Tuesday, February 20, 2007

Article about lawyers in the Wall Street Journal

Saw an interesting article in the Wall Street Journal a few weeks ago and was waiting to write about it. The article is written by Cameron Stracher, titled "Meet the Clients". Stracher criticizes law schools for not teaching law students practical skills, and for "giving students the false idea that being a lawyer is all about intellectual debate."

I mostly disagree with the article, but it is a good read and I like a couple of insights. My favorite is where he challenges law school clinics, which always seem to have a "liberal tilt" (I assume he's referring to clinics for victims of domestic violence, or AIDS sufferers). He wonders where the clinics are for small businesses struggling to deal with claims made against them under the ADA. I would love to see a law school open any kind of clinic for small businesses.

The main thing I disagree with is the notion that law school should be more practical. Stracher implies that law schools should ready their students to hit the ground running the first day after they graduate. He misses the diverse ways students can go through law school. First of all, there are different kinds of schools. Some are known for the intellectual side of things, most notably Yale. Others are focused on the practical side. I'd say Albany Law School was like that when I was there, and I suspect it still is.

But even within schools, students can go for either side of things. I was mostly uninterested in a practical education when I hit school. I took several "useless" classes like Jurisprudence (legal philosophy), and another class where we tried to get into the minds of the Justices on the Supreme Court. Other students focused on practical courses, both to help them pass the bar exam and to ready themselves for their chosen area of law. The practical students also did more than clinics. They got part-time jobs during law school (full-time in the summers), again working in their chosen area of law. One recent grad who has done work for me recently took this route. He had far more experience in criminal law when he started helping me than I had when I opened my own firm, and he did excellent work right from the start. I was nowhere near as ready when I graduated and just lucked into the right job where I was coddled for months before I had a chance to endanger a client.

These jobs outside school are where students get their practical experience, and it's far better there than from law school professors. Most professors spend little time in the active practice of law. Some never had much experience in the first place. They are generally excellent at teaching the intellectual side of the law, and that's how they get to their position as law school professors. It is my personal opinion that the intellectual training provides more and more benefit as the attorney gets experience, helping to connect the dots so to speak.

Stracher makes some comment about new lawyers being unable to handle things. But that's not that big of a deal. If the lawyer is in over his head, he should ask for help, either from someone more senior in the firm or from an experienced local attorney, or even their adversary. I've found that the attorneys on the other side are often very helpful in teaching young lawyers how to handle things. There are a few who try to abuse the young lawyers, but most, at least in the Albany area and even some in New York City, recognize that mentoring that young lawyer is important for our profession and the good deed will be repaid someday in some way. I've certainly found that.

The other thing that struck me while reading Stracher's article was something that cannot be taught in schools and probably can't come through experience. It would be nice if lawyers cared about their clients. I find many lawyers lack empathy for what the client is going through. It's easy to become jaded and that does not lead to good customer service. I'll use speeding tickets as an example.

Most lawyers have no sympathy for the speeding ticket client. In the world of criminal defense, speeding tickets are nothing. I have yet to see a client get jail time, probation, or any consequence more serious than a fine. The most serious cases involve potential license suspensions or revocations, but that client is not new to the system. After you've just pled a client to a deal with 5 years in state prison, it's a little hard to be concerned about someone who may have to pay some fines.

But it is our job to take care of that client. And we will be more effective in that effort if we understand what the client is going through. So what is the client concerned about? First, the traffic stop experience was traumatic. The sense of security she had in her car was shattered. A guy in a uniform with a gun and a badge shined a flashlight in her eyes and spoke rudely to her. (Yes, I chose a male cop and a female driver - sexist I'm sure.) He handed her a ticket that is incomprehensible to non-lawyers. It says that a plea of not guilty must be submitted within 48 hours. The ticket was printed on thermal paper and it's faded and or blackened and is now hard to read. Another thing on the ticket says that she has to be in Court on such and such a date, and the address for the Court on the ticket is a PO Box. Is she supposed to report to the post office? And another thing on the ticket says that a warrant may be issued for her arrest if she doesn't show up.

She's worried about the fines and other costs that will come. Traffic tickets in most of New York State do not indicate the fine on the ticket. She's worried about her insurance rates. Maybe she's worried about her license as well. Maybe mom is calling worried about her son and how this will affect his future.

When this prospective client calls, the lawyer should address these concerns. We need to understand how scary this experience was for her. We need to tell her that the 48-hour rule, the court date, and the warrant thing are all false. We need to reassure her that it's not that bad, and that we can take care of this for her.

Once the client retains us, we need to address further concerns. Did the lawyer get my paperwork? Is he taking care of that court date on the ticket (yes, the one that isn't a real date)? Two months go by and she hasn't heard from the lawyer. She's worried about the status of her case.

It is my general sense that many lawyers utterly fail at this, not only on speeding tickets but in general. I'm still not satisfied at how my office does with this on our speeding tickets - we have hired a new associate whose principal responsibility will be to make sure the tickets are handled well, and just as important, make sure the clients know we're taking care of their cases. So hopefully we'll get there.

The key to taking care of these things is empathy. The attorney must be able to get inside the client's head to get a sense of what they're worried about, in any case, and address those concerns. For most clients this is not hard at all. They will either tell you straight up or will tell you if you ask. It's tougher in the criminal cases, especially the client has mental health issues. But it's even more important in those cases, because if those mental health issues are not addressed, the client is likely to have further problems. In the busy world of the practicing lawyer, it's hard to find time for empathy. For me, it seems that clients really appreciate it and it leads to many referrals. So it's not just being a good human being. It's also good business.

I should also mention practical limits to empathy. You need to have boundaries. I get the occasional speeding ticket client, or prospective client, who is very demanding. They ask the same questions three or more times on the initial phone call. They want a guarantee (we're ethically prohibited from making a guarantee - and it's also dishonest in my opinion). In these and other ways it becomes clear that this person expects to be the attorney's most important case. I generally reject those prospective clients. If it seems like it's been a long call, I check my phone to see how long it's been. Most clients hire me within 5 minutes. If the call has gone over 10 minutes I will usually tell them to find another lawyer. I've had cases where I figured this out after I was hired and have offered a full refund if the client will find another lawyer. In some cases this boundary setting wakes the client up and they become better clients. In others, they get angry and I let them move on to the next lawyer.

I suppose that ethically all clients are supposed to be equally important. But it ain't true. The client I had who was facing a potential life sentence (he got 18 1/2 years) was far more important than any of my other clients. The client who lost his leg in an accident, and who I've known for over three years now, is more important than most of my other clients. And plain and simple, if your $300 speeding ticket is your lawyer's most important case, then your lawyer is not successful, and may not be all that good of a lawyer.

I just don't think it's possible for law school to teach these things. You either had to learn this growing up or you have to get it from doing it. Nevertheless, I enjoyed reading the article and recommend it.

By the way, while looking for the link to the article discussed above, I found another article by Stracher about the troubles of being a lawyer.
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