How Character Influences Employers' Hiring

A couple of unrelated events brought the same message to me last week: employers take into account a person's character.  First, our law school hosted last week a Summit of Legal Employers in  our region.  An expert in the evolution of the legal marketplace, Bill Henderson, from Indiana Mauer School of Law, moderated the Summit. In the process the question came up several times what legal employers want from graduating law students.  Along items I expected to hear--such as students who are more practice ready and technologically savvy--I heard more consistently a  comparatively old fashioned trait.  Employers want lawyers who will be professionals.    By professional, they mean not just folks that will show up on time, but rather lawyers who have a sense of the right and wrong ways to treat people and who display professional values such as honesty and respect in dealings with clients, judges, and lawyers.   Interestingly, employer interviews offer an insight into the significance of character.   Following are some of the questions that employers ask: One was:  "If you have made two commitments and have a conflict where you will have to honor one and bow out of the other, how do you handle that?'   Another question:  "What are your priorities?"   By such keen questions, the employers gather information on candidates and assess whether the answers are genuine or simply say what the applicant thinks the firm wants to hear.  Regardless of their effectiveness, the reality that firms pay close attention to a candidates' integrity was encouraging.  Sometimes I sense that those of us in the profession get the impression that all firms care about is productivity, i.e. money.   And that apparently is not true.  Of course, a person's integrity will affect the employer's long-term interests.   A lawyer who is ethical and has a solid sense of who he or she is and what is important in life will, in the long run, be (a) less likely to cause problems for that firm with inappropriate behavior, sanctions, etc., and (b) will likely be more productive.  In short, I think we sometimes do not give employers enough credit for realizing the factors that affect success.

The unrelated "event" was a call from a former student, Andrew, who graduated several years ago. was now doing very well in an Indiana law firm, and wanted to bounce a question off of me.  The call was before the Summit, so I'm confident it wasn't influenced by anything I refer to above.    Andrew told me the story of when he was hired.  There were seven candidates, some from top tier schools, all at the top of their class.  He got the offer.   Afterward, the senior partner told him later that the deciding factor was that the firm decided that Andrew was clearly the most ethical of the group.  Now, I wish I could say of all students I've taught that they matched Andrew's ethical compass. Andrew, however, had a degree in philosophy and throughout law school showed maturity beyond his years.  I have seen other law students as clear about their boundaries and how to conduct themselves as Andrew, but I often use him (and them) more as models to which I urge students to emulate.   Why?  First, because I believe that a student like Andrew will find more fulfillment in law practice, be less vulnerable to the dysfunction that accompanies bad choices, etc.  Second, because it's nice to be able to point to real people who are the age of law students who are doing the right thing and succeeding.

So, does one's ethical compass--and character--count.   Clearly.  How is it measured?  Well, employers said they could tell after a period of observing someone--that "you know it when you see it."  I guess the message to law students is that doing the right thing, and paying attention to their choices, is worthwhile.  If one has done the work to develop integrity, it shows.  As Ralph Waldo Emerson said, "Who you are speaks so loudly I can't hear what you're saying."  

Honesty in Billing

I recently guest blogged on the Best Practices in Legal Education about lessons I learned in law practice on how to ensure one's bills are not only accurate but helpful to clients.   I had not considered trying to teach students what I had learned until I read about a billing scandal-- one in which the law firm (DL Piper) has denied wrongdoing and received serious criticism for its denials.   For those unfamiliar with the history of the scandal, please see my guest blog -- I cite there web sites that have a history of the events.  The results of the dispute between DL Piper and the client with whom it disputes the allegations in this matter remains to be resolved. Assuming that DL Piper is exonerated completely, however, the damage to lawyers from the negative press has already occurred.

The negative press is unfortunate because most lawyers, including probably most large firm lawyers, are honest in their billing practices.  Even if one chose to assume that large firms are the location of widespread billing improprieties, more than 80% of lawyers do not work in large firms.  See the American Bar Associations' latest study of lawyer demographics at http://www.americanbar.org/content/dam/aba/migrated/marketresearch/PublicDocuments/lawyer_demographics_2011.authcheckdam.pdf  As this study shows, almost half of lawyers in private practice are solo practitioners.  Many others are in public jobs such as prosecutors' offices, public defenders' offices, legal aid offices, in-house counsel to companies, government legal departments.  In large law firms where the billable hour quotas are often at or above 2,000 billable hours per year, the pressures (and temptations) to engage in billing improprieties such as preforming unnecessary work or outright padding of bills, is far greater than in solo practice.  Moreover, the lawyers in public jobs or in legal departments generally do not keep their hours at all, but rather receive a fixed salary.   If you ask your average prosecutor or public defender to figure their "hourly" income by comparing the amount of hours they work by their salary, you'll learn that most of them are overworked and underpaid.  They do their jobs, usually because they want to serve in some way.   But stories about overworked, underpaid lawyers don't often get published in newspapers.

