January 29, 2008
Bad Grades? Don't Despair
Below is a great write up on how to react to and respond to 'bad' grades. This article is a must read. It's not so much a feel-good article but rather a call to action. Don't fall into the trap of being paralyzed by 'bad' grades. There is plenty you can do!
I'd like to thank Carolyn Spencer who graciously shared this article with the rest of us!
Bad Grades? Don't Despair
Linda E. Laufer
New York Law Journal
Q: I attend a top-tier school, and my first-year grades were bad. I was able to get some legal experience this summer, but I have avoided all job searches for next summer because of my grades. What should I do?
A: Dear Ostrich:
Get your head out of the sand and start to develop a strategy. Your inquiry focuses on only your grades. You give no indication of the type of firm or practice in which you have an interest, or the nature of the legal experience that you obtained during the summer. Nevertheless, since this is the season for large law firm recruitment and you "have avoided all job searches," it appears that you had an interest in pursuing positions with those firms. Reading further into your inquiry, one can surmise that either you were so disappointed with your academic performance that you removed yourself from the fall recruitment process without considering whether any firms would look beyond your grades, or you performed so poorly that you did not meet the qualifications required by any of the large firms, even for candidates from a "top tier school."
The first step is to examine your grades issue. How "bad" were they? Were they "bad" on an objective scale, or just worse than you expected? Do they preclude you from all large firms, or just the firms on which you had your heart set? What caused your grades to suffer? What are you doing to improve your grades? Did you obtain a good grade in any course?
Once you have answered those questions, then you can determine how to discuss your grades in an interview, with firms of any size. The key is to stay away from defensiveness or excuse-making, and to find something positive to say. Many students find that their grades improve during their second and third years, after they have a better understanding of how to approach legal issues and law school exams. They also have an opportunity to pursue courses in areas of particular interest. Sometimes students perform better in clinical courses where they can apply their legal skills to practical problems, or research and writing courses where they have more time to consider a legal issue and fashion a response.
Next, determine the type of employer that will be the best fit for you. Consider the size of the firm. If you prefer large firms, evaluate whether your grades preclude you from all of them. In the event that they are not of interest or are out of the question, focus on medium-sized or smaller firms. Determine the practice areas that interest you.
The timing for applying to medium-sized and smaller firms is later, usually in the spring when they have a better idea of their hiring needs and budgets for the summer. There are advantages to conducting your job search in the spring. You may be able to improve your grades this semester. Then, you can point to an uptrend. If your coursework is in practice areas that you wish to pursue at those firms, you demonstrate an interest that corresponds to the firms' practice.
In addition, you have a few months in which to research firms and perhaps contact graduates of your law school who work there. Networking is an effective way to break into a firm. You must remain positive about your law school experience, including your grades. For all you know, some of the alumni may have had a similar slow start in law school, with a less than stellar first year transcript. They may be able to overlook poor grades, but not a negative attitude.
When talking to alumni, and other contacts, you must never ask for a job. If they do not have an available position, they are likely to feel uncomfortable about referring you to other contacts. They may be unwilling to subject their network to the same discomfort.
In addition, a conversation has nowhere to go once someone says "no" to a request for a job. It becomes worse if you ask a follow-up question of whether the contact knows of anyone who is looking. Then, the contact has to say "no" again. At that point, the conversation is at a dead end.
As you network, remember that you are looking for AIR -- advice, information and referrals -- to breathe life into your job search. You are engaged in informational interviews, not job interviews. Occasionally, an informational interview can turn into a job interview, but do not expect it and do not regard it as a failure if it does not happen. An informational interview is a success if you obtain at least one referral to a new contact.
Another strategy is targeted mailings to firms in which you have an interest. You can write to the recruitment coordinator, if the firm has one, or the hiring partner, or a graduate of your law school, or an attorney with whom you have something else in common. Follow up with a telephone call.
As the spring progresses, many law schools receive job postings from law firms. At times, these listings appear quite late in the season.
Consult the counselors in your law school's career services office. They can probably offer specific suggestions to help you deal with these issues. They may also be aware of certain law firms that hire 2Ls from your law school, regardless of grades.
There are many successful attorneys who had poor grades and developed excellent practical skills. Your first step is to look up, wipe the sand from your eyes, and see what opportunities are available to you.
Linda E. Laufer
Linda E. Laufer is a former practicing attorney and a career consultant.
August 30, 2007
What Every Lawyer (and law student) Should Know About the Economics of a Law Practice
Below is a great article on the basics of law firm economics. As the author points out, most lawyers-let alone law students-have no idea (or rudimentary at best) about the economics of law firms. Students and young associates may think that law firms are doing them a favor by offering them entry level positions at firm. However a better understanding of law firm economics may lead one to conclude that firms actually make money from associates-even entry level associates.
Whatever the case may be, it can't hurt to have a basic understanding of how law firms make money and more importantly, how they make money off associates.
What Every Lawyer Should Know About the Economics of a Law Practice
Melchior S. Morrione
Marketing the Law Firm Newsletter
Why do so many lawyers know so little about the economics of practicing their profession? Not surprisingly, it's because their law school education did not address any of the business aspects of practicing law. So most young lawyers join law firms with little understanding of how they operate and without a clue as to what it takes to make a law practice successful and profitable. Many lawyers, especially those who join large firms, manage never to master these concepts -- and, in many cases, work hard at avoiding them.
This abyss between law school education and professional practice is finally being acknowledged in academia. Harvard Law School has established a research center, under the direction of professor David Wilkins, to identify the broad issues that have transformed the legal industry. In addition to research projects, it has identified the need to make law school curricula more relevant to current issues in the profession. I would hope that this will include the basic economics of practice, how law firms operate, how services should be delivered and how to adapt to the changing needs of clients.
TRIAL BY FIRE
Those who choose to practice law as solo practitioners or in a small-firm environment learn the relevance of economics early in their careers. They learn quickly that while they may be very busy working on client matters at a point in time, once those matters are completed, they need to find new work. They soon come to realize that in order to maintain a steady stream of work, they will need to pursue new assignments and new clients while working on their current matters. They discover that keeping all the balls in the air is not easy. Then there are the costs: secretary, rent, supplies, insurance, office equipment, etc.
