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Law Is Not a Good All-Round Degree

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For those not paying attention, Malcolm Turnbull, the Prime Minister of Australia, recently said to a bunch of year 12 students (and later in a radio interview):

I think too many kids do law. They could spend those years at university doing something more useful and more valuable to whatever career they ultimately took on. A lot of kids do law as though it is a sort of interesting background qualification and it is not.

If you want to have a general humanities degree that is an intellectual endowment that isn’t particularly specific in a vocational sense then you would be better off doing languages, history, literature, philosophy. Frankly you would be better off doing economics.

The gist of it was this: don’t do a law degree unless you want to be a lawyer.

At this point, some people had a meltdown. I’m not one of them.

The Bold Promise of the Law Degree

[clickToTweet tweet=”If you want to learn how to write you could buy every half-decent book on writing in the world and take 2-3 excellent courses on i. That would cost you about the same as a single law subject and likely take around 3 months to finish.” quote=”If you want to learn how to write you could buy every half-decent book on writing in the world and take 2-3 excellent courses on it. That would cost you about the same as a single law subject and likely take around 3 months to finish.”]

Law Schools and legal educators have been touting their Bachelor of Laws degrees for years as being an excellent all-round degree for students, irrespective of whether or not those students want to do law.

I’m sure that has absolutely nothing to do with the fact that the LLB is one of the most expensive degrees on offer.

The argument is usually something like this:

a law degree will teach students research and analytical, rhetoric and writing skills that will do them well in any career that they might choose.

The irony here is that I personally believe that the LLB programs barely prepare students adequately for legal practice (accepting that it might not even be their job to do so), so it won’t come as a surprise that I don’t agree with the suggestion that they prepare students for anything else.

Let’s take a look at the problems.

Opportunity Cost

The biggest and hairiest problem is this: even if a law degree actually DID teach you those soft skills, there are better (meaning cheaper and faster) ways to get those skills.

If you want to learn how to write (and I question whether law school even teaches you that) you could buy every half-decent book on writing in the world and take 2-3 excellent courses in writing for different purposes. That would cost you about the same as a single law subject and likely take around 3 months to finish.

The same goes for public speaking, forming arguments and analysing things.

Beyond that, the truth is that law schools don’t really deliberately teach you much at all about these topics – they are mostly incidental to the degree itself, and you just happen to pick them up along the way.

With a law degree costing you anywhere between $40,000 and $150,000 and taking up 2 to 5 years of your life (depending on what you’ve done before and where you go), is that really a cost you’re prepared to take for a degree largely designed for a career that you don’t intend to do?

Wasted Time and Learning

[clickToTweet tweet=”What is the cost of getting the skills that a law degree might (not will) give you? And is that really worth it if you’re not going to be a lawyer?” quote=”What is the cost of getting the skills that a law degree might (not will) give you? And is that really worth it if you’re not going to be a lawyer?”]

Take a look at the list of compulsory and elective subjects that the LLB is going to involve.

Being honest with yourself – which of these are genuinely useful to you outside the context of a legal career?

For example, doing Contract Law might offer some benefits in business. But then we head back to opportunity cost, and realise that with a couple of hours intelligent time spent on Google we could learn most of what we need to know for that purpose.

Similarly, Constitutional Law might sound really interesting, but even most lawyers barely even look at the constitution after they graduate – so how much do you think you’ll look at it?

Into that list probably go Criminal Law, Torts, Jurisprudence, Trusts and Equity, Corporations Law and Legal Ethics.

The point of this exercise is to start counting the cost of the chance (not guarantee) of getting those soft skills.

How much of the LLB is redundant if you’re not becoming a lawyer? Much.

Knowledge-Based Learning

Despite attempts to modernize the law school experience, the truth is that most of it is still heavily knowledge-based learning.

Sure, part of the joys of law school include learning how to assess a fact scenario, pull out the issues, and then express your answer – I completely accept that’s a thing.

But generally speaking, the fact scenarios are crafted to ensure that you regurgitate as much knowledge as possible onto the piece of paper, demonstrating that you’ve read and understood the material.

Let’s come back to our examples – writing, speaking, analysis. If you want to learn these things, then you can be learning all of them by doing them in other contexts. Start a business of your own. Write some marketing materials or start a website. Speak at Toastmasters or whatever public speaking opportunities you might have.

You don’t need to have the knowledge that law school will teach you in order to practice those skills.

The Other Side of the Coin

Of course there are other arguments.

Some people might change their mind along the way in their law degree. Others might not be sure what they want to do. And given how young people are when asked to make these kinds of decisions, I’m more than prepared to give the benefit of the doubt.

There are also a very small number of alternative careers where an LLB might be genuinely valuable.

And finally, despite all common sense pointing to the contrary, some potential employers might believe that having a law degree will help you in whatever job they have on offer.

Where I’m not prepared to give the benefit of the doubt is for people who accept, without question, the proposition that “a law degree is a good all-round degree”.

At the very least – TEST IT. This is one of the biggest investments of time and money you’re going to make in your entire life. If you spend more time researching the claims made about your next phone than you do about doing a law degree, then you deserve everything you get as a result.

9 Words and Phrases That Lawyers Use which Have to Stop

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Lawyers think they’re expert communicators.

Most are wrong.

If you replace the word “expert” with “unnecessarily complicated” (or anfractuous, if you’re feeling extra clever today) then you’re closer to the truth.

We can start by killing stone dead a few phrases that seem to hang around like a bad smell, despite decades of lawyers supposedly learning good legal drafting skills having being put through the ringer about plain English drafting. Unlike many examples I can give which should mostly die, these ones have no place of any kind in any legal document. Ever.

Let’s begin.

Opine

Don’t ask people to opine about things. Ask them their opinion.

“Please opine on the topic of X” vs “What’s your opinion about X?”.

It’s a no-brainer, isn’t it?

If your goal is to sound as pompous as humanly possible, while your reader is assured of their own stupidity, then this is the word to use.

Verily Believe

This is normally found in affidavits. “I am informed by Ms Jones, and I verily believe, that Mr Smith handed Mr Frank a huge wad of cash.”

Riddle me this – what happens if you remove the word verily (which, by the way, just means “truly”)?

Nothing.

Absolutely nothing.

Like what war is good for.

We Note That

There is no sentence in which these words add any meaning. None.

Normally “we note that” is an introduction to a topic or a sentence from someone who wants to say something, but feels that doing so immediately would be too abrupt.

And so they note things as if that somehow softens the blow and makes their statements more important.

We note that you wrote your letter of 12 January.

We note that your letterhead is blue.

We note that the sky is pink.

We note that your client sucks.

We Advise That

See “we note that”.

Aforesaid

This, together with abovesaid, abovementioned, aforementioned and every variation on that theme, fall into the same category as opine.

If you want to mention something again in a letter, use paragraph numbering or definitions.

That way, instead of saying “the aforesaid claim” you can just say “the Claim” and avoid sounding like a git.

Otiose

Ironically, the word describes itself very well.

Said

I’m ok with the word “said” but not when it’s used like this:

we went to the park with our bikes, and the we got sunburnt at the said park

Sometimes it’s convenient, but it sounds pretty stupid don’t you think?*

*I admit I’ve done this sometimes…

With Respect

I confess I’ve used this. Not because I think it’s a good idea, but because I feel some kind of obligation to say it before I disagree with someone.

