29 June 2007

Twelve Years In The Law

My Career Path

Twelve years ago today, I was admitted to the practice of law in New York State, about six months after graduating from the University of Michigan Law School on the two and a half year plan. I was laid off two weeks later when the dominant client of my boss was taken over in a corporate merger, and solo practiced for a while. On April Fool’s Day in 1996, I started working at a 100 year old law firm with a dozen lawyers in Grand Junction, Colorado. Three years later, with my daughter on the way, I found a job at a new firm in Denver. Simply put, Grand Junction was not a tolerant and diverse enough place for me to feel comfortable raising mixed race children.

For my entire career, I’ve had a general civil practice, involving both transactional work and litigation, in small and medium sized firms, working mostly for privately held businesses, and middle class to affluent individuals, interrupted by an enjoyable stint as an Associate Professor of Estate Planning, at the College for Financial Planning that ended when the College laid of several professors when it failed to meet the for profit institution’s profit targets. Even then, I moonlighted with some estate planning and contact drafting work.

I’ve been fortunate to work on a wide variety of sophisticated and interesting legal questions so far in my career, for a lot of interesting people. Just about the only kind of work I’ve not done much of is criminal law, where my representations have been limited to the odd traffic ticket or ordinance violation, and “emergency representation” of clients until they can get someone who ordinarily practices in the field.

Lessons Learned

Along the way, I’ve learned a lot of the lessons that they don’t teach you in law school, which is a delightful intellectual salon, but has only vague similarities to the practice of law.

The hardest lessons for an idealist young lawyer to learn are that (1) the law as applied at the trial court level frequently differs dramatically from the law described in textbooks and appellate court opinions, and (2) most cases should be settled even though this means your client gets less than the relief to which the law entitles him. The latter lesson is, to a significant extent, a product of the former. The life of law really is not reason, but experience. Many legal notions that should work don’t. Many legal strategies that shouldn’t work do. You learn from your own experience, from the experiences of your colleagues, on rare occasions embarrassingly but helpfully with discrete suggestions from judges, and surprisingly often, from your client’s experiences in similar matters in their field of endeavor, what actually works.

Any time you walk into a court room the outcome is always in doubt, no matter how strong your case. This is no big problem if you handle large numbers of small cases for a small number of clients. You win some, you lose some, and life goes on. But, I’ve never had that kind of practice. I’ve handled cases for infrequent litigants for whom the outcome of each individual case generally has a big impact on their life.

Some of the lessons are easy to state but hard to learn. Get your subpoenas out as soon as you can. The status quo often prevails, especially in settlement negotiations, so cash in hand matters, regardless of the legal rights involved. Court judgments are often hard to enforce, except when they produce sudden payment in full and full cooperation. Despite a vast array of defenses to actions to enforce contract, contracts are enforced in full according to their plain language, far more often than one would expect from reading the cases. Juries and judges are often stingy and often split the baby when awarding relief. The clarity of the facts matters more than the magnitude of the harm involved or the amount of evidence which can be produced, when it comes to reaching a settlement or verdict. One good case is worth more than lots of pretty good cases. Many judges have great difficulty comprehending subtle or involved legal arguments much of the time. The legal reasoning in court orders is frequently far less rigorous than the legal reasoning in a lawyer’s legal briefs. Shorter documents are often easier to enforce, so long as they contain all the terms agreed upon and a handful of legal nuances that matter.

A Jealous Mistress

As my fellow University of Michigan alumnus Ken Salazar noted in one speech I heard him give, law is not “hard work” in the sense that it is not physical demanding or brain numbing the way manual labor or work as a cashier or retail clerk or petty bureaucrat can be, and attorneys shouldn’t claim otherwise. But, this doesn’t mean that law doesn’t take a toll on those who practice it.

Aside from accumulated pounds from sitting on your duff at a desk all day, which can be countered if you devise a better exercise plan than I have, or repetitive stress injury risks, shared by almost all modern office workers, the job is not physically demanding. But, the emotional cost of practicing law is high. The common term for that toll is “stress,” but that doesn’t really capture the source of it. The stress comes from being empathetic towards your clients and voluntarily assuming responsibility for their problems.

Most lawyers work long hours, although most can’t bill a substantial share of those hours which are spent on administrative demands and never ending endeavor to keep abreast of the field, develop clients and contribute to the community – most of us have served helping to administer some civic group at some point or another. But, for most of us, it isn’t the billable hour rewards that push us to work those long hours. It is the desire not to let down our clients. It is the awareness of the dozens of to do list items and deadlines that loom over us from multiple cases and will produce serious consequences if not attended to in time.