What's left is net profit -- their compensation. At some point, they come to appreciate that their compensation is limited by the number of hours they can bill and collect from clients. And if they can hire an associate, at an overall cost less than the value of the associate's time that can be billed to clients, the difference will increase net profit -- their compensation.
THE INSTITUTIONAL COCOON
Then there are those who join large firms. Their experience is completely different. There always seems to be an endless supply of work. Their main concern is to charge the number of billable hours expected of them.
Even after they become partners, most lawyers in large firms manage to evade involvement in the economics of the business. They do not really understand, nor do they want to. Some won't acknowledge they are in a business. Others feel that the business of law is not their problem but that of the managing partner. Rather than spend time trying to understand the financial statements they receive, they focus only on their draw and annual compensation. These partners are often annoyed, and sometimes personally affronted, by management requests for certain levels of billable hours, monthly billing, reductions in write-offs, speedier collections and better management of associate time.
The basic economic infrastructure of a law firm is no different from that of any other service business. There is revenue, expense, profit (partner compensation) and capital (the funds needed to run the business).
The revenue cycle is the key to profitability. Once upon a time, law firms billed their clients once a year, and the statements said simply "for services rendered" -- but that was eons ago.
It is vital to understand the role that timing plays in the revenue cycle. Although a simple concept, most lawyers fail to focus on the fact that they do not bring in a single dollar of revenue until they bill the client and collect the fee. Assuming that you are proactive and manage to bill all the time charged to clients on a monthly basis, consider that by the time the bill is presented to the client, at least 10 or 15 days will have elapsed into the next month. Even if the client pays the bill within 30 days of receiving it, a minimum of 45 days (and more like 60 days if you average in the month over which the costs were incurred) will have elapsed since the costs were incurred that produced this revenue. These costs, which include associate and staff salaries, overhead and office costs related to the work billed, have already been paid and therefore need to be funded for two months, until the revenue is received. And this is under the best of circumstances.
What if you don't bill all your time charges monthly or the client doesn't pay in 30 days? You will need to carry your unbilled inventory and receivables even longer. So how do you fund unbilled inventory and receivables? The answer is: with working capital.
Because costs are incurred before revenue is received, you need working capital to run the business. Working capital is that which should funds the difference in timing between the collection of revenue and the payment of costs and expenses to earn it. In a properly capitalized firm, the required working capital is funded from capital contributed by the partners. Bank borrowing should be used only to fund temporary or seasonal shortfalls in working capital and for the acquisition of long-term assets.
IMPROVE PRODUCTIVITY TO INCREASE PROFITS
Just as solo practitioners come to realize that once they have reached the limits of billing their own time their profit can be increased only by adding an associate whose time can be billed to clients, so, too, in a large firm, the effective use of associates is the key to increasing profits. Many partners are perplexed by the concept of being able to improve their own productivity and consequent profit contribution to the firm, by learning to use associates more effectively.
Most partners will concede, albeit grudgingly, that not all functions involved in solving client problems require the same level of knowledge and experience. Therefore, projects can be broken down into discrete functions, and assignments can be parceled out to associates according to their individual abilities and experience. Delegating work should mean that everyone gets a challenge, and by pushing the work down to the lowest-cost associate capable of handing it, costs are reduced, and better value is delivered to the client. In a service business, efficiency and profitability are maximized only when people are working at their highest ability levels. So even though a partner is capable of performing the work that can be done by an associate, it is a waste of partner talent to do so.
RELUCTANCE TO DELEGATE
Getting partners to delegate work to associates is difficult, at best. Many who have tried have been unsuccessful because they just dump the work on the associate, without properly planning, communicating and supervising the assignment.
I believe I've heard all the excuses for not delegating. Some of my favorites include:
* I barely have enough work to keep me busy.
* Clients want only me to work on their matters.
* I can do it faster.
* Explaining things to associates is a waste of my time and the client's money.
* Why bring associates to client meetings; they don't say anything anyway.
* Associates never get the job done right the first time and are always late.
* Only a few of our associates are any good, and they are never available when I want them.
Some managing partners suffer from the same mind-set. I have known managing partners who, when they sought to improve the firm's bottom line, just told their partners to bill five more hours per week. What they should have said was to bill five fewer hours per week and use that time to go out and get 20 hours of new work from existing and new clients that could be done by associates.
HOW LEVERAGE AFFECTS PROFITABILITY
The improvement in profitability that can be achieved through the effective use of associates is best demonstrated by an example. To simplify the analysis in our example, assume that for every dollar the firm collects from clients, 55 percent goes for expenses, and 45 percent is net profit to be shared by the partners. Assume, too, that the firm is large enough that adding one or two associates to the staff will not materially alter the 45 percent profit factor.
As shown in the accompanying chart, a partner billing 1,700 hours will generate revenue of $1,020,000 and profit of $459,000. If this partner's billable hours increase to 1,900, the revenue goes up to $1,140,000, and profit rises to $513,000. Not bad.
But suppose, instead of increasing billable hours, this partner's billable hours are reduced to 1,500, and the 200 hours is used to find new work, a good portion of which can be done by associates. If the partner can bill 1,600 hours of Associate 1's time, then, although the profit from the partner's hours is reduced to $405,000, the combined profit from the partner and Associate 1 is $621,000. Therefore, even at 1,500 billable hours, a partner leveraged with one associate billing only 1,600 hours is considerably more profitable than that partner billing 1,900 hours alone. And if the partner could bill 1,800 hours of an associate's time (Associate 2) the combined profit is increased to $648,000. Now if the partner could find enough work to keep both associates busy, the combined profit would be $864,000. And this, while billing 1,500 hours and spending 200 hours marketing and developing new work. This is how real money is made in a professional services business.