Since most professional conduct rules require a degree of decorum between practitioners, can’t we accept that things said are usually with respect, and not have to add in this little preface before saying something?

With respect, the use of these words is almost always the best way to indicate that what you’re about to say isn’t respectful at all.

In which case you either shouldn’t say it, or you should rephrase.

Inutile

This barely-English-but-mostly-French word is creeping around these days, although I managed to avoid it for a long time.

It falls into the same category as a few of those above – unnecessarily pompous. Here are some alternatives if you feel like you have to use it one day (for some of these you should probably start your sentence “with respect”):

Those are Mine – What are Yours?

I’m sure I haven’t covered the field here.

What words need to die this year in your practice?

With respect.

Inter alia.

Happy Lawyering!

Yet Another Post about Lawyers and Christmas

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’tis the season to write about Christmas mania, tra-la-la-la-lah, la lah… lah…. lah.

How are you feeling right now?

Are you excited about the Christmas break (if you get one)? Or perhaps you’re feeling a bit like you’re being attacked from all directions at once, unable to defend yourself from the onslaught of demands that are being placed on your time.

They look like this:

we’d really like to get this finalised before Christmas

At this point, a weary look crosses your face, knowing as you do that most clients believe that they are your ONLY clients, and that you’ve had the same request 274 times in the last week.

Here’s one response that lots of lawyers might like to say, but most don’t:

You don’t need it done before Christmas. In fact, you’ve spent the last 3 months totally ignoring me and dragging your feet on this stuff, so frankly announcing that I need to drop everything right now to get it done before a fictitious deadline that has no actual importance in relation your file is quite frankly rude.

Assuming you’re not going with that, how are you going to attack the last week of work?

Warning – this post may contain inadvertent Christmas references. I don’t apologise.

That’s Christmas to Me…

What’s the problem?

Well, much like Santa, everyone wants something. Sure, they’ll feed you unhealthy snacks and pack you full of booze along the way, but with 1.9billion kids wanting a piece of you no amount of cheap red wine is going to get you through it intact.

At least – not unless you do it right.

If you’re going to be a boss like Santa, you’re going to need some things:

  1. a map of the world;
  2. some elves;
  3. A Counterpart Clause Claus, if you have one available (Santa had Mrs Claus, if you recall);
  4. the ability to rest.

He’s got reindeer too, but they have a tendency to lock horns with each other during the festive season, and I’m not sure we need more of that.

Make a List – Check it Twice

[clickToTweet tweet=”In the lead up to Christmas your ability to keep track of things to do is going to keep you steady.” quote=”In the lead up to Christmas your ability to keep track of things to do is going to keep you steady.”]

The biggest issue that’s making your head spin like you’ve had too much egg nog is that you feel out of control.

First – breath.

Next – write a list.  Santa does it, and it works a charm.

In the days leading up to Christmas your ability to keep track of the things you need to do is going to help keep you steady.

At the very least, putting it in a least will help you feel like you’re more in control.

Even better, often after you write it down it doesn’t look quite so massive.

Once you have your list, assess the things on it and decide which things:

  1. can and should be done (the nice)
  2. doesn’t have to be done (naughty)
  3. should be done, but might need help (um… this part isn’t in the song – it’s implied).

With your list in hand you can effectively decide what to do next and do it.  Then you get the extreme satisfaction of ticking it of (don’t tell anyone, but sometimes I actually write down a couple of things I’ve already done on my list, that way I can tick them off immediately and feel like I’ve got momentum right from the start).

Add to the list as needed – keep it current, and accurate.

Now – don’t you feel like things are more in control now?

Recruiting Elves

I’m not sure whether you’ve ever tried to recruit helpful, happy and productive people just before Christmas, but unfortunately they all seem to be occupied in their second jobs somewhere.

Because law firms are often running a bit low on those traits.

However, if you’ve done your list and realised that there’s simply no way of accomplishing the tasks on it, then you’re going to need some help.

Here are the realistic options:

  1. say no to the task;
  2. delegate all or part of the task to someone;
  3. push back the timeframe;
  4. modify the nature of the task.

Saying no is powerful, but kind of difficult when it comes to the people who pay your wages.

Delegating is probably your best bet in most circumstances.  Find someone who might have a few minutes and see if they can get the task underway, or finished.

If the time for completion is not set in stone (eg – it’s “desirable” but not “mandatory”) then the sooner you tell someone the better.  Don’t get all the way up to Christmas eve having promised over and over to deliver, and have to make 27 phone calls to clients wishing them a Merry Christmas but “so sorry I didn’t get to that thing you wanted me to do”.  Manage the expectations early.

Sometimes, the task you think you have to do isn’t precisely the task that needs doing.  If you’ve been asked to draw a letter of advice, does it need to follow the normal 29 page template? Or could you just call the client and give them the answer? We occasionally blow up tasks in our own minds to be bigger than they really are, whereas with a few minutes thought we can short circuit the task, without butchering the quality.

All I Want for Christmas is You

If you’re generally struggling to keep your head above water, there really isn’t anything quite as good as some kind of support from your loved ones.

Santa has Mrs Claus.

I have Mrs Hargreaves (and she has me).

Whether or not you’re married, all you need is someone that you can share with that can respond with:

I’ve got your back.

While work might be busy and your firm might be a slightly tense space for a time, knowing that you’ve got that kind of support somewhere is a pretty awesome feeling.

Plus, by now you’ve probably heard that Mariah Carey song about 1,649 times. So you should be feeling all happy ‘n’ stuff anyway.

God Rest Ye…

Even when you feel like you have a million things to do, taking 5 minutes (10, 15) out to simply stop is extremely valuable.

If you have an office, close your door.

If not, go out for a few minutes.

Find somewhere quiet without your phone.

Re-charge.

Then get back to it.

Oh – Merry Christmas

Find some peace – it’s kind of the point of the whole thing, after all.

What’s your trick? How are you going to get through it?

Happy Lawyering!

6 Types of Nightmare Bosses in Law

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Of the many difficult scenarios you’re going to face in a legal career, one of the most challenging can be when your immediate supervisor is a source of grief. But grief takes many forms.  Let’s explore a few of the more common areas.

Before we leap in, let’s appreciate that no boss is going to be perfect. They will have their strengths and weaknesses, just like you do, and if you’re going to job hop based entirely on your boss then be very cautious doing so. You might just jump out of the frying pan and into the fire.

More than that, your supervisors might have one of more of these problem areas that infuriate you at different times in different ways. People aren’t generally one dimensional, and in a complex environment like a law firm you have to go with the flow a bit.

That all said, let’s take a look at the common candidates.

The Bumbling Tyrant

This is actually not as common as some people would have you believe, although certainly you’ll find them around the place. The bumbling tyrant is usually a more senior partner with an extremely demanding manner. They are often no longer up to date with Court Rules or latest developments, instead relying on their ability to strike fear into the hearts of their employees to get that kind of information.

They have a tendency to cause a lot of stress around them wherever they go, and can unpredictably launch into a tirade.

To deal with the bumbling tyrant you cannot show fear. You need to embrace a little bit of acceptance that nothing you do will make them happy, and stop trying to “please” them by doing a good job.  Still do a good job, of course, but just accept that it probably won’t be good enough. Their shoutyness is their problem, and although you might have to listen to it don’t accidentally let it sink in that good lawyers have to shout in order to get things done.

