I made a mistake and then I fixed it.

I knew not long into practicing law that I made a career mistake. But, I felt trapped. My ego, my financial situation, my student loans, my expectations of myself, the expectations of others — all of these things made me feel as though I had no choice but to make a go of it. So, made a go of it I did for 12 years. Hell, I knew I hated being a lawyer when I started this blog, but all you have to do is read the title I chose – ProfMomEsq – or the “About Me” page to see how I nonetheless wrapped up law practice into my personal identity.

It probably isn’t worth it to rehash all the reasons why I don’t like law practice. There are too many reasons, and I’ve written about it before. I suppose some of the reasons apply to lawyers in general, but many apply only to me. The truth – which took me a very long time to realize – is that the reasons I hate being a lawyer are neither “right” nor “wrong.” They just are. So, ultimately, I had only a simple choice: did I want to be happy or unhappy? Pretty easy, right?

Yet, it took me 12 years — 12 YEARS — to find the strength not just to say I don’t want to be a lawyer anymore but to actually do something about it. You know what I did? I quit being a lawyer. Friday is my last day. I sent my goodbye email to my colleagues yesterday. I start an entirely new, non-lawyer job on Monday. And while I am a little nervous, I am mostly so thrilled that I feel as though I float down the hallways of the firm now, leaving a trail of pixie dust and the vague scent of warm chocolate chip cookies in my wake. I keep looking at myself in the mirror with this feeling of relief and surprise that – yep – I still exist even though I jettisoned the bar card.

As sunshine-y and rainbow-y as I am for myself, I can’t help but be sad for the lawyers I’ve talked to this week – colleagues, opposing counsel, clients – who remark about how jealous or envious they are of my decision to leave the profession or how brave I am to take this step. It wasn’t bravery that got me here. It was desperation. And, the envy is wasted energy. I want to tell each of them to spend that energy finding their passions. But, I know that the words are not enough. Like losing weight, quitting smoking or ending a bad relationship, leaving a career takes will power, and it is so hard to find the will. This is true even if your head understands that the change would be “good” for you, because we easily confuse “good” the feeling with “good” the outcome. Eating chocolate cake feels good. The rush of nicotine feels good. The momentary affection of someone you desperately want to love you feels good. But, that kind of “good” works some mischievous chemical voodoo on our brains and hearts that makes what is truly “good” (e.g, healthy) for us seem less desirable – to hell with logic and reason.

I had to get to the very edge of my sanity to understand this and – more importantly – to do something about it. So, while I listen to the stream of lawyers expressing envy or jealousy at my escape from the billable-hours grind, my heart aches for them. The answer is so simple it is literally unbelievable: do something else. But, we humans are so good at “justifying” where we are when we believe we are stuck. I won’t make as much money. I still have student loans. It will be better when I make partner. My clients need me. I don’t want to waste my degree. My family/friends/peers will think I’m a loser/quitter/weak/stupid.

What I learned (thanks to the happy coincidence of meeting a social worker who “got” me) is to stop evaluating my life choices as “right” or “wrong” and to start evaluating them as “healthy” or “unhealthy.”

Well, hey there, you know what’s not healthy? Spending more time doing a soul-sucking job that you absolutely hate than you do with the family and friends you love. It makes you a surprisingly unpleasant person. Paradoxically for me, it also made me put up with a lot of crap that I never in a million years would imagine tolerating.

Many folks I know are fond of the expression, “God gives you only what you can handle.” I don’t think that’s true. I have complicated feelings about God, but even when I’m open to the idea of a supreme being who has a plan for my life, I would have to believe that God grossly overestimates my threshold capacity for stress if he thinks I can “handle” the competing demands of law practice, raising two children, being a wife, addressing financial setbacks and learning/navigating the ins and outs of special education in a public school bureaucracy. Rather, I think God/life/karma/the universe deliberately presents us with events we can’t handle as a means of getting our attention and forcing us to make a decision. If I really bought into the God-gives-you-only-what-you-can-handle philosophy, I honestly believe I would be dead. I would’ve struggled mightily to continue to balance all those things, and I would’ve had a heart attack – a literal, chest-crushing heart attack. Instead, I saw it (eventually and after a lot of therapy) as a message: decide what is most important and focus on that.

My children are important to me. My husband is important to me. I am important to me. Being a lawyer is not important to me. I don’t view working as optional because of our family’s financial situation, but “needing” to work doesn’t mean I “need” to be a lawyer. And, funny enough, there are actually other (better) paying and more satisfying jobs out there!

So … what’s my point? Don’t waste your life doing what you think is “right,” when you can dedicate your life to doing what is healthy. Don’t confuse what feels good with what is good. Start small – plan every day to do just one thing that is healthy for you, and watch it snowball. Two months ago, I walked into an intensive outpatient therapy group for my panic disorder, and I stunned a room full of people dealing with abuse, addiction, disorders and depression into absolute silence when I told the story of my life. Five weeks later, I left that group hearing the applause of its members when I announced I had a new job and was on the path to a new career. That happened because every day I had to commit to doing something better, and every day I was held accountable for it by others until I was strong enough to hold myself accountable.

I know a lot of you reading this are balancing or juggling your own competing responsibilities, so I challenge you to find one thing – no matter how big or small – you will commit to doing today to help make your life better. Not your child’s life, not your spouse’s life, not you parent’s life — YOUR LIFE. Then, feel free to share it if you want some accountability.