The numbers are compelling. But to achieve them requires that managing partners recognize the need for partners to devote time to marketing and provide the motivation and tools to help them learn how to develop effective delegation skills.
The key to successfully growing a law firm is to have all the lawyers in the firm performing at their highest-ability levels. And while partners often resist, bringing associates into the firm is a fundamental tenet of growing a healthy law firm. It is the way young lawyers learn how to serve clients, working on the job as part of a team solving client problems. And it is the only way to train and develop new partners.
Everyone benefits from leverage -- clients, associates, partners. Clients get better value because all team members working at their proper experience levels get the job done at lower billing rates. Associates learn how to deliver service under the guidance of an experienced partner. And partners are able to spend more time interacting with their clients and performing the functions only they can handle.
This is not rocket science. It is Economics 101 for a law firm. I will admit that learning to delegate effectively does not come easily. It requires the development of project management skills, which, once learned, will put the partner in the position of spending more time planning, supervising, and reviewing the work and less time doing it -- without compromising quality. But the bottom line is that everyone on the client team participates at their highest-ability level in delivering better value to the client and increased profitability to the firm. And isn't that the objective?
May 25, 2007
Students Beware--Surfing the web without buying a cup of joe may land you in the slammer!
Bootlegging Wireless Access
Orin Kerr serves up this interesting post about a Michigan guy who was prosecuted for using a coffee shop's wireless access without ever entering the coffee shop. As Kerr describes:
Each day around lunch time, Sam Peterson would drive to the Union Street Cafe, park his car and--without actually entering the coffee shop--check his e-mail and surf the Net. His ritual raised the suspicions of Police Chief Andrew Milanowski, who approached him and asked what he was doing. Peterson, probably not realizing that his actions constituted a crime, freely admitted what he was doing.
Milanowski eventually swore out a warrant for Peterson's arrest, even though the coffee shop owner didn't even realize that accessing the coffee shop network without going inside was illegal. Eventually, Peterson was charged with theft under a computer crime statute and given a $400 fine and 40 hours of community service (A more reasonable penalty, it seems, would have been to simply reimburse the coffee shop for the cost of a cup of java for each day that Peterson used the wireless as a noncustomer.).
Kerr wonders whether Peterson actually committed a crime under Michigan's statute prohibited "unauthorized use" of a computer network. Among other things, Kerr argues that Peterson's use was not unauthorized because the coffee shop made the network available to anyone. He writes:
What's the rule — no hopping on wifi from a coffee shop unless you enter the shop? Unless you actually buy something? What if you're outside waiting for a friend to join you for a latte, but you haven't gone in yet? Where do such rules come from, and what notice does a defendant have before being held criminally liable? I've written before about how unauthorized access statutes threaten to punish an incredible amount of conduct online, and this seems like the latest evidence in support of the point.
For now, if you're waiting outside a coffee shop in Michigan, keep your wireless turned off until you enter the store!
Posted by Carolyn Elefant on May 23, 2007 at 05:05 PM
May 11, 2007
Cultural Sensitivity in Legal Practice
Having a grasp of cultural sensitivities will come in handy as a lawyer, whether you practice in the Midwest or in the Shanghai office of a London firm. With large firms increasingly opening foriegn offices and the resulting exchange and interaction between the offices necessitates sensitivity to cultural differences. The National Law Journal picked up on this topic in an article entitled "Cultural Gap" which describes some embarrassing moments and other situations where ignorance of the culture can have extremely negative results for clients.
The Culture Gap
The National Law Journal
May 11, 2007
So many countries, so many rules for attorneys to follow.
When dealing with Asian clients, be careful how you handle business cards and be attentive to who sits where.
In Latin countries, be prepared for two-hour meals before talking business. In China, save the small talk for after the deal. And in France, you may want to arrive at a meeting fashionably late.
Globalization of the legal world has led more lawyers to travel overseas and work with foreign clients, so grasping another country's customs can make or break a lawyer's deal.
"There are many lawyers going abroad who are not aware of the differences, so they offend someone," said Tanja Diklic, who helps bridge the cultural gap between Americans and Europeans as the director of business development and client relations in the New York office of SD Petosevic, a Belgrade, Serbia, law firm. "I've seen people lose business over this."
Clifford Chance's junior attorneys have role-playing assignments, which involve cultural differences. Holland & Knight often has lawyers spend time in some of the firm's six international offices, where they get acquainted with the cultures of other countries.
Associates from all 18 offices of Paul, Hastings, Janofsky & Walker recently met in Marina del Rey, Calif., where they learned about each other's cultures and their countries' business practices. DLA Piper's managing partner, Terry O'Malley, said his firm often relies on employees with knowledge of a particular culture.
"If I get on an airplane and fly to Hong Kong, I have 90 colleagues there ready to take care of me," O'Malley said.
A number of big firms, including Baker & McKenzie; Holland & Knight; New York's Weil, Gotshal & Manges; and Houston's Fulbright & Jaworski, said they do not provide cross-cultural training specifically, but touch on these issues during workshops on diversity as well as informal discussions and attorney exchanges.
Lawyers familiar with other countries' business etiquettes said they often tip off their colleagues.
Frederick A. Brodie, a litigation partner at Pillsbury Winthrop Shaw Pittman, warns that it may be impolite to address Japanese executives by their first names. He also advises American lawyers to put everything in writing and avoid unfamiliar abbreviations when working with foreigners.
BUSINESS CARD TIPS
Like others who have worked with Asian clients, Brodie stressed the importance of a proper business card exchange, a much more formal ritual than in the United States and done with two hands.
One lawyer said a Japanese businessman never picked up a card that an American lawyer threw on a conference table as if he were playing poker.
American lawyers' styles tend to be more aggressive than those of Asian lawyers, so they could come off as offensive, said Sarah Jones, a partner at Clifford Chance.
"The flexibility of how you deal with people is important," she said. "I watched that be very detrimental to a transaction."
In many Asian countries, it is also important to know who sits where, said Howard Chao, a partner at O'Melveny & Myers who is in charge of the Asia practice.
