Lawyers: Why Start your own Law Firm?

A reader of my book recently asked me why, and how I was going to start a law firm so early on in my legal career. Great question. Here was my answer:

As far as starting my own firm, yes, it's true. Crazy, but true. I am starting it with a law school buddy of mine, who articled in the same city as myself. I became convinced very early on that I did not really like doing work in a subordinate role. I was a very successful business person before law school, and the large drop in pay, responsibility, and autonomy was too much for me to take. I also found early on that my favourite part of the practice of law was client interaction. I was lucky at my firm in that I was given the opportunity to jump into the deep end and fend for myself. As such, it made perfect sense to set up my own shop and enjoy the benefits of higher remuneration, more responsibility and more autonomy. I figured that if the Law Society says that I can do it, then it must be OK. I have known others who have started a solo practice after articling. It's rare. There are two main obstacles, I have found - $ - most people think that they don't have enough money to cover the first 3-6 months. But, I have found that most people who do start a solo practice do so by going and getting a line of credit for $20-30K and away they go. The second obstacle seems to be a timidness about running a business. Admittedly, many law students have zero background in business. I have an advantage in that I have run a number of businesses, or been an executive in a number of businesses.

Further, I am in an area of the world that is booming, there is no shortage or work, and a relative shortage of lawyers.

Lastly, Carpe Diem. Why not?

Post-note: I was extremely lucky to have such supportive mentors in my firm. As well, I have some fantastic friends in law who have promised support when required.

Following Your Gut Instincts in Changing Jobs

This morning I sat down with a big mug of coffee and a yawn to do my usual online reading and I got some good news. Nemorino, a first year associate in New Jersey who runs the blog Bridge and Tunneled and who reads my blog, has decided to change jobs from his current, good-but-unsatisfying private practice job to one that excites him. Check out his post here. To my enormous satisfaction, he said that in making the change he was following some of my advice from this blog. That is precisely why I write this blog. I was once a student and later a junior associate who could have used some advice, and I am glad he found my blog comments helpful.

So Nemorino is thinking about his career in the right way: he is following his heart and his gut instincts. It is far too easy in practice to stay where you are--to plan your career around the mundane and known present, instead of aiming toward an exciting but unknown future that might not work out. Inertia seems easy and safe; change seems risky and hard. But the payoff can be huge. And the downside of not taking a little risk? Waking up one day with kids and a mortgage, and feeling trapped. Staying in that situation means dying by degrees.

Think of it this way. Making a change means things might not work out. But staying on a career path that is not fulfilling means things certainly won't work out. One of my earlier posts on this subject is located here (look at the bottom of the post in particular).

So Nemorino has chosen action based on his heart over inaction through inertia. Kudos to him. I hope it works out.

Clyde Kennard

There are many good things about living in the Deep South. The pace of life is slower. People are generally more polite. Practically all the food is comfort food. But there are bad aspects to the Deep South, too, and the shadow of slavery and racism still looms large.

So when it was reported in the news yesterday that the Mississippi Parole Board had declined to recommend a posthumous pardon for Clyde Kennard, I just had to groan. The local newspaper article can be linked to here. Kennard, for those who don't know, was a Korean war vet who was falsely accused and convicted of burglary in 1960. His real crime? Trying--repeatedly but unsuccessfully--to enroll in Mississippi Southern College (now the University of Southern Mississippi in Hattiesburg), which at the time was all-white. More information on Kennard is available here. Parole Board Chairman Glenn Hamilton justified the board's decision by explaining that "a more appropriate and satisfying remedy may be available to exonerate the name of Mr. Clyde Kennard." In other words, the wrong done to Mr. Kennard was so egregious that a pardon is not a big enough gesture--so let's deny the pardon.

Perhaps not surprisingly, the board's recommendation against a pardon came after public statements by Mississippi Governor Haley Barbour that he would not grant a pardon, since pardons are for the living, not the dead. (Mr. Kennard died of colon cancer in 1963.) So you have to wonder whether the Parole Board caved to executive pressure. The board makes its pardon recommendations to the governor, so it could be that the board did not want to put the governor in the awkward position of denying a recommended pardon--which I understand has never before happened in this state.

I don't know. But whatever the logic, the decision is astounding. And shameful.

For the sake of argument, let's take Parole Board Chairman Hamilton at his word. Saying that the wrong was so great that pardon doesn't rectify it is like saying a crime we commit is so terrible that apologizing cannot make amends for that criminal act--so we refuse to apologize. That's ludicrous. And as for Governor Barbour's logic, it doesn't explain why President Ford pardoned Confederate General Robert E. Lee, or why other state governors have issued posthumous pardons.

I am not saying that we should not hew to rules. In the field of law, adherence to the rule of law sometimes generates unpopular results, and anyone who has been to law school understands this. The law is in many ways an imperfect proxy for morality, as is well-illustrated by the term "loophole": there is an intent behind a provision of law, but there is a way around it--a way to obey the letter of the law but violate its spirit. Yet underlying much of the law is the notion of morality. That's why we outlaw things like murder, but allow for insanity defenses. And it drives the current national debate about abortion.

