be assumed to have a better understanding of medicine than the experts testifying in court, and Dr. Centor argues that many of those experts aren't qualified. If litigants seek out Dr. Centor due to his credentials and expertise, yet he deems himself qualified to serve as an expert in only 10% of those cases, by Dr. Centor's measure what are the odds that a randomly selected health court judge is going to be qualified to hear an assigned case?

For all of the kvetching, every comprehensive effort to review the outcome of medical malpractice cases suggests the same thing: Malpractice lawyers are very selective about the cases they take, when they take cases that turn out to be weak it's almost always because they lack the information necessary to fully assess the case and cannot get that information without filing a lawsuit, when there's ambiguity in a case juries tend to side with doctors, and to the extent that error occurs it usually favors the doctors. As is quite typical, even when arguing that the case shows a "need" for a health court, Dr. Centor argues that the jury came to the correct verdict. His concession reduces his argument to this: "The system worked. so let's replace it with something I can't define that I think will be more fair."

I'm not going to dispute this:

he psychological impact of these charges on the defendants was palpable. These hard working, conscientious defendants had years of having these charges hanging over their heads. They did nothing wrong. That really does not matter in jury trial.

The distinction between professional negligence litigation and standard negligence litigation is that somebody is pointing their finger at you and claiming, "You weren't competent in this case, and your incompetence caused somebody to suffer an injury." One of my law school professors liked to edify his students by explaining legal practice in very blunt terms. One of his declarations was, "You will all commit malpractice." The fact is, everybody makes mistakes - the big question being, how you respond when you make a mistake. Most mistakes can be fixed and, if you detect your error or omission quickly enough, harm can be minimized or avoided.

When you look at why patients look for malpractice lawyers or bring malpractice lawsuits, you find that bedside manner is a huge factor. When something went wrong, was the doctor helpful? If the doctor made a mistake, did he apologize? Rick Boothman, chief risk officer for the University of Michigan Health System, has advocated for years that doctors and hospitals change their approach to litigation, and has documented that an approach of disclosure, apology and cooperation reduces the number and cost of malpractice claims. No need to reinvent the system. It's an approach more institutions and doctors should take.

A comment on Dr. Centor's blog suggests, as an argument for "health courts", "Attorneys will drag out a weak case in hopes of a settlement getting something instead of nothing." The commenter confuses the exception with the rule. The principal reason that malpractice litigation drags on as long as it does is not due to plaintiff's lawyers. It's due to the successful lobbying by the medical malpractice insurance industry for measures that increase the cost of litigation for a plaintiff and prolong the litigation process. By imposing up-front costs and delays, small but meritorious malpractice cases are squeezed out of the system. The longer a case drags on, the more likely it is that a seriously injured malpractice victim will settle for less than the case is worth. As Mr. Boothman indicates, plaintiff's lawyers are happy to work collaboratively with a doctor or hospital to arrive at an early settlement. No plaintiff's attorney wants to invest $50,000 to $100,000 or more in taking a case to the point of trial (and yes, malpractice litigation is extremely expensive) if they can settle it quickly. The exceptional cases involve the late disclosure by the defendant of information that undermines the plaintiff's case, where the plaintiff's lawyer then angles for a modest settlement to try to avoid taking a loss on the case, or where the plaintiff's lawyer isn't competent to litigate malpractice cases in the first place.

A last point on "health courts": Let's assume an efficient health court system that accurately distinguishes actual malpractice cases from maloccurrence that results from non-culpable negligence, outside factors or bad luck. I very much doubt that health insurance companies would support the implementation of such a health court system. Why? Because right now, only a very small percentage of valid medical malpractice cases are prosecuted. The estimate is usually around 12%. The rest of the cases involve patients whose cases are too small to litigate under the present system, patients who lack the capacity or understanding to pursue a malpractice cases, patients who dread the thought of litigation and, perhaps most importantly, patients who like their doctors. If you create a sufficiently painless system, with efficient, low-cost resolution of malpractice claims, inspiring a significant percentage of that majority to pursue their valid claims, the amount paid out to settle claims could increase substantially. Even if Dr. Centor believed that such a system would be better than the status quo, the malpractice insurance industry would fight its implementation, tooth and nail.

"My Client Did Nothing Wrong"

Oh, boy...

