Bar News - April 20, 2007
An Open Letter to the 2007 Graduating Class
Editor’s Note: This is Part 1 of a 2-part open letter by Charles Holoubek, who has clerked at the Shaheen & Gordon firm in Concord for the past two years. He graduates from Franklin Pierce Law School on May 19, 2007. Part 2 will run in the next issue of Bar News.
By Charles Holoubek
In honor of the new crop of law school graduates, especially those from “Franks” (now known as Pierce Law), I humbly offer a few of the lessons I learned on the practice of law during my externship at the New Hampshire law firm of Shaheen and Gordon. The ideas are presented in a Socratic format, to bring us all back to those wistful days of law school. Take heed, class of 2007, and good luck.
1. Where can I expect to do negotiations as a lawyer? What if I am not in litigation?
Our firm does a majority of work in litigation, so negotiation is present in most cases. Civil and criminal litigation are obvious areas, but negotiation is also present in our family and divorce section, with our transactional lawyers, and in our intellectual property section. As I think on it, it is present to some degree in most areas of the work we do.
I had the opportunity early on to handle some negotiations on behalf of one of our clients with one of the NH state agencies. The issue was production of certain files and what privileges may attach to them. I was successful, though not at first. I had to maintain contact, show I was acting in good faith, push my client’s interest, and creatively approach solutions. It took continued work to achieve a good resolution.
When we entered this particular case, tensions were high and the relationships with the agency’s lawyers and our client’s previous lawyers were quite acrimonious. Frequent contact, a cordial and respectful tone, and a flexible approach to achieving a firm and definite goal allowed us to negotiate a successful solution for our client. As an added benefit, and partly because the contrast between our approach and that of the previous lawyers was so significant, we have created substantial good will with the agency, and especially with the couple of attorneys we worked with over there, that will aid in future cases.
2. Are there specific concerns in the type of negotiations you have witnessed or conducted which relate to the fact that the negotiations are legal in nature?
Always be cognizant of what you are representing to the other party (the government is a big one). With every statement, is there a way that it could be construed improperly. Have a voice going in the back of your head constantly asking, “If I were another lawyer trying to sue me in the future, how could this statement be used against me?” This leads you to be very “exact” in what you are saying - not necessarily verbose, just accurate.
3. What is a successful negotiation?
A good negotiation is one in which you achieve a positive resolution for your client. A truly successful negotiation is one at which each party walks away from the table satisfied with the result. The parties may not have gotten exactly what they wanted, but they all feel the result was fair. You have a great power to make your negotiations go from the former to the latter. See the next question.
The point to remember is that negotiations are conducted by people whom you will probably encounter in the future in some fashion. While you must serve your client’s interest, if you unnecessarily burn every bridge achieving those results (as some clients would have you) you are going to negatively impact your future ability to negotiate with the opposing counsel, and as your reputation gets established as someone not to be trusted, you and all your clients may lose out on opportunities you are never even aware of.
4. Do you have tips for getting to yes?
Be a good negotiator and a respected practitioner. These are not quick solutions, but they are very important and highly effective. If people know you are competent, there are some things they will not try to pull on you. Additionally, if you are respected in your field, people will want to work with you in achieving a result in this case, because they will want to work with you again in the future.
Don’t be an ass. I have seen other attorneys act this way only to their client’s detriment.
Don’t lie. You may occasionally omit. You may use puffery. But don’t lie. It is not worth it, and you will become known for it.
Respond in kind, and occasionally forgive. I took a course on Legal Negotiation while at Vermont Law. One section was on “game theory” and using computer simulations to achieve the best results, and this was one of the (obvious) conclusions. If you want to protect your client, you must “reward” all good acts done by the other party, and you must “retaliate” against most breaches. Occasionally, forgive a breach as a good faith gesture.
