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Washington Lawyer

Legal Spectator: In My 60 Years

From Washington Lawyer, December 2008

By Jacob A. Stein

spectator

Years ago I envied lawyers who stood up in court and announced, with great indignation, “In my 30 years of practice, I have never heard anything like what my opponent just said to the court.” Here was a dramatic closer that compelled attention and demeaned that young upstart who was citing all those cases.

Well, October marked my 60th year of practice, and I think I have earned the prescriptive right to stand up and declare, “In my 60 years of practice, …” for whatever effect it may have. However, I have yet to do so.

I was speaking with a friend who also is a member of the 60-year club. We questioned whether age denies us what it takes to read documents, court rules, fine print, and appellate opinions that run more than 10 pages. Do we still have that vigor of mind?

This friend referred me to Justice Felix Frankfurter’s diary dated December 9, 1947. Frankfurter wrote that he had just visited with Chief Justice Charles Evans Hughes. The chief, although advanced in years, impressed Justice Frankfurter with his vigor of mind, prompting Justice Frankfurter to note: “He speaks with force, he marshals his argument with power and his old habit of precision of detail is evident and when he has occasion to refer to a book or an argument, he produces it, he is sure and precise.”

My friend still has his vigor. He says he was trained very early to make no statement of fact without documentation. He was taught to divide lawyers into two groups. There are those who, when they undertake an assignment, enable you to cross off that item from your list. And then there are those who, when they make a similar commitment, require you to make a notation to follow up.

My friend and I wondered whether we could identify a pattern as we recounted the day-to-day business of meeting with clients, filing papers, making deadlines, missing deadlines, having some luck, and missing some opportunities.

I offered up a comment by British journalist and author Malcolm Muggeridge. In his book The Sun Never Sets, Muggeridge writes about the events in Britain in the years leading up to World War II, looking for a pattern that explains how and why things happened as they did:

The present is always chaos, its prophets always charlatans, its values always false. When it has become the past, and may be looked back on, only then is it possible to detect order underlying the chaos, truth underlying the charlatanry, inexorable justice underlying the false values. That man had to speak and that man to be silent, that man had to rise to power and that man fall, that victory had to be won and that defeat suffered. Looked back on, the past makes a pattern, every element of which, however trivial, is necessary to the whole; each incident, each word spoken, the tilt of each hat, the modulation of each voice, falling into its place. Then it is apparent that nothing takes place aimlessly, no one exists aimlessly; that truly the hairs of each head have been numbered, and the fall of each sparrow to the ground, foreseen.

Lawyers look for patterns. There is one pattern we identify that commenced in the early 1960s. It was the creation of the professional corporation statutes, adopted state by state. These statutes gave us the right to incorporate so that we may receive a tax benefit that only was made available to corporations. However, there was an interesting throw-in: corporate protection against personal liability. As the years went by, those few words put an end to the civility of the general partnership. This mindset gradually moved the practice of law into the culture of the marketplace.

We went from IBM Selectrics, carbon paper, five onion-skin copies, and low overhead to computer technology, 65 percent overhead, and 200-page partnership agreements, providing for the expulsion of a partner “for no reason.” The only action that remains to complete the pattern is a public offering. I read somewhere that law firms in Australia have done something like that, and the solicitors in Great Britain are looking into it.

There continues to be a thriving practice that is separate from the marketplace. It is made up of lawyers who vindicate the constitutional rights of people, lawyers in small firms who practice in the counties surrounding the big cities, and specialty lawyers in domestic relations, personnel matters, and probate matters. However, it is the marketplace firms that define the big-time practice.

What does one learn from years of practice? Is there advice that can be passed on to those on the way up, apart from a few platitudes? The only advice I have come up with is that you must make your own mistakes and you must learn your own limitations.

Perhaps the following advice may also work for you:

  • Be kind, for everyone you meet is fighting a great battle.
  • Most irrationality has some connection, however attenuated, with reality.
  • This day I shall have to do with an idle curious vain man, with an unthankful man, with a talkative railer, a crafty, false or an envious man. An unsociable sarcastic man. A greedy man. A deceiver. Such is the way of the world, and I shall be no more affected by it than I am about changes in the weather.

–Marcus Aurelius
(Stein’s translation from the Latin)

And my favorite:

  • A moment’s insight is sometimes worth a life’s experience.

–Oliver Wendell Holmes

Reach Jacob A. Stein at jstein@steinmitchell.com.