We have a bonus contributor to this week's Five by Five. David Giacalone, former author of the EthicalEsq. weblog and current proprietor of haikuEsq. chimed in with these five ideas:
1) A renewed commitment by the individual lawyer and law firm to accept only work that can be done diligently and competently.
2) An acceptance by law firm management of the responsibility to create an ethics-friendly and client-friendly environment (which will often mean lower hour/fee targets for each lawyer).
3) A realization that "the client comes first" applies to fees, too, and does not mean that the lawyer gets to $cr*w the client.
4) An effort to take full advantage of the digital revolution in ways that mean better service for clients, while sharing the cost savings, and permitting willing clients to perform as many functions/tasks as possible for themselves.
5) And, corny as it may sound, the renewed understanding that lawyering is a profession first and a business second; folks who switch that priority should be urged to look elsewhere for a livelihood.
Fully embracing suggestion (5) would make (1) to (4) inevitable. It would also mean vigorous efforts by the legal profession to use the digital revolution and self-help law to make civil justice available to all Americans.
Most of you know Ernest Svenson by his nickname (and blog), Ernie the Attorney. Ernie's one-line bio says, "I'm a lawyer who likes change; I may have chosen the wrong profession." Ernie is an business litigator and blogger extraordinaire. Here are Ernie's Five:
1) Modify the contingency fee system to eliminate the conflict of interest that often arises when an attorney has a stake in the outcome of a case that is dependent on physical injury to a client or the client's relative.
2) All judges should be appointed (not elected), or at a minimum disallow financial contributions from lawyers to judicial campaigns.
3) Create official video recording of all open court proceedings (this will encourage better behavior on part of attorneys and judges and be used against those who are incompetent, sleeping in court, or otherwise not behaving in a civil manner).
4) Wi-Fi in all courthouses and allow attorneys to bring in laptops and cell phones, but sanction them if they disturb proceedings by having phones ring or if they use the camera phone feature in violation of a court rule.
5) Eliminate requirements that attorneys get minimum hours in CLE for 'civility' or 'professionalism'. I support efforts to enhance the profession by proclaiming that professionalism matters, but you can't legislate behavior that is aspirational. If it's not an ethical requirement then the people who are the problem are going to keep doing what they are doing (and they would probably do it even if it WAS required).
Evan Schaeffer is the author of Notes from the (Legal) Underground. I knew Evan as a lawyer before I knew him as a blogger, as he and I both practice in the Judicial Hellhole known as Madison County, Illinois. Evan thinks I asked him to participate in this week's Five by Five because he and I are friends. Truth is, Evan has carved out a niche in the blogosphere as a funny and insightful commentator on our legal system. Evan's other blogs, the Illinois Trial Practice Weblog and the Illinois Personal Injury Weblog focus on his plaintiff's personal injury practice. Here are Evan's five ideas:
Here are five ideas for changing the practice of law, each designed to make depositions more civil, presented in the form of a memorandum to a typical lawyer-opponent:
1) You and I both know that speaking objections aren’t allowed. Yet you and I will both try to slip a couple past anyway. Idea: Let’s agree we’re going to continue violating this rule, if that’s what it’s going to take to make us feel like real lawyers, but let’s also agree to stop if either one of us calls the other on it. Then we shouldn’t do it anymore for the remainder of the deposition.
2) You and I both have lots of documents to exchange. But is it fair to dump them on one another just before a deposition starts? Idea: Let’s give each other documents at least a week before we know the other will need them, assuming a timely request has been made.
3) You and I are both very tired. Like many lawyers, we’re sleep-deprived. That’s why our deposition could disintegrate into a shouting match after only about a half hour, even though we’ll both regret it later. Idea: Let’s try to get more sleep, and let's quit shouting. Shouting doesn’t accomplish anything.
4) You and I both know how to use the phone, even if we don’t know the judge personally. So why are we constantly threatening to call the judge, rather than just picking up the phone and doing it? Idea: Either call the judge, or don’t call the judge, but let’s stop threatening to do it unless we’re going to follow through.
5) You and I are both much more experienced than the new lawyers coming onto the scene. If we wanted to, we could run rings around them. But do you remember how nice it felt as a young lawyer when an older colleague helped us out a little? Idea: Go easy on the young lawyers, because we were young lawyers once ourselves.