The Credit Taker

Let’s say that you’ve worked 1467 hours on a matter, with a little supervision by your boss along the way to sign off on letters or approve a course of action. Their total time on the matter is 23 hours. A favourable result occurs.

At this point, the Credit Taker insists on:

  • making the phone call to the client
  • attending the celebratory lunch (if there is one)
  • ensuring all the final mopping up happens quickly
  • signing off on things and sending emails.

Basically – the Credit Taker becomes interested in the matter all of a sudden, now that things have concluded happily. They normally explain this with words like “relationship” and “supervision” but mostly it’s just that they like to get the credit for the result. And, in part, that’s probably what should happen when matters have been appropriately delegated, but the Credit Taker takes it to extremes.

Be careful with the Credit Taker. If, for example, you just leap in and start doing things that you know the Credit Taker would like to do themselves, they’re going to get annoyed.  That might be a risk you’re prepared to take, but you should be calculating about what’s worth it and what isn’t.

The Storm in a Teacup

“It’s really urgent.”

“What else are you doing at the moment.”

“When’s that other task due?”

Whatever the task, whatever the day, whoever the client – for a Storm in a Teacup, it’s the most urgent thing to do. For them. And for you.

You could be preparing for a contested Court hearing the next day, and the Storm in a Teacup’s file note would be more important in their own mind.

The Storm in a Teacup has a tendency to raise the blood pressure of everyone around them, by the sheer amount of urgency that oozes out of their pores.

The best way to handle the Storm in a Teacup is with precision.  If they tell you that you MUST do something by the end of the day, ask them why. What is the nature of the deadline?  Ensure they know what you’re doing now, and who you’re doing it for.  If there is a priority conflict, then ask them to discuss it with your other supervisor. Of course, this isn’t licence for you to be a pain in the neck, but rather a way of ensuring that they know what else you’re doing and why it’s actually important too.

The Half Baked Delegator

Good delegation is a critical component of a profitable law firm.

And bad delegation is a crippling nightmare that makes everyone’s life more difficult.

The Half Baked Delegator has a tendency to leave out critical information, because they function on a “need to know” basis.  And in their mind, you don’t need to know much.

“Could you please do a file note on section X of the Corporations Act?” and then the door shuts. Of course, you don’t know:

  • the client
  • the file
  • the deadline
  • the purpose of the note
  • any background information that might help
  • how much time you’re allowed to spend on it

And these things are pretty important.

The truly frustrating part of this process is that often the Half Baked Delegator will then criticise you for not automatically knowing these things, as if you were simply supposed to know them automatically and it’s your fault that you didn’t.

The best way to deal with the ineffective delegator is to try and ask questions AT THE START.  Waiting half a day while you muck around trying to guess what you’ve been asked to do is a waste of time – avoid it if at all possible.  Don’t be afraid to ask questions, because that’s your job. Find out the nature of the task properly, so you can do your job properly.

The Closed Door Policy

Often connected with the Half Baked Delegator, the Closed Door Policy simply isn’t around. Or if they are, they never seem like you can disturb them.

The result is that you have essentially no supervision, ever. You get asked to do a job and then you’re left to your own devices.

This can be good, to the extent that you have a clue what you’re doing and don’t enjoy micromanagement.

But if you want to run an idea past your supervisor before committing to a course of action or preparing an advice, then tough luck.

In fast moving matters, this can be a real problem.  You don’t want to constantly pester someone who seems to be busy all the time, but neither do you want to simply fly ahead at your own risk without input from your supervisor.

Passive aggressive email updates don’t generally get the job done. Take a breath, knock on their door, and interrupt them. It’s really the only solution here. Their job is the supervise you, and your job is to serve your client.  If their inaccessibility is getting in the way of your ability to serve your client then you’ve got to step up and solve that problem.

The Partner Who Just Wants to Do Law

At first glance this seems like a great thing, right? It’s always nice to have a supervisor who actually enjoys the law and legal practice.

However, if they enjoy those things but completely loathe the other parts of partnership, then it can get out of hand.

Firstly, the partner who is very focused on legal practice has a tendency to micromanage people, because they have an opinion about everything and nobody is prepared to make a call without their input. They send people on wild goose chases with 2 second brain spasms, and it’s very hard to get stuff done.

However, more critically, they also have a habit of ignoring other matters that require attention. Marketing, Culture problems, HR matters and administration fall by the wayside in favour of legal practice. That’s understandable (because to many lawyers, those things are ultra-boring) but not acceptable. If those things aren’t getting done, small issues can turn into gigantic problems, and the legally focused partner won’t even be aware that things are going wrong until it’s much harder to solve.

What’s Your Experience?

These are 6 categories, but there are many more.

There are some types of partner that are more difficult to be around than others, and some combinations of the above can be very hard work.

But hopefully here is a little nudge in the right direction about how you might identify and deal with each.

What do you think – what types of issues did I miss?

3 Things you Need for Flexible Work to Succeed

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Implementing a flexible work “policy” is largely a waste of time unless you give the idea a chance to thrive.

These days, many law firms have paid lip service to the desire for greater flexibility on the part of their lawyers.

But often, lip service is as far as it goes.

Firms might have a “flexible work policy” but, in truth, nobody in that office has actually attempted to use it.

Why is that? I don’t think it’s because nobody wants flexible work hours. I think it’s because the firm doesn’t really want you to. If they did, they’d get these things done.

Systems, Systems, Systems

Flexible work can actually be fairly difficult to manage. Not because it’s overly complicated, but just because there are a few variables you need to take into account.

If the firm doesn’t have a well known and understood system for allowing flexible work arrangements to flourish, then they probably won’t.

On top of the basics (hours, pay etc) at the very least you need to cover:

  • how will support staff communicate your office hours to clients?
  • what expectations are on you in terms of service delivery?
  • what technology requirements need to be considered?
  • what internal meetings are you expected to attend – can they be attended remotely?
  • what marketing burden do you have – are you expected at networking functions or presentations?
  • how will you receive instructions from the office?
  • how will your boss give your work feedback (eg – if your boss is a red pen kind of person, that’s cumbersome if you work from home mostly)?

In client service the biggest question is this: how is the quality of your service going to be maintained?

In most cases it’s not that hard for one person to do. However, because you work with other people, they need to be on board with the plan. And often that’s where the wheels come off, because person A likes to work person A’s way, and person B likes to work differently.

It’s not just the work arrangements that need to be flexible – it’s the people too.

Culture Shift

Working full time as a lawyer is simply the norm in many firms – it’s the culture.

The truth is that flexible work in many firms is viewed as a consolation prize. “Oh – you’re not quite up to full time work yet, huh? How about you try flexible work instead for a while, at least until things are back on track”.

I don’t know about you, but I’m not sure the fact that I don’t want to spend 60 hours in the office and have other things to do in life renders me a second rate citizen.

Sure – for some people flexible work is a temporary arrangement. But that doesn’t make it a backup plan. It’s a season, and one which should be enjoyed rather than one you should feel guilty about.

If your firm genuinely wants to embrace flexible work as part and parcel, then we’ve got to redefine what “normal” is.  As it stands, normal is to turn up to work every day, work until you drop, go home and sleep, then do it again.

For some people – normal sucks.

