Louisiana State Law Institute Annual Banquet, March 14th 2008
Celebrating the 70th anniversary of the Louisiana State Law Institute at its annual banquet, held March 14th in New Orleans, are, left to right: William Crawford, director; Max Nathan, past president; Cordell Haymon, president; Jack Weiss, LSU Paul M. Hebert Law Center chancellor, and speaker at the banquet; and, Charles Weems, III, vice president.
LSU Law Chancellor Jack Weiss addressed the Louisiana Law Institute on the occasion of its 70th Anniversary, March 14, 2008. Read the reflections of this, “erstwhile lawyer,” as inspired by Louisiana Law Institute colleague, John Wisdom, and his beloved mentor, Judge John Minor Wisdom.
LOUISIANA LAW INSTITUTE
70TH ANNIVERSARY CELEBRATION
NEW ORLEANS, MARCH 14, 2008
REMARKS OF JACK M. WEISS, CHANCELLOR
LSU PAUL M. HEBERT LAW CENTER
“REFLECTIONS ON THE PROFESSION: DARK CLOUDS
AND SILVER LININGS”
President Haymon, Professor Crawford, Colleagues, and Friends:
It is a great honor for me to be with you tonight on the occasion of the 70th anniversary of the Louisiana Law Institute. I’m, of course, doubly honored to serve as the Secretary of the Institute by reason of my role as Chancellor of the LSU Paul M. Hebert Law Center.
I am sure I don’t need to remind you of the staggering list of the Institute’s accomplishments: revisions of virtually every significant section of the Civil Code; drafting and subsequent revisions of the Criminal Code; drafting and revision of the Code of Civil Procedure, the Trust Code, the Mineral Code, the Code of Evidence—even, Bill Crawford reminds me, thoughtful work on the “Disposition of Pornographic Evidence.”
We at LSU have always had a particularly strong bond with the Law Institute. The original idea for the creation of the Institute came from members of our faculty. On April 7, 1938, at the dedication of the “new” Law School building at LSU, the President of LSU announced “that the Board of Supervisors has approved the establishment, in connection with the [LSU] Law School, of a research organization to be known as the Louisiana State Law Institute.”
The first annual meeting of the Institute was held at LSU in our “law building” on March 16, 1940, almost exactly 68 years ago today. Dean Paul M. Hebert himself, who then was serving as Acting President of the University, welcomed the participants to that first annual meeting.
What a far off time it was. Nazi Germany had invaded Poland in September, 1939 but had not yet overrun the Low Countries and France. Neville Chamberlain was still Prime Minister of Great Britain. Dunkirk, Pearl Harbor, El Alamein, Anzio; Guadalcanal, Iwo Jima, D Day, the Battle of the Bulge, Hiroshima all lay before our predecessors.
That first annual meeting program included a veritable pantheon of the LSU Law faculty: J. Denson “Red” Smith, Joseph Dainow, Harriet “Ma” Daggett, Henry George McMahon.
Those active in the Institute in those early days also included a who’s who of distinguished Louisiana lawyers and law teachers from Louisiana’s law faculties: luminaries like Monte M. Lemann; John H. Tucker, jr.; Ben C. Dawkins; Charles E. Dunbar; Ben B. Taylor, Sr.; R.E. Milling, Jr.; Pike Hall; Sumter D. Marks … the list goes on.
But there is one person on the list of early Law Institute notables, among many others who deserve our eternal gratitude and respect, who for me has personal meaning above all others. It’s he, and what I learned from him, that provide the inspiration for the thoughts I want to share with you tonight—some thoughts about the evolution of the legal profession nationally and here in Louisiana.
That person, as you may already have guessed, is John Minor Wisdom. At that first annual meeting on March 16, 1940, at LSU, John Wisdom addressed our predecessors as the reporter for the Institute’s project on a Model Non-Profit Corporation Act. At the time, John Wisdom was a 34-year old lawyer, practicing with the firm of Wisdom & Stone, which he had co-founded with his law school classmate Saul Stone in 1929.