In Japan, the honored guest typically faces the door, and the most senior employee sits in the middle of a table, he said. Chao, who was born in Taiwan and now works out of his firm's Shanghai, China, and Silicon Valley offices, said American lawyers should also know that large meetings in Asia often serve as "theater," since much of the actual negotiating takes place in smaller sidebar meetings. Lawyers working with Asian clients should also pay attention to how they draft their documents, he said.
"It's kind of countercultural, but people like to see contracts that are more concise and get to the essence of it without much verbiage," Chao said. "So you can offend someone or put someone off by delivering a document that's over the top."
MEETING THE VP
When working in Latin America, lawyers should be prepared to meet with high-ranking government officials, such as a country's vice president, as the government gets very involved in a lot of transactions, said Anibal Martin Sabater, an international arbitration adviser at Fulbright & Jaworski.
Lawyers should also expect lengthy lunches and dinners, since there is a strong emphasis on personal relationships, said Paul Hastings' Dino Barajas, a partner who is the co-head of the firm's Latin American projects.
"Rather than just jumping into negotiations or putting out their main points from the beginning, there needs to be a kind of appreciation for the other person, their background, some type of common ground," said Barajas, who also makes it a point to use chopsticks and try sake in Japan and to express his appreciation for foie gras in France. "It's almost akin to dating."
By contrast, one lawyer said the chitchat typically comes at the end of meetings in China.
In France, arriving for a meeting on time may be a faux pas. Akiko Mikumo, a member of the management committee at Weil, Gotshal & Manges, said she drew puzzled looks when she showed up 20 minutes early for a dinner at the Paris home of a general counsel's wife.
"You're supposed to come at least 20 minutes late," she said, adding that has been changing as the French become more familiar with Americans' punctual habits.
And in Russia, vodka is often served along with handshakes during business lunches, said Gary P. Kaplan, a partner in charge of tax and international groups at San Francisco's Howard Rice Nemerovski Canady Falk & Rabkin, which is part of the International Lawyers Network, an association of 87 law firms with more than 5,000 lawyers in 68 countries.
"Each person at the table is expected to stand up and make a toast," he said of several business trips he took to Moscow last year. "People get a little tipsy to this day over business meetings."
The opposite occurs in the Middle East, where Clifford Chance once organized a seminar. The firm ensured that it was being respectful toward Islamic guests by not serving alcohol. Meanwhile, Epstein Becker & Green's Lowell Lifschultz learned how important connections can be in other countries when a Moroccan lawyer proudly told him that he knows the king.
Other things are simply learned by trial. During a speech in England on U.S. sexual harassment laws, a Clifford Chance lawyer tried to be polite by using the word "fanny" to describe a case in which a store manager inappropriately touched a female's behind. It was only afterwards that he learned that in England, that word describes a female's other private parts.
In some countries, lawyers' roles may be completely different from those of American lawyers, said David Williams Russell, a partner in Indianapolis' Harrison & Moberly, which also belongs to the International Lawyers Network.
"They may not be able to answer your question or may try, but may be thinking, 'This isn't my job, I'm not a businessperson, I don't answer business questions,' " Russell said, naming Mexico as an example. "You've got to realize they don't always view themselves as problem solvers."
This occurs because some foreign attorneys are more accustomed to citing the law instead of putting it to practical use, which is what most American lawyers do daily, Russell said.
In parts of Eastern Europe, lawyers are often not used to 24-hour turnaround time and deadlines, said Kathryn Szymczyk, a Canadian who has been working for a year and half as the director of legal strategies and client services at SD Petosevic.
"They are not used to producing a commercial product; they are more used to just reciting a law as opposed to really understanding a client and where they are coming from to produce a concrete solution," said Szymczyk, who said further that a part of her job is to "westernize the office.
"You can't overestimate enough the effect cultural differences will have."
Some lawyers said law firms don't invest in cross-cultural training because it can't be linked to billable hours. John Conroy, managing partner of Baker & McKenzie, the world's largest law firm, said his firm prefers to use a recruiting model designed to identify individuals with a number of skills, including cultural sensitivity.
"It's not terribly effective to have a workshop or a course that will tell you how to receive business cards," he said. "There, frankly, are much more important ways of serving clients that vary from one culture to another that you can't capture completely through a crash course. It's more effective to have people who are culturally sensitive."
Brian Szepkouski, a certified trainer at Etiquette International in New York City who also runs his own intercultural management consulting business in New Jersey, said corporations are proactive when it comes to cross-cultural training, but law firms tend to be more reactive and wait for a pressing issue to come up.
But Mary Crane, a lawyer who heads Mary Crane & Associates, which consults Fortune 500 companies and law firms on various issues, including business etiquette, said law firms have been paying more attention.
"They are recognizing this is critically important," she said. "Working in a global economy, one needs to have an understanding of international protocols. It's an ounce of prevention."
Kaplan, from Howard Rice, said large law firms should consider such investments so that American lawyers don't learn through mistakes.
"You're kind of an ambassador of your country every time you go abroad to do work," he said.
"We're considered ignorant, so to try to break that as a stereotype, I think that type of training would be highly appropriate," he added.
May 09, 2007
The Woman Partner Problem
Bruce MacEwen, Esq. the author of a widely read blog on law and economics "Adam Smith, Esq." writes about the dearth of women partner in large law firms and gives suggestions on how large law firms can attract and retain larger percentages of women. Bruce may be in a position to have his views heard within the large law community. Besides writing for his blog (which averages 300,000 readers) he regularly presents at Am Law 100 firms, and has been quoted in major news and legal publications. The blog--Adam Smith, Esq. can be read at www.adamsmithesq.com
The Women Partner Problem
Frankly, I've written too infrequently about our industry's deplorable statistics on the ratio of women partners to male partners. I have excuses, but they're not reasons. Herewith a first attempt to remedy that.