Remember that there is usually more in contention than is being actively fought over. This is where knowing your client and opposing party (facts, background), and being creative in solutions, really pays off. If you just split the pie (or baby) in half and offer one piece to each – usually no one will be happy. Conversely, if you can find out what each party really wants (not just what they initially claim they want), like security, assurances, an apology, recognition, etc, you may be able to “increase the size of the pie” and create a positive sum transaction for both parties.
WORKING WITH SUPPORT STAFF
1. What, if anything, did you learn from the support staff in your office?
How to use the various office equipment. Different rules for pleadings with various courts. Likes and dislikes of different attorneys, both in the firm and in previous ones they have worked at. How to take it all in stride.
2. When is it appropriate to ask support staff for help? What types of things do you expect the support staff to do to assist you or the lawyers in your office?
In a private legal environment (I am thinking of non-government, non-education), you need to ask yourself, can support staff do the task I am doing right now. If the answer is yes, then you are not using your time or your client’s money most efficiently. Support staff, especially really good staff, can do a lot of paperwork, general research and simple drafting, faster, cheaper, and often better than you can. Your time – and your client’s money – should be spent on higher level work. What staff can’t do is perform legal analysis, represent clients, and “practice law.”
Say you spend 0.3 hrs at the copier. If you bill for it, you have foolishly spent you client’s money. If you don’t bill for it, you have cheated your firm and yourself (and your family, because you will have to make up that time later). Sometimes there is no choice, and you must spend time doing tasks that are in the normal purview of support staff. But if “occasionally” becomes regularly, you need to address the situation by hiring more staff or more efficient staff, or better organize and delegate functions in your firm.
Remember the order (in increasing cost to the firm and client per hour): secretary, legal assistant, paralegal, attorney. The more functions you can responsibly push to the secretary end of the spectrum, the more efficient and profitable your firm can run.
3. If I am uncomfortable asking support staff for assistance what could I do to gain more comfort asking for help?
Talk to your mentor. If that fails…well you should probably get a new mentor or reevaluate where you are working, because that is what mentors should help new attorneys with. Alternatively, talk with the staff about what their normal job functions are and how they can help you perform your job. There is also a great little book out there called The Curmudgeon’s Guide To Practicing Law that has a section on working with support staff that gives some good insight into working with staff.
4. If I think that support staff is not providing appropriate assistance, what types of things can/should I do about it?
Well, you need to make sure that what you are expecting them to perform, the firm expects also. (Remember, they are not personal assistants, they are legal assistants, so don’t expect them to run your clothes to the dry cleaners). If your standards are correct, talk to the staff and see if there are miscommunications, or anything else that may be affecting the assistance. If the staff you have just doesn’t like you, well, I would (delicately) see if you could get assigned different staff, and if not, then reevaluate where you are working. Remember, if the staff doesn’t provide appropriate assistance, and you are doing staff work, you are cheating the client, the firm, and yourself.
HOW IMPORTANT IS WRITING?
1. What are the most important things that a lawyer can do to make an effective written presentation to a Court?
Edit. Revise. Proof. Repeat as needed.
Seriously, though. Know your facts (and I have heard too many judges complain about that). Research the law well. Apply the facts to the law. Shepherd all cases you or your opposing counsel cite. Then Edit. Revise. Proof. Repeat as needed.
Your facts must be complete and accurate, and your law must be good, but even with that your first draft will never be as good as your subsequent ones. Put up the document and come back to it after working on something else. Read it out loud. Have another attorney proof (for legal reasoning and logic) and a paralegal/legal assistant proof (for grammar and spelling). Sometimes it only take a little extra time to turn an “it’ll do” draft into a polished pleading. Find the extra time if you can.
Remember, just like everything else, you will become known – by judges, clerks, other lawyers, and clients and potential clients – for the level of writing you produce. A lawyer who is known for good, accurate presentations of the law, presented in a well-readable format, will be welcomed and relied upon by the court, and receive more referrals from other lawyers. The better your pleading, the easier it is on a judge to turn it into an order or judgment. Never underestimate the effects of the good will you can build with judges in this simple, but important function.