Denise Howell is the author of the Bag and Baggage weblog, and is one of the pioneering legal bloggers, having started Bag and Baggage in 2001. She is an appellate and intellectual property lawyer with a large Los Angeles law firm. Denise's Five by Five:
1) Law should be practiced like yoga is practiced. Yoga practitioners know that the way to progress is to seek out the masters--those who have acquired, through time, dedication, and experience, skills so incredible they play havoc with the laws of the known universe--and work with them day in and day out. Yoga practitioners know to give their fellow practitioners plenty of space and respect. They learn by thoughtful and constructive critiques of their efforts, not abstract PowerPoint bullets and fly-ins. They know how to nurture their competencies and push their weaknesses to and beyond a new edge. "You may notice your mind shuts down when confronted with a challenge. Trust your intuition. Find a deeper resource." My yoga instructor gave this advice while holding the class in a particularly long camel. It applies just as well to the tough spots that comprise a lawyer's day. It makes little difference what law school someone went to, or how well they did in their class. The most law school provides is a rudimentary toolbox; someone needs to show you how to use the tools.
2) Just blog it. Just syndicate it. Lawyers have been trying to blog and syndicate their Web offerings since they first put up their original (pretty horrendous) sites--they just don't know it yet. When they finally figure this out on a large scale, we're going to be in for a sea change in how lawyers communicate with each other and the world. Blogging--both behind the firewall and in public--is good for lawyers in so many ways. It's good for writing and research skills. It's good for visibility and accountability. It's good experience performing on a larger stage. And it's not just good for lawyers, but the rest of the world as well. Blogging lets lawyers wrestle--in an open, accessible way--with difficult issues that matter to society at large. It lets lawyers provide front line reports from important legal proceedings the mainstream press might overlook or is ill equipped to handle with the same level of expertise.
Syndication takes all this visible and user friendly goodness and makes it even more so. Lawyers were scared of email when it first arrived; now it's indispensable. So too it will be with blogging and syndication, and the sooner the legal field gets this, the better. As Seth Godin writes in his 07/04 Fast Company column, Rules for Off-Roading at Work: "Far better to be a lot less showy and a lot more bold."
3) Law is a knowledge business; treat it like one. The legal world historically has chased would-be clients to financial centers, leased expensive space, insisted its minions put in long hours there, and hoped this would somehow help the bottom line. The fact is this strategy serves no one, including actual and would-be clients. I'm not saying firms should abandon their downtown office space, but they should be cognizant and supportive of how their own personnel and their clients actually work (or would prefer to work, given the choice). This means satellite offices and support facilities in areas closer to where people live. It means underwriting home and mobile office expenditures. It means helping lawyers achieve a balance between family and work by helping remove the roadblocks on both ends.
4) Leading, not bleeding. This point follows from the last. If law is a knowledge business, lawyers have to find ways to be on the leading edge of available technologies and not perpetually clinging to antiquated, yet "proven," IT. If the legal field would otherwise steer clear of something invaluable like wireless networking, due to security or compatibility issues, it needs to bring its considerable spending clout to bear to help drive development in the right direction.
5) Bottoms up. Remember those junior people with the rudimentary toolbox from point one? Just because they have much to learn doesn't mean they don't have much to teach. The same goes for all the non-lawyers in the legal field. These are the profession's best ties to the real world. The practice would greatly benefit from giving them a greater voice and greater participation in policy decisions. (Bottom up reviews are one idea. Blogging behind the firewall is another.)
Up next is Scheherazade Fowler, prolific author of the Stay of Execution weblog. According to her bio, she is a "young lawyer, an extrovert, and an insatiably curious woman living in Portland, Maine." Scheherazade's contribution to this week's Five by Five:
1) Abolish the bar exam. It’s nothing more than ridiculous hazing. We all know that nobody remembers anything they learn for the bar exam, that the things everyone learns for the bar exam aren’t the law anywhere except for some fictitious “Multistate” jurisdiction that doesn’t conform to any actual place, and that the bar exam tests only one’s ability to outwit a particularly devious multiple choice testing service and/or a temperamental and unpredictable group of bitter essay graders. It has nothing whatsoever to do with functional mastery of subject areas, with compassion, judgment, or preparation to help clients. It instead serves the following functions: A) it enriches Bar/Bri, and perhaps a few lesser-known bar prep services, as well as the authors and graders of the exam. B) It empowers the bullies at the Board of Bar Overseers, who hassle and sneer at any nontraditional applicants, or people have life experience or pasts that might have given them wisdom or direction prior to entering the career of law. C) It keeps bright, qualified, ambitious, energetic young applicants off the market and in misery from May through August, without letting their energy, enthusiasm, brains, or knowledge benefit the profession, and without letting them learn any practical skills at all. Instead, they get sick to their stomachs and devote their days to memorizing the difference, according to the strict Multistate Bar Examiner Rules, between a springing executory interest in land and a shifting executory interest in land. D) It keeps bright, qualified, ambitious, energetic applicants in limbo from July through late October, wondering whether they’ll get the nod or whether they’ll instead have to repeat the misery. This benefits nobody, not the students, not the legal profession, and not the clients or the existing pool of lawyers.
