Normally this column is about starting a law practice and what my partner and I have been doing to get ours off the ground. I rarely write about the actual practice of law. But in the course of getting advice on starting a firm, I’ve spoken to attorneys whose advice focused more on the practice of law than the business of law firms.
Scott Greenfield, an avvid Lawyerist commenter and criminal defense attorney, has had a lot to say about my column. Although often critical, his comments are intended as constructive criticism, which I welcome. So I contacted Scott and we had a nice phone conversation about practicing law.
Similarly, Noah Geary is an attorney I have worked with as a law clerk. He is another younger attorney. He has his own firm and a good reputation in the legal community. When I told him about the new firm, Noah insisted on taking my partner and I to lunch, where we listened for ninety minutes while he told us about his journey so far and his views on legal practice.
Although the two come from different backgrounds and practice in different states, much of the advice was the same. Some of the advice I appreciated instantly, although I’m sure some of what they said will not become obvious for many years.
Be a Lawyer
“It’s not hard to build up a bad law practice,” Noah told us. But at the same time, getting a few DUIs a month and charging them a few thousand bucks to take a plea isn’t the same as being a lawyer.
The practice of law is more about thinking, according to both Noah and Scott. He told me that too few attorneys sit with a case and just think about it for a bit. It’s impossible to instantly parse the important issues in any case, so the thinking stage is critical. Without it, we’re all just stabbing blindly and putting random words into Google Scholar.
I also spoke with both attorneys about trying to win cases versus immediately settle them via a plea (since most of my work is criminal). Even in a tough case, trying matters. A settlement should never be your first thought, according to Scott. “There is no case you can’t try to win,” he explained. Noah agreed, and both gentlemen added that you should have a reputation as the person to go to when people want to win. Of course, nobody wins all the time. But the message is that a good lawyer should try every time. And that’s not because you’re getting paid more to do it right. Often times you’re not. Instead, you do it right for yourself.
When Scott and I spoke about the practice of law, he explained that like many things there is a generational aspect of the practice of law. New lawyers come in and they think they know more, can do more, and are more equipped than their older predecessors. Then they look around the courtroom every time they’re in there and see their predecessors. These predecessors are the ones who phone it in. The attorneys who show up and do what they can to get out of court as fast as they can. These new lawyers don’t understand why the older lawyers do the things they do, and they vow to never become like their older predecessors. But, like so many things, those younger lawyers can eventually evolve into the same older lawyers they once judged.
The sample size in this scenario is of course skewed. As Scott pointed out, nobody sees the lawyer who spends all day working hard in his office. But it’s good to know those lawyers are out there. And it doesn’t change the fact that there are lawyers who do come into court and phone it in on a regular basis.
I asked Scott “How can you avoid becoming one of those lawyers?” There is no magic formula, and no shield against apathy. But he explained the problem that most of these burned out older lawyers have. “They lose hope in the system and hope in themselves.” In order to avoid that trap, follow Scott’s advice, which was “don’t lose faith in yourself.”
The answer, as Scott points out, is mostly aspirational. But that’s OK. There’s nothing wrong with a few aspirational words now and again.
Always Be Honest with Clients
Even at such an early stage of my career, I have been the butt of many a lawyer joke. A good number of them involve our profession’s ability To bend the truth to our will. Of course, lawyers rarely flat out lie. Indeed, in some circumstances we have an ethical responsibility to be truthful, such as in our representations to a court.
But one area where there can be a temptation to bend the truth is when dealing with clients. It’s easy to say that you think the chances are better than they are that a client will win in order to make yourself sound better. I’ve also seen lawyers talk clients out of plea bargains so the lawyer has an opportunity to go to trial for one reason or another.
As Scott points out, “It’s their life, not yours.” Nothing gives an attorney the right to put his or her own interests ahead of the client’s. Noah offered similar advice and added that a win or loss for an attorney can mean many things. But to a client, it can mean everything.