In the meantime, I’ll be over here, thinking up a new name for this blog. 🙂

We Seem to Have a Breakdown in Communication: Men, Women

I attended a professional function a little while ago that really irked me. I’m going to try to retell the events as objectively as I can, my remarks in bold are my subjective views that explain why I was so bothered.

The function was specifically for women.  The speaker was a “life coach” who was ostensibly there to talk to us about improving our ability to communicate with men.  The life coach opened her presentation by remarking that men and women have different styles of communication.  She also noted that communication is really only 10% the words we say; the remainder is body language and tonality.

So far, I’m with her.  I’m not sure I completely accept the premise that men and women communicate differently, but I’m willing to roll with that.  

The life coach then provides us a square divided into four smaller squares.  Each of the smaller squares describes a communication “style.”  Under each style is a description of the communication traits within the “style” and some data showing the percentage of people who identify with the particular style.  There is no breakdown of the data to show percentage by gender.  The data is also presented in a way that suggests that people must identify with one of the four choices – no shades of grey.

My radar is up.  I don’t deal well in absolutes.  As I’m reading the four styles, I immediately know that I fall somewhere between two of them but not entirely in any of them.  Also, to be fair, I’m irritated because the speaker has made an off-handed (and stereotypical) remark about autism. I’m already struggling to take her seriously.

We spend the next 50 or so minutes talking about the different communication styles in very, very general terms.  We talk about how certain styles have difficulty communicating with other styles.  Still, there is no discussion about how this impacts that woman-communicating-with-man thesis that opened this lecture. Then, the speaker says – and I’m not going to say this is a quote, but it’s a damn good paraphrase – that she doesn’t know a single woman who could spend a week talking about the Super Bowl, but men sure can.  She then asks the group of women assembled whether we know of such a woman.  When we sit there in silence, she takes that as affirmation of her generalization.

Now, I’m done.  I’m furiously texting a co-worker.  I’m watching the clock.  I am praying I don’t shoot my mouth off before …

The speaker opens the conversation up for questions.  She gets one or two obligatory softball questions, but then a couple of direct questions are asked, and the responses are less than direct.  The “sports” thing comes up again.

… too late.  

I raise my hand.  When I’m acknowledged, I say to the speaker that she started her presentation with the statement that men and women communicate differently, that up to this point, I hadn’t really heard anything in her presentation that specifically identified those differences.  In fact, I found myself troubled by the idea that we were sitting here talking about how all men can talk about is sports, and if the tables were turned, and I walked into a room full of men remarking how all women liked to talk about is shopping, I’d be pretty upset. So, I asked her whether she could provide information – either statistics or  facts – that would help us, as women, improve how we communicate with men in the context of her four boxes.

I don’t think she liked my question, because her face squeezed into what I know well as the fuck-off-and-die-smile.  I use it a lot in court. What the speaker did next, though, floored me.

The speaker responded to my question by saying a few things, but the one that stuck out for me was that women need to feel like they have the “right” to speak to communicate well.  So, I asked her how we, as women, develop that sense of entitlement.  She responded by smirking at me and saying, “It comes from experience.  And, I have that experience that, perhaps, a younger woman – in her 20s – doesn’t.”

Wow.  But, wait.  It gets better.

The speaker then starts talking about stress and how “neuroscientists” have determined that women live with a consistently higher degree of stress than men.  This causes, according to the speaker, women to balk at taking on additional responsibilities, because the woman doubts her ability to be successful.  Whereas, men jump at the chance to accept more responsibility, because the “challenge” brings their stress level up no higher than what’s tolerable.

A co-worker asks the speaker about the science behind this.  She explains that she had just recently spoken with her doctor about stress, and his feeling was that the level of stress a person experiences is not the product of extraneous forces but internal response, which varies from person to person regardless of gender.  My co-worker then said, “This isn’t me talking – I’m not smart enough to think this stuff up – this is a medical doctor.”  The speaker then says, “Ah.  You see what you just did there.  You said you weren’t smart.  I mean, I don’t want to single you out or embarrass you, but that’s the kind of self-deprication that women engage in that really hurts them.”

Oh. You mean like how women are catty bitches to one another in the workplace and often their own worst enemies?

Listen, I’m not a big fan of women-only events.  I feel like they serve only to highlight the gender differences that we (as women) assert are the cause of disparate treatment.  And, communication is inherently a two-way event.  How can you possibly hope to improve the way in which one group communicates with another unless you get both groups to the table?  But, even putting that aside, the speaker is a “life coach” who proceeded to give a talk based on gross generalizations, bald assumptions and even stereotypes when she KNEW she was speaking to a room full of women with nothing less than professional degrees.

What are your thoughts, readers?  Where do you come out on women-only events?  Are they useful?  Have any of you ever used a “life coach” with any success?  Is this a “real” profession?  Why do you think women tend to be so competitive with each other?  Or, do you think that?  The whole experience left me with way more questions than answers and a very uneasy feeling in my gut …

Next Thing You Know, the Managing Partner Will Take My Blackberry Outside and Shoot It

I'm taking my ball and going home

I thought it only fair to warn you up front.

Shame parenting managing.  It’s all the rage.

Last week, a law firm’s managing partner – without warning or precedent – emailed all of the attorneys in the firm classed as Special Counsel.  (As background, “Special Counsel” is the title given to those of us with too much experience to be associates but who are not otherwise qualified to be partners.  Some are here by choice and some not.)  Attached to the email was a spreadsheet detailing how many hours each Special Counsel billed so far this year, how much of that time ultimately was not billed to a client, and how far ahead of or off “target” each attorney is.  (For those blissfully ignorant of how law firms work, attorneys are required to bill a certain number of hours per year.  The “target” to which I refer is the annual billing requirement.)

