Advice

Professor William Birdthistle

Welcome to the latest installment of Lawyers & Economics, our occasional video series on financial topics by Professor William Birdthistle of Chicago-Kent College of Law. He’s joined in some of these videos by an acting professional: Johnny Kastl, television actor turned 2L at Iowa Law, better known to some of you as Dr. Doug Murphy of “Scrubs.”

In the last video, Birdthistle and Kastl tackled the Greek debt crisis. Sadly enough, that problem remains unsolved, to the detriment of the world’s financial markets.

Today’s topic isn’t going away anytime soon either. If you have — or are thinking of taking on — student loans, keep reading….

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This week’s column was initially going to be about setting fees, but then two lawyers pissed me off so I’m now writing about why technology sucks and needs to be controlled like a screaming 2-year-old on an airplane.

I took Friday off to chaperone a field trip with one of my kids to the Everglades. I promise if I ever get a Pinterest account I’ll post all the pictures of the alligators. On Thursday, I did everything but wear a shirt that said, “I WILL NOT BE IN THE OFFICE OR AVAILABLE FRIDAY.” I also emailed some annoying people that haven’t been out of their office, ever.

That day, one lawyer I emailed responded something to the effect of, “I know you’re going to be out tomorrow but,” and then asked me to do some work on our matter. The other lawyer called Friday morning, was told I was out and said, “Can you have him call me to discuss a case even though he’s out?”

Yeah, we all have smart phones, we’re all getting email in real time, and regardless of what we’re doing, the other side can’t comprehend that we are either really not available, or just don’t want to be available. Maybe we’re looking at alligators with our kids while our phone is back on the bus.

Being out of the office (and for those that don’t have an office, “being out of the office” is a concept, not a physical geographical location issue) is something lawyers need to do to avoid hating the practice of law, but it is becoming more and more looked down upon….

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I won’t say whether I actually heard these conversations or I just dreamt them.

First: The head of the business unit confronted with a new litigation matter:

“This is an outrage! How could they have accused us of this? We want to fight! Fight! Fight!”

“The defense costs will be charged to your business unit, which will reduce your bonus pool.”

“Settle!”

Second: One partner at a law firm — who wants to visit a client, make a presentation, and take the client to dinner — to a second partner — who is the relationship lawyer for the client:

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Okay, I confess: I made the headline intentionally provocative. You shouldn’t lie at all, and you should absolutely forbid witnesses from lying under oath. (If we, the lawyers, don’t obey the law, who will?)

I’m thinking today about a person who is not under oath and will be sorely tempted to tell an obvious lie. Don’t do that yourself, and advise others that it’s not great idea, too.

When are people tempted to tell obvious lies?

In the corporate context, a quarterly earnings announcement might boldly proclaim that the company earned $1 per share this quarter. The Street expected only 90 cents, so this appears to be great news. But there’s something else tucked into the earnings report that disappoints the analysts: revenue declined; margins compressed; organic revenue growth stalled; whatever. Thus, despite the happy headline, the stock price drops two bucks on the day of the earnings announcement.

The next week, you, or the head of your department, or the head of a business unit, or whoever, has to brief an internal audience about the quarterly results. The speaker will be sorely tempted to tell an obvious lie: He’ll pull excerpts from the slide deck used for the earnings announcement, emphasize that the company beat the Street’s consensus estimate by ten cents a share, and tell the gang that we had a great quarter.

Meanwhile, everyone in the room is thinking: “If we had such a great quarter, why did the stock price crater on the news? Do you think I’m an idiot? Why are you lying to me, and do you lie often?”

I’m no expert in corporate communications, but it strikes me that it’s a bad idea to tell obvious lies. How do you avoid telling obvious lies?

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Chris Christie has an idea for Warren Buffett.