The upshot here, as I see it, is that the Parole Board had discretion to recommend pardon and take a least a small step toward reconciliation between the white and black communities of Mississippi, which still remain deeply separated from one another in many ways. And the governor is not bound by law to oppose the pardon. So the pardon clearly can happen. Don't we teach our kids to say they are sorry when they do something wrong? And to put it bluntly, would we teach them differently if the person wronged were dead? Would we tell them not to apologize to their relatives or friends?

This turn of events troubles me even more deeply because this debate is all so unnecessary. Kennard should be pardoned--and other avenues of redress can be explored too. You can be sure that tonight, when I attend my law school's annual BLSA luncheon, this will be a topic of conversation--which illustrates how significant an event this parole denial is.

P.S.--At least I can say that I am proud that Mr. Kennard's case is being championed by the Center on Wrongful Convictions at my alma mater, Northwestern University School of Law. Lawyers get a lot of criticism, but in this case I am glad to be affiliated with an institution that is doing the right thing for the sake of doing the right thing.

Lawyers: Outrageous contingency fees for lawyers?

In a quirky bit of fate, I read an article on CBC a couple of days after my last post, which dealt with mega-torts and mega-$ for lawyers through contingency fees. Often, lawyers will agree to take on a case based on a contingency arrangement, rather than a flat fee basis. The number has traditionally been 30% of the "winnings" in a case. Lawyers are careful to get into this kind of arrangement, because it can end up being a real gamble, unless the lawyer feels very strongly that they have a potential winning case. Contingency arrangements are common in personal injury law, because the potential payout has traditionally been quite high, thus resulting in a strong fee for the lawyer.

The article that I recently read told of the fees that would be paid out to lawyers for a recently settled case involving compensation for victims of residential schools in Canada - where many aboriginal children and youth were mistreated, abused and often neglected. The fees to the lawyers will amount to about $80 million. That's right $80,000,000.00. That's a lot of zeros! One firm from Saskatchewan, The Merchant Law Group, will receive about 1/2 of that. $40,000,000.00. One firm. They have 50 lawyers. That's $800,000.00 on average per lawyer. No doubt, the junior lawyers will see very little, if any of that money, and the partners will enjoy much higher yearly bonuses this year. The firm put forward that many of their lawyers had gone without pay for extended periods, and that they had invested over $2 Million of their own monies into the class action case. They represented about 9000 clients in the class action.

Hey, I'm all about making a decent living as a lawyer. I wouldn't have gone through the 10 years of education, and a year of articling if there wasn't some promise of a decent yearly take-home at the end of the rainbow. But $40M for one firm. That's outrageous. What makes it more outrageous is that it never even went to court. It was a back-room negotiation. The $40M firm admitted that it wished it had gotten more for its clients. I bet they wished that too.

The deal offers any former student a lump sum of $10,000 each, plus $3,000 for each year spent in the schools. An estimated average of about $30,000.00 for each living former student. It is estimated there are 80,000 people alive today who attended Indian residential schools, according to Statistics Canada. The total payout is about how much a secretary makes in one year. The average age of the former students is 60, but many are sick and living in poverty. This is compensation for many years of actual physical, sexual and mental abuse, plus years of post-abuse mental anguish. Now, consider that a large number of the victims are now dead, and no claim can be made. Do you think that the abuse suffered by residents of the schools has not affected further generations? I do. Here's why. My grandmother attended a residential school. I don't know how badly it sucked, but I do know that it did suck. We can all read victim stories to get an idea of what it was like. My grandmother did not get to be with her family for 10 months of the year for years. She got to go home for summer holidays. During the school year, she wasn't allowed to speak her native languages. That means that Cree was lost for her, for her children, her grandchildren and her great grandchildren. French was also lost, but luckily regained a couple of generations later through self-study.

I ramble on...

Here's the point. For something that affected an entire life, and the lives of the victim's progeny, the government is willing to hand out $30,000.00. Gee...thanks on behalf of all the claimants. For working really hard on the case for a few years, all the while servicing other clients, I would assume, 50 lawyers get to share $40,000,000.00. That's enough for many people to retire on. Retire well. Yeah, they worked hard, I am sure, but they didn't get what the claimants asked for. O the other hand, they chose to take a risk on 9000 clients and to put in a lot of time. But, in my opinion, the risk they took does not reflect 40 million dollar bills.

Am I off here? Am I crazy to think that this situation is really out of whack? Am I going against the grain too much as a member of the Law Society to say that this is bordering on immorality? Let me know.

P.S. How much is $40,000,000.00? It's hard to imagine for me, as I have been in student-related poverty for so long. Here's a funny post about how much $1,000,000.00 is. Here's some more trivia on the subject - how much does $1,000,000.00 weigh?

Law in Literature: The King of Torts - a short review

I just finished reading John Grisham's King of Torts. It was a very entertaining read and fairly creative. It was equally frustrating - almost maddening - to read. The main character, Clay, gets handed a supposed "lottery winning" opportunity, but he never really suffers any kind of ethical struggle with himself. I began very early on to think that he was a loser, just like his father who had been disbarred some years before. As usual, Grisham attempts to smooth over the ethical issues, and make it more of a struggle about taking risks to make mega-bucks.