Nowhere in this email is a statement about why the spreadsheet was distributed or whether the information is to be treated as confidential (outside this group, anyway).  The email said only Here’s a report showing who’s done what.  I’ve highlighted the slackers in red.  Pay close attention to them.  Okay.  I paraphrased a little there, but it’s close enough.

I Ate Baby Poop

So, I guess we’re resorting to public shaming as a source of inspirational motivation now. Either do your job, or you will be called out in front of your peers as a loser.  Awesome.  I so enjoyed that in high school, especially because it didn’t harm my self-esteem or self-confidence or desire to even go to school.  Oh, no, not at all.  (Please insert exasperated eye-roll here.)

I have so many problems with this as a management decision, I barely know where to begin.  Some of my issues are impossible to illustrate without showing you said spreadsheet, which I won’t do (even though no one said I couldn’t).  Instead, I am pointing to the spreadsheet while saying, “Liar! Liar! Pants on fire!”

Do you smell something burning?

For those of you uninitiated into the dark magic that is private law firm practice, let’s talk about what being a private-law-firm lawyer means.  (If you already know – or think you know – just skip right down to the comment section to tell me I’m wrong.  You know you’re going to do that anyway.)

In exchange for an annual salary and benefits package, the attorney is expected to produce a certain number of billable hours (which translates into a certain level of income) for the firm.  Seems fair, right?  Well, let’s look a little deeper, shall we?

According to National Association for Law Placement:

… few [starting lawyers’ ] salaries are actually at the national median of $63,000 or the national average of $84,111. Many salaries cluster at the $40,000 to $65,000 range at the lower end and at the $145,000 to $160,000 range at the high end. The mean and median also skew high because NALP collects more salary information from large than small law firms. When the statistics are adjusted to place greater weight on small firm salaries, national average pay is $77,333 for all full-time jobs.

So, let’s imagine that a lawyer agrees to take a job for $80,000 per year in exchange for billing 2,000 hours.  If billing 2,000 hours meant working 2,000 hours, the attorney would be paid an effective hourly wage of $40.00 per hour.  That certainly beats the hell out of minimum wage!  And – hey! – that doesn’t include your benefits package, so let’s pump that annual salary up to $100,000.  Now, you’re making $50 an hour!

Except you’re not.

Only in an attorney’s wildest (or most unethical) dreams does billing 2,000 hours mean working only 2,000 hours, because it is simply not possible for every minute you spent at work to be billable.  The reasons why could be the subject of an entire blog post itself, so I’ll keep it simple.  You will leave your desk to get a cup of coffee/tea/glass of water at least once during the day, which means you will also need to leave your desk to use the restroom at least once during the day.  You’ve lost at least 15 minutes, right there. Heaven help you if you get hungry and the only thing you find in your desk is a bottle of Tums.

No.  Seriously.  Do you smell something burning?

Instead, let’s just do a little math (at which I am horrible, so I’m going to show my work here).  There are 52 weeks in a year.  Each week contains 5 work days.  (52 * 5 = 260)  Businesses generally observe 12 holidays per year, which reduces the number of work days to 248. (260-12 = 248)  You have two weeks of vacation, which you take, because if you don’t, you will staple all the papers down to your supervising partner’s desk, switch out the coffee to decaf without telling anyone, and run screaming from the building while shouting, “I am a covenant running with the land!”  You’ve now further reduced your work days to 238 (248 – (5×2) = 238).

To work 2,000 hours in 238 days requires working a minimum of 8.4033 hours per day. (2,000 / 238= 8.4033)  We already know that you cannot produce 2,000 billable hours just by working 2,000 hours, so you must work more than 2,000 hours within 238 days.  In other words, plan on working at least nine-hour days or 6 days per week, and you better not get sick.  Ever.  You also better have an exceptionally reliable file clerk who takes his job seriously and isn’t just padding his resume for his law school application, or you will spend two (non-billable) hours on a Saturday afternoon searching your four-story office top to bottom to find that motion you need to oppose by Monday morning.

But, I digress.

Let’s assume that you’re a pretty efficient and super healthy lawyer, so you need only work 10.5 hours per day to produce 8.5 billable hours.  This means, you actually work 2,499 hours per year.  (10.5 x 238 = 2,499)  So, you’re really making between $32 and $40, depending on whose version of your comp plan you believe.

How do those $900/month student loan payments taste, now?  I’m sorry.  What was that?  I couldn’t hear you over the choking.

Lawyers do not get paid overtime.  We get paid whatever salary we agree to and work as many hours as it takes to meet our annual billable hours requirements.  Supposedly, this structure encourages efficiency – a human will instinctively work diligently to accomplish as much work in as little time as possible.  If what lawyers did was repetitive, predictable, formulaic work, that supposition might prove fact.  But, a lawyer’s work is often complex and rife with variables (many of which cannot be accounted for) if for no other reason than the people involved in and necessary to accomplishing the work – the clients, opposing counsel, mediators, arbitrators, judges – are human beings.  (No, it’s true.  I know, I know.  I’ve heard that one, too.)  Efficiency requires cooperation – in this context, among people who are adverse to one another or have divergent interests.  Oh, the horror!  Also, the system actually rewards inefficiency.  Why should I perform research in an hour that used to take me two hours?  Sure, I get the research done faster, which gets me onto the next item on my to-do list, but I just robbed myself (and the firm) of a billable hour.