There might be some good reasons that something like the bar exam was conceived. Maybe it was meant to be a means of testing basic competency in certain subject areas. That’s a sensible function. It seems to me that if a degree from an accredited law school doesn’t serve that function we as a profession might think about looking at the core curriculum of these accredited law schools instead of inventing a ridiculous test. Or we might test core competencies in subject areas and let people take those tests following a semester or year of study of the subject matter—when it’s likely that such knowledge has been learned in a way it might actually be retained. Demanding that people shovel huge amounts of obscure knowledge covering twenty or thirty subjects into their heads for a one-time test is almost a sure-fire way to minimize retention. This seems to undercut the stated goal of minimum mastery of a subject area. Or maybe the unstated goal of the bar exam is less noble: maybe the bar wants to keep these new lawyers off the market a little longer. There are still better ways we could do that. We could at least require them to apprentice to us for slave wages, like the medical profession requires of its residents. That would be more intellectually honest than pretending we are asking them to prove themselves when we’re just stalling. Or we could require them to do pro bono work, so that their talents and energy would perhaps be of service to human beings in the world and could provide them with useful skills, and would still keep them out of our hair for six months or so before we’d have to compete with them on the merits. But instead we ask them to learn obscure nuances that aren’t even the law in any jurisdiction, and that we all expect them to forget the day after they have taken the exam. This, to me, is the cruelest and most senseless act of hazing that the legal profession engages in. There are many alternatives to the bar exam, all better than the current system. The fact that we don’t change it is an indictment of the profession—our blind conservatism, our fear of change, our fear of young minds, I don’t know what. If the purpose of the bar exam is to keep the young graduates out of the profession, shame on us. If it is to require them to attain useful practical knowledge, let’s get real. Do you remember anything you learned for the bar? I don’t. Why do we make people do it?
2) If I had some money, and I were in charge of a big law firm, I would absolutely do the following two things. I would immediately abolish my summer associate program, and with the seven or eight hundred thousand dollars or more that I would save on salaries and lunch tabs, etc. over the course of a summer, I would set up a shop in India, or Romania, or perhaps even Ireland if the exchange rates were decent. And there I would set up a nice document review, research, and writing shop. Why on earth would I pay inexperienced people $2500 a week to do work that I could have done for a fraction of the cost, by well-educated, intelligent, English-speaking talent—talent that can work all night long and get me an answer in the morning because of the wonders of time zone differences. There’s not any kind of imperative that research, writing, and document review take place on site; a .pdf and a Westlaw password are pretty transportable. As head honcho at BIGLAW, I am aware that only a tiny fragment of my associates are going to last more than three or four years—neither they nor I have any illusions that this charming courtship will really lead to a long-term commitment. Why on earth should I take on that overhead? Why would I wine and dine these people who are, essentially, extremely expensive resources that are hardly irreplaceable. No, I’d eliminate the summer associateship and instead invest in smart folks overseas who can do more work, year round, at a fraction of the price. Like these guys are doing. Expect it.
To be honest, if I ran BIGLAW I’d have some grave doubts about whether I was meeting my fiduciary duties to my clients if part of the overhead of my firm were these lavish summers. And if you’re a client, why on EARTH are you paying fees that let your law firm take law students out to $100 lunches? Why are you paying for fountains and town cars and tickets to baseball games? How does this help your shareholders? If your law firm is profligate with its money, that means you are paying that firm too much. Invest in the firm that is thinking about how to bring value to you. I expect in the future that value is going to be offshore. Legal research, writing, and document review can and will move to smart folks who can do it for less money. If I ran a law firm, I’d be leading that trend. Those who will resist will couch their resistance in terms of “prestige” and “reputation” and wave their hands around saying “you don’t know what you’re getting if you farm out this kind of work.” These appeals to an ill-defined notion of “quality” will work perhaps for a little while, but ultimately are doomed, because the truth is that a lot of the work young lawyers do isn’t rocket science, and even if it were, talent is not the exclusive province of three or four New York law firms. It just isn’t. Knowing this, I would want to be the first “prestigious” law firm brand to exploit a worldwide talent pool and an extraordinary wage differential. That firm will be positioned to make great profits in the near term, and to be nimble enough to compete when savvy clients demand truly competitive rates.