One of the best ways to do this is to encourage/allow your senior staff to have flexible work arrangements. If your firm is going to say that it encourages flexible work as part of its culture, then why is it that not a single partner in your firm is part-time? Yes – even Bruce who has 15 children and a wife who runs a business from home, is in the office at 6am and leaves at 8pm.

Because that’s normal. It’s expected. It’s all Bruce knows how to do, and Bruce doesn’t want to be the first one to “break the rules”.

Change what’s normal.

Promotions and Pay

This is a challenging area.

On the one hand, I don’t subscribe to the view that two 10 years PAE lawyers have the same experience, if Lawyer A took 5 years off to meditate in Tibet, and Lawyer B did not.

On the other hand, Lawyer A might still be a superior lawyer.

Although it’s a topic for another day in more detail, we’ve got to start thinking outside the box more when it comes to promotions and pay.

Blind Freddy knows that most law firms still adopt a myopic process that considers these:

  • what do our competitors pay?
  • how many years PAE is this lawyer?
  • how much, and at what rate, can they bill?
  • what’s the least we can pay them and have them not leave?

Not surprisingly, most lawyers are fairly career oriented.  Yes – they want to have their cake and eat it too.

Although some firms take exception to that, it’s the truth. Some lawyers want to have BOTH flexible work arrangements AND a career path. But at the same time, if the unspoken rule is that going down a flexible path is a death knell for your career, then why would they take that risk?

And if they’re excellent lawyers, serve your clients well and make your firm money – why should you care?

If your firm wants to genuinely embrace flexible work, then you need to build – from the ground up – a brand new way of considering how promotions and pay are going to function.

There are Plenty More

These are the big ticket items, but frankly there are a lot of moving pieces in the flexible work equation.

What do you think? Have you tried flexible work arrangements? Did it work or not?

Advocacy for New Lawyers – Your First Time on your Feet

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It’s going to happen – at some point in your legal career you’re going to have to come out from behind your desk, stand up, and speak to a Judge.

It’s awesome.

But it’s terrifying.

Advocacy for Beginners
There there – it’ll be OK

For many lawyers, their first Court appearance is a combination of exhilaration, terror, over-preparation and anti-climax.

After all – it’s usually a fairly low key event (an adjournment, a consent order or the like).

For some, they’ve already had experience instructing counsel at a hearing and so they have a feel for the environment and the procedure. But nothing quite prepares you for the first time you open your mouth.

Will you fluff your words? Will you get the formalities right? Will something go horribly wrong?

Let’s take a look at some basic preparations and delivery skills that might help you get through that first nerve-wracking experience.

A Note: because of the international flavour of my readers, this article is focused on general skills not on Australian litigation procedure. It may be that some things go a bit differently in other jurisdictions, and if that’s the case for you please help us all out by commenting with any differences you think are relevant.

First – Find out What the Heck’s Going On

I’m going to assume here that you’re probably not running a trial as your first ever Court appearance.  Most likely it’s going to be something a little more straightforward.

Of course your inclination is going to be to over-prepare. You’ll want to read everything 16 times to make sure that silly mistakes come in.  That’s perfectly fine, provided you have the time to do it and your employer doesn’t mind.

But if you have to make a choice, then here’s what I’d be focusing on:

  1. Who is your client and which party are they (Plaintiff, Defendant etc)?
  2. What are the basics of the dispute – what do each of the protagonists want and why?
  3. What are you there for in this particular hearing – are you asking for something, agreeing to something, opposing something – and what is it?
  4. Where does the Court’s power to do what you want come from?
  5. What should the Court do what you want?

At first glance this sounds like a lot of work. But let’s take a common example of consent directions. Your internal thinking might look like this:

I act for Mrs Smith, the plaintiff in a debt claim against Mr Jones, the defendant. This is the first return date of the matter, and the parties have agreed on some directions that they would like the Court to make for the conduct of the matter. The power to make the orders comes from the Court Rules. The timetables have been agreed having regard to the size and complexity of the matter and the parties’ capacity.

See – not too bad in that example, right? Often (not always), that amount of preparation will get you enough background knowledge to be getting on with.

Next – Prepare your Documents

This is going to vary wildly.

Probably the documents which kicked off the whole hearing have already been filed, unless you’ve been passed an “urgent” curveball.

Sometimes you won’t need to prepare any documents at all – either because it’s been done for you already or it’s simply not needed.

If in doubt, check the relevant Court rules and see what’s expected – do that.

Commonly, you might need:

  • an affidavit – perhaps showing the latest correspondence or the consent of the parties;
  • a list of material on which you rely;
  • draft orders for the Court;
  • a speaking note;
  • written submissions.

If you’re not sure what you’re doing or how to prepare a needed document, find someone who can give you an example or a guide.

Obviously documents you prepare should follow some good drafting procedures.

Check the Procedure

What, exactly, will you have to do?

If you’ve actually never stepped inside a Courtroom before your first appearance, then you won’t necessarily understand the unspoken etiquette, the procedures and the order of events.

Because these kinds of things don’t always find their way into the Court rules, you’ve got two viable choices:

  1. go to a hearing similar to yours to watch beforehand, if you can;
  2. ask someone who knows.

For example, in the Supreme Court in Queensland generally applications follow this basic set of events:

  1. The senior Justice on the day calls each matter on the Court list in order (a “callover”);
  2. Each party gives an estimate of time to the Court and, sometimes, a brief (15 second) summary of what the matter’s about, whether there’s consent between the parties, or critical matters;
  3. The Justice then decides what order the matters will be heard in, and tells the Courtroom;
  4. The parties’ matters are then called in that order;
  5. When your matter is called, each party announces their appearance (name, firm, party) and hands up their material;
  6. The Court may read the material or ask for submissions;
  7. The parties are heard in turn;
  8. The Court makes a decision about what it will do next.

However, your jurisdiction might do things completely differently – so learn the local sequence of events.

Prepare What You’ll Say

[clickToTweet tweet=”If the Court asks you a question – listen to it, and think before you answer. ” quote=”If the Court asks you a question – listen to it, and think before you answer. “]

In case you haven’t noticed, we’ve only just now come to actually speaking. That is the nature of advocacy – you do a lot of preparation, and the event itself is often much shorter.

In this case, everything you’ll have to say (other than questions to address) will be instructed by what you’ve prepared earlier.

Remember – what you’re going to say is not necessarily just a repetition of your written submissions. Perhaps you might just rely on them, hit the highlights or something in between.

However, you need to be prepared for the fact that the Court might not want to read your submissions on the spot and you’ll need to give it the gist of your client’s arguments.

This is one of those areas where I suggest you bite the bullet and actually practice, out aloud, saying what you’re going to say.

Your Honour, my name is Hargreaves, initial C. I am a solicitor with [name of firm] and I appear for the Plaintiff in the matter, who is the Applicant today.

It might seem silly, embarrassing or corny to do this: get over it.

When you’re thrown into the alien environment of a Courtroom, you can’t assume that it will be as easy to say simple things as you thought (at least – not when you haven’t done it before).

Generally a speaking note is an outline only.  By now you should know your client’s case, the material and your legal principles well – you don’t need to write everything out word for word.  What you need though, is something you can refer to so that you don’t miss important points, forget case citations, or can reference your material easily.

On the Day

OK so now you’re well prepared and the day has come.