He had begun teaching as an adjunct at Tulane Law School soon after his graduation.
Of course, I never knew John Wisdom when he was “just” John Wisdom the lawyer, scholar, and law teacher. We first met in the fall of 1970 after he had become Judge John Minor Wisdom of the United States Court of Appeals for the Fifth Circuit, the deservedly famous jurist and civil rights icon, who in 1993 would receive the Presidential Medal of Freedom, and for whom, in 1994, Congress would rename the Fifth Circuit courthouse on Camp Street.
But that “other” John Wisdom, that young John Wisdom, is very much on my mind tonight, as I shall explain.
As you know, the Law Institute was created by the Legislature in 1938. Among our general purposes, as set forth in Act 166 of 1938, are not only “to promote and encourage the clarification and simplification of the law of Louisiana and its better adaptation to present social needs” and “to carry on scholarly legal research and scientific legal work”, but also “to secure the better administration of justice …“
Act 166 also charges us “To receive and consider suggestions from judges, justices, public officials, lawyers, and the public generally as to defects and anachronisms in the law,” and “To recommend from time to time such changes in the law as [the Institute] deems necessary to modify or eliminate antiquated and inequitable rules of law, and to bring the law of the state, both civil and criminal, into harmony with modern conditions.”
It is arguable that our legislative charge is broad enough to encompass concerns about the very profession of which we all are members and upon which depends the faithful and conscientious implementation of the substantive work of the Institute.
If I may invoke Yeats’ famous line, “Who can tell the dancer from the dance?”
Even if, perhaps, the state of the profession is beyond the official purview of the Institute, as leaders of the academy and the bar these issues surely are a matter of interest and concern.
So let me share with you what I’ve billed as the reflections on profession of an erstwhile lawyer, inspired, as I’ve said, by our Louisiana Law Institute colleague, John Wisdom, and my beloved mentor, Judge John Minor Wisdom.
My particular focus tonight will be on our responsibilities to the young people entering the legal profession.
To make my point, I want to describe two models for the training and growth of newly-minted lawyers, two models that are largely polar opposites.
The first is a disturbing model that prevails in some, although certainly not all, reaches of the national law firm world of the 21st century. This is a model that can be found in at least some of the nation’s largest, most financially successful, and, many would say, most prestigious law firms. It is a model that attracts many top graduates of the nation’s law schools.
Models, I hasten to add, are only that—generalizations that are subject to challenge in specific cases. I trust that none of my friends who practice with such distinction in leading national firms will take umbrage at my portrayal of the national firm model. To apply the general model to any particular firm would be fraught with peril, and I hope that my remarks will be received with that in mind. At the same time, I would hope that national firm practitioners will recognize as legitimate the concerns I will identify, and agree that they are a fit subject for discussion by the profession and by the legal academy.
I will begin, then, by suggesting that, from the standpoint of new lawyers, the national law firm model in some important respects is a deeply troubling model.
What are these troubling characteristics?
Many are hired, but few become partners—perhaps as few as one in a hundred.
Attrition among new lawyers is not only high, but swift. Many drop out of the race early on. By the time an associate’s class approaches the “finish line” of consideration for partnership, most of his or her “classmates” already have left for other, if not necessarily greener, pastures.
In 2005, the NALP Foundation reported that 78% of associates with five years of experience had already left their first firm. That figure was up from 59% in 2000.
A 2004 study by the NALP Foundation found that 55% of the surveyed associates in large law firms intended to change jobs within two years.
The gestation period for partnership is eight years or more. In an era when an increasing number of future lawyers do not go directly to law school, or directly from law school into practice, partnership consideration often comes well into a lawyer’s mid-thirties. Many already have families or, in the case of women, have postponed having families with their future still highly uncertain and the daunting prospect of starting anew looming if partnership doesn’t work out.