Monday afternoon, Shellie Zimmerman called Lake Mary authorities to her parents' home, saying her estranged husband was threatening her and her father with a gun. Days earlier, she had filed for divorce... She later changed her story. According to police, Shellie Zimmerman and her father now say they never saw a gun, and no gun was found. Although CBS affiliate WKMG reports that Zimmerman's attorney, Mark O'Mara, said Zimmerman had a gun holstered to his body.

Shellie Zimmerman has said she won't press charges, but police say video of the alleged dispute on her damaged iPad could play into whether authorities file charges.... In her 911 call, Shellie Zimmerman said: "He then accosted my father then took my iPad out of my hands. He then smashed it and cut it with a pocketknife, and there is a Lake Mary city worker across the street that I believe saw all of it."....

Mark O'Mara, who served as Zimmerman's attorney in his murder trial in the death of Florida teen Trayvon Martin, said his client did nothing wrong in Monday's incident.

By "nothing wrong", does he mean "nothing criminal"? Let me guess... the iPad was severely depressed, and as much as Zimmerman tried to keep it in his wife's hands he was unable to stop it from taking a suicidal tumble from her hands.¹ Also, if O'Mara was telling the truth and Zimmerman was carrying a gun, where did he and his wife seemingly conceal it while waiting for the police to arrive - and why?

I suspect that the defense fund" gravy train is slowly going off of its tracks....
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1. Or maybe the iPad was wearing a hoodie and he reacted reflexively.

Law Firms Need to Stop Hiring Spammers

Law firms, do your due diligence. Do you really want somebody sitting in New Delhi assigned to open accounts in your name, or the name of your firm, and then go around the Internet posting stuff like this:

Fort Walton Car Accident Attorney is a legal expert that handles cases describing to automobile mishaps. The lawyer focuses on various kinds of Auto Accident cases. With such cases include head on accident, severe body injury, minor crashes and strict crash. He or she also handle cases of loss that result starting auto crash.

Prospective clients are certain to be impressed.

Law School's a Great Deal If....

It's a couple of years old, but I just came across this one.... After advising law students about how they should get into the best law school they can and, if it's not one "sufficient brand equity to land the 'Big Law' position you want", to transfer after your first year to one that has sufficient brand equity ("work hard in your first year to earn top grades, and then transfer to a better school" - it's that easy, you know, which is why most law students have top grades and most top law schools are overflowing with transfer students after the first year - so you can get that BigLaw job.) The only type of legal job that makes sense to the author. Oh yes, and you should "have a passion for some aspect of law" because "there is never a guarantee of graduating with a high-paying job" and without passion the "tuition will never be worth it".

The author runs a company that coaches students on how to take the LSAT, so I think the biggest takeaway is that his advice "Do not take the LSAT until you are fully prepared.... Find a top class and experienced tutor, and take as many practice tests as you can" and the suggestion that even if you get into a crappy law school it's okay because you can study hard and transfer to a top school after your first year, were about protecting or promoting his business. The rest of the advice... sorry, there's no easy path to go from a school at which BigLaw does not recruit into a top law school, even if you're "committed to excelling during the admissions process". Around the same time the author was writing this piece, I received a letter from the dean of my law school (one where BigLaw recruits) suggesting that alums might might a special effort to hire graduates. You can be a great lawyer from a great law school, but if you start your career off the few tracks that lead to BigLaw jobs, odds are they're not going to let you back on.

But really, only about 13% of new law school graduates end up in permanent, BigLaw jobs upon graduating from law school. A small, additional number might join that track after completing judicial clerkships. If law school only makes economic sense if followed by a career in BigLaw, all that talk about transferring truly is about rearranging the deck chairs on the titanic - the lifeboats don't get any bigger. Worse, your reward is a career in BigLaw. (Oh, sure, some people love it. Others spend a career trying to figure out how to unshackle themselves from the golden handcuffs.)

The author's suggestion that passion can... I guess make up for the poor return on your investment if you don't get a job with a decent salary? For the most part, employers recognize student passion (real or feigned) for what it is - something that's not particularly related to the work they will be doing in their jobs. What if you have a passionate interest in, say, environmental law? Well, the best paying jobs are with the companies that are trying to avoid the application of environmental laws and regulations to their business activities. If you have the passion of a Dick Cheney, I say, "Go for it." If your passion is to "save the planet", you will find that there are lawyer jobs in public interest organizations. But for the most part they don't pay well. Oh yes, and they're full.