In any event,  I have committed to finding ways to integrate teaching about (1) how to record one's time so as to ensure its accuracy, (2) how to come to an understanding with the client about whether if one spends part of a billing segment (usually lawyers charge in tenth of the hour segments, or six minute increments) whether the time recorded will be rounded up (or down), and (3) how to thoroughly describe one's work in bills to clients so as to better inform the client and maintain solid lawyer-client relations and trust.

In practice, I learned that clients appreciate lawyers who are up front with them about the estimated costs of representation and about what to expect in bills they will receive.    A lawyer should explain details such as how they client will receive bills, how often (e.g., monthly), how to read the bills, etc.  One of the most common client complaints is that bills do not explain sufficiently why a lawyer spent as much time as he or she did on a matter.  As a young associate, I would just put a time period and a cryptic entry in my billing notes (e.g. "telephone call" or "prepare discovery").  I can see now how a client observing an entry "prepare discovery" (and 4.5 hours of time charged) would wonder why that amount of time was necessary.   One friendly client finally told me it would be better if I said "Telephone conversation with [name of other attorney, or client, etc.] regarding [description of topic of conversation]."  Or, instead of "Prepare discovery," I would do well to put "Drafting Interrogatory Answers based on conference with client for client's review; drafting responses to request for production of documents; drafting objections to those interrogatories and requests for production that I deemed objectionable so as to avoid excess cost and expense to client; reviewing documents provided by client to remove any documents that could be withheld under attorney client privilege or work product doctrine and list of documents withheld based on these grounds as required by rules of court."  Although the person preparing my bill complained about this increase in verbiage, my relations with clients improved dramatically once I began more thoroughly explaining my work. .  I also made it a practice to bill on a monthly basis and to inform the client, with the cover letter, of the progress we had been able to make in the case. I invited the client to call if he or she had any questions or concerns.

I already integrate into my civil procedure and civil pretrial practice courses group exercises where  students draft pleadings or develop strategy documents.   I now plan to have students record their time as they perform these exercises.   After the group exercise, I'll ask them to prepare a bill based on the hourly rate I'll assign and the hourly increments (probably one-tenth of an hour increments).  We will discuss whether they will round up time entries (if they spend 15 minutes, that would round up to three tenths of an hour or 18 minutes).  I will stress, though, that they had better discuss with the client at the outset of representation how the billing process will work.  I will also note that it will go a long way toward good client relations to include some  work entries and put "no charge to client" if the task, for instance, took only a few minutes.

Effectively, I will show students how I learned that I should treat a client the way I would want to be treated.  Some may say that such lessons are best left for later when students enter practice.  I disagree.  Even in firms where supervising lawyers take some time to teach new lawyers, these lawyers are busy.  The new lawyer may, like me, have to deal with an unhappy client in order to learn a  lesson.  As far as I'm concerned, one unhappy client is one too many--especially when the unhappiness can be avoided.

Helping Students To Reflect on Doing the Right Thing

I gave my students an assignment to reflect in writing on how they'd handle a situation in which they missed the statute of limitations on a claim.  In providing the scenario, I planted a typical rationalization by suggesting that, when this has happened in practice, some lawyers just tell the client the case isn't going forward because the case wasn't strong enough. 

Most recognized the rationalization might bring short-term relief but lead to long-term consequences.  A surprising number of students recognized that the result of lying to a client could, and likely would, affect how they viewed themselves as persons.  In other words, they connected acts such as this with diminishing self-esteem.  Most were honest enough to recognize the temptation for the easy way out but that, in the end, the best course was the hard one--to tell the client of his/her mistake.

The students all recognized that this would open them to malpractice liability.  I advised them that, though we hope such mistakes don't happen or are rare, the reason for having malpractice is to protect the client and the lawyer in just such situations.  Calling their malpractice insurance carrier to ensure coverage was something most of the students hadn't thought about. 

I'll now pass on to the students some studies that reflect that, when physicians admit their fault to patients, the incidence of malpractice suits is actually lower than if the doctor avoids doing so.   Would such a phenomenon occur with lawyers?  Some would say "no" because physicians are held in higher regard.  I'm not so sure.  Not that physicians are held in higher regard--I do think they are these days.  I'm just not sure whether the same phenomenon would occur if lawyers owned their mistakes and expressed true regret to clients.