3) I don’t think I fully understand the connotations of the word “profession” when people say that “Law is a Profession.” It appears to be used to imply something noble, exclusive, honorable, and dignified. That’s cool. I agree that law is a profession in that way. We’re all working to help sort out the consequences of human decision making, and the social consequences and procedures around decisions that are challenged. That’s a noble goal, and all (or most) of us doing it are doing something highly worthwhile. It is service in the best sense. But sometimes I hear the term “professional” used as a means of bullying someone into conformity, a way of expressing discomfort with informality or stylistic or aesthetic differences. Like the article on law blogs that suggested that it might be okay for a lawyer to blog about the hobby of sailing, but that it might not be professional to blog about an interest in NASCAR. I think that is a hijacking of the term “professional.” All of us, if we’re pursuing the highest good of the law, in a way that is courteous and thoughtful and earnest, are “professionals” paving a noble road. The style a person brings to that endeavour, the way he or she dresses or speaks while doing it, that’s not appropriate fodder for attack. To the extent some people in our profession use the idea of a “profession” as an excuse for conformity or a silencer of innovation or honest expression, I think that is wrong.
4) We should be more ashamed of ourselves. I am a capitalist at heart, and I don’t believe in government-induced salary caps, but I do think that social mores are powerful and that greed is ugly and shameful. I think there should be a real sense of social shame if you are earning more than 10 times more than the lowest-paid person in your office. Maybe that multiple isn’t right—maybe it should be 8 times, or maybe it should be 15 times, I haven’t thought through the multiple. But there should be a point at which people are just ashamed to look their assistants in the eyes, or the guy driving their cab or painting their house. Ashamed to look the court clerk in the eyes. I think many people in the legal profession are past that trigger point, whatever it is. Do we lawyers really think 10 minutes of our time is six, eight, twelve, forty times more valuable than 10 minutes of a fellow human being’s time? If we do, we should be ashamed of ourselves. And if we don’t we shouldn’t bill people as though it were.
5) Along with the other statistics that law firms give out to NALP (e.g. starting salaries, number of lawyers, billable hour requirements, percentage of minorities, pro bono opportunities, etc.), every law firm should publish the divorce rate among the attorneys at the firm. That’s a clear, measurable, statistic that I argue is relevant to the measure of the success of a firm and the attorneys within it. What if having lawyers with intact families were part of the measure of the prestige of a law firm?
First up in this week's Five by Five is Carolyn Elefant, solo practitioner, and author of the My Shingle weblog. Carolyn's site is more than a blog. She's collected hundreds of links and resources for lawyers looking to go out on their own.
So, Carolyn, if you had the power to change five things about the practice of law, what would you change?
1. Every law school and courthouse library should be required to make full service LEXIS (not the junky lexisone service currently available free) and Westlaw, i.e., all the libraries and citation service, available at no cost on at least one computer. In fact, law schools and courts should make a free LEXIS and/or Westlaw (or both) account a condition of taking service from these companies.
To me, this proposal is really a no-brainer - and frankly, I don't know why there hasn't been an outcry for free research service by the bars, law libraries and the courts. Access to free legal research service in this manner is the cheapest way that I can think of to improve the quality of legal services for all. Many solo attorneys do not have access to this type of service and either rely on "manual" research which is incredibly time consuming and not nearly as effective (even law librarians will resort to LEXIS to answer questions rather than stumble through the decennial digests - and they are supposedly research experts) Moreover, the ability to run a search not only in one's own jurisdiction - but across the board and to search law review articles might give practitioners ideas on arguments that they might raise. I would even go so far to argue that death row clients might not be there had their attorneys had access to LEXIS and Westlaw which would have afforded a whole range of issues to raise during a capital trial.
LEXIS and Westlaw already offer full service LEXIS and Westlaw packages to law schools for so-called "academic" purposes, so free service is not unprecedented. Moreover, it's not as if these companies would lose customers by giving away service for free. Biglaw attorneys - and indeed, all attorneys with a decent budget - are always going to purchase some computerized research package to have 24-7 access and avoid a possible line at the free kiosk. Moreover, free LEXIS and Westlaw in libraries and courthouses would also give the general public a way to research the law, which after all, belongs to us.