In fact, the system almost demands inefficiency. Not all the time an attorney spends working toward a client’s goal is billable.  Sometimes you must do administrative work – not billable.  Sometimes a project takes longer than seems reasonable to bill the client (even if that’s actually how long it took) – not billable.  Sometimes, a client will call and ask you a “quick” question, which you answer because it’s good business sense to keep your clients happy – but not billable (and almost never “quick”).  Sometimes, you’re working on a motion, get interrupted by a phone call, during which you get an email, which reminds you of something else you were supposed to do, but none of which you actually remember to write down on your timesheet – thus, not billable (or billed, anyway).

These concepts are not new to law firm management; thus, the birth of “bonuses.”  Attorneys who bill more than their annual requirement are financially awarded with a bonus.  Size of bonus varies wildly from firm to firm, but I think it’s fair to say that you’re looking at something in the neighborhood of $5,000 – $20,000, depending on a variety of factors. I imagine the thinking here was that if the firm set a target higher than the minimum, that came with a greater reward, attorneys would try to reach the higher target (obtaining the greater reward), and if someone fell short – well, it wouldn’t be short of the minimum.  Win-win!

Look, money is nice.  I like money.  It pays bills.  It pays for fun things, like vacations (as in the one I’ll send my spouse and children on so I feel less guilty about being at work all the time).  But, this “motivational tool” misses the point, doesn’t it?  If I’m already killing myself to meet the minimum requirement just to keep my job, why dangle $5,000 in front of me to bring me back to life and kill me again?

What's that ticking sound?

Also, not every billable hour is created equal.  The attorneys in a firm may all bill at different hourly rates, depending on experience, practice area, client base or geographic region.  For example, the Special Counsels in my firm have hourly rates that range between $170 and $350.  Thus, one of my problems with the lying-liar spreadsheet – it focuses on only the number of hours each lawyer billed.  But, several of the attorneys who billed the most hours actually made the firm significantly less money.  Why are we devaluing the work of more profitable attorneys and over-valuing the less profitable work of others?

What we’re doing here doesn’t make any sense.  I get that a law firm must be profitable; if it’s not, it doesn’t exist. But, if the people who generate the work that creates profit must dedicate nearly one-half of their waking lives to the enterprise, they need not only extrinsic motivation (like money, positive acknowledgement, constructive feedback) but intrinsic motivation as well.  They need to love their work and if not love, at least respect the people with and for whom they do it.

(Oh, here, you can check my math on the “nearly one-half” thing:  365 x 24 = 8,760 (number of hours in a year).  365 x 8 = 2,920 (number of hours you (should) sleep).  8,760 – 2,920 = 5,840 (number of hours you are awake in a year).  2,499 / 5,840 = .4279 (number of hours you are awake divided by number of hours you must work equals percentage of waking hours spent at work).  Yes, I rounded up a little.  Sue me.)

So, how do you do it?  How do you motivate a group to work according to the demands of the work itself and the expectations of the law firm (which reasonably include being profitable)?

headdesk

I’d argue – quite forcefully – that it’s not by shame, humiliation or public embarrassment.  If you want to demoralize someone, those are all very effective means of accomplishing that goal.  But, you don’t have to be a rocket scientist to understand  that demoralized people aren’t very productive.  A person shamed by someone she doesn’t already have great affection or admiration for likely responds by withdrawal or by actively building negative consensus about the person who shamed her.  A person shamed by someone whom she loves or respects is likely to be heartbroken and may also seek to discredit the person doing the shaming.

Do you want your law firm’s profitability determined by a bunch of withdrawn and heartbroken people, some of whom may be actively spreading the message that you suck?  That would not make me sleep well at night.

You also don’t motivate people to contribute their best efforts by creating evaluative benchmarks that are obviously inequitable.  You cannot value a $350 hour the same as a $175 hour.  You can’t value 1,900 hours billed at $200 per hour the same for Attorney A and Attorney B if Attorney A collected payment on all 1,900 hours and Attorney B collected only 85% of what was billed. You must account for the disparate difficulty in producing an hour of billable work between – say  — a construction defect attorney who attends depositions five days per week and an appellate law attorney who must spend hours combing through a trial record to prepare an appeal.  And, you can’t ignore results – attorneys whose billable time achieves or realizes a client goal has a different value to the firm than time spent otherwise.

I think Stephen Covey (author of the 7 Habits of Highly Successful People) hit the nail on the head when he wrote about the need for organizational management to stop focusing on employees as “things” that perform tasks and instead as actual human beings who not only perform work but bring knowledge, creativity, inspiration and passion to the table.

… Because many in positions of authority do not see the true worth and potential of their people and do not possess a complete, accurate understanding of human nature, they manage people as they do things. This lack of understanding prevents them from tapping into the highest motivations, talents, and genius of people. [¶] What happens when you treat people like things today? It insults and alienates them, depersonalizes work, and creates low-trust, unionized, litigious cultures. People stop believing that leadership can become a choice. … Simply put — at its most elemental and practical level — leadership is communicating to people their worth and potential so clearly that they come to see it in themselves. Think about this definition. Isn’t this the essence of the kind of leadership that influences and truly endures? – Stephen Covey, excerpted from The 8th Habit.