Either way, I'm encouraged that most of my students seemed to appreciate the implications of lying to the client.  Some would say they were telling me what I wanted to hear, but I don't grade on that basis.  Plus, the degree to which the students' reflections appreciated the consequences not only to themselves but to others suggested the work was genuine.  Of course, when the student becomes a lawyer and is faced with temptations, what he or she says now may not be what she does then.  But engaging in the process of reflecting on such dilemmas, and how one would respond, very well could encourage the student-become-lawyer to do the right thing.

The next assignment: How to keep multiple "checks" in place to meet deadlines, especially statutes of limitation!

Online Article About Prof. Madison's Efforts to Implement Reforms to Legal Education

The Institute for the Advancement of the American Legal System (IAALS) is an organization formed after the publication of the Carnegie Report for the Advancement of Teaching and Learning entitled Educating Lawyers.  The leadership of IAALS includes Bill Sullivan, the lead author of Educating Lawyers.  A chief initiative of IAALS is the Educating Tomorrow's Lawyers (ETL) initiative.  ETL encourages implementing the reforms recommended in Educating Tomorrow's Lawyers.

One of the ways ETL encourages implementation of reforms is to feature the work of professors who have developed courses that reflect the recommendations of Educating Lawyers. These courses of these professors, and any teaching materials they have developed, are under "Course Portfolios" at the above link. Last year, Professor Madison was elected a "fellow" by the ETL Board for his work.  An online article on Professor Madison's continuing efforts to support IAALS and ETL can be found at the following link:

http://online.iaals.du.edu/2013/01/10/educating-tomorrows-lawyers-fellow-encourages-more-collaboration-among-carnegie-implementers/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+du%2FIAALS+%28IAALS+Online+-+National+Conversations+About+Continuous+Improvement+of+the+Civil+Justice+System%29

Another way that ETL encourages law schools to adopt Educating Lawyers recommendations is through a consortium of law schools.  The law school consortium demonstrate a commitment to the recommended reforms by including some or all in the school's strategic plan or planned curriculum, by including some courses that teach students by the "Carnegie method," and by helping to share their experience with other schools.   The consortium schools meet annually to collaborate on developments at their schools and offer each other suggestions for further change.  The ETL website, with a scrolling list of the 26 consortium member schools, is at the following link:

http://educatingtomorrowslawyers.du.edu/

Regent University School of Law joined the consortium in 2011.  Within the past week, IAALS released a notice that New York University School of Law had become the latest member of the consortium.

Professor Madison is always willing to discuss his experience developing a casebook that allows professors to teach in the "Carnegie Method" and his experience teaching in this fashion.  Although his upper-level civil procedure and pretrial practice course integrates all of Carnegie's recommendations, he incorporates some of the recommendations in his first-year Civil Procedure course.  As this Blog title suggests, his particular interest is using pervasive teaching methods in his course to cultivate students' ability to form a professional identity.   Carnegie's Educating Lawyers and its sister report, Best Practices for Legal Education (also published in 2007) emphasizes that law schools must address professional formation with a vigor equal to that which they bring to developing legal analysis and skills.   Professor Madison, as well as many of his colleagues at Regent University School of Law, find this balanced approach to be most effective in preparing students for a healthy, satisfying legal career.  In general, Regent University School of Law believes that students' spiritual development is as important as their intellectual growth.

Helping Law Students Find Purpose--The Difference Between Satisfaction and Dissatisfaction?

We do not tell our students enough that they can find fulfillment as a lawyer.  They figure out somewhere in law school that most lawyers are not that satisfied.   So how can I suggest that students can find fulfillment in the law?

I can suggest that because I know a number of lawyers who are fulfilled.   They work in every part of the profession--firms, prosecutor's offices, public defenders, and just about every role a lawyer could fill.  They do not make up the majority of lawyers.  However, there are enough of them--and they have one thing in comment--that I am convinced they hold the key to reasonable satisfaction.

These members of the legal profession understand the purpose of the legal system and their role in it.  Doesn't every lawyer understand these things, you might ask?  Well, not really.  Most members of the profession, in my experience, see it as a means to an end--to make money, to gain power, to claim status.  Many will not say this outright, but if you watch the lawyer's actions and reactions, they provide an undeniable glimpse into the person's motivations.   For instance, someone who worries a great deal about how much they make, or how they're viewed by others, almost certainly is motivated by the goals I mention.  Many lawyers think that, because they have worked hard on preparing for a trial, the desired result will follow.    But the facts and law can lead to an "adverse" result, no matter how hard one works.  To believe one can win by outworking another is setting oneself up for repeated frustrations.  

So what do those lawyers I know who are reasonably satisfied believe that's different?  One common denominator in how they explain the legal system is that they refer to it as a crucial part of our society--crucial in helping to resolve disputes peacefully, in getting people through those "rough spots" in their lives where they need a counselor and/or advocate.  Another unifying theme in these lawyers' attitudes is that they see themselves as no better than others and privileged to be able play a part in resolving disputes and helping others in difficult times.  I might add that these lawyers make a good living, are influential, and have respect in their communities.  It's just that they did not seek them as a goal, but rather they were byproducts of the way they handle themselves.

