Debunking The Reasons Older Lawyers Aren’t Getting New Jobs

For all you millennial lawyers out there, born from approximately 1980 forward, we lost a true hero when John Glenn, the last surviving Mercury 7 astronaut and United States Senator from Ohio, died. He was 95.

All of us dinosaurs remember Glenn’s then-historic mission, consisting of several orbits around Earth in 1962 when space truly was a new frontier for this country. We all stopped whatever we were doing and wherever we were to watch history in the making, the good kind of history. The best book about the origins of the space program and the Mercury 7 astronauts is Tom Wolfe’s The Right Stuff (affiliate link). If you don’t want to read the book, at least stream the movie. 

At the age of 77, Glenn persuaded NASA to let him fly as a crew member on the shuttle so that research could be done on the effects of space on older people. (No wise cracks, please.) He did so and scientists found that the effects were not all that different than for the younger crew. 

So, what difference does age make? The answer should be nada, zip, zilch, but it seems that in today’s world, if you’re old (and there are many different definitions as to what actually is “old,”) your worth is a negative number. That’s true not only in our profession, but many others as well. 

The State Bar of California gave fleeting consideration to some kind of undefined competency test for us oldsters, under the rubric of “public protection,” but ditched it (smart move). Given the panoply of issues that this bar faces, its time is better spent on more critical matters, like getting a dues bill through the Legislature (don’t ask), explaining why the July Bar results were so low (lesser quality bar takers and a protectionist policy?), potentially having our Chief Justice deposed in a wrongful termination lawsuit brought by the former Executive Director.  I could go on, but all of you east of the Sierra Nevada are already chortling at the antics of the largest bar in the country, and no, I am not making any of this up.

What would have happened had Winston Churchill not become Prime Minister of Great Britain in the spring of 1940 at the age of 65?  In those days, longevity was not assumed, and sixty was definitely not the new forty. Did anyone really care about how old Churchill was when he took office? What mattered was whether he could do the job. It was his leadership that gave Britain the fortitude to stand alone until the United States entered World War II. Did Britain give Churchill a “competency test” to see if he could do the job at his age? I don’t think so.

What about Golda Meir, who became Prime Minister of Israel at 71? Did anyone give her a “competency test?”  

Indra Nooyi, the CEO of PepsiCo, is 61; Meg Whitman, the Chair of HP, Inc. is 60.  Are they “aged out?” You get my drift.

When I see stories that people are too “old” for their jobs in their fifties (!), I am beyond irritated. Why does our profession think that we dinosaurs are of limited utility and value, if any, when we reach a certain age? Could one reason be that because we’re older, we cost more? How about perceived trouble adapting to new technology? That could be another. 

Most of the members of the Supreme Court are well into the Medicare world; the average age of Members of the House is 57, while the average age of a Senator is 61. All of them fall within the ambit of the Age Discrimination in Employment Act.

(In California, Senator Dianne Feinstein is 84, and just retired Senator Barbara Boxer is 76.)  Yes, in California, 70 is the new 50, and 80 is the new 60.)

Here’s one legal recruiter’s take on why it’s so hard for older lawyers to get any grip in law firms. I think the same probably holds true, but to a lesser extent, in corporate and government gigs.

This recruiter’s ten reasons: 

1— Firms want younger attorneys and those who generate business. (Those two do not necessarily go hand in hand. How many younger attorneys generate much, if any business, in the first few practice years? How many know how to “make rain?”) 

2— Younger attorneys generally work harder. (Can you say the word “stereotype?”) 

3— Older attorneys have higher salary expectations. (Yup, we do, but if we generate the business and do the work, why not?)

4— Older attorney frustration with past negative work experiences. (Do we know how to act professionally? I guess not.)

5— Inability to make lawyers around them feel “young and important.” (No comment.)

6— The perception that the longer the attorney has been around, the more likely that the attorney is “damaged goods.” (I think this is assuming facts not in evidence.)

7— The perception that the attorney may soon retire or has health issues. (Can you say “age discrimination” and/or “disability discrimination?” Just about everyone has a disability of some sort or another; if you take any prescription meds, you’d probably qualify.)  

8— Social interpersonal skills. (In other words, if we don’t have drinks after work, we lack those skills, but how many millennials can actually hold a conversation, rather than texting?) 

9— Unwillingness to be inquisitive and to learn new ways of doing things. (I guess we dinosaur lawyers are just old sticks in the mud. 

10— Fear of being sued by the dinosaur if things don’t work out. (Litigation does not advance anyone’s career, but the threat of potential litigation apparently freaks out hiring partners.)

So, people can rise to the top of their fields and stay there at “advanced ages,” but we lawyers like to cut our colleagues down to size, or rather age. What does that say about our values? Or, in this cut-throat “you eat what you kill” business (formerly a profession), do values matter any more?

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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 [email protected].