Where is passion likely to help? If you can develop true passion for, say, tax law, that can be an advantage if you can convey that passion to employers who are hiring entry level tax lawyers. That passion could matter if it's an area where few of your peers have strong interest and if you're actually capable of convincing an employer that your passion is real (because, as will shock you, a lot of job applicants will lie through their teeth about their passion and commitment to whatever it is the prospective employer wants). Good luck with that.

At the end, I'm left with the image of a pick-axe salesman in 1856, begging people to come to the California gold rush and assuring them how much better their odds are of finding the mother lode... if they buy enough supplies and the right pickaxe on their way to stake their claim.

Lawyers, Don't Hire Spammers to Promote Your Law Firms

I understand that some lawyers, probably many or most, simply don't know any better - somebody calls them up promising to generate more traffic to their website. The well-practiced sales pitch makes it sound like a good deal, and then... stuff like this starts getting posted around the Internet under the name of the lawyer or the law firm:

John_P****s_law

It sounds as if you could possibly have a case but it may be a close one. I think it would be worth your time to go and talk to a professional lawyer in Washington State. Be sure to bring all important documents including your medical papers and perhaps an over view from your current doctor that did find the tumor explaining the situation. Hope this helped and good luck.
_________________
Do you think you have a case? The Law Offices of John P****s may be able to help you!

That wasn't the worst example I've seen - just the latest to hit one of my forums. The trick that particular spammer used was to try to paraphrase prior comments (which may be from non-lawyers) in order to try to create something that sounds reasonable.

Usually, the company you hired is either based in or subcontracts with another company in the Philippines, India, Bangladesh, or elsewhere in the developing world and pays somebody in that nation with middling English skills to push your link out to forums and blogs. (That particular spammer was working out of the United States, so the lawyer probably paid a premium for the website promotion services.) I'm sure they will subsequently hand you a nice list, perhaps with pretty charts, showing how many links they generated for your site. What they won't tell you is that most of those links will have little to no value for your website and, in some cases, the rapid volume of new, similar links on sites that allow user-generated conduct will trigger a penalty for your site.

But it's worse than that. You're a lawyer. You have ethical duties that govern your advertising - and make no mistake about it, this is advertising. No, you weren't told that a worker in an overseas phone bank would be posting messages that appear to be from you or from your law firm, but that doesn't mean you're not responsible for their actions. You didn't exercise due diligence when hiring your website promotion firm, you didn't adequately supervise their work, and they could be out there posting wildly incorrect information or giving wildly incorrect advice under your name.

Recall also, you probably have a duty to maintain a copy of all of those posts in your records for a specific period of time in order to comply with the advertising rules for your state.

The (Bad) Economics of Legal Practice

I've been kicking around some reactions to a discussion a while back at LGM about the realities of simply "hanging out a shingle" if you're an unemployed lawyer, but a more recent post Paul Campos provides a somber economic context for would-be law firm start-ups:

In 1989, legal services accounted for approximately $157 billion, in 2005 dollars, of US GDP. In 2011 that same figure (again in 2005 dollars) was $156 billion. Over this time GDP increased by 68% in constant dollars, which means that, as a share of the economy, the legal sector shrank by approximately 41% over the past two decades....

The most striking contrast between the situation in law and medicine is, that while economic demand for legal services has, relatively speaking, been contracting radically (note to law school administrators: economic demand = people having enough money to pay for something they’re willing to use that money to pay for), that for medical services has gone through the roof. Between 1980 and 2008, the proportion of American GDP devoted to the health care sector increased by an astounding 77.8%.

The legal industry had a bit of a boom in the late 1980's, followed by a recession in the early 1990's. It may be that 1989 was a peak year, which would make it a weaker point of reference for comparison. But the gist of Campos's statistic is consistent with my own experiences, and what I hear when I talk to (very) small firm and solo lawyers - more lawyers are completing for work, from a pool of clients who are less and less able to pay for those services. In the community where I practiced, in the late 1980's pretty much anybody could come up with a retainer for a lawyer for a divorce or misdemeanor case. By the late 1990's they were borrowing from friends and family or maxing out the cash advances on their credit cards. These days, according to the lawyers I've spoken with, a typical prospective client has no savings and no remaining credit, and their extended family is equally tapped out. And a lot of the clients who can still afford to pay a retainer are bargain hunting.