Prior to the hearing, here’s what I suggest:

  1. Eat. The last thing you need is to get the shakes because you’ve got low blood sugar
  2. Pack. Having a list of what you need to take can be handy, but isn’t mandatory unless you’re the kind of person who needs one.
  3. Have one more copy of every document than you think you’ll need.
  4. Get there 15 minutes early. Any earlier and you’re wasting time, but don’t cut your arrival fine. Sit inside the Courtroom if you can, and get used to who is there and what’s going on.

When your time comes, ensure you get your paperwork in order. Things where you can reach them, copies for the Court as needed and your speaking note front and center.

Take your time when you speak. If the Judge isn’t listening – be prepared to pause briefly until he or she looks up at you.

If the Court asks you a question – listen to it, and think before you answer. Don’t um and ah, but don’t be afraid to take a few seconds to consider how to phrase your answer (perhaps not 10 minutes though).

If doubt, keep your hands behind your back – that way you can wring them together rather than fidgeting with your paperwork, and the Judge can’t see you doing it.

Speak to your note. Accept interruptions and deal with them. Then sit down and be quiet.

Afterwards and Beyond

How’d you go?

What would you do differently next time? What do you have to work on? What did you learn?

Do you have any tips for young advocates that you’d like to share? Let us know in the comments!

Should you Egg your Client On?

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Client care can sometimes be a delicate balance of compassionate reinforcement and “tough love” advice.

But how do you decide when you should encourage your client in their proposed course, and when you should be advising caution?

Bad Choice #1 – Always Saying Yes

Although saying yes to things all the time is a fairly poor choice for you personally, it’s also a pretty bad way of advising your client.

This particularly seems to come up in litigation, where unscrupulous lawyers like to play to the crowd and encourage their prospective clients into litigation. They tell war stories as if every matter has a happy ending and brings affordable justice for all with no potential to go wrong.

It’s the pinnacle of self-interest, really.

After all – if they sue someone, you might get the work, right? And it’s pretty easy to catch someone who’s angry and stroke their ego a bit until they boil over and say “GO AND SUE THEM – RIGHT NOW”.

But the role of trusted advisor extends not only to your existing clients, but also to those who might be your clients in the future.

It’s just plain dumb to encourage anyone to jump into a hornet’s nest of pain without them being pretty comfortable with how it’s likely to go.

How do you think that’s going to go in the long run?

Bad Choice #2 – Always Saying No

On the flip side of the lawyer who always eggs their client on is the lawyer who can talk a client out of anything, ever.

These lawyers have a tendency to focus on everything that could go wrong, and consider themselves duty-bound to explain 1000 different variations of woe to their potential clients before they even write a letter.

The danger here is that every client becomes so disillusioned with the legal system that matters which have merit don’t proceed – simply because the lawyer gives such a negative presentation of the situation and the risks.

Of course the risks are important, but much like the first approach, the second also generally fails to give a considered view of the system and the options.

The Right Choice – A Coin with Two Sides

As is often the case, going “full positive” or “full negative” are terrible ideas.

A combination of the two is usually called for.

On the one hand, I rarely see any problem encouraging clients to explore their legal options. This might be mildly gung-ho but at the end of the day it’s the only way your client’s going to get good advice about their choices.

I also have no problem with explaining risk. A failure to explain risk will not only get you in ethical trouble, but will probably cause damage to your client relationship.

Knowing where the balance should be found normally involves knowing your client. Are they inclined towards risk? Are they a sophisticated consumer of legal services? What kinds of questions or concerns have they had in the past?

Perhaps it might go something like this:

I appreciate you want to go down path X and why.  As you’ll appreciate, path X might result in A, B or C happening.  A is fairly likely, but in my view B and C are a little remote. Are you comfortable with that?  The up side is that if path X works as you might hope, then you might get Y or Z.

Risk and reward.

Remember What your Job Is

It’s not your job to make the decision for your client.

It’s not your job to push your client down a certain path.

It’s your job to advise your client and help them make the best decision they can.

Have you seen “gung ho” lawyer or “risk averse” lawyer in action? How’d it work out? Let me know in the comments!

Happy Lawyering!

The Myth of the Heartless Lawyer

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Although we’re often painted as cold and unfeeling, the fact is that most lawyers got into the profession because of a deep desire to connect with and help other people.

Sometimes we just let our manner and our education get in the way of our humanity.

Impartial lawyer
To bad, so sad

But Aren’t we Supposed to be Impartial, Objective Advisers?

[clickToTweet tweet=”Pretending that you have NO emotional connection with your client or your self is dangerous.” quote=”Pretending that you have NO emotional connection with your client or your self is dangerous.”]

Yes and no.

The success of your practice is ultimately going to be determined by your ability to connect with people.

Human people.

At a human level.

The means you need to command not just logic and law, but emotion and character as well.

Our objectivity allows us to deliver the correct advice in a situation as best we can.  It ensures that our ability to give sound legal opinions isn’t skewed by our emotional connection with our clients.

But pretending that you have NO emotional connection with your client or your self is dangerous and false. It’s also going to harm your career over the long term. Let’s take a look at why.

Dealing with Errors Requires Relationship Management… Not More Law

You’re going to make a mistake in your career.  Probably more than one.

And when you do, there are no legal texts in all the world that will tell you what’s going to happen next.

Because what happens next is emotional, at two levels:

  1. your own reaction to the situation – heart thumping in your chest, stomach churning and inability to sleep
  2. your client’s reaction to the situation – dealing with the error means you’re going to need to have both an existing relationship with your client that will get them through it, and the emotional intelligence to honestly, ethically and effectively move on from the mistake without eroding trust.

Litigation Requires Heart

Anybody who works in disputes needs to be particularly attuned to the emotional state of their own client, and the other side.

There’s necessarily a bit of speculation here.

But responding to argumentative letters, deciding upon 1 out of 10 options, and dealing with high-cost, high stakes decisions requires a lot of emotional labour.

If you are blind to the emotional consequences to your client or the other party, then you’re more likely to give poor strategic advice. You’re also less likely to see warning signs that things are getting out of hand at either side of the bar table. You can’t react to what you don’t see, and so if your client suddenly has a meltdown you’ll be taken unawares.

Of course the same considerations are required in commercial and personal matters – but as litigation is longer term, you have a greater opportunity to try and use emotion as part of your overall approach.

Negotiated Resolutions Are Emotional

Most litigators these days encourage alternative forms of dispute resolution fairly early in the piece.

But that’s not always a good idea.

If you accept (as you should) that big decisions are rarely made on logic alone, then factoring the emotional status of your client and their opponent into the decision to negotiate is an absolute must.

Not just WHAT you say when you are in negotiations, but WHEN you should enter into negotiations at all.

Sometimes early negotiations are a bad idea – not because early resolutions are bad, but because the emotional response to the situation is still so irrationally raw that the emotional factors completely blot out the other pieces of the puzzle.

A few days, weeks or months can make a big difference when you’re deciding on negotiation strategy.

Building a Practice Requires Human Connection

I’m sure the continued obsession with AI might have you concerned, but the truth remains the same: people work with lawyers that they know, like and trust.

It’s been true for a long time.

Trust requires vulnerability.

Vulnerability requires emotion.

You can’t create human connection over the long term with your encyclopaedic knowledge of Civil Procedure.

Civil Procedure is just a tool.

It’s YOU that creates the connections that build your practice.