Attorneys need constructive criticism.  If you’re not getting your job done, you deserve to hear about it.  (And, by “deserve” I don’t mean you should get what’s coming to you – although that may be true at times.  I mean you are owed that much by the firm for the work you did do.)  To be constructive, however, the criticism must be delivered so that it is not only received but also digested. Were I Queen of the World, this would mean that criticism would be individually tailored and far more holistic than it is now.  Instead of calling anyone out or myopically (and arbitrarily) focusing on production in terms of hours billed, I’d deliver the criticism in a one-on-one format, invest the attorney in the conversation by asking for self-evaluative feedback, and focus more broadly on the attorney’s value to the firm in terms of profitability, production, results, and culture.  In other words, fuel an attorney’s passion; don’t eclipse it or squelch it.

Verb, Scalpel, Diction, Hammer: ProfMomEsq’s Rules of Grammar (And Other Stuff)

I’ve spent some time lately considering how I might distill some of the writing advice I give to legal writing students or new lawyers. I think this list represents the most important tips I can give, but I’d love you to add your thoughts/advice in the comments. I’d also like to add a disclaimer.

While I am writing this, I’m having a cocktail and exchanging Twitter haikus with my cyber-sister @jillsmo (who writes a really damn funny blog here), so if some of my sentences seem a little matchy-matchy or strangely rhythmic, it’s her fault.

Okay …

1. Wield Your Pen (or Keyboard) Like a Scalpel Not a Sledgehammer. If having surgery, would you prefer the doctor just cut you open willy-nilly or would you rather the surgeon made a single incision as precisely as possible? (If you’d like to be cut open willy-nilly, this metaphor will be totally lost on you, so just skip to #2.) Choose your words with the precision of a surgeon. Don’t leave your reader scarred by your random musings (unless you write a super-witty, extraordinarily useful, and crafty blog like I do). Get to the point, and make sure your words actually convey your intended meaning. Be a minimalist, and keep it simple.

2. Write As If Your Mother Will Read It (a/k/a Don’t Be An Asshole). We’ve all received a communication from someone who pissed us right the fuck off. You know you still smart at the one letter or email that was the equivalent of a red flag waving at your inner bull. Not long ago, I stopped speaking on the telephone to opposing counsel for one of my cases, because he insisted on screaming at me on the phone. So, he instead resorted to writing me emails IN ALL CAPS!!!!!!!!!!!!!!! (just like that). He was begging for a smack down of epic proportions, and I was itching to do it. Instead, I walked away from my computer and into my boss’s office, vented then collected myself, and responded simply and only to the issue that needed to be addressed. When opposing counsel and I later got into a discovery dispute that resulted in the attachment of his lovely emails as an exhibit to a motion, I wasn’t embarrassed, and I wasn’t dressed down by the judge. In open court. On the record. In front of a full courtroom.

When you write in response to something that starts feeling a little too personal, remember these two things:

Before you embark on a journey of revenge, dig two graves. — Confucius

Strong and bitter words indicate a weak cause. — Victor Hugo

You might succeed in making opposing counsel (or to whomever your missive is directed) as angry as you are by figuratively ripping his/her face off with your acerbic wit, but what you are not going to do is impress a third party (i.e., the judge). And, that kind of defeats the purpose, doesn’t it? The best revenge is success, so stick to making your important point and save the Snarky McSnarkerson for Twitter. Or your blog. Don’t unleash her in your professional writing.

3. Since ≠ Because. I frequently see these words used interchangeably, even by writers I consider to be quite good at their craft. But, the words are not synonyms. Since refers to a temporal relationship between two events. For example, if I write, “John gained ten pounds since he quit smoking,” the words describe an event occurring during a period of time between the day John quit smoking and the day the sentence is written — those two points in time define when John gained some weight. However, the sentence does not convey the cause of John’s weight gain. If that’s what you take from the sentence, it is an assumption not an inference. (See Point 4, below.) However, because refers to a cause/effect or correlative relationship. If I write, “John gained ten pounds because he quit smoking,” the sentence expresses a connection between quitting smoking and stuffing your face full of Hostess chocolate mini-donuts. Not that I would know this from any kind of personal experience. At all. WHAT?!

4. Inference ≠ Assumption. This concept is best illustrated by example. My son and I are home. There is no one else in the house. I bake a cake. I leave the whole cake on the kitchen counter and exit the room. When I return, there is a piece of cake missing. I know these facts: (1) I am home; (2) my son is home, (3) no one else is in the house, (4) a piece of cake is gone, and (5) I did not eat it. From those facts and by a process of deductive reasoning, I infer that my son took the piece of missing cake. (I have no evidence he actually consumed it.) Now, let’s say that I am home, my son is home and my husband is home. I bake a cake. I leave the whole cake on the kitchen counter and exit the room. When I return, a single slice of cake is missing. I cannot infer that my son took the cake, because it is equally possible that my husband took it. If I conclude that my son took the cake, I am making an assumption, not drawing an inference. See? Inference, good. Assumption, bad. You know what your mom told you happens when you assume …

5. Your ≠ You’re. Your is a possessive pronoun describing something belonging to you. You’re is a contraction of you and are. As in: Please proofread your work if you’re going to post it, because there’s always some Reddy McRed-Pen down the comment thread.

3. Don’t Use Five Words When One Will Do. You’d think it would be challenging to clear your throat in writing, but I see this a lot in the form of cumbersome, unnecessary phrases that reduce simply to if or because: due to the fact that, in the event that, should it come to pass that. Quit writing this crap. It’s lawyer-like (or “professional”-sounding) only because (not “to the extent that”) it is a textbook example of lawyers’ bad writing habits. When you use phrases like this, the words have the same effect on your reader that a lot of ums, uhs and other verbal tics have on a speaker’s listeners. It reads like you’re tripping over yourself and are unsure about your point, which sucks if you want your writing to inspire a reader’s confidence in you.