This is prompted by a survey that opens with these vivid statistics:
"The search for reasons begins with the confounding fact that women and men have been graduating from law schools and entering the firms in virtually equal numbers for at least 15 years but, according to the MIT Survey #1 on Rates of Attrition women make up only 17% of firm partners. That number increases to only 21% if the period before women entered firms in large numbers is excluded, according to the 2006 National Association of Women Lawyers survey."
Here's how the Wall Street Journal law blog described it:
The report, “Women Lawyers and Obstacles to Leadership,” was produced by the MIT Workplace Center along with local bar associations. Of the 1,000 Massachusetts lawyers surveyed, 31 percent of female associates had left private practice entirely, compared with 18 percent of male associates. The gap widens among associates with children, to 35 percent and 15 percent, respectively.
The following quotes are, I think, striking (emphases supplied):
“I once heard someone describe their position as a junior associate at a large law firm as the best paying dead-end job they have ever had." [Female associate]
"Among associates, over 50% of women work more than 50 hours a week. Women with children, however, limit the number of hours they work. Among women with children, only 32% work more than 50 hours a week. On the other hand, male associates with children do not limit the number of hours they work in the same way women with children do. On average, over 75% of men work over 50 hours a week. Among men with children, 85% work more than 50 hours. Men with children, in fact, tend to work more hours."
"At the non-equity partner level, both men and women report working more hours than associates, but there is still a difference between the number of hours men and women work. Sixty-five percent of women non-equity partners work more than 50 hours a week, whereas only 55% of women with children do so.
"Again, the presence of children decreases the number of hours for women non-equity partners, but the same effect does not appear for men. At this level also, men with children tend to work more hours than women with children.
"At the partner level, the same pattern persists with one striking difference. Both men and women tend to work more hours than non-equity partners. However, both men and women partners with children work fewer hours than those without children. This is the only point at which the impact of children on time spent at work is similar for men and women.
"Lauren Stiller Rikleen in Ending the Gauntlet: Removing Barriers to Women’s Success in the Law (Thompson/ Legalworks, 2006) argues that the essential condition for the success of flex-time systems is change in traditional firm management. At present, she says, management committees are usually made up of partners who are pre-eminent in their practice areas but not necessarily knowledgeable about management principles, economics, or finance. Their tendency is to follow traditional hiring and promotion practices without undertaking sophisticated analyses of their costs.
"She concludes that what is needed is a rational examination of sole reliance on billable hours as the basis for a firm’s profitability, and rational consideration of additional compensation structures.
"For this she strongly urges a turn to professional management for law firms."
I'm going to second her recommendation of "professional management for law firms" (I know: Regular readers will be shocked by this), in what may strike some as a radical way by the time I'm done with this piece, but first let's flesh out more of the survey's findings.
The survey also asked women taking advantage of "flex-time" options their reasons for doing so. The responses were:
• Nearly 90%: More time with children
• Less than 10%: Everything else, such as:
o elder care
o more control of working hours
o work not intellectually stimulating
o wanted to pursue other interests
o didn't need the money
What does all the foregoing demonstrate? To me, one and only one thing. That one thing seems to have been lost in all the smoke and brimstone surrounding "gender equality," "sexism," and the endless, fought-to-an-exhausted-standstill debates between the societal and civic virtues of stay at home Mom's vs. the battle cry of those calling the sisterhood to the professional office ramparts.
That one thing is: Having children is different. It's different than taking a sabbatical or a detour into government or nonprofit service, and it's vastly different for men than for women.
The unspoken assumption—on both the part of the firm and the part of the individual lawyer—is that father/lawyers are more committed to their careers and more determined to succeed, but mother/lawyers have heard the siren call of the newborn and will never report back to the office feeling the same uncompromised commitment they did before. Isn't this what we all think but dare not say?
That's why "flex-time" has always struck me as such a weak, jury-rigged, and fundamentally ineffective half-measure. The dirty secret about flex-time is that it's 80% of pay for essentially the same amount of work.
Just yesterday I was talking with a (male) former Skadden international deals lawyer who recounted, in sadness and not in anger, the story of a female colleague on maternal "flex-time" who was involved with a deal in Taipei, where it was the start of the business day around 9:00 pm in New York—and of course the investment bank client had bankers on the ground in Taipei on Taipei time. You literally had to be there all night.
We've talked, at this point ad nauseum, about changing "attitudes," we've talked about cabining expectations, we've talked about the relative importance of child-raising and deal-brokering, we've talked about how no one on their death bed ever wished they'd spent more time at the office, etc., etc., etc. And we're stuck where we were 15 years ago.
I don't know about you, but I have to conclude as at least a closet empiricist that these conversations, alternatively sanctimonious, defensive, patronizing, righteously indignant, and confused, have fundamentally failed to advance the ball downfield.
So I have a different and perhaps radical suggestion: Can we not recognize that the fundamental problem is our insistence that a woman's prime child-bearing years coincide with the years of the tournament to partnership? And if that is the ineluctable problem—the reason we've made pitifully little progress over two or three decades of massive investment in women's careers and endless exhortation—then, if we're serious, shouldn't we do something about that?
In other words, why can we not decouple those two ten-year time frames so that they're not coincident in time but at worst weakly and marginally overlapping? My proposal is this:
• On a voluntary basis, let women who want to take time off to start a family do so—firms could obviously set their own ground rules, but I would think a reasonable period of time might be as long as seven or eight years for the "family sabbatical."
• Why would women return to the workplace after that long away? Because many of them would want to: Remember, these are by hypothesis highly motivated, exceptionally well educated people not used to being "defeated" in any sense of the word. And after the kids are a little older, a high level of commitment to work is again feasible. There's an enormous difference between having a toddler or having an elementary school student.
• Women who aren't in a position, or who choose not, to start a family, as well as any brave hearts who want to plow ahead on the partnership track with kids at home, would do so. But: Motherhood/maternity would not be a permissible or recognized reason for requesting "flex time." In for a dime, in for a dollar. I think this one single change would do more to eliminate the ghettoization of motherhood as anything else we could do.