I was pretty shocked by the $ figures peppered throughout the book. I had no idea of the extent of mass tort litigation, or the numbers involved. The book was convincing in many instances - i.e. that this kind of back room manipulation through tort litigation could make or ruin corporations. As well, it was pretty fascinating to read about what the life of mega-lawyers might be like. How anyone could possibly justify purchasing a $42M private jet is completely beyond me, and I would rather choose to live my life in a more simplified bubble than contemplate such things. I often have a hard time charging someone the rates that I do to write them a will, or do a real estate transaction. Taking 30% of a multi-million dollar settlement would certainly cause me to pause, I think.

One other thing that really bothered me about this book, as with some of Grisham's other books, is the seemingly easy transition from law school, or in this case, from being a lowly lawyer at the district attorney's office, to mega-law firm or mega-litigation. Again, Grisham glosses over the idea that it might take more than reading over a few rules of court, or asking a couple veteran colleagues what needs to happen to succeed. I think that you would have better odds of winning big on slot machines than of succeeding in the big leagues of law without proper and lengthy preparation (i.e. years) before taking on the big case(s). But, I guess that is what makes good American legal drama - that David vs. Goliath set-up, and in this case, that emulation of the fall of David from a situation that could have been so easy and ultimately satisfying.

Last-Minute Final Exam Advice

Law school exams are upon us yet again, and no one currently in law school is really a newbie anymore. Even the 1Ls are battle-scarred veterans. But some basic advice bears repeating, since sometimes the biggest mistakes are the easiest ones to avoid. So for what it's worth, here are my tips for surviving and even possibly thriving this exam season.

First, think about what your professor wants. In each class you are taking the professor as well as an exam. Does your professor play hide the ball or not? Give hopelessly long fact patterns? Find this out if you haven't already done so. Take some practice exams if the professor has any on file. Attend any review session the professor might offer. Ask questions about your professor's approach to exams.

Second, get plenty of sleep the night before the exam. I didn't always do this, and I could tell a difference in my exam performance. If you haven't mastered the material by the night before the exam, you aren't going to. So get some rest and at least be mentally sharp for the exam.

Third, carefully read the questions. Make sure you identify the issues presented by (or imbedded in) the question. Sort the relevant facts from the irrelevant ones.

Fourth, outline your answer. Take the time to do this. Invariably students do not follow this advice, since outlining reduces the time they have to write their answers. But outlining makes you think about the entire question and how to answer it. You'll be less likely to miss issues, and more likely to organize your answer well--both of which mean a higher score.

Fifth, cite to relevant sources of law on the exam--cases, statutes, regulations, doctrines. You may have the general concepts down, but if you can cite to the relevant cases or statutes, that shows me both that you were paying attention and that you have the gist of how to take law from a particular source and apply it to a new fact pattern. Which is largely what law school exams (and the practice of law) are about.

Sixth, in citing to relevant sources of law, paraphrase. Don't rewrite enormously long quotes on the exam. Use of key legal terminology and a brief paraphrase of a rule or principle will serve just as well, and in fact is better. I personally do not care if you can accurately produce a key paragraph from Judge Learned Hand's opinion in such-and-such a case. I do care whether you understand the principles involved. Use of key terms and a paraphrased summary actually demonstrates your level of understanding better than a long quote.

Seventh, in answering the question, be a lawyer, not a politician. A lawyer asked a question by a client should do her best to answer it. In contrast, all too often a politican asked a question during a debate gives the answer to the question he wishes had been asked. That gets you zero points on a law school exam.

Eighth, when the exam is over, walk away! Don't dwell on what you think you missed. Unless you have a time machine, you cannot do anything about it. Law school exams are complex, and you almost never get to identify or address everything on them. An "A" grade on my exams is often about a 70% score--which means 30% of the points were left on the table. So let it go.

And whatever you do, DO NOT call your professor to discuss how you think you screwed up on the exam. Not only is that enormously unprofessional, the fact is that we grade exams anonymously. Telling me how you answered a question undermines that system, and does far more to harm you than help you.

You might agree or disagree with some of my advice--but if you are in my classes, you'll do far better by heeding these suggestions. So good luck.

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Some of my previous posts regarding how to take law school exams can be linked to here (How Law Professors Write Exams), here (How to Improve Your Law School Exam Grades), and here (More About Law School Grades).

More Professors Ban Laptops in Law Classes

Here's something controversial (at least for law students). Some Penn State law school professors have banned laptops in their classrooms, claiming that students are too distracted as they surf the web, and in some cases, play poker during class. What do you think?

Myself, I found my laptop a very useful tool during law school, as I detested taking notes by hand. However, I also found it very distracting and rude when classmates would be surfing The Gap and SI.com or, worst of all, playing solitaire incessently.

Laptops are supposed to be a resource to help you in class, not a mode of distraction. If you are finding class so boring, go home, read your textbook. You'll get a lot more out of it.