Old Lady Lawyer: Effective Lawyering Is More Than Just Knowing The Law
Academic skills will always have their place in education, but they are not necessarily reliable predictors of effective lawyering.
Raise your hand if your LSAT scores sucked. Don’t be bashful; can’t you see my hand waving in the air? My LSAT scores were, in a word, dreadful, but that didn’t deter me from going to law school and passing the California bar on my first try. I’m sure that there are other readers out there with similar scores and similar stories. What about your grade point average in college? Although I went to Berkeley undergrad, my overall grades were not the best. So, I was not the best candidate for a successful legal career.
Several years ago, I served on the State Bar of California Task Force on Admissions Regulation Reform (TFARR). I was involved in the first phase, which made recommendations for how law students/new admittees can hit the ground running, so to speak, or at least, not limping, in terms of practical skills. Knowing which side of the counsel table to stand at, knowing where to find the clerk’s office, having a rudimentary knowledge of form books, knowing what a contract actually looks like may sound like a snap, but that’s not necessarily been the case.
Rather than rehash all that TFARR 1 and 2 suggested to the State Bar Board of Trustees, I’ll focus on TFARR’s discussion of lawyer competence, and how LSAT scores and grade point averages don’t necessarily correlate to whether someone will be an effective lawyer.
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Professors Marjorie Shultz, a member of TFARRs 1 and 2 and a professor emerita at Berkeley Law, and Sheldon Zedeck, an emeritus professor of psychology at Cal, studied what makes a lawyer effective. Their study, in the first decade of 2000, arrived at some conclusions worth thinking about, and not just for law students, but those of us who have toiled (and I think that’s the right word choice) in legal practice for years. It’s never too late, I think, to hone skills that we have and to develop skills that aren’t what they should be.
The study concludes that “effectiveness” connotes more than just “competence.” A lawyer can be competent, but ineffective. How is that possible? Think about it. It’s not just the technical skills that matter in the practice of law.
While classroom smarts may get a student law review membership, Order of the Coif honors, and other law school distinctions, the Berkeley professors found that there is an array of other competencies that are just as, if not more, important. They may not show up on resumes, but they show up in employment interviews, on the job, representing clients, appearing in court, working with colleagues, and everyone else that lawyers interact with regularly.
One focus of the study, which TFARR discussed at some length, was how law schools do not train prospective lawyers in these non-classroom competencies. What are they? The professors determined that there are twenty-six effectiveness factors, which they grouped into eight umbrella categories: intellectual and cognitive, research and information gathering, communications, planning and organization, conflict resolution, client and business relations-entrepreneurship, working with others, and character.
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I was especially interested in the conflict resolution category. One of the two factors, negotiation, is something that is taught in law schools, or at least in most law schools. It’s defined as “the ability to resolve disputes to the satisfaction of all concerned.” As a mediator, I know very well that settling parties aren’t usually overcome with satisfaction when resolving disputes, but they understand that resolving a dispute lets them control the outcome.
Another factor I found fascinating and, in a sense, more controversial, is the ability to “see the world through the eyes of others.” That is the ability to understand positions, views, objectives, and goals of others. How many times did I hear a client say, when I was discussing the pros and cons of resolution, that I “was taking the other side.” How many times have you heard that?
What’s the effectiveness there? The ability to see other points of view, the ability to understand that the law is shades of gray, the ability to do a risk analysis that may anger the client in the short run but that the client comes to realize reflects the right call in the end. While a lawyer may think that rigidity in viewpoint is effective representation, it is just the reverse. A lawyer’s failure to be able to see the other side can lead to unrealistic client expectations and to advice to the client that is uncompromising, pig-headed, or just plain wrong. Many lawyers give lip service to this ability to see ambiguities, but when it comes to their clients, they just don’t walk the talk. I can hazard a guess as to what one of the reasons for that intransigence might be, but that’s a topic for another column.
Another category, broadly classified as working with others, includes the development of relationships within the legal profession. Those relationships, especially in the early years of practice, may not bear fruit initially, but those relationships blossom over time. It’s the professional friendships created by working on bar association activities, pro bono collaborations, or whatever else that may bring newbie lawyers into contact with other newbies as well as older lawyers in the profession. It then means the difference between a cordial phone call to resolve an issue rather than a “screw you, see you in court” email to opposing counsel. Lawyers talk (shock!), and reputations for professionalism, civility, and collaboration can be made and trashed in an instant.
So, those of us who weren’t expected to succeed in law school based on the LSAT and GPAs (I’m talking to you law students and newbie lawyers, too) can take satisfaction in knowing that those two metrics aren’t everything, and in fact, according to the study, traditional academic indicators showed significant correlation with only eight of the twenty-six factors. What does that tell us? While academic skills will always have their place in education and employment, they are not necessarily reliable predictors of who will be effective lawyers — and isn’t that what we and our clients want?
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Jill Switzer is closing in on 40 (not a typo) years as a active member of the State Bar of California. Yes, folks, California, that state west of the Sierra Nevada, which everyone likes to diss. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see old lawyers, young lawyers, and those in-between interact — it’s not always pretty. You can reach her by email at oldladylawyer@gmail.com.