• When women who had taken years off returned, they would jump right back on the partnership track ladder, although some firms might choose to make them "repeat" the year they were in when they departed. (For example, if you left as a fifth year, you might come back as a fourth year.)
• The point of this optional "repeat year" is two-fold: To recognize that such an extended period of time away from the practice means your technical skills need a refresher (and the substantive law may have changed as well—imagine leaving the securities practice before SOX and coming back after it), but second to recognize that both men and women who followed the straight and continuous path would probably resent returnees' picking up precisely where they left off. Think of it as a form of requiring the returnees to "compensate" the firm for having received the favor of the family sabbatical.
• Some will object that after such an extended period of time away, no one can rejoin the partnership race. My answer to that is: What a patronizing and condescending suggestion. I don't believe anyone's in a position to say that, flatly, about all women (or men). Face it: Those who return will be highly motivated, and they will also have gained a level of maturity and picked up skills that will be of genuine value to the firm and its clients. (Think time management, prioritization, multi-tasking, and maintaining equilibrium in the face of unreasonable or inexplicable behavior.)
Does this mean women would work towards, be eligible for, and become partners a decade or so after men? If I can do arithmetic, that may be its implication. Would men, famously frailer than women in older age, want to retire earlier and would some rough justice in terms of overall career duration be maintained? It's possible.
So I'm proposing that we confront head-on instituting a program that purposely "parks" women out of the workforce for five to ten years—with no stigma—so that there need not be a stark, dichotomous choice between spending a critical decade or so of your life either launching a family or pursuing partnership. You could actually get to take your stab at both, seriatim not simultaneously.
Would women under this hare-brained scheme have at last the "level playing field" everyone genuflects to? I think so. Maybe women at last would have a fair shot, and that 50%/17% statistic could change. On the merits. No stigma; no Mommy Track.
Would one firm care to initiate their own little sandbox experiment testing this hypothesis? In one department? With two or three class years of associates? On a tiny tiny scale?
The only thing you have to lose is the half of your starting associates who lack a Y chromosome.
April 19, 2007
Attorney keeps at it...even after turning 100 years old!
A recent column in Utah's Desert Morning News http://deseretnews.com/dn/view/0,1249,660211376,00.htmlprofiles an attorney, Richard Bird, who recently turned 100, and continues to work, meet clients, negotiate deals in his plush law office in downtown Salt Lake City.
The secret to his long life and continued zeal for the law? According to Mr. Bird: "My feeling is that people who stop working die," he said. "This (coming daily to the office) keeps me interested, it keeps me alive, and that's why I continue to do it."
"I have a good diet, I don't drink, I don't smoke," he added. "And I've done a lot of church work and community work."
Sounds just like most law students...right?
100-year-old attorney beats law of averages
By Lee Benson
Deseret Morning News
You might want to wish Richard Bird a happy birthday today.
You can catch him at his law office.
But call ahead of time. He might be busy with a client.
All centenarians get to 100 a little differently. Richard got there by going to work.
"My feeling is that people who stop working die," he said. "This (coming daily to the office) keeps me interested, it keeps me alive, and that's why I continue to do it."
Attorney Richard Bird, who turns 100 today, works in his Salt Lake office. I first heard about Richard Bird a month ago when a reader, Dave Brunelle, sent me the following e-mail:
"I wanted to tell you about my attorney. He was recommended to me by a friend for my divorce 20 years ago. He said, 'He's 80 years old, (but) he is really good and cheap.' Somewhat skeptical, I used him, and several times since, never losing a case. He turns 100 in April, goes to work 9 to 5 Monday to Friday. This amazing Utahn deserves recognition while he is here to get it."
I immediately called Richard Bird at his office. He picked up the phone on the second ring. He agreed to an interview on one condition: I couldn't write anything about him turning 100 until he actually made it.
"I don't want to jinx it," he said. For context, he told me about a brother-in-law of his who made it to 99 1/2, came home from church one Sunday, and never saw Monday.
So I kept my promise until the Big Day — today. Richard Bird has not only turned 100, but he still has his driver's license (it expires in 2010), his downtown law practice, his wood-paneled law office and a mind that remains, if my recent conversation with him is any indication, as sharp as the day he graduated from Harvard Law School in 1933.
He worked at a variety of assignments in a law career 74 years and counting, including a stint with the federal government in Washington, D.C., before settling into private practice in 1943. He's been running his own firm ever since. First it was Richards & Bird, then Richards, Bird & Hart, and currently Richards, Bird & Kump.
Bird's son David, 53, earned a law degree and joined his dad's firm when Richard was 72.
"I thought I'd practice with him for a few years," said David, who has now worked side-by-side with his father for 28 years.
The decor in Richard Bird's office suggests this is a man who does not look backward. There are no mementos or plaques on the walls save one: a certificate that authorized him to present cases in the United States Supreme Court in the 1930s, when he worked for the Justice Department.
But he does not gush about once having argued at the highest court in the land.
"Routine stuff," he said. "Part of the job."
The secret to his longevity and ability to keep working? He's not really sure. He said he thinks exercise has helped, noting that many years ago, he sent away for a $30 exercise book, and he's exercised a half-hour a day ever since.
"I have a good diet, I don't drink, I don't smoke," he added. "And I've done a lot of church work and community work."
His resume shows that he's worked on more boards than a house framer, including those for the University of Utah and Salt Lake City libraries, the Mental Health Association, the Community Services Council, the Salt Lake Housing Authority and, appropriately, the Salt Lake Council on Aging. He's been an LDS bishop, president of his Kiwanis Club and a Scoutmaster three times.
And he's rarely been alone. His first marriage, to Mirra Jacobs, produced four children and lasted 57 years until 1992. He was married again three years later to Doris "Alex" Clawson.
Family lore tells about 78-year-old Alex Clawson asking a friend whether she should marry someone who was 88. "Well, I guess if you had three good months, what could it hurt?" came the reply.
The marriage lasted nearly 12 years until Alex died last August at the age of 90. "Dad always said getting remarried helped," said David Bird, who, along with his sister Katharine, will host Richard's 100th birthday bash later today — providing they can pry him out of his office.
