We spend so much time with each other, lawyers, that is, that we forget that the skills we have (and take for granted) are skills that many people don’t have. We’re seen as “smarter than the average bear,” to quote Yogi Bear, not Yogi Berra, although I would guess that he would have had a few choice words to say.
What brought this to mind was talking with a former client, now friend, whose daughter is in her first year of law school. Remember that time? Depending upon your particular experience, you may shudder or have some other involuntary reaction. The daughter, let’s call her Annabelle, is working herself into a state of high anxiety over her first set of exams. In other words, she’s freaking out. Been there, done that. Haven’t we all? And if you say that your first year of law school was a snap, then you have Pinocchio’s nose.
She’s in the process of learning how to think like a lawyer, and whatever analytical processes she may have used in the past are in the process of being drummed out of her for good. Do any of us remember how we used to analyze before law school? I don’t.
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Ever since that first year of law school, issues and problems, whether personal or professional, whether mine or my clients, have been analyzed according to the way we learned in law school and how we practice. Annabelle is undergoing an analytical transformation that will last her whole life, that she’ll never be able to shake, that will affect not only how she practices, but how she interacts with people in every setting she encounters. She’s entered what to her is still an alien world, but to those of us on the other side of that transformation, we’re just waiting for her to make that leap.
Annabelle is smart and motivated (she didn’t start law school right after college, so she has some work/life experience); she’ll make the leap. She will have the normal bumps and bruises as she tries to wrap her head around the IRAC formulation instead of whatever approach used “pre-law.”
Things I think we take for granted include:
1. The way we look at the world and analyze it is second nature to us. Arguing with the non-lawyer, especially in a personal setting, brings that home very vividly. The lawyer approaches the argument from the IRAC formulation: what are the issues (facts), what’s the rationale or rule, what’s the analysis, and what’s to be done about it.
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Arguing with another lawyer, something we do most days, takes the same format, only then we’re arguing about the facts and whether there’s law that controls, whether it’s is on all fours, threes, twos, or ones, or can be analogized in some way to make the case for the client. We take our ability to be disputatious for granted. That’s how we earn our livings.
2. The ability to push back, to probe, to question, to not be satisfied until the answers satisfy, not to accept the easy answer just because it’s easy. Non-lawyers are often very hesitant to push back, to get the answers they need, which is probably why they hire us, but the ability to push back and not be easily satisfied is, I think, a special skill.
See if you fit this profile: you are at your doctor’s appointment with a list of questions that need answers, and you won’t leave until you’ve asked all the questions, written down the answers, and then asked any follow-up questions. Of course, as lawyers, we always remember the one question we should have asked but didn’t; that’s what a follow-up email to the physician is for.
3. The ability to be prepared, to strategize, to see around corners, to anticipate. Yes, there are some lawyers who are woefully underprepared or unprepared, (and we know who you are), but most lawyers are, to a greater or lesser extent, O.C.D. and prepare, prepare, prepare. That is the name of the game and one of the main reasons cases settle.
4. We research everything, not just the law. Whether it’s a trip, a restaurant, the latest tech gadget, whatever it is and whoever it is. We want to know every shred of information available (goes back to preparation, doesn’t it?)
5. We think on our feet. Unless we’ve done moot court or trial advocacy in law school, we didn’t really learn that skill in any depth until we started practicing. The first time in court is always a revelation, either good or bad. We either learn how to think on our feet (back to preparation again) or we skulk back to our offices, deciding that trial work is not for us.
However, it’s not just in court that we think on our feet. It’s in every aspect of our work as lawyers. We constantly negotiate. We negotiate with other lawyers; we negotiate with the court clerks for motion dates; you name it, we negotiate it. A large part of negotiation is being able to parry and thrust; we fence (no, not the receiving stolen goods kind).
6. And yes, even though our profession has its share of bullies (I’m not looking at anyone in particular here), we also push back (see above) against those whose thumbs often seem to be on the scales of justice. We take for granted our ability to speak on behalf of those who have no voice, who don’t know how or are afraid to speak up for fear of retaliation, of rocking the boat, of making a fuss. But these are the very people for whom a fuss needs to be made.
I don’t think we appreciate those skills that are second nature to us. Aldous Huxley, in his book Brave New World, noted that “Most human beings have an almost infinite capacity for taking things for granted.” We’re not exempt.
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 [email protected].