By Marc Gustafson
Like some of you, when a thought pops into my head, I feel compelled to write it down. I’m not sure whether, at that particular time, I’m more concerned that I might lose the substance of the thought or that my memory is failing me.
These days, “writing it down” means pulling out my iPhone and sending myself an email. More often than not, that also means responding to that same email with additional thoughts, which in turn leads to a string of emails where I am the only participant in the conversation.
Recently, I noticed a number of emails had accumulated in my inbox with ideas for articles like this one. At the same time, I’ve been drafting an article in my head reflecting on my 20 years of practicing law and looking ahead to the time between now and retirement. What follows is both an effort to de-clutter my email and my head.
What I’ve learned from 20 years of practice
It’s hard to believe I have now been practicing for 20 years. The reality of that hit me recently when I found myself wondering how I even came up with the advice I was giving a client, only to realize that it’s not education, hard work or training, but the net result of two decades of legal experience.
Much of that experience has been both rewarding and gratifying, but I can’t say that it has all been that way. I remember in particular a late-night conversation with a partner in the midst of drafting an appellate brief when I was told in almost exact terms, “I know you may not want to hear what I am about to tell you, but the way this thing works is I’m a partner and you’re an associate. I tell you to do something and you do it. Otherwise, the whole thing collapses.”
The partner was right. I didn’t like that. Not then and not now. But that doesn’t mean there wasn’t any truth to the statement or that it was received in the way it was intended. Certainly, partners rely on associates to do a lot of the lifting. And that lifting is often done to an exacting standard. It doesn’t, however, have to be so authoritarian.
With people being more connected virtually but less connected socially these days, it is incumbent on those in positions of power to work with others, to encourage them, to empower them, and to appreciate them.
Equality in the courtroom
One way to empower others is to give them an equal voice. The time is now for the earnest pursuit of equality in the practice of law. And I don’t mean another diversity and inclusion task force or minority recruiting committee. We need to be very honest about how we want our bar to practice and what we really want it to look like.
A good friend recently posted about looking to the wrong attorney during a mediation for decision-making authority because he assumed the older lawyer had that authority. I’ve seen judges look past a female associate, who just finished making conclusive legal arguments, to ask if male partner had anything to say on the subject. I’ve watched a white attorney interrupt a Black counterpart in a way that made me not just cringe but sad.
I’m sure I’m not the only person that has had these experiences. I think we can all take a very real part in changing this, and I hope each of us will seriously consider doing just that. We can begin by being aware of our own biases, to which we may be completely unaware, and working toward being more inclusive, understanding and respectful of others.
Learning from lawyer jokes
At this point, I’m not sure whether I’m more tired of hearing about or more frustrated with trying to change the perception of lawyers. We’ve all heard the lawyer jokes. Some of them are just that — jokes. Others are exaggerations. Some are just plain truths. But we can certainly do more to rid our profession of these things.
We’ve all heard that complaint that lawyers like to “twist words” or “can make a contract say whatever they want it to say.” To me there is a clear distinction between making strong arguments and corrupting the truth. Our profession and our clients are not better when we engage in the latter. Cheap tricks do not make us better lawyers, they make us less credible to the bench and to the bar and do damage to our profession.
Likewise, lawyers should advocate for their clients but don’t need to do their clients’ bidding. We’ve all heard opposing counsel talk about their unreasonable client or defend his/her actions based upon the demands of a client. I have no doubt that litigation inherently attracts more difficult clients, but that does not mean we can hide behind those clients or their demands.
We should not accept payment from our clients to merely confirm their preconceived notions or proposed courses of action. Instead, we should do the difficult work of dispensing the advice we believe to be in the best interests of our clients.
We can do good
At the risk of this all sounding like an airing of grievances, I do believe that our profession is full of great people doing great things. We’ve all heard the expression that “everyone hates lawyers, except their own.” I think we should focus on the latter part of that axiom.
Lawyers are at their best when they’re counselors to their clients, and when they’re empathetic to not just their legal needs but their emotional, financial and social needs. Often people come to us when they’ve exhausted the rest of their resources, and they have no place else to turn.
This does not come without an emotional cost, however, and we should acknowledge the burden of taking on our clients’ issues. That does not mean that we should shy away from them. I’ve found great reward in working closely with clients, even through the most difficult cases, only to see them emerge on the other side. I like to think that has been a shared experience.
We need to take more time off
Particularly during COVID-19, I feel like my vacations haven’t truly been a time to recover. I’ve continued to respond to emails, to take calls, and to do work that could otherwise await my return to the office. This has caused me to be anxious, less present with my family, and no better for the time off.
Even after we get past this seemingly endless pandemic, I hope we will find the time to truly be away from our jobs. And not just on vacation. We should attend recitals, coach sports, go for a walk, or just be still without the distraction of an email, an incomplete task or an upcoming hearing. We need that so that we can be not just better practitioners but better people.
If all goes well, I plan to retire in the next 10 to 12 years when our boys graduate from high school, which means that I’m about two-thirds of the way through my legal career. That thought has caused me some pause.
While I’m not as cynical about our profession as this article may sound, I am hopeful that the next phase will be filled with a better understanding of the issues in our society and how they’re reflected in our profession, a legal practice that is challenging yet rewarding, and clients that appreciate the work we put in on their behalves. I hope the same for you, too.
Marc Gustafson is a partner at Bell, Davis & Pitt in Charlotte, North Carolina. His practice focuses on complex commercial and employment litigation. He is also a certified mediator.