Law teachers need to realize that the seeds of satisfaction (or dissatisfaction) are sown in law school.  Students need to hear from us about the role of the legal system and about how lawyers can have a more balanced perspective than the one that seems to prevail these days.  I am glad that we have at Regent Law a required first-year course, "Christian Foundations of Law," which explores the way in which the legal system developed.   Students see the reality that the system is there to offset the human fallibility we cannot deny.  By doing so, the system seeks to provide impartial justice--to treat everyone equally.  



Mind you, I do not labor under the delusion that students at a faith-based school are any less vulnerable to the pressures that will lead them to dissatisfaction.  So, for instance, in teaching procedure, I remind them of  matters they addressed in Christian Foundations.  And I repeat the theme that the legal system, even with its "warts," serves a noble purpose.   One metaphor that seems to resonate with students is to liken the system to oil in a car engine that avoids friction and overheating.   The lawyer who has done his or her best to prepare a case for trial, but then settles, can take as much satisfaction from a fair settlement--a resolution of the dispute--as from winning a jury verdict.  Someone who has reached that point has a balanced perspective.

As we hear more about developing professional identities and helping students form ethical values, we ought to remember to start with fundamentals.  Give them a basis for realizing the value of the system and their role in it.  Help them to see it's not about the lawyer, i.e., not about them, but rather about their serving others.  Then they are more likely to be among those who find reasonable satisfaction.

Lawyers "Without Chests"

"It is only with the heart that one can see rightly.  What is essential is invisible to the eye."  Antone de Saint-Exupery, The Little Prince

Many would say that this message delivered to the Little Prince in Saint-Exupery's philosophical allegory overstates the role the heart should play in decisions about the way we live our lives.   On facing a judgment call, the more common encouragement would be to "think it through."   Perhaps Saint-Exupery's point helps to balance an overly intellectual approach to life.  In deciding how we act, especially on moral questions, we need both reason and intuition (a fair synonym for "heart" in this context).

Last week I posted a blog on another site about how Karl Llewellyn, as early as 1930, feared that law schools were producing "legal machines." See Best Practices for Legal Education (http://bestpracticeslegaled.albanylawblogs.org).  Llewellyn hoped that, at some point, law students would develop a sense of social concern that went beyond cold legal analysis.   He does not explain how the transformation would happen.  One presumes that, as a legal realist, he hoped that the social milieu would influence students' decisions. 

Perhaps the thinker who best recognized the difficulty of relying on logic, without the tempering influence of the heart, was C.S. Lewis.  In his book, The Abolition of Man, particularly the chapter "Men Without Chests," Lewis decried the tendency of moderns to dispense with feelings and intuitions about right action, in favor of purely intellectual analysis.  Specifically criticizing the manner in which students were being led to ignore their hearts, he stated:  "In a sort of ghastly simplicity, we remove the organ and demand the function.  We make men without chests and expect of them virtue and enterprise.  We laugh at honour and are shocked to find traitors in our midst.  We castrate and bid the geldings to be fruitful."

Like the English schools of which Lewis wrote, American law schools have for too longed stressed rational analysis without helping students to learn how to include their sense of decency, to consider what is right and just, in determining questions not only of the law but also of how they will practice law.   "[The law school curriculum] teaches that tough-minded analysis, hard facts, and cold logic are the tools of the good lawyer, and it has little room for emotion, imagination, and morality.   For some students, 'learning to think like a lawyer” means abandoning their ideals, ethical values, and sense of self.'"   Roy Stuckey, et al., Best Practices for Legal Education 32 (2007) (quoting Gerald F. Hess, Heads and Hearts: The Teaching and Learning Environment in Law School, 52 J. LEGAL EDUC. 75, 77 (2002)).  

Yes, law students need to make arguments that are logical and identify those of an opponent that are not.  But they also need to to recognize when their inborn sense of decency is telling them something beyond pure logic.  Unless law schools encourage the latter with as much vigor as they have for over a century devoted themselves to the former, we will likely to continue to have too many lawyers "without chests."    And legal academia should not complain when these lawyers display a lack of virtue--as many are sure to do. 

The Irony of Law Schools' Identification with Socrates

I don't know why, but every couple of years I find it refreshing to read Plato's Dialogues, particularly his Apology--the rendition of Socrates' defense to the charges of impiety (not worshipping the gods sanctioned by the State), as well as Crito (Plato's rendition of a dialogue between Socrates and his friend Crito on justice) and Phaedo (Plato's record of the last dialogue by Socrates before being put to death).