Wellness Requires Emotion

[clickToTweet tweet=”Self-awareness is a critical factor in your success over the long term.” quote=”Self-awareness is a critical factor in your success over the long term.”]

Pretending that you can compartmentalise your emotions completely is a recipe for disaster in your mental health.

It’s true that we might need to be a little careful here.  After all, your client may not be well served by you bursting into tears after something goes wrong.

However, that doesn’t mean you didn’t have an emotional response at all – it just means you needed to consider what your reaction was to the emotion.

Self-awareness is a critical factor in your success over the long term. Not just awareness of your strengths and weaknesses, but awareness of your emotional reactions and what they do to you over time.

How are they changing you?

Are you shutting off the emotional side and becoming cold and callous? Are you engaging in coping mechanisms? Are you constantly cynical?

A fully integrated human being must consider all of the aspects of themselves.

Otherwise you’re on the path to burnout and involuntary career change.

Those are My Top 5 – What are Yours?

I’m sure that emotional integration into your practice isn’t limited to these 5 areas.

What are some areas where you see the need for lawyers to embrace their emotions in order to serve their clients or retain their wellness?

3 Ways your Mobile Phone Controls your Life

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Who really wears the pants in your relationship with your phone?

Let’s start by stressing something: as well as being a lawyer, I’m a digital strategist and consultant. The chances that I’m going to write something recommending you bin your phone are fairly slim.

In a world where you can be permanently “on”, using a mobile phone effectively over the long term isn’t about occasionally fasting from your phone, it’s about ongoing relationship management.

So let’s ask an honest question to open up the discussion: are you using your phone, or is it using you?

It’s convenient, therefore it’s better.

This is what every mobile phone owner (which, let’s face it, is pretty much all of us) tells themselves.

Convenient access to:

  • the phone (although less so now!)
  • email
  • messages
  • Facebook
  • Twitter
  • Linkedin
  • this awesome website
  • and so much more!

With >2m apps in the Apple store and nearly 3m available to Android, the options of what you can do on your phone are pretty massive.

But can doesn’t mean should.

Ding! – You’ve got Mail

How do you react to notifications?

Is your phone so close by that you can just casually glance at it and see if it’s something more important than what you’re doing right now?

Were you looking at your phone anyway?

Perhaps you’ve got a smartwatch and can see your notifications come through straight away even if your phone’s not nearby.

Do you leave the dinner table (if you’ve got one) to check?

Put it this way: if your phone says “jump” do you say “HOW HIGH?!?”

If so – phone 1, human 0.

Just There… In the Corner of your Eye

Or perhaps your brain.

How much do you think about what’s happening on your phone?

Let’s compare that to, say, how much you sit back and think about your career.

Or your family.

Or your spiritual life.

If “just checking” your phone is occupying more of your mind, your attention and your time than anything else is, then it’s quite possibly a more important relationship that those others.

And if that’s happening, then there’s a chance you’re failing at life a bit.

Fear of Loss

Have you ever misplaced your phone? How did you feel when it happened?

Fear? Irritation? Anger? Panic?

Did the loss of your phone hurt you?

Of course, the phone is just a somewhat expensive piece of electronics.

But for many of us it’s become and essential piece of connection, and the loss of it can feel tangible, like we’ve lost a friend or a limb.

The level of attachment you have to your phone is a sure fire sign that it’s got more control over you than you have over it.

If you can’t leave the phone in the house without breaking into a sweat, then perhaps you’re more like the puppy who barks when they get put outside then you care to think.

Any Many More…

The point here isn’t to list out every way that your mobile is the decision maker rather than you.

It’s to encourage you to use your phone… not the other way around.

Have you ever witnessed the unfortunately power of the mobile phone? How’d it work out? Let me know in the comments!

How You can Assess a Law Firm’s Culture… Quietly

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Many law firms are attempting to “create” or advertise their firm’s culture by reference to the perks they offer.

Apply to work with us and get your birthday off, free Friday drinks and the best blue pens on the market!

While I do enjoy a good quality pen, it’s got nothing to do with culture.

The Challenge about Culture

Unfortunately assessing culture is very difficult for most job candidates.  Usually you’re just desperate to find a job – the chances you’re going to ask hard questions or ask to speak with people who aren’t presented on a silver platter are pretty slim.

You want a job.

You don’t want to rock the boat.

So what can we do about it?

Why Bother?

My guess is that most people spend more time researching their next phone then they do researching the firm that they might spend 20 years of their life at.

Not very smart.

I suspect it’s not because they don’t want to know more, but because they’re simply not sure how to go about it.

So to give you a helping hand, we’re going to take a look at one way to assess a law firm’s culture from the outside.

Want to Assess a Firm’s Culture? Look Up

The culture of a law firm is inevitably tied to the behaviour of its senior staff.

An important distinction here: it’s tied to the behaviour of its senior staff, not the policies written by the HR department.

Don’t fall for the “we’ve got a policy about that” trap. Policies have nothing to do with culture at all.  There are a tonne of firms who have policies which bear no resemblance to the actual behaviour of their people.

The reason that culture reflects the senior lawyers is fairly simple – it’s about how the firm was built in the first place.  Here’s how many firms came to be:

  1. A lawyer, or a group of lawyers with common approaches, decided to start a firm
  2. They opened their doors and saw some success
  3. They started hiring more lawyers – often from a pool of people they knew already
  4. Those lawyers started behaving like the founding partners – because in a small firm that’s what you need in order to survive
  5. Every new lawyer gradually copied the M.O of those who had come before.

People who don’t fit the mould normally leave the firm or are booted out.

Thus: culture is born.

A system where the unspoken rules, customs and behaviours of the firm are essentially self-managed.  Outliers don’t last too long, with rare exceptions. People become more senior in the firm only if they largely reflect the culture that was already there.

So we need to look up. But how do we do it?

Ignore the Firm’s Website

The absolute last place you’re going to find anything helpful is on the firm’s website.

The only useful information you’ll get there is a list of the partners’ names. Everything else can usually be ignored.

Start with People

Of course the best way to find out about a firm is to ask somebody who:

  1. works there; and
  2. you trust.

Duh.

In doing that though, you need to ask the right questions if you want to find out about culture.  Just asking “what’s it like” is a complete waste of time.  They’ll say “yeah it’s alright” and that will be the end of the discussion. Ask more detail, specifics – find out what a day is like, who they work for, how people speak to each other, what kind of language people use, how the professional staff treat the non-professional staff.

But let’s assume you either can’t bring yourself to do that or don’t know anyone.

Enter… Social Media

If you can assess culture by assessing the senior lawyers, then here’s your job:

  1. find out who the senior lawyers are;
  2. see what kind of stuff they do publicly.

LinkedIn – Spy Mode

Make a list of all the senior lawyers you care about at the firm. This might be just the partners, or it might be the members of the group you’re looking to join. Chances are you’ll find their names and pictures somewhere on the firm’s website.

Next, head on over to LinkedIn. If you care about not being “seen” to spy on people, then adjust your settings so that people can’t see your profile information while you’re surfing.

Type in Spy Target 1’s name to the search bar at the top of the page and head to their profile.  Let’s assume you’re spying on me.  Here’s what you will find:

chris hargreaves linkedin profile

So why do we care?

Because, with a little attention to somebody’s LinkedIn profile we can find a lot about what kind of person they are.