4. Use Strong, Active Verbs. Nothing waters down your writing faster than weak verbs. First, learn how to form past-tense verbs to avoid past perfect and past perfect progressive verbs that aren’t as powerful as the past-tense conjugation of an irregular verb. For example:

Neither of the parties had knowledge that the gun was loaded.

Why use three words – “had knowledge that” to convey what is said with one – “knew”? The stronger sentence is:

Neither party knew the gun was loaded.

Second, use a verb that actually describes the action your subject is doing to your object. For example, consider the difference between these two sentences:

ProfMomEsq hurt her toe.

ProfMomEsq stubbed her toe.

Both sentences convey the idea that I was hurt, but the second one is far more descriptive of how I was hurt without adding any additional words. After reading the first sentence, you think, Bummer. I like that ProfMomEsq lady. Too bad she hurt her toe. But, after reading the second one, you think, Oh! Ouch! I hate it when I do that shit! Sucks! See? It’s like magic!

Third, avoid the passive voice. For example:

Paralegals may be employed by a law firm to perform tasks sometimes performed by lawyers.

No good my friends, because the subject and object of this sentence are backward. Who is doing the employing? The law firm. Who is employed? The paralegals. Hotel. Motel. Holiday Inn. If your friend is actin’ up … Switch!

A law firm may employ paralegals to perform tasks sometimes performed by lawyers.

Unless, you know, you want your writing to read like Yoda wrote it. Then, by all means, please put your objects at the beginning of your sentence. Irritate the shit out of your reader, you will. But, it’s your paper …

5. Proofread ≠ Spellcheck (or Vice Versa). You MUST do both. Period. End of discussion. Because I said so, that’s why. You will sit there until you clear your plate. Now, put a sweater on. It’s cold in here.

6. Quotation Marks – Learn Who’s in the Club and Who Isn’t. Period: in. Semi-colon: out. Question mark: in if it’s actually part of the quote, otherwise out. Comma: in. Yes, it is that simple.

7. The Abbreviation A.M. and the Words “In the Morning” Should Not Appear in the Same Sentence. It’s called redundancy, people. No likey. It’s bad bad.

8. Stop Capitalizing Words that Aren’t Capitalized. There is no better way to announce to a reader your uncertainty about the meaning of a word than to capitalize a noun that does not need capitalizing. This epidemic may afflict only the writing of new legal writers, but I see it enough that it makes my list. If you don’t know, look it up. If you have to guess, err on the side of using the lower case, unless the word is the first one in your sentence. (And, I really, really hope that last part went without saying. But, just in case.)

9. If You Have to Point Out How Clear or Important Something Is, It’s Not. Sentences that start like this — “Clearly, it is important to note that” — are usually followed by a point that is neither clear nor important. Make your words get a dollar out of 15 cents. Choose words that make the point both clear and important – not because you said so, but because the articulation of your reasoning makes it so.

10. Buy a Dictionary, then Use It as Something Other than a Doorstop. Please.

The One Where I Find Out I Can’t Juggle

I’m not crazy, M’Lynn.  I’ve just been in a very bad mood for the last 40 years.  — Ouiser Boudreaux, ‘Steel Magnolias’

Here’s the thing about juggling.  If you think too much about the mechanics of keeping the balls in the air, you are bound to drop them.  Maybe you’ll get lucky and drop only one.  But, more often than not, everything’s gonna wind up on the floor and getting away from you.

For the past two months, I’ve spent an awful lot of time thinking about the mechanics of juggling, and shit is hitting the floor.

I am certain that until the moment I actually went to work as a lawyer — sat down behind the desk, staring at my name on letterhead — I believed I could simultaneously be a spectacular mom and a kick-ass professional.  Oh, sure, I had talked to or read about other moms who were “struggling” with finding a balance between work and home.  But, that was them, and I am me.  My whole life, I’ve always managed to land on my feet.  Things work out because they just have to work out.  Over the course of fourteen years, I’ve managed to balance law practice, a teaching career, parenting, volunteer work, running a house and the occasional side project.

Lately, though, I’ve been asking myself:  why?  I can’t be doing all this for my kids.  If given a choice between me being home and available to them or constantly at work or traveling, I think they’d choose to have me home.  I can’t be doing this for my husband, who has to pick up the slack when I’m away (which is a lot) and who has had to essentially put his own career on hold to accommodate mine.  I can’t even be doing this for me, because I’m too damn busy getting through this stuff to actually enjoy any of it.

Sure, I’ve had some successes.  I’ve scored some big wins for clients.  I’ve had my work complimented by judges in open court.  I’ve seen many of my former students go on to become lawyers and do well for themselves.  I save all the emails from students that come years later, thanking me for what they learned in my classes.  I have the best husband a girl could ever hope to have (and not just because he hasn’t killed me yet).  I have two beautiful, amazing kids.