Work loads are heavy, billable hour expectations high. Partners focus on, and are rewarded for, “leverage”. From the associate’s point of view, this emphasis can translate into massive, document-intensive cases that are staffed by large, hierarchical teams of lawyers—sometimes as many as thirty or forty lawyers to the matter. Junior lawyers frequently move in and out of these cases as staffing needs demand. Senior associates frequently “run” these big cases. All too often, they offer a junior lawyer little continuity or variety of experience, little or no client contact, and little meaningful contact with the partner ultimately responsible for the case.
In this world, platoons of short-term “contract attorneys”, brought in to sift through documents, are an increasingly familiar phenomenon. We even hear serious talk about outsourcing legal work to India and other nations where labor costs are low.
A junior lawyer dare not complain about one of these dreary billets, lest he or she be branded a non-team player. Damned if she does, damned if she doesn’t—most soldier on—for a while, at least, confiding only in friends and family that things are not what they seemed during that summer clerkship when outings to major league ballparks were common, nights were otherwise free, assignments were much sexier, and document reviews were someone else’s problem.
Despite their high salaries, many new lawyers quickly begin to wonder: “Is this why I became a lawyer?” Within a couple of years, or even sooner, they begin to look for jobs that offer more front line experience and human interaction, perhaps in a prosecutor’s office, a judicial clerkship passed up right out of law school or in a lesser paying in-house or public interest job that promises ongoing contact with live clients and a life outside of work.
In an effort to stop the bleeding, law firms have increased starting salaries, to as much as $165,000 for a first-year associate in some markets. In addition, firms are spending more and more money on bonuses, recruitment, and even concierge services and stress management! Yet despite all of the money spent, associate attrition, not retention, is increasing.
So what is it then about the practice of law that makes bright, eager, highly trained lawyers—young people who have been “stars” at every step of their educational careers—leave their firms, and sometimes even leave the practice altogether?
Clearly, work load, work quality, and lifestyle have a big impact on associate retention. But the single most commonly-cited factor leading to associate attrition in the last ten years is a failure on the part of partners and senior lawyers to effectively train and manage associates. Many partners have large workloads themselves, and they have little time to devote to the mentoring and development of junior lawyers.
Again, by no means do I wish to suggest that this model or the various negatives I have catalogued are universal among the nation’s major firms. There are many large firms, particularly those with their home bases in cities or regions that historically have placed an emphasis on preserving a more personal culture and on maintaining a better quality of life for partners and associates, that manage to avoid or cushion the perils of national firm existence.
Even in the most trying versions of national firm life, there are junior lawyers who succeed admirably. They learn to carry out the indispensable role of providing legal services to national and multi-national clients faced with complex matters requiring large teams of lawyers. And the work product of many national firms is of splendid quality that is hard to duplicate on a smaller scale, particularly in the colossal-scale litigation and corporate transactions that these firms target.
But I do not think I am overstating or exaggerating the extent to which the national firm experience is failing to provide a satisfactory and satisfying professional life for hundreds of junior lawyers each year. These are the “dark clouds” over the profession to which I alluded in the title of my remarks tonight.
Now I want to put before you another model—what my title refers to as the “silver lining”. In some sense it’s aspirational, some might even say utopian, but it’s a model that prevailed, or that at least partners sought to emulate, in a goodly number of successful and sophisticated law firms here in Louisiana when I was making my way as a young lawyer in the late 1970s and early 1980s. It’s the model that still characterizes not only small firm practice, but also mid to large firm practice in Louisiana today, although I suspect that the other, “darker” model may have made some inroads in the decade since I have actively practiced here.
What are the characteristics of this alternative model? Well, let me start with this basic proposition: it offers junior lawyers a reasonable chance of success and security—that is, partnership—if they do good work. Partnership is not a speculative outcome that depends upon myriad factors beyond a junior lawyer’s control. It is a reward for hard work and progress in the profession that carries with it if not a high degree of predictability, certainly a reasonable degree of predictability.