Richard would not participate in plans for the party, other than agree to attend if he made it that far. But by yesterday afternoon, David reported that he could see confidence finally rising in Utah's newest centenarian. "I think at this point, even he's starting to believe it's going to happen," he said.
February 26, 2007
The Perils of Taking the Bar Exam for Another
Most of you haven't even begun thinking about the Bar exam. None of you would ever even consider taking the Bar for someone else. The article below tells the tragic story of a wife who took the Bar exam for her lazy and abusive husband, and scored ninth highest in California. And both she and her husband paid with disbarrment and divorce.
Woman who impersonated husband ordered reinstated
Ten years after being disbarred for impersonating her abusive husband and taking the bar exam for him, an Agoura Hills attorney was ordered reinstated by the California Supreme Court. Although both the State Bar Court and its review department recommended the reinstatement of LAURA BETH SALANT [#112412], 43, bar prosecutors said she had not proved her rehabilitation and asked the court to block her readmission. With a two-sentence order, the high court told the bar to readmit Salant to practice. She has worked as a paralegal for the Internal Revenue Service in Los Angeles since 1990.
Salant drew national attention when, seven months pregnant, she cut her hair, donned men's clothing and smudged her thumbprint before taking the July 1985 bar exam for Morgan Lamb, then her husband. Lamb had failed the exam once and had been fired by the law firm where he worked. His score soared when Salant took the test and received the ninth highest score in the state.
Salant worked as an attorney for the Securities and Exchange Commission and was fired when her actions came to light.
She pleaded no contest to felony impersonation, was fined $2,500, placed on three years of probation and was ordered to perform 200 hours of community service.
Lamb was convicted of false impersonation and forgery, and also was put on probation for three years.
Salant told investigators her husband was abusive, that he screamed regularly, threw heavy objects at her and threatened to kill her and her unborn child.
Seriously ill with diabetes, she was admitted to the hospital immediately after the bar exam and gave birth to a daughter.
She divorced her husband while disciplinary proceedings against her were underway, but although the Supreme Court said it sympathized with her plight, it disbarred her in 1989. Then-Justice Marcus Kaufman dissented, citing the "absolutely unique" and "nightmarish" circumstances that affected Salant's mental and physical health.
"While disbarment in this case will doubtlessly be applauded in some circumstances, it is wholly unwarranted," Kaufman wrote. "It serves only to punish an apparently talented lawyer whose misconduct resulted from the most desperate, life-threatening circumstances."
In seeking her readmission to the bar, Salant passed the bar exam in 1996. But bar prosecutors argued that she was still not morally fit to practice.
At a trial before the State Bar Court, Judge Carlos Velarde ruled that Salant was rehabilitated and regretted her actions. The court's review department agreed. Judge Ronald Stovitz wrote, "In over 11 years since her very serious but unique misconduct, (Salant) has amassed a most impressive record of employment, outstanding character evidence and psychological rehabilitation."
Bar prosecutors asked the Supreme Court to review the bar courts' reinstatement recommenda-tion, arguing that Salant had been less than truthful in statements concerning her efforts to protect herself from her ex-husband. She had told the bar court that she had sought and obtained a restraining order against Lamb, when in fact she had not done so.
Bar prosecutors argued that her statements indicated a lack of rehabilitation.
Salant also had failed to file an affidavit required by rule 955 of the California Rules of Court, attesting that she had notified all clients and pertinent parties of her disbarment. She said her former attorney told her he would take care of the affidavit.
Salant told the courts she has undergone psychotherapy for eight years and has turned her life around.
She was readmitted to the bar Aug. 18.
February 12, 2007
Lincoln Logs of Wisdom
To commemorate Abraham Lincoln's birthday, some words of wisdom from a former attorney turned US President.
Lincoln Logs of Wisdom
A review of practical advice from one of our greatest lawyer-presidents
Daniel E. Cummins
Pennsylvania Law Weekly
February 12, 2007
On Lincoln's Birthday -- Feb. 12 this year -- we honor the memory and accomplishments of one of our greatest presidents, Abraham Lincoln. While the myth and legend of this great president has expanded through history, it cannot be forgotten that he began his career as a country lawyer in Illinois.
Over the course of his career as an attorney and during his rise as a politician, Lincoln was famous for his wit and simple, yet compelling, way with words. He uttered many famous quotes, some of which are noted below, that can serve as excellent advice even for today's lawyers practicing nearly 150 years after his untimely death.
Whatever you are, be a good one.
Despite the current negative public perception of lawyers, the practice of law remains one of the noblest of professions. Continuing efforts of all attorneys to do the best they can for their clients and their community not only results in personal fulfillment but also advances the profession as a whole.
Good lawyers are not only strong advocates on behalf of their individual clients but may also serve as pillars of the community through volunteer work and pro bono work. Striving to volunteer one's time in this respect to the community is not only a part of being a good lawyer but also serves to foster a positive view of the profession as a whole.
It should also be kept in mind that we are not just lawyers. We may also be identified as mothers, fathers, friends, musicians, artists or sports enthusiasts. An effort to be good in all aspects of life results not only in a sense of accomplishment but also makes for a more fulfilling existence. So the next time you find a heads-up penny, in addition to the prospect of good luck, think, "Whatever you are, be a good one."
Character is like a tree and reputation like a shadow. The shadow is what we think of it; the tree is the real thing.
As lawyers, our reputations precede us. Having a character made up of integrity, honesty or punctuality may cast a shadow just as long and deep as the negative shadow cast by one having an opposite character that is exhibited through a lack of integrity or through dilatory and vexatious conduct. There can be no question that one's reputation will set the stage as to how they are dealt with and viewed by others.
In picking up new files and before dealing with an opponent, one's first thought usually turns to the reputation of that other attorney. Many times, if the reputation is not known, it will be sought out by inquiring of others or doing other research in an effort to prepare for handling a file with that opposing counsel. Similarly, in dealings with judges, the "shadow" created by an attorney's reputation will reach the courtroom long before the attorney even stands before the bench on the issue presented.