It's not that you can't do it... and if you're of the mindset that "the time to start a business is during a recession", the legal industry is largely in recession. But in states like Michigan, for small, local firms and solos serving "ordinary people", that recession has been the 20+ year process suggested by Campos's statistic. Getting started in an environment where you have to both get clients who might prefer somebody more experienced or (perhaps and) cheaper, and where even after (and perhaps because) you've proved your skill you'll have a difficult time getting referrals worth taking from other lawyers in the community? How much of an uphill battle are you prepared to wage? And, frankly, love of the law doesn't pay the bills - if you have that much entrepreneurial spirit, why not direct it at something that is likely to return a greater value?

Nice Salary if You Can Get It

The odd bimodal salary curve for new lawyers is looking stranger than ever.

Note, in terms of the diminishing number of jobs at the high end, I said "nice salary," not "nice job." It's possible to find joy and fulfillment, I suppose, as an associate in a big firm, pulling down a fantastic salary as you learn the basics of how to practice law. But day after day, year after year, with a lower chance than ever of making partner? Not appealing to me....

Lawyer Shortages and Salaries

According to Economix, there are three regions of the nation that suffer from a shortage of lawyers:

As noted above, not every state is overproducing lawyers. Nebraska and Wisconsin actually have small deficits of lawyers. The place with the biggest shortage is the District of Columbia, which is projected to have 618 new jobs opening annually for lawyers for the next few years, but had only 273 bar-passers in 2009.

Given this shortage, it is perhaps unsurprising that the District of Columbia has the highest median wage for lawyers in the country: $70.96 an hour.

I suspect that by "$70.96 an hour" they mean that if you multiply $70.96 by 2,000 (a forty hour week with two weeks of vacation) you end up in the neighborhood of $140,000 per year. But... alas, lawyers in that pay range don't have the luxury of a forty hour week. I think an accurate figure is probably more along the lines of $40 per hour. (Or, if you were to compare the compensation to a job that pays overtime, perhaps a bit over $30.)

Because Laywers Are All Delicate Flowers....

Apparently some lawyers are traumatized by the f-word. My, how impolite the practice of law has become.

I'm reminded of an anecdote about a lawyer who retired long before I started to practice. Back in the 1950's and 60's, when everybody was polite as can be and the practice of law was genteel and collegial, he found that many of the polite letters he received from lawyers merited the same polite response, so he had a rubber stamp made to facilitate his prompt reply. Afterward, when he received a letter proposing something he found disagreeable, he would apply the stamp and promptly return the letter to its sender: "F--- You, Detailed Letter to Follow".

Ah, the good old days.

Hard Work Can Come at the End of Long Work

Seth Godin illustrates his theory of hard work vs. long work by alluding to the legal profession:

Long work is what the lawyer who bills 14 hours a day filling in forms does.

Hard work is what the insightful litigator does when she synthesizes four disparate ideas and comes up with an argument that wins the case--in less than five minutes.

Which lawyer do you think is billing by the hour and which is working on a fixed or contingency fee?

Seriously, though, I suspect Godin hasn't spent much time looking at what lawyers actually do for a living. Yes, you may find what you think to be the seminal case or come up with what should be a winning argument inside of five magic minutes, but that doesn't mean that opposing counsel will read the case the way you do. Or the judge. I recall a trial in which a judge, responding to an objection that a witness's own out-of-court statements were hearsay, "That's not what they taught at my law school." If it's on the finer points of the rules of evidence, fat lot of good the "winning argument" is going to do in that court. And then, of course, you have appellate courts in which your perfect precedent may be revised, narrowed or reversed.

The lay notion that there's always a statute or case exactly on point is one that doesn't often hold true in legal practice. There's almost always a way to distinguish a case based even upon slight differences in fact or in the legal issues presented. The five minutes it takes to find the best, most relevant case may be followed by several hours preparing a motion and brief to present the argument to opposing counsel and the court.

Frankly, in most cases the issues aren't that complex. When you're looking at a car accident in which both drivers claim that they had right-of-way, the brilliant, winning idea would presumably be, "The other driver is lying or mistaken." But pulling together all of the relevant evidence, photographs, and witness statements necessary to prove that to a court will be a time-consuming process. Yes, on rare occasion you might find the damning memo buried in boxes of documents delivered by the opposing party and know, within minutes, that you're going to settle or win the case, but odds are those documents were delivered by truck - that is, you're only going to find the memo by plodding through dozens to hundreds of boxes filled with similar documents.