* How can you tout your achievements in a cover letter without sounding like a tool? Here are some pointers from Professor Eugene Volokh. [Volokh Conspiracy]

* The “unbundling” of legal services is a big buzzword when talking about the direction of the profession. But Jordan Furlong has a question: should lawyers and law firms start thinking about “rebundling”? [Law21.ca]

* Benchslap of the day earlier this month: the Fourth Circuit smacks around some saucy AUSAs. [Legal Blog Watch]

* “[P]ublic drunkenness is not illegal in NYC.” (Elie will be glad to hear this.) [Gothamist]

* How will SCOTUS rule on the Stolen Valor Act? Mike Sacks reads the oral argument tea leaves. [Huffington Post]

* Chris Christie to Warren Buffett: if you want to pay more in taxes, “just write a check and shut up.” [Dealbreaker]

* A Harvard Law School student, Matthew Schoenfeld, stands up for a good cause. [Harvard Law School News]

Although lawyers make up 43 percent of Congress, and 60 percent of the U.S. Senate, according to Governing magazine, “[s]ince 1976, the number of lawyers in legislatures has declined by nearly a quarter, from more than 22 percent of all lawmakers to less than 17 percent.”

There, of course, is a natural path from lawyer to legislator. But the low pay, travel, time commitment, and mud slinging that we see on TV and the internet turn many lawyers away from public service.

The current political landscape also causes lawyers to be uninterested in participating in politics at any level, whether it means lobbying, running campaigns, fundraising, or attending political functions.

It’s a mistake…

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Why do so many people think that you must be a blowhard to be an effective litigator?

I’ve recently heard several tales of business folks (or in-house lawyers) worrying that outside counsel is not aggressive enough. What prompts the concern is the lawyer’s performance during a conference call or at a meeting: The lawyer is civilized. The lawyer speaks quietly, asks probing questions, gives intelligent advice, and appears to be an effective advocate.

After the meeting, one of the participants says: “Are you sure we should use that guy? He doesn’t seem very aggressive.”

Remarkably (at least to me), I’ve heard the same thing at law firms. I’ve heard transactional lawyers wonder about litigators who are calm and intelligent at the lunch table: “He’s such a nice guy. I’m not sure I’d trust him in court.”

What’s my reaction? On the one hand, we can’t ignore perceptions. If a lawyer is so low-key that he doesn’t inspire confidence, then that is a legitimate concern. If I don’t trust the lawyer who’ll represent me at trial to defend me during a vigorous cross-examination, then that’s a real issue; we shouldn’t hire that lawyer. Confidence matters.

On the other hand, if the concern is simply that the litigator is not a blowhard — the lawyer speaks quietly and intelligently during business meetings, where there’s no need for bluster — then I have a very different reaction. In fact, I have three reactions:

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Last week there appeared a column on this site that denigrated clerkships in the middle of the country. I could not decide if the author was attempting satire, but it seemed to be a straight piece. I would like to offer a counterpoint.

I began my career at Biglaw in New York City. The firm began to have troubles, and I saw the writing on the wall as my class dwindled from 40 to 30 to 20. I then heard from a family friend that a federal judge in Oklahoma City was looking for a clerk to assist with some topics with which I was familiar. I scored an interview, we hit it off, and I moved my wife and new baby to OKC for a year.

Full disclosure: I went to 15 schools before graduating high school, and OKC was the place I called “home.” Many decisions about this move were simple: it allowed us to live near family for a year, which was great support for the baby; my wife was working on her dissertation, so she had time to write; and I had a circle of friends from high school with whom I could reconnect.

Further simplifying the issue was that the government payscale is based solely on experience. How much did I earn, as a law firm associate turned law clerk?

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There’s no Valentine’s Day exemption to the sexual harassment laws.

Labor and employment attorney Steven Palazzolo, commenting on what not to do in the workplace on Valentine’s Day.

Do law firms set performance objectives for their lawyers?

I worked at two different law firms over the course of 25 years, and I remember only one meeting where anyone sat down and talked with me about setting performance objectives. We set the objectives; no one ever followed up to see whether I’d achieved them; and the rest was silence.

Perhaps some firms regularly set performance objectives for lawyers, but that was nothing I’d experienced before I moved in-house.

Many corporate law departments set performance objectives for in-house lawyers, and many people do this poorly. “Setting objectives” is viewed as an annual chore inflicted on the supervisor that he cannot ignore; the computer system keeps nagging him about it and ratting him out to others up the ranks. The supervisor finally relents and types a few objectives into the system: “Meet budget. Work closely with business units. Negotiate alternative fee agreements.”

Now that’s out of your hair, and no one will bother you until next year.

Or, if you preferred, you could do it right . . .

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