The uncertainty inherent in trying to secure results for your clients, and it exists in the transactional field as well as in litigation, means that you can’t do half baked work and still live with yourself. In actual fact, often it doesn’t matter. In the last month, for example, my firm has settled two cases that we devoted considerable time to prosecuting. We absolutely spent long hours in both of those cases getting ready to handle trial issues that never arose because the cases were settled. But, experience shows that the best way to avoid going to trial is to act as if going to trial is a certainty. Bluffing when you don’t have the cards to back up your bluff is not a very good long term strategy, even though it occasionally works. In transactional practice, you plan for everything that could go wrong for your client, and most of the contingencies you plan for never come up, while some that no one foresaw often do come up.

In small and medium sized firms you have less administrative support, get paid less per hour, get stiffed on your bills more often, and have more routine boom and bust cycles, than in larger firms. But, you also have less drudgery to muck through on huge impersonal cases, spend more time interacting with clients, and get to handle a wider variety of matters. According to my law school’s alumni survey, lawyers come in basically two varieties – lawyers who make big bucks working crushing hours working at large firms who are miserable in life, and lawyers who have trouble paying off their student loans promptly who work in small and medium sized firms, for governments or for nonprofits, who merely work long hours and are much happier in life.

A modest percentage of lawyers take the former path and stick with it. Many people start out with the former approach and burn out after a few years and change employers. I’ve always taken the latter path and don’t seriously regret it, although a couple of years up front making a big firm salary so I could pay off my student loans sooner would have had its virtues.

Fringe Benefits

One of the most satisfying parts of being a lawyer, apart from the work itself, indeed, sometimes despite the work itself, is knowing how things work. You know, in far more concrete detail than most economists, how our economy actually functions. You understand the situations you read about in the paper at a whole new level. You know where the bodies are buried in the tax code, who looks like they have it easy but doesn’t, and who is receiving windfalls in our society.

You get much more insight into what kind of people the typical players in typical situations are like, good, bad and ugly. Many supposedly nefarious people in the “power structure” that an Oberlin education taught you to distrust, are actually exceptionally decent and deserve their positions. Others don’t.

I still haven’t entirely decided what I want to do when I grow up. Maybe when my kids have gone to college, my mortgage is paid off, and I’ve learned more than I know now, I’ll decide. Until then, I guess I’ll just keep practicing, just as I have for the past twelve years.


Anonymous said...

I've excerpted this blog and reproduced as part of another blog entry, found here (the July-2007 entry).

KaySieverding said...

I've heard you described my litigation as "inept" and I was wondering why you say that? The big mistake I think I made was conferring with David Brougham before I filed a motion for summary judgment. That shouldn't have been so bad. How was I to know that David Brougham could get Magistrate Schlatter to close the D of Colorado 02-1950 pleadings with no advance notice (contrary to the Magistrate's Act) and to the plaintiff only? How could I realize that David Brougham was able to call the court over 25 times to discuss my motions etc. If I had tried calling Magistrate Schlatter, not only would that have been illegal, but probably I wouldn't even have got through to him.
It's not like I was inept in a jury trial, because there was no jury trial although we specified jury trial. There were no motion hearings and the 10th Circuit had no hearings. No one accused me of misrepresenting any facts or misquoting any laws. I started the case with admissable evidence in the form of county court transcripts and Freedom of Information Act responses to prove almost my entire case. I found the Supreme Court cases and quoted them as well as Moore's Federal Practice of Federal Procedure Lawyer's Edition. Why weren't there stipulations of even one fact by the defense? Is it because they can't accept the idea of an aggressive pro se litigant? Or is it because lawyers in Colorado want to pretend that they have immunity for intentional torts? Or is it because Lloyds of London is so powerful that it can arrange case assignments behind the scene (they billed to discuss and then my case was transferred to Judge Nottingham)? Or are Mutual Insurance of Bermuda and TIG Insurance really powerful? We itemized $400,000 of economic damages in addition to the personal damages and our 14 year old son testified about how the events in Steamboat really hurt him.

Do you think the outcome was so bad just because we were pro se? The lawyer for the ABA, Patricia Jean Larson, called my husband in June 2003, very early on, and told him all our work would go to waste.