It may, in fact, be the attorney in the forms-driven practice who is better able to follow Godin's suggestion - for example, he can hire a paralegal or two to complete the paperwork, such that he can serve more clients while performing less work himself. Or he can create an automated system in which the client fills out an initial online questionnaire and 95% of the spaces on the forms are automatically populated with the client's information, significantly reducing the amount of work necessary to revise and refine the document to the client's specific need.

Back when I was in law school, a graduate student who was studying math and computer science suggested that it might, ultimately, be possible to create a computer program to analyze case law, then fork through the cases to automatically find appropriate outcomes to legal disputes. Godin's comment reminds me of that proposal - it would be nice if it were true, but in the world of legal disputes the human factor is simply too great for that to ever become a reality.

Fear of Disbarment

Atrios writes,

I've mentioned this before, but my new pet peeve is the regular plot in lawyer and doctor shows in which a relatively minor ethical transgressions cause everyone to panic about likely disbarment/license losing. If these were real concerns, things like this would not happen.

The fastest way to get suspended or disbarred is to get caught stealing from clients, and the second fastest is to neglect client matters and lie to clients about the status of their cases. If you're with a large firm, the firm should have protocols in place to help identify and prevent that type of problem, so if you're caught pilfering funds it's most likely from the firm as opposed to the firm's accounts and, at least in theory, somebody else in the firm can step in when your drug or alcohol problem (the most likely causes of the neglect of cases) gets out of control.

Beyond that, well... let me put it like this. The ethics rules are written to advantage large firms over small. And the system favors those who have the money and resources to keep fighting and fighting and fighting against ethics charges. I've seen small firm lawyers who are willing to do so put up an incredible fight against discipline and, despite having committed offenses far more egregious than those for which others voluntarily accept responsibility and are disciplined, manage to put off the consequence for years or get away with little to no consequence... beyond perhaps five to six figures in legal fees spent fighting the charges. But really, while the small firm practitioner really does have to sweat the small stuff, the rules likely to trip them up are often written or interpreted in a manner favorable to large firms.

Even something as simple as writing a client fee agreement is a potential hornet's nest. Way back when, I worked at a non-profit that collaborated with top practitioners to put together a manual that included instruction on how to draft a retainer agreement, and included a variety of sample agreements. A few years later an attorney with the state's Attorney Grievance Commission (AGC) was flipping through the book at a seminar and stated that any number of clauses weren't acceptable. This caused the book to be removed from the market. We could not get the attorney to agree to help us edit the agreements to be compliant with state ethics rules, nor to provide sample agreements that they deemed compliant.

So if you're a small firm lawyer trying to draft a contract with your client you cannot find a sample retainer agreement that you can be sure will be ethically proper, and even if you do the AGC has turned the rules into a moving target - they may change the interpretation of the rules such that your entirely proper retainer agreement suddenly includes an unethical provision. Please note, I'm not stating that this results from a rules change. This can result from an unpublished, internal change in the way the AGC interprets the rules.

Let's take an example from a few years back. You're a small firm lawyer. You can only handle a certain number of time-intensive cases. So you decide that you're going to charge an engagement fee to clients - a non-refundable fee for taking the case, in order to hold your time. But your clients are hard up for money, so you agree not to start charging them money until after working a certain number of hours on the case. The AGC decided that if the engagement fee is applied to attorney fees, it's a retainer and is thus refundable. Your choice as a small firm practitioner was to risk that the client would change his mind about litigation after you gave up business by sticking with a standard retainer agreement, give no credit for the engagement fee and, perhaps, charge a lower hourly fee, or perhaps negotiate a flat fee for part or all of the case. But working out an agreement that protected you while protecting your client from the fee games resulting from this rule interpretation? Unethical.

It doesn't hurt the large firms, of course, that the AGC's leadership typically comes out of the large firm environment. So large firms get sympathetic rule interpretation while small firms are treated as suspect, have to deal with a game of "hide the ethics ball", and are apt to make the "mistake" of taking early responsibility for their errors instead of fighting tooth-and-nail and getting a better outcome. But you know what? That's not much different from how the legal system, at large, functions... so perhaps its an object lesson for small firm lawyers.