And if we can get data on a few people in the same firm, we can start to get an impression of what the firm is like and the kind of people that work there.

Naturally you’re going to be making some snap decisions here, based on impressions rather than facts.  However, the more people inside a firm you can look at, the better picture you’ll get of what the firm does and doesn’t tolerate, and what kind of people hang out there.

Their Headline

A person’s headline will tell you:

  1. what they think of themselves
  2. whether they are trying to be “markety” in the way they describe things – eg “I help people solve problems” rather than “Senior Associate at [Firm]”
  3. whether their firm allows a sense of humour or not

Their Summary

You’ll probably get some similar, but more detailed, information here.

If this is just a cut and paste from their law firm website, then perhaps:

  1. their marketing team might have done it
  2. they don’t use LinkedIn much or don’t care to
  3. they are a bit boring.

Again – look for humour, self-deprecation, marketing talk, bombastic language and any phrases or words that give you a clue about the lawyer in question.

If they use Latin in their profile summary, then that probably says something about them…

Where the Rubber Hits the Road – Their Articles and Posts

[clickToTweet tweet=”You can’t assess culture with policies, perks, pay or parties.” quote=”You can’t assess culture with policies, perks, pay or parties.”]

While the headline and summary will give you a snapshot about a person, the best way to find out about them is by looking at what their activity is.

Why?  Because while most people think about their headline and summary and “craft” them in a deliberate way, many people don’t appreciate just how public their “likes”, comments and shares are. As a result, they are much less guarded and deliberate, and can often give you more accurate and honest information about someone.

How to find it? Head to somebody’s profile, and scroll to the part that says “[Person’s] Activity”.  Then click “See all activity”.

From there, you can quickly scroll through looking at the posts they have liked, written and commented upon.

Last – Compile, Collate, Assess

Just like you would if you were gathering evidence for a client, once you’ve done this enough (or until you get sick of it) you will be able to get a “feel” for the people in the firm.

Did you notice any trends in your assessment?

Are the people you looked at consistently:

  1. funny
  2. arrogant
  3. serious
  4. mild
  5. kind
  6. mean
  7. swearing
  8. polite?

Remember – Culture is People

You can’t assess culture with policies, perks, pay or parties.

You can only assess culture with people.

Happy Lawyering!

The Netflix Cease and Desist Letter Most of you will Never Write

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By now there’s a good chance you’ve seen the pretty awesome Netflix cease and desist letter asking a popup store to refrain from breaching its IP.

It’s cool, right?

And around the world, people are saying how great it is and wondering why more lawyers don’t approach these things in a similar way.

Here’s why.

In case you missed it

The Cease and Desist was Written by Netflix Counsel

You obviously noticed this, right? The letter is written by in-house counsel, not an external lawyer.

Which means that they are aware of how Netflix works, what its culture is like and what its tolerance for humour is.

Although it might be desirable to have a client relationship like that, most external lawyers have nowhere near the relationship with their client that would tempt them to write such a letter.

And even if they did have that kind of relationship – they still probably wouldn’t do it for the reasons we deal with below.

Most Clients Wouldn’t Think The Netflix Letter is Funny

[clickToTweet tweet=”If you write a letter like the Netflix one, you’ll probably get fired” quote=”If you write a letter like the Netflix one, you’ll probably get fired”]

I’m all for authentic legal writing, and I think the Netflix cease and desist letter is brilliant.

But many clients wouldn’t want their legal issues viewed through a lens of humour – because to them, it’s not that funny.

In fact, for many clients if they’ve had to go to a lawyer then something extremely bad is happening.  They’re stressed, worried and generally a bit tense about the whole experience.

While some tact and client care can certainly help those issues a lot, making light of your client’s problems probably won’t – and that’s exactly what this letter is going to read like in the eyes of some clients.

Remember – your correspondence isn’t just for its recipient, it’s for your client as well (and, as it turns out in this case, the world at large).

Nobody wants to be the lawyer whose client thought they weren’t taking a legal issue seriously enough. The client will fire you and look for someone who actually cares about their issues.

It’s Circumstantial – Netflix Would go Mental in Stranger Circumstances

With an annual turnover just shy of $9billion, Netflix isn’t likely to be toppled by a scrappy pop-up store breaching its IP.

Do you think that Netflix counsel would have written the same letter if, say, Apple had just copied the entirety of its library, systems, interface and client database?

Probably not.

Netflix can afford to be a bit more relaxed about this particular problem – and that says good things about them.

But don’t kid yourself that Netflix takes every legal issue as casually as it has taken this one.

Remember how people used to be able to unlawfully view Netflix content outside their location using VPNs and pretending they were in another country?  Notice how they can’t do that now?  That’s because Netflix crushed it (eventually).

Tell me this: how kindly do you think Netflix counsel will be if the pop-up ignores their cease and desist letter?

Your Firm Won’t Let you Write like Netflix

[clickToTweet tweet=”Other than the chance that you send someone an email while drunk, you’re not going to do it” quote=”Other than the chance that you send someone an email while drunk, you’re not going to do it”]

In a world where most law firms don’t even let their staff produce marketing articles in the first person, what are the chances you’re going to get a letter like the Netflix cease and desist out the door?

You won’t.

Perhaps if you run your own firm, you might decide to take a more casual approach to such correspondence, and you might be able to convince your clients that it’s a good idea for their business.

Other than that, and the chance that you send someone an email while you’re drunk, you’re not going to do it.

I know… I sound like a Wastoid Right?

Yeah yeah – Chris is being all practical, serious and gloomy again (actually I don’t know what a wastoid is, because I haven’t watched Stranger Things, but hopefully it’s not rude and I’m using it right from the context…)

Netflix did a fantastic effort with this cease and desist, and it’s getting them all sorts of good publicity.

But you’re going to find that it’s not going to cut the mustard in the real world.

The combination of dumb firm policies, clients who are ultra-stressed, and matters that are more contextually weighty than this one are going to mean that any references to Dr Brenner probably won’t make their way into the final letter.

So what do you think – SHOULD lawyers be writing like this more often, or is this a unique set of circumstances that ought not repeat itself very much?

Happy Lawyering from the Upside Down!*

*I don’t know what that means either…

When your Ego Writes your Letters for You

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I’m all for authenticity in legal writing. But there are some limits.

Those limits kick in right around the time where I can tell the lawyer’s ego is getting in the way of client service and good decision making.

Let’s take a look at what we’re talking about.

methinks it would behoove you to opine as to the rationale upon which your client did engage in the abovementioned conduct within 1 hour of this correspondence, failing which our client will apply forthwith for your client’s beheading

Ego Driven Letters

[clickToTweet tweet=”are you a lawyer that lets their ego write letters?” quote=”are you a lawyer that lets their ego write letters?”]

No hard and fast rules here, but there are a few signs that a lawyer is letting their ego write their correspondence:

  • superlatives – “your client’s case is clearly doomed to fail”;
  • language – words like otiose, collogue, methinks and behoove suggest that the writer’s sense of self-importance is tied up with their vocabulary;
  • the speed of reply – if you get a 9 paragraph response inside 6 minutes, there’s a good chance they are “shooting from the hip” – never a good idea;
  • lack of mentoring – if a practitioner has only ever worked for themselves, then this is often evident in the way they communicate;
  • extreme aggression – letters written by ego have a tendency to be extremely aggressive and packed with unnecessary deadlines and threatened actions.