This should be enough, right?  To ask for any more than this is selfish and greedy.  Well, I don’t want more; I want less.  I want to forget this stuff:

  • The first day you drop your baby off at daycare will be the singularly worst day of your life.  You will bill 1.1 hours that day.
  • The day you are to take your first deposition, your son’s school will call to say he has a fever.  There will be no one else who can pick him up.  There’s no one else you really want to pick him up.  But, you’re a second-year associate, and telling your male supervising partner (whose wife stays at home with their kids) that you need to leave makes you want to put a hot stick through your eye.
  • There will be countless Saturdays that you can’t go to the park, or bowling, or to a movie, because you’re trying to catch up on billable hours.  You hate yourself as you start yet another Thomas the Tank Engine video.
  • You will be in a car accident and have your hand broken, make a Herculean effort to get your kids to school and yourself to work, and have a supervising partner look at your cast as you walk in the door and ask, “Where’s my brief?”
  • You and your spouse will have a scheduling conflict and no one to watch your daughter, so you will hide her under your desk at work as she naps while you get in as many billable hours as possible.
  • The phrase “quality of life” describes the difference between working Saturdays and Sundays or just one of them.
  • You will be shocked to find sympathy for this struggle more from male lawyers than from female lawyers — especially the female lawyers who do not have children.  There are women who will absolutely despise you for taking maternity leave.  You, in turn, will want to strangle the women in your firm who take maternity leave and then string the firm along on a return-to-work date only to decide not to return at all.
  • It’s really fucking hard to leave your kids everyday to go to work if you don’t absolutely love what you do, no matter how good you might be at it or how much money it might provide your family.  You do not love being a lawyer.
  • It will be cause for celebration in your house when you are actually home for dinner.  If you make dinner, your family will be confused by the plates and silverware as they search for bags, boxes and sporks.
  • Your daughter will be diagnosed with autism, but you will stay in your job for years because of the guilt you feel about “wasting” $100,000 on a legal education and for breaking promises you made to the firm that supported you.
  • You will develop insomnia and random but real pain throughout your body.  Your doctor will suggest you see a mental health professional, and you will not only ignore him, you will actively look for another doctor, because yours is clearly an idiot.  (Except, you know, that he’s not.)
  • You will say mean things to your husband and your children that you don’t really want to say but that fly out of your mouth because you are exhausted and bitter.  The words I’m sorry are said way too often.
  • You will end up in a puddle on the floor of a therapist’s office, begging her to save you from yourself.

So, here’s what I’ve realized in the past couple of months.  Yes, there are women who do it – who manage career success and still make soccer games and dance recitals and band concerts.  I am not one of those women, and its not just because I have a daughter with special needs (although that’s really forced me to confront this).  So, on Friday, I put the balls down and took a leave of absence from my law firm.  What I finally realized is that if I don’t take care of myself, I am no good to anyone else.  I might be able to make up billable hours, but I can’t make up for lost time.  There is no one at the finish line of life handing out medals for juggling, and I don’t want a medal anyway.  I want kisses and hugs.  I want to read books, play in the park, make flashcards, chaperone field trips and make dinner every night.  I want to exercise more than my brain.  I want to be present in my life instead of just going through the motions of living it, building a resume that looks good on paper but leaves nothing meaningful in my wake.  I want to figure out how to heal.  I want to know whether I can handle more than one job and do both of them really, really well.

I can’t juggle.  But, the beautiful thing is, the only person who really expects that of me is me, and I can stop whenever I want.

Lawyer as Witness: Turning Tables & the Art of Following Your Own Advice

Recently, I was deposed and later testified as a witness in an arbitration. Yes, that’s right – I was a witness, and someone else was the lawyer.  It was a role reversal that truly changed me as a trial lawyer.

I can’t talk about the specifics of the case for confidentiality reasons. But, generally speaking, the dispute was this:  my client asked someone else to pay the cost to settle a case. The someone else didn’t want to pay. The someone else didn’t want to pay, because they believed I gave my client the wrong analysis of the basis for payment. Dispute ensued, arbitration followed, lessons were learned.

Trust.  I am a serious control-freak. I am terrified to fly mostly because someone else is flying the plane. It does not matter that part of my brain comprehends the illogical premise of this fear; it’s still there. So, I was none too pleased to put my client’s fate – and to some degree my fate – in the hands of another lawyer.  I mean – I may not know how to fly a plane, but I know one or two things about the lawyer stuff.  Yet, I had to do it.  I wouldn’t storm the cockpit of the plane at the first sign of turbulence no matter how bad I might be hyperventilating.  So, I knew I had to surrender control of the case to my lawyer, or the case was going to crash.  Bear in mind, that doesn’t mean I wanted to do it.

This made me realize (or – more accurately – reminded me) that clients do not trust you just because you’re a lawyer.  I’m sure some of you are saying, “Duh. That’s not some brilliant insight.”  Except that it is.  If you are a lawyer, think seriously about your last few new client meetings.  How much consideration did you give to truly building your client’s confidence in your trustworthiness? No matter how well-educated you are, how successful you’ve been, or how well-known your law firm is, clients don’t trust you right out of the box no matter how confident they might be in your abilities.  The trust part of the attorney-client relationship is earned.  Your resume is the reason you (or your firm) got hired in the first place; it’s not the reason the client keeps you around.  Don’t walk into a new client meeting assuming you are smarter, know more or are better prepared than the client.  Free your mind of generalizations, stereotypes, gender roles and age or experience gaps and remember one hugely important thing:  you and your client are human beings with actual feelings.  If you think you’re nervous, it’s a sure thing that the person sitting in the client chair is scared to death no matter how brave a face she puts on.  What a client wants isn’t so much for you to impress her with how much law you know but for you to listen to and hear her.  Your client needs to know you’ve got her back.  That’s what builds trust.  Without it, the client will (consciously or not) withhold important information from the lawyer, and that will always leave the lawyer at a dangerous disadvantage in defending or prosecuting a case.  There’s a reason counselor is a synonym for lawyer, and it’s not coincidence.