Judicial Creativity

A post at the Official Google Blog, highlighting the case law available through Google Scholar, highlights a trial court opinion written to the meter of a song by one of the litigants, LeAnn Rimes, and apparently intended as a tribute. I was reminded of a Michigan appellate case, Fisher v Lowe, also written as a poem with the substance of the opinion similarly placed in the footnotes.

I have mixed feelings about this type of opinion. Yes, they can give some amount of amusement to legal scholars and law students, even if the facts and legal principles they present are more difficult to extract. But I wonder how the litigants perceive them. If a case is important enough to litigate, particularly to the appellate level, does it send the wrong message if the judges get creative with their form, or attempt to be witty with what, to you, is the very important culmination of your litigation? That is, would a litigant on the losing side of a case like Fisher v Lowe be thinking, "That was clever," or, "They didn't take my case seriously."

Oh, Like I'm Going To Fall For This

An unsolicited email:

Dear Counsel,My name is MRS AKEMI KOBAYASHI . I was married to my ex husband Mr Newberg KOBAYASHI (who lives in your jurisdiction) for 7yrs and in July 2009.I need you to assist me collect the funds he owe me.I will give you more details as soon as you contact me.Please contact me via my E-mail: mrs.cho@w.cn

Like I'm going to try to collect money from anybody who works for Keyser Söze.^{1, 2}
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1. If you don't get the reference, here you go - rent the movie, it's worth your time. And you should stop reading here, because the next footnote includes a potential spoiler.

2. Yes, obviously it's a spam, scam email. I'm adding this second footnote because I don't need you to tell me that - the post is even tagged as 'humor'. Besides, if you've seen the movie you know that Kobayashi doesn't exist - well, he does, but it's reasonable to infer that he's not actually named after a coffee cup.

But I Unwrapped So Many Wonka Bars!

According to the New York Times, Law School no longer provides a "golden ticket". Do you find it surprising that the author seems to believe that there's no practice of law outside of Biglaw, and that everybody coming out of law school was getting six figure salaries until the recent crash? If you aren't aware of the two worlds of legal practice, check out the graph provided here, showing lawyer starting salaries from 2007.

While 16% of starting salaries were $160,000, far more, 38%, were $55,000 or less. The first peak in the graph reflects salaries of $40,000 to $60,000, with salaries of $40,000 and $50,000 each accounting for about 10% of salaries. Collectively, salaries in the $40,000 - $60,000 range (approximately the total area reflected under the left peak) accounted for 42% of salaries. Salaries reflected under the right peak, including the smaller bulge over $145,000, accounted for 22% of salaries.

The article observes some trends in law firms - smaller starting salaries, smaller bonuses, promotion based upon merit. The sort of things that weren't part of the picture when larger law firms were able to effectively charge their clients for their training costs, or when the labor market for appropriately pedigreed lawyers is tight. The article notes the trade-off involved - the ridiculous hours that associates at the top-paying law firms typically worked to earn those salaries. And it notes the changes in the attitudes of clients - desire for alternative billing arrangements, such as flat fees, and an unwillingness to pay $300/hour for an associate who is learning on the job. No mention of outsourcing, but that's on the horizon even for biglaw - set up a branch office in India where English-speaking law grads can do grunt work for a fraction of the cost of an associate in the U.S.

One 2008 graduate of a top-10 law school, who worked at a large Chicago firm for a year, said she spent days trying to look busy as business dried up while not billing a single hour, before being laid off last fall along with a quarter of the other first-year hires.

“We used to gather in someone’s office, close the door, and say, ‘I hate my life, why are we doing this?’ ” she said. Like most other young associates interviewed for this article, she asked that her name not be used for fear of jeopardizing her climb up the already rickety ladder of a law career.

It's a rhetorical question - they stay because of the golden handcuffs. Even when they're worried about layoffs, they're staying for the predictability of having a job and a (big) paycheck, not to mention the "prestige and self-identity of being a [Biglaw] lawyer". No surprises there. Another complains,

The worst thing about the field’s contraction, she said in an interview, is that it has walled off the traditional escape route — suffering at a law firm for a few years until you pay off your education loans, then moving onto a lower-paying but comfortable gig as in-house lawyer for a company.