2. The bar associations ought to encourage more mingling and cooperation between big firm, small firm and government attorneys.
I've said it before, but what I love most about the blog-o-sphere is the conversation and discourse between biglaw, solo and government attorneys. That's something that I've never experiences with the bar. In fact, there's very little crossover between big firm and small firm lawyers at least where I practice - and my experience, I don't think, is unique. For example, on a trip to Boston this past fall, I visited with two friends who are biglaw partners and neither even knew a solo practitioner.
I realize that some of the segregation is self-selecting. For example, a solo might not have any interest in a bar committee on corporate securities law while a biglaw attorney would not be inclined to join a bar section on general practice. Still, one would think there would be opportunities for solos and biglaw attorneys to work together on pro bono projects. However, (at least in my area), what typically happens is that one law firm will man a legal clinic for an evening. And frequently, when the bar or a legal aid group assigns a large pro bono matter, it will be handled by one firm. Why not staff the matter with, for example, a solo attorney, a government attorney and a biglaw attorney? Solos and government attorneys might also be more inclined to accept a pro-bono matter if they could work with a biglaw attorney who could more easily cover most of the costs.
All of us - biglaw attorneys to solos - share the law in common. We can learn from each other and gain a new perspective if only there were more opportunities for interaction.
3. E-filing at every court with searchable data bases.
This is a dream, I know, but every court should aspire not only towards a robust e-file system but also one where attorneys can perform word searches to pull documents from court files. The federal court developed an e-file system in-house and it has drastically cut my work load and likely that of other users. But the cases that are filed - and all of the pleadings only searchable by party name or docket number, possibly case type. Users can't use a word search to find documents with arguments that might relate to their cases. As a result, there is a wealth of information - pleadings with legal arguments, maybe even factual information about parties who've been in litigation before which is still impossible to find unless you know what case you're looking for. What a waste to spend so much money on e-filing and only have it reach half its potential.
Also, relatedly, I have noticed that at least one court where I practice is now watering down e-filing and requiring attorneys to send paper copies of documents over 25 pages which is a minor annoyance. Let's not go backwards on this.
4. Modify the case method as taught in law school.
I don't advocate abandoning the case method system - after all, that's pretty much what we attorneys need to do in our careers- understand the principles in cases and analogize or distinguish them to build our arguments to the court or advise our clients. Still, to get students thinking more about how the judge reached a decision, I'd take at least one case in every course and really analyze it in depth - review the complaint, the pleadings - all materials readily available in the court file (which should be much easier now that we have e-file). I'd have students look at the briefs - many will be surprised to learn that courts sometimes don't address certain arguments - or mischaracterize others. Perhaps students will identify certain factors - like a sloppy, typo-ridden brief or a nasty tone - that may have influenced a judge to rule one way or another. I realize that after law school, some students take on clerkships and learn this anyway. But most other law students will never have an opportunity to examine cases in this way. And, this is one exercise in practical lawyering where law professors (many of whom have never worked at a legal job) could actually be of value, since most, if not all have held clerkships and could provide insight into the judicial decision process from that perspective.
5. At a minimum, allow lawyers who have practiced law for more than three years in one state to automatically be eligible to practice in any other state touching their jurisdiction. (so for example, a DC attorney could automatically practice in Maryland and Virginia after 3 years).
I understand that bars want to uphold professional competence standards and all that, but frankly, it is just ridiculous for attorneys admitted in one state to have to either take another bar exam or fill out a lengthy admission form and pay hundreds of dollars in fees (as well as annual dues) just to go to court on the other side of the border. And pro hac vice motions don't help much either because in many jurisdictions, the attorney of record has to appear in court with the foreign attorney anyway.
This week's Five by Five will follow this post. The question of the week:
If you had the power to change five things about the practice of law, what would you change?Without further delay, here we go!
After an incredibly successful first "Five by Five," I'm proud to announce that the second edition will be up on Monday. The question of the week is:
If you had the power to change five things about the practice of law, what would you change?My panelists for the second edition are among the most influential and prolific legal bloggers. They also are really nice, cool people. They are:
Carolyn Elefant (My Shingle);Tune in next Monday for their Five by Five.
Scheherazade Fowler (Stay of Execution);
Denise Howell (Bag and Baggage);
Evan Schaeffer (Notes from the Legal Underground); and,
Ernest Svenson (Ernie the Attoney).