2. What role if any does oral argument play in deciding cases where writings have been submitted?
If the writing has been good, then the base level of the argument has been fully covered, and the judge can immediately delve into the minutia with the lawyers. If the writing was very good, the lawyer has successfully framed the issues to his/her benefit so that the oral arguments are just an affirmation of the conclusions the judge has already been led to.
Sometimes, though, if the lawyer is prodigious in his/her oration skills (including changing styles for different judges), he/she can take an average pleading and prevail. But if he/she is arguing from a well-written pleading, he/she can really shine (and boy is it fun to watch). Don’t handicap your firm’s star orators with sub-par pleadings; it will not be appreciated/ tolerated for long.
3. Why might lawyers fail to write effective legal argument?
Hopefully, the answer is unanticipated time constraints. If it is lack of skill, they should have gotten more training or taken other action. If it is anticipated lack of time, they are not scheduling effectively or taking on too much work, and need to make changes. Remember, if you cheat a client by knowingly taking on too much work that doesn’t allow you to perform effectively for the client, you are still cheating the client. Not good at all.
4. What should I do if I am not able to write a persuasive argument in a particular matter?
Ask for help. Visit the law library and get better resources and better educated on that particular matter. Hire out the drafting. Or, if all that fails, refer the client to someone who can more ably represent their interests. You owe it to your client to know your own limitations.
WORK LIFE BALANCE
1. Why might achieving a *balance* be important to success at work?
Because, although we may like to think so, we are not machines, we are humans. We have emotional, social, and familial needs that if unmet, will affect the quality of work we produce. If your relationship is hanging by a thread because you don’t give your significant other the time and attention he/she needs, guess where your head is going to be when you are staring at a stack of cases? If your kid doesn’t know who you are – you are putting in too much time at the office. If you have some other outside need in your life that is not being met, you won’t be able to give everything you have to the task at hand when you are at the office.
If you find you cannot meet the needs of your family and your job, address the problem, don’t just let it fester. See if you can work out alternatives with your firm. See if you can handle just an hour less sleep a night (if so, use that time to get work done and that could be an extra hour earlier you come home from work everyday). If all else fails, maybe you are not in the right job for your family. Look to government, education, or corporate work (though they usually pay less, each also usually has more friendly hours). Keep your perspective. Work is important, but it is not most important.
Also, we are in a creative business of finding solutions. The more we experience outside of law, the more we can bring to bear on creatively reaching solutions for our clients.
Pragmatically, even though we measure our short term success in hours billed, our long term success will be measured by the quality, not quantity of work we produce. You could just be an “hours’ hound,” and churn them out, but what would your quality be like. (You can get a lot of food for a little money at McDonald’s, but there is a reason people won’t pay much for it. Don’t be McDonald’s quality.) If you do 20% less work, but your quality is much higher, your successes will be more numerous, your reputation will be better, you will be in more demand, and you will command a higher billable rate. Take the time, do a good job, then go home and spend time with the family.
2. What types of strategies could I adopt to insure that I have sufficient time to achieve a *balance* in my life?
In addition to work, identify the other stakeholders in your life and what their needs are (don’t forget yourself). Get out your calendar and schedule your time and make sure you block off enough for everybody. Try as best as you can to stick to it, because relationships atrophy when they are starved for attention.
I am not a believer in “everyone needs their own separate interests” in a relationship. Hogwash. That is wasteful, and in a relationship where time is at a premium, it potentially undermines the stability of the relationship. Make time for “non-work” activities, then include your spouse and family in as many as possible. If you want to hang out with friends, get married friends where you can bring your spouse, too. Church – go as a family. “Fun” activities – bring the spouse and or kids. Community/volunteer activities – get everyone involved.
The point is, work is important, but family is more important. Repeat that to yourself, then reflect it in your actions. If you have to, cut back on work, get a smaller house, drive a less- expensive car, skip the designer suits, scale down the luxuries, but take care that you take care of your family and life outside the office.
Once again, good luck, and drop me a line wherever you end up.