It is often said that a lawyer's word is his bond. This is more than a cliché -- it is a principle, a truth, and should be honored as such. Thoroughness in preparation and presentation along with punctuality and courteousness are also important aspects of creating a positive reputation. Adherence to these qualities will only enhance one's reputation within the bar and allow for better representation of the client.
Accordingly, it is important to constantly remember that every action may help to expand, or alter, our reputations. Consistent with Lincoln's analogy, when a tree is chopped down, it leaves little or no shadow. As hard as it is to develop a strong, favorable reputation, all it takes is one misstep to diminish, or even totally destroy, that reputation.
Give me six hours to chop down a tree, and I will spend the first four sharpening the ax.
There is no better lawyer than a fully prepared lawyer. Judges and fellow counsel appreciate nothing more than the prepared lawyer who can streamline and thoroughly, yet concisely, present the client's position. Clients are better served by lawyers who take the time to become fully acquainted with the facts, the law and the rules of civil procedure before completing whatever legal task lies ahead.
Whether it be the simple presentation of a discovery motion or the participation in a lengthy trial, the more time spent in preparation, the better the finished product will be. Additionally, developing a reputation as a well-prepared attorney will earn you the respect of your colleagues, may add to your credibility and will consequently strengthen whatever position you are advocating on behalf of your client.
Discourage litigation. Persuade your neighbors to compromise whenever you can. As a peacemaker the lawyer has superior opportunity of being a good man. There will still be business enough.
Being in a profession that is adversarial by nature, we often approach issues with a fight in mind as opposed to efforts to reach an amicable resolution. With these words, Lincoln stressed that the role of a lawyer as a counselor is just as important, if not more important, than his or her role as a litigator.
Part of being a good lawyer is persuading clients to put emotions aside. Compromise is much more difficult when egos are involved and when attorneys take on emotional trappings of the client. Efforts at an objective evaluation of the pros and cons of any position will always serve the goal of reaching an amicable resolution of any dispute.
It is also often said that the sign of a good settlement or resolution is that both parties are not entirely happy with the result, but the case is still nevertheless finally resolved. As Lincoln stressed, there is plenty of business to go around as we move from one file to the next, and so litigation should not be sought out simply for the sake of litigation.
Am I not destroying my enemies when I make friends of them?
Similar to Michael Corleone's later advice in "The Godfather, Part II," "Keep your friends close, but your enemies closer," Lincoln long ago recommended similar action to defuse one's opponents. Lincoln's advice goes a step further and advocates reaching out to one's enemies in an effort to appease them. Lincoln followed this advice when he famously filled his Cabinet seats with his political enemies. By doing so, he kept such enemies close and neutralized them by honoring them with prestigious positions of importance within the control of his administration.
In today's practice of law, we are routinely faced with adversarial attorneys we would much rather not have to deal with. As difficult as it may be, perhaps it is a better method of handling all adversaries by not retaliating in frustration but, wherever possible, greeting such opponents with appeasement or consideration.
Regardless of the shoddy treatment you may be receiving from an adversary, respond as you would wish to be treated. Routinely grant extensions or continuances when requested so long as it is not to the detriment of your client. Voluntarily disclose discovery that such opponents may be entitled to without the necessity of formal discovery requests or motions practice. Promptly return phone calls.
By acting in a nonconfrontational manner towards vexatious opponents, it becomes more and more difficult for such adversaries to continue to respond or litigate in a negative fashion. Additionally, if certain issues eventually come to a head and require court intervention, the court would look more favorably upon your efforts towards an amicable resolution of the issue when compared with the petty and negative conduct of your opponent.
Better to remain silent and be thought a fool than to speak out and remove all doubt.
At CLE seminars, we often hear judges on the panel spend their presentations expressing the virtues of brevity and giving examples of less than exemplary arguments or presentations presented by attorneys in court.
Overburdened judges and bored jurors appreciate concise arguments grounded in common sense and ideals of fairness. The old school of thought of reiterating your argument three times in an effort to engrain your position upon the minds of the jurors no longer seems valid in this day and age of the rapid-fire receipt and retention of information. Jurors, who are much more intelligent than they are usually given credit for, may become frustrated and develop a negative view towards you and, consequently, your client if you bore them with an unnecessarily repetitive presentation.
Being brief and concise can go a long way in having an impact and leaving a lasting impression upon others. No better example of this can be cited than Lincoln's own brief, concise yet powerful Gettysburg Address. Lincoln used less than 300 words delivered in just over two minutes in what has become known as one of the most compelling speeches in American history.
And in the end it's not the years in your life that count. It's the life in your years.
Despite being overburdened with attempting to reunite a country divided by civil war and bloodshed, Lincoln remained close to his wife, doted on his children and otherwise attempted to live his life to the fullest.
As difficult as it may sometimes be, it should be kept in mind that the practice of law is but one dimension of our short lives. A balance between work and life outside of work should be sought and encouraged. Focusing one's energy entirely on work may cause one to burn out or become disillusioned with the practice. It will also likely result in significant regret at the end of one's life when looking back at all the missed opportunities to enjoy life outside of work with our family and our friends.
Efforts to realize a more healthy and balanced life by spending more quality time with your family and friends, by enjoying recreational activities or hobbies or by developing whatever your potential may be will only serve to add life to your years. Such a well-rounded lifestyle may also result in one becoming a more productive and effective attorney.
President Abraham Lincoln has been rightfully revered as a great orator and a figure who personifies honesty, integrity and freedom. What better way is there to honor his memory than by recalling the above-noted ideals he pursued and attempting to incorporate them into our everyday lives in a continuing effort to improve the world around us? In this regard, as stressed by Lincoln himself, "Leave nothing for tomorrow which can be done today."
Daniel E. Cummins practices insurance defense law and is a partner in the Scranton, Pa., law firm of Foley Cognetti Comerford Cimini & Cummins