The author of the article actually interviewed a lawyer who, after a relatively short tenure at a large law firm, started her own firm. The author also interviewed a former lawyer who became a psychiatrist about the stress created by the current legal job market. Yet there it is, ingrained into the theme of the article and the minds of many bright young lawyers, that you have to have a job that somebody else gives you.

I found this to be a bit amusing:

It is harder to maintain that sense of esteem now that your contract work is being farmed out to low-cost lawyers in Bangalore, and your client who is splitting up with her spouse can handle it herself with a $31.99 do-it-yourself divorce kit from Office Depot, said David Lat, the managing editor of Above the Law, a well-read blog about the legal industry

The outsourcing affecting larger law firms is interesting to me, given that I have done quite well over the years being the guy to whom smaller firms have outsourced difficult work - premium, not discount, services. There's a difference between writing a brief on a complex legal issue and writing a typical contract, but one thing that remains the same is that you must trust the person to whom you outsource legal work. Betray the trust, and you've lost a client. Do substandard work and it may take your client as long to review or fix it than it would have taken to do the work in-house. That's one of the factors that has slowed down legal outsourcing, but it has long seemed inevitable that some amount of legal outsourcing would occur.

But that second part really caught my eye. The loss of small divorce cases, of course, is much less of a concern to Biglaw than it is to smaller law firms. But really, if your client has so simple a divorce that she "can handle it herself with a $31.99 do-it-yourself divorce kit", shouldn't you raise that possibility with her before she pays you a lot of money for unneeded legal representation?

Isn't This Called... Blackmail?

Celebrity lawyer Gloria Allred has insinuated her way into the Tiger Woods saga:

High-profile attorney Gloria Allred, who was to make a statement about Uchitel's relationship with golf's No. 1 player, said it was called off because of “unforeseen circumstances.” Allred said she would have no further comment.

However, Allred's daughter, Lisa Bloom, said the only conclusion is that her mother struck a deal with the Woods camp. Bloom, an attorney who worked with her mother for nine years and now is as a legal analyst for CBS, said Friday on The Early Show that she has never known Allred to cancel a news conference.

Bloom said that can only mean a confidential settlement was struck, which she estimated at being worth “at least a million dollars.”

“I know exactly how she operates,” Bloom said.

I don't say "celebrity lawyer" as a compliment. Most "celebrity lawyers" are interested principally in their own fame and fortune, shying away from anything that would resemble actual legal practice (let alone legal ethics). About the best thing a client of a typical "celebrity lawyer" can do for herself is to change lawyers.

Call it negotiations leading to a "confidential settlement", if you will. But what's described sounds to me like a classic shakedown.

Nominating The Best Legal Minds

When I think back to law school, I recall some of my professors as being downright mediocre, some as intellectually gifted but poor communicators, some as being very bright and incredibly hard-working, and a few as being on a different intellectual plane - where once you caught up with their ideas you might be pretty amazed, but at the same time wonder if their conceptions had any place in the real world. Other than the first group, were we choosing among law professors for Supreme Court nominees, how would we quantify which are the best legal minds? If we are focusing on brilliant, innovative thinkers, I think that last group wins out... and their opinions would likely make for the most interesting reading. But I'm not sure that's what we actually want.¹
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1. Can you imagine trying to practice law where every Supreme Court opinion came in the form of a plurality?

"First Thing, Get a Job At Your Dad's Investment Banking Firm...."

Law.com offers what, to me, is a peculiar article about a former lawyer who is supposedly starting a consulting business to tell other lawyers how to leave the profession. I have met a lot of lawyers who would be happy to move into other fields, but are held back by concerns about what alternative field to enter, earning potential, and stability of income. What answers does this person have?

• Figure out your alternative career field for yourself: this is "about: transitioning to your own business, one with low overhead and a predictable monthly income, all while 'doing something you love.'"

• Don't expect to maintain your income: "'Tonight's not about making a million dollars,' Berman said to a gathering of about 25 people."

• You can't afford it. Seriously - "'How can you afford this?' Berman asked. 'First of all, you can't.'"

I'll give Berman some slack on that last point, as he appears to be suggesting that you have to make a serious investment of time and money to get your business off the ground. Yet at the same time, during his prior ventures Berman "continued part time as outside counsel to [his former employer] to help pay the bills" and for his current venture "he's working full time at Berman Capital, his father's investment banking firm in North Beach (though not as a lawyer". Is this a pitch for creating an alternative career path, or is he arguing that lawyers should moonlight in their copious spare time?