The issue isn’t really one of words, tone or attitude though – it’s one of priorities.

It doesn’t especially bother me* if somebody wants to write “methinks it would behoove you to opine as to the rationale upon which your client did engage in the abovementioned conduct within 1 hour of this correspondence, failing which our client will apply forthwith for your client’s beheading”.

*except the beheading part – that’s uncool.

What concerns me is whether they are doing their client a disservice in the process, or bordering on ethical no-nos.

Which leads nicely on to this… how people justify writing like a git.

The “Passionate Advocate” Justification

A passionate defence of our client’s interests is an important component of legal practice.

Many lawyers use this principle to justify obnoxious behaviour.

To them I say this:

  1. can you achieve the same result without the obnoxious behaviour?
  2. has your client specifically instructed you to be as difficult as possible?
  3. have you explained to your client the strategic pros and cons of being extremely aggressive?

You can passionately and effectively represent your client without calling your opponent names, behaving like a goose, and puffing out your chest at every available opportunity.

If your letter can achieve its legal and strategic goals without engaging in school kid antics, then it’s not “passionate advocacy” – it’s ego.

The “I’ll Throw Them Off Their Game” Justification

[clickToTweet tweet=”Do your job – don’t let your ego try and do it for you. It simply doesn’t have the qualifications.” quote=”Do your job – don’t let your ego try and do it for you. It simply doesn’t have the qualifications.”]

Some people think that writing ultra-aggressive letters packed with hyperbole will somehow imbalance their opposing counsel and throw them off “their game”.

It’s true that you might sometimes get a reaction from your counterpart, rather than a response.  For the short term, that might feel like you’ve done your job.

Over the long term though, what do you actually achieve?

Well – first, you clock up lots of fees.  Great for you, less great for your client.

Strategically, you usually don’t achieve anything at all.  Over the entire matter, these tiny exchanges of self-serving correspondence usually achieve nothing.  They are rarely (if ever) necessary for the matter to proceed.  They rarely clarify any issues.  They rarely “beat down” the other side. They rarely convince anyone to “give up” their case (if anything, they polarise the parties and annoy everybody, reducing the chances of the matter being compromised on sensible terms).

In real terms, the chances that you’ll distract or infuriate anybody so much that the matter simply falls into your client’s lap are so close to zero that you wouldn’t be a dollar on it at the races.

So, in the absence of achieving anything meaningful for your client, your ego driven writing style is just a chance to pat yourself on the back and tell your unsuspecting mates at the pub how you’re so clever.

What’s that called? Ego.

The “War of Attrition” Justification

Perhaps if you send a long, aggressive and threatening letter every other day for the next 19 weeks, your opponent’s client will be worn down and simply give up or run out of money.

It’s possible.

But you’re making an assumption here too – that your opposing lawyer is a moron, incapable of discerning your fairly transparent motivations and dealing with it accordingly.

You’re also wasting a huge pile of your client’s money in the process as you try and fling rocks over and over again on a hope that perhaps, just perhaps, they’ll give up.

Will it work? Maybe.  It’s true, I’ve seen it work.

But I’ve also seen it fail spectacularly.

So… Keep your Ego in Check

Lawyers have big egos.

We’re well trained, educated and usually think quite highly of ourselves (rightly or wrongly).

But our job isn’t to stroke our own egos or incite our clients to litigious aggression – our job is to represent our clients diligently while serving our duty to the Court and to the administration of justice.

The fact that your clients might like your aggressive letters is irrelevant – for the same reason that the cheering at the Colosseum didn’t make it a good place.

Your sense of satisfaction is also irrelevant.

Do your job, and don’t let your ego try and do it for you. It simply doesn’t have the qualifications.

Happy Lawyering!

3 Times your Client Isn’t your Top Priority

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The other day I saw a social media post from a well known firm.  Together with a lovely image, it said that:

the client always comes first

It’s wrong.

client service for lawyers

 

I’m not here to suggest that your client isn’t important.

In fact, your client is clearly someone you want to look after, and excellent client service is a critical element for any law firm that wants to survive. If you don’t look after your clients, you simply won’t have any.

But there are two problem words in the statement:

  • “always”
  • “first”.

Let’s explore.

Legal Ethics 101

[clickToTweet tweet=”law and the legal profession need to distinguish themselves – we’re not just hired guns” quote=”law and the legal profession need to distinguish themselves – we’re not just hired guns”]

The first barrier to your client coming first should be obvious: your ethics don’t allow it.

In Australia, at least, the chances are that you’ve got something similar to this looming over you:

A solicitor’s duty to the court and the administration of justice is paramount and prevails to the extent of inconsistency with any other duty

So while it’s a cool marketing tactic to say that your client always comes first, this is where law and the legal profession need to distinguish themselves – we’re not just hired guns.

There are any number of things your client may like you to do which you simply can’t.  They include:

  • hiding relevant information from the Court
  • lying to another party or the Court
  • destroying documents
  • allowing your client to destroy documents
  • continuing to act when you know your client has lied to the Court.

These things aren’t always the easiest to explain to your clients, but they are an absolute necessity – and they mean that your client doesn’t come first when it comes to the administration of justice.

Family

[clickToTweet tweet=”all things being equal – clients don’t trump family” quote=”all things being equal – clients don’t trump family”]

This one is challenging on a number of levels.  After all, many people say “family always comes first” but that’s just as untrue as saying “clients always come first”.

It’s subtle and requires a case by case assessment of your priorities and the urgency or importance of an issue.

If I’m in the middle of singing happy birthday to my daughter and a client calls my phone, there’s a pretty good chance I won’t answer.  I’ll call them back at some point, of course, but I’m not going to allow a special occasion to be so easily interrupted.

Similarly, if I’m on an urgent call to a client who’s having a massive problem and needs my help, I’m unlikely to hang up on them just because my youngest daughter wants me to read her a book again that I’ve just read her 19 times in a row.

If I consistently put every single family requirement above every single client requirement, then I’m doing a disservice to my clients.

But the opposite is just as true.  If I work 20 hours a day in order to serve my clients, but don’t interact with any member of my family for days on end, then I’m failing as a family member.

But all things being equal – clients don’t trump family.

Self

Put on your own mask before you come to the aid of others.

Most people know by now that the profession has huge problems with mental health and substance abuse.  These things affect your family (see above) and your self.

The legal profession can be extremely challenging on a number of levels.  Clients can be very demanding, as can your employers.  Courts can impose very tight deadlines, other parties can make your life a misery, and most of us place very high standards on ourselves along the way.

You don’t want to let people down, and neither do I. But that attitude, if taken to extremes, can mean we have a tendency to ignore our own health.

If you haven’t got yourself sufficiently sorted out, you’re not in a position to discharge your duties to your client.

If your personal life (finances, relationships, mental health, physical health – whatever) is a complete mess, then do whatever it takes, for however long it takes, to get that sorted out before you continue practice.

Sometimes the “fix” might be small. Sometimes it might be complex and take a long while.

And sometimes it might mean that you need to leave the profession entirely for a time.

That’s not an easy decision to make – but it’s a necessary one.

Clients Don’t Always Come First

“The client comes first” sounds nifty, but isn’t true.

Client service is important, there’s no doubt about that.

But legal practice is more complicated than a catch phrase.

Happy Lawyering!

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