Vermont Bar Journal
Summer 2007 - #7.
Seven Habits of Effective Lawyers
THE VERMONT BAR JOURNAL SUMMER 2007
Seven Habits of Effective Lawyersby Robert D. Rachlin, Esq.
The Challenge: Rise Above the Noise
In 1959, when I joined John Downs in St. Johnsbury, there were about two hundred lawyers in the state. In the meantime, the population of the state has increased about 60 percent. Today there are more than 3,100 lawyers in Vermont, an increase of over 1,500 percent. In 1960, the ratio of lawyers to the population in Vermont was about 1:1,945. Today, it's 1:200, half again greater than the national ratio. In 1960, Vermont was commonly thought of as a legal backwater, attracting few lawyers. Today, many lawyers choose the Vermont lifestyle, despite the prospect of smaller incomes. Over time, the Vermont bar has become less personal, more competitive. In the first year of my practice, I was on a first name basis with almost all the active practitioners in the state. I can still name every lawyer practicing in Caledonia County in 1960. Today, there are law firms in my home city of Burlington that I've never heard of. Inevitably, the bar has paid a price in collegiality and professionalism.
The challenge is to become known and hired. The Vermont lawyer, particularly the new Vermont lawyer, must find ways to distinguish himself or herself--to rise above the noise. One way, of course, is by establishing a reputation for skill. Without technical know-how, a lawyer can't expect to be effective and doesn't deserve to practice. In everything I say below, it's assumed that the lawyer possesses a high level of professional skill. What I hope to explore is some other, non-technical, qualities that help a lawyer rise above the noise.
What is Success?
Being an effective lawyer is a step to a higher end: success. Just what is success? Success, in the dictionary sense, is the achievement of something desired, planned, or attempted.(fn1) Or the prosperous achievement of something attempted; the attainment of an object according to one's desire: now often with particular reference to the attainment of wealth or position.(fn2) Woody Allen defined success as eighty percent showing up. A classmate at the University of Chicago Law School defined success bluntly. Make lots of money. Sometimes, I am tempted to define success as "retiring before you're found out."
For our purposes, I propose the following definition of the successful lawyer:
The successful lawyer contributes positively to the peaceful functioning of society and, in the process, achieves economic security.
This definition focuses on the historic function of lawyers: promoting a peaceful society.
The Lawyer as Peacemaker
In his Notes for a Law Lecture, Abraham Lincoln wrote: "As a peacemaker the lawyer has a superior opportunity of being a good man."(fn3) After our ancestors became fruitful and multiplied, an intermediary was needed as peacemaker between combatants and between people and the mysterious power of the gods and government. The quasi-priestly role of the lawyer reflects the religious origin of law.(fn4) For Spinoza, the biblical prophets served chiefly a political, law-giving function.(fn5) The thaumaturgic (miracle working) and mantic (divination) functions were there just to give the prophet's legislative pronouncements authority. Today's lawyer serves a similar hieratic function. In the place of the gods we have government, or what my teacher Karl Llewellyn called "law-government."(fn6) To the non-lawyer, government can be just as menacing and unapproachable as the gods were to the ancients. Government, like the gods, needs to be accessed and propitiated with prescribed incantations and offerings. The lawyer, like the ancient shaman, is presumed conversant with the mystic formulary.
Like other practitioners of sorcery, lawyers as a class tend to be unloved. As Llewellyn wrote about another contemporary practitioner of the magic arts: "Does your heart warm to the surgeon as he draws on the rubber gloves, and asks you whom to notify?"(fn7) If unloved, we can still aspire to success, worthily defined.
Here are seven habits that will help a lawyer to be effective and achieve success as I've defined it.
The First Principle
The paramount axiom of successful lawyering is this: The lawyer is an integral part of the overall economy and needs to adhere to the rules, customs, and usages of business people. We are no longer an island in the economy, entire of ourselves. We are part of the larger economic continent.(fn8)
Everything that follows is, in a sense, a footnote.
Lawyers must adapt their practices to the ways of the larger community. For example, business people expect prompt replies to telephone calls and correspondence. And they assume that the people and companies they deal with understand the economic context within which business is done.
Here are some habits that we can cultivate to supplement our technical skills.
1. The Effective Lawyer Communicates Precisely and Abundantly.
We lawyers are good talkers. We're not always good listeners. What does the client really want/need? Sometimes money is a proxy for something else. I think of a medical malpractice case I mediated. The doctor had made a mistake, and the plaintiff's husband died as a result. The widow was asking for money. Naturally. As the late Phil Saxer used to say, "Courts don't award blue ribbons." As the bereaved woman told her story, it became clear that what she really wanted was not money so much as an acknowledgement from the doctor that he'd erred--and an apology. The doctor, a kindly and honest man, knew he'd made a mistake. He said so, and he apologized. Once the plaintiff's real goal had been satisfied, the money part was settled quickly. Postscript: before the mediation broke up, the widow and the doctor--plaintiff and defendant-- hugged each other and cried.
The lesson: listen. With all your faculties, not just your ears. Communication implies a common understanding, standing in the shoes of the other.
A Major Cause of Client Unhappiness
With almost fifty years at the bar, I've seen/adjudicated/heard of/read about lots of professional conduct complaints. If there's one common thread in the majority of these cases, it's poor communication. "He never returned my calls." "He wouldn't answer my letters/ e-mails." "The only time I heard from her was when she sent me a bill or told me to get ready to give a deposition (what's that, anyway?) in two days."
You'd think that today, in the era of e-mail, there'd be no such complaints, because it's so easy to keep clients up-todate. I warn my clients at the beginning that they'll get lots of e-mails from me, including copies of all correspondence. If they feel overloaded--well, that's why God created the delete key. So far, I haven't had a single client complain about TMI--too much information.
Clients hate it when lawyers don't return calls. Doesn't it frustrate you when you try to reach your physician, jump through twelve recorded menus, leave a voice mail--and hear nothing back? Many clients are invested emotionally in the case. It may be a small blip on your crowded radar, but to the client it can be most important thing in his life at the moment. And the client judges your response by his perception of its importance--not yours. I confess I'm a bit obsessive about this. In the days before BlackBerry and cell phones we had pagers that would alert us to a call. We'd get a beep, call a toll-free number, and hear the message. I used to carry these around the country, so that I could return calls quickly, even when I wasn't at my desk. Perhaps I was grandstanding a little, but I've never had a client complain that I returned a call too quickly. Prompt return of calls tells the client that she's important enough to you to drop everything (or appear to) and call back promptly.
If a client ever asks you for an update on her case, you're simply not doing your job. The client shouldn't have to ask.
It wasn't that many years ago that some of my colleagues at the bar prided themselves on never touching a computer. It sullied their hands, like (gasp!) typing their own letters. The secretary(fn9) was there to do such menial labors. Today, many lawyers do their own word processing. I do. (Twenty-five years ago, as I was banging out documents on my oversized Osborne Executive, a client passed by in the hall with the remark, "There's either the most efficient lawyer or the most expensive secretary in the office.") Lawyer word processing hasn't made staff assistants obsolete. Instead of taking dictation and typing, many have been freed to integrate into the law practice with greater skills than they were allowed to cultivate before.
The Internet should be a source of regular resort. When I started law school, I was enchanted by the...