Seriously, if this were a pitch for setting yourself up for an alternative career, he might be more convincing to me. Find something you love, figure out a business angle, learn all about it, start exploring the financial angles - financing, time to profitability, etc. - and if it works, run with it. And if it doesn't work, at least you were doing something you love. But if this truly is a pitch to find a way to quit legal practice, it falls into a heap of books, products and seminars that profess to help lawyers generate ideas, but practically speaking do nothing to help with the transition. (I once read a book about alternative careers for lawyers that mostly listed "careers" ostensibly to help lawyers brainstorm; although it was unquestionably inclusive of career options, it lost a bit of credibility with suggestions like "bus driver".)

But let's take a look at the specifics:

Having launched a number of companies already - and sold one - now [Casey Berman's] launching another: a consultancy called Leave Law Behind through which he'll hold the hands of disillusioned lawyers who want to start their own businesses.

Okay, so he has his idea, he has an audience, he has the attention of the national legal media....

Once armed with an idea, a person can take free and low-cost steps like starting a blog and registering a domain name, Berman said. Print some business cards and you have a conversation starter at a networking event.

So if I search the web for "Leave Law Behind" I'll come up with his weblog and the "Leave Law Behind" website? Apparently not. (But, even if he hasn't put up even a placeholder site, at least he snatched up the URL I would expect for his venture.) What sort of business ventures is he steering people toward?

[Berman] said the experience [starting a fashion brand] taught him a good lesson - that he didn't want to work with products. Since then, he's stuck to companies focused on services and electronic content, such as Web sites.

I hope he's describing his own passion, and not his advice to lawyers, as there's an incredible amount of money to be made in traditional businesses. But whatever he's arguing, I would be interested in learning more about Berman's websites and their profitability.

I recall attending a few seminars back when I was in law school about career options. The "alternatives" tended to be people describing either government jobs of various sorts, or careers that required an impressive résumé on top of a law degree (but paid well). I recall one seminar from a guy who billed himself as a specialist in finding alternative career paths for lawyers, but it turns out that most of his focus was on MBA's wishing to transition to different companies, and he was trying to attract lawyers into his paid seminars even though he had little knowledge of the legal field or how lawyers could actually transition to other job fields. But he did encourage brainstorming - come up with your own idea, and go for that. But really, I don't need to pay somebody to tell me that I can come up with my own idea for alternative employment that I can start in my spare time and that may never turn a profit.

Picking Only Fights You Know You'll Win?

My comments on brinksmanship probably should have been followed by an anecdote.

An experienced trial lawyer heard a younger colleague claim, "I've never lost a trial."

"You know what that means," the older lawyer asked.

"What?"

"It means that you don't try enough cases.

Being a good trial lawyer arguably makes it harder to try cases, because you're more likely to get acceptable offers of settlement before trial. The younger lawyer may well be winning some trials that less skilled lawyers would lose. If you expect to lose a trial, you should be prepared to settle. If your client prefers the bird in hand and instructs you to settle, you may end up settling a case that you would prefer to try. But whatever your skill level, there's that range of cases down the middle where things could arguably go either way - and where the client is looking to you to decide whether to settle. If you always settle those cases you will protect your perfect record, but you forego the opportunity to stretch your skills, and potentially get a more favorable verdict (or mid-trial settlement) for your client.

President Obama is a skilled but cautious lawyer. If he switched careers to trial litigator, I would not be surprised to find that he had a perfect trial record and was winning some "unwinnable" cases. But it's fair to observe that he is exceptionally cautious. It's that caution that drives some of his fiercest critics on the left to frothy anger. They want him to take up their causes now, and fully apply his skills to getting the result they desire (which may in fact be a desirable result) now. But instead he's evaluating whether he can win, and whether he should be expending political capital on that battle. If he decides that the fight isn't worth the price, he's open to compromise or putting things off.

Obama's correct to limit the issues he tackles, to set priorities, and to avoid fights that will damage his ability to advance his agenda. That's good political sense. But I do get the sense that there are some issues where he could prevail if he were willing to push them, yet nonetheless chooses inaction. Yet at the same time I think he needs to trust his political instincts. Were he to tackle a thorny issue and have to be the one who blinks, right-wing and likely also the mainstream media would happily drub him. For now I can see why that's a risk he chooses not to take.