Preparation.  I truly thought I knew how to prepare a witness for deposition or trial testimony before this experience.  I even thought I did a good job at it.  Now, I know I overestimated myself.

Until you sit in that witness chair for eight hours, having your work or actions questioned, misrepresented, twisted, maligned, skewed and then questioned again, you cannot possibly appreciate what a physically and mentally taxing experience it is for the witness. The best analogy I can give comes from golf.  When you walk up to the tee, you must consider so many things before swinging that club:  the fairway, the hazards, body alignment, grip strength, swing speed, wind direction, and optimal shot position.  You can’t stand in the tee box all day contemplating these variables — there are players waiting and only so many hours of daylight.

Being a witness is a lot like being a golfer — there are (too) many things going on at once:  listen to the question, process what’s asked, focus on answering the question accurately, avoid volunteering information or over-answering, anticipate the next question, wait for objections and try to interpret what guidance you might from them, keep your emotions in check, speak clearly, and do not talk over anyone else.  Now, do all of this with sufficient speed to avoid any awkward gaps or pauses in the testimony that might make a listener think you’re concocting an answer instead of stating facts.

It’s really damn hard.  First, the witness will be nervous, especially if never been deposed before.  It didn’t matter that I’ve taken more depositions than I can remember or that I was confident in the correctness of my position going into the deposition.  I still barely slept the night before, I choked down my coffee the morning of, and I was sweating by the time I sat down next to the court reporter.  Nervousness makes it very hard to remember and follow all the directions you’re given, no matter how many times you’ve heard them.  Second, at some point (if not immediately) the witness will feel defensive.  Who among us likes to have our competence or veracity questioned?  Defensiveness is a natural and hard-to-control reaction to someone expressing or implying that you’re lying or stupid, and that feeling is also bound to make following directions near impossible.  Third, testifying is tiring.  The average adult has an attention span of about 17 minutes.  The average deposition takes about four hours.  Witnesses who are nervous, defensive and exhausted are probably more dangerous than a drunken toddler wielding a kitchen knife near a light socket.

Allow me to make my (paraphrased) deposition testimony Exhibit A:

Q.  Is it possible you meant [to say the sky is green] when you wrote this?

A.  Counsel, I’ve told you five or six times now that I don’t remember writing these words.  I’m not going to guess at what it means.  I don’t remember.

Q.  But, I’m just asking you whether it’s possible that’s what you meant.

A.  I’m not going to guess.  You’re entitled to my best estimate, but I don’t have to guess.

Q.  But, I’m just asking whether it’s possible.  You know whether it’s possible, right?

A.  Sure.  I might win the lottery tomorrow, too.

It’s a stupid exchange that ended in me conceding what was ultimately an irrelevant point.  But, I still gave in.  My frustration and exhaustion allowed me to let my snark flag fly despite years of training to avoid exactly that.  Yet, I somehow expect a witness — whose job is not being a witness but doing whatever else that person does for a living — to magically follow the deposition rules perfectly the first time out of the gate.  That would be like asking my legal writing students to start the class by taking the final.  Every once in a while, someone might be a natural and knock one over the fence.  Most of them, though, will fail and miserably so.

There is only one sure way to help a witness overcome the unfortunate side-effects of exhaustion, defensiveness and nervousness (or its unhappy cousin — arrogance):  conditioning.

You must examine and cross-examine your witness over and over again ahead of time.  Don’t just sit together for hours pondering documents or speculating about what the witness might be asked.  Depose your witness. Cross-examine your witness.   Ask the difficult or even nasty questions that will be asked at the deposition or at trial.  Try to impeach the witness.  Make the witness actually experience what’s going to happen the day of testimony.  Have another lawyer or a paralegal who’s good with the rules of evidence sit in to make objections to your questions so that the witness experiences the interruption and learns how to respond to it.  Show the witness documents in the context of how he or she will be questioned about them.  Question the witness about prior deposition testimony. Engage this process for as many hours as you can so you and the witness feel the experience, too.

Preparing this way does double duty.  It enables the witness to appreciate the emotional, physical and mental experiences of testifying in a way that no amount of discussion can.  It also helps the lawyer identify the strengths and weaknesses in the client’s case and testimony.  Lawyers come from the same species as jurors.  (I swear, it’s true.)  If a witness’s practice testimony leaves you with a sense of accomplishment, that’s probably going to be the jury’s take-away, too.  Conversely, if the practice testimony fills you with dread, you have a chance to polish as much as possible to minimize damage.  But, you can’t possibly assess these things in the abstract, and you sure as hell don’t want to find this out during the real show.

Faith.   As a lawyer, I’ve been frustrated with the occasional vagaries of the legal system.  Despite a judicial error or wayward juror here or there, I believe the system works, because — more often than not — it does.  (And, I’m speaking here philosophically — we can talk about whether the actual mechanics of our underfunded and oddly organized state court systems “work” another time.)  There is, however, no substitute for putting your fate in the hands of that system to truly test the strength of your conviction in its functionality.  From my witness experience, I gained a profound appreciation for what it is we ask a client to do when the client submits its financial, business, mental, emotional, physical or familial future to the decisions of one or more people who can know only precious little about the experiences that led the client to that courtroom.

I am a better lawyer for this experience.  I will be more conscious of my role not just as a legal adviser but as a counselor, a cheerleader, a gatekeeper and a teacher.  I will assume less and listen more.  I will include patience and sympathy in my hourly rate.  I will earn trust, I will proactively practice preparation and I will build faith.  I will also forever wonder why being deposed or cross-examined wasn’t part of the “performance tests” on the Bar exam …