There was a time when one of the Louisiana firms where I practiced told new lawyers, when they were hired, that “we wouldn’t be hiring you if we didn’t expect you to become a partner.” That’s not a bad touchstone, it seems to me.
The second touchstone of my alternative model is simply one that offers junior lawyers good work. By “good work”, I mean experience-appropriate, progressively more challenging, educational, fulfilling work, designed to produce a mature, successful, and independent professional, capable of attracting his or her own clientele, over a reasonable period of apprenticeship. The planning necessary to offer good work is not rocket science. In an hour or two, I suspect several of us could sit down together and draft a perfectly adequate list of progressively more challenging tasks, in either litigation or transactional work, that we could use to measure whether a junior lawyer is getting the kind of experience necessary to become a self-confident, independent professional.
“Good work”, of course, does not just mean a little dash of decent work added to a large casserole of drudgery. There is a quantitative dimension to this touchstone, not just a qualitative one. For example, three years largely devoted to document review and legal research isn’t really successfully offset by a once a year opportunity to sit in on a deposition or to attend a client meeting.
Lest you misunderstand my plea for “good work”, let me make something very clear: I am not suggesting that junior lawyers be excused from hard work. I’ve found, as I’m sure you have, too, that with very rare exceptions, if any, good lawyers work hard at what they do (in fact, successful people of all stripes work hard at what they do). To quote T.S. Eliot,
To arrive where you are, to get from where you are not
You must go by a way wherein there is no ecstasy […]
Again, though, the point is that junior lawyers have a right to expect that they will grow and progress at a reasonable rate, and that they will achieve a fair measure of fulfillment, in exchange for their hard work. They have a right to see the light of independent professional competence at the end of the tunnel of nights and weekends in the office.
I come now to a third touchstone that is perhaps the most critical to the success of our alternative model: mentoring. “Mentoring”, you will quickly recognize, is a term with a wide variety of meanings. At its most superficial and inconsequential level, in my view, “mentoring” means a formal “buddy” system whereby each junior lawyer is assigned to a more senior lawyer in the firm who is “tasked” with periodically checking in on the junior colleague to see how he or she is faring and with occasionally treating him or her to a meal.
A more meaningful form of mentoring is provided by senior lawyers who, either through firm assignment or on their own initiative, conscientiously assume a pedagogical relationship to one or more junior colleagues. This relationship involves marking up draft papers, giving feedback on the junior lawyer’s performance at depositions and in the courtroom, and the like. This is good stuff, and it should be an assured part of every junior lawyer’s apprenticeship experience.
Many firms organize to provide this kind of mentoring and virtually all aspire to do so. In my experience, however, not many succeed in doing so, largely because of the press of time. It is, shall we say, a custom more honored in the breach than in the observance.
But the highest form of mentoring, I suggest, involves something quite a bit more than professional pedagogy. True mentoring requires a broader and more profound commitment to a junior lawyer’s professional success. The genuine mentor is a sponsor, not just a thoughtful critic. The genuine mentor recognizes that the success of his “mentee” depends not just on the mentee’s raw professional skill level, but on providing the mentee with the opportunity to display those skills in front of those who count, and in a situation that matters.
In short, the true mentor is not just a teacher and benevolent critic; the true mentor is a promoter of the mentee. The mentee, in other words, is not just a student but a protégé, one who is protected. He or she is protected not just in the negative sense—from being undermined or subverted by others in the law firm or the legal community—but protected from the awful fate of having spent years in law school and thereafter developing first rate legal skills that find no outlet and no appreciation.
The mentoring touchstone brings me back to Judge Wisdom. I know that if I consider of my own experience I owe my good fortune to Judge Wisdom and a handful of other true mentors who cleared a path for me to succeed. My guess is that many of you here tonight have had similar experiences. As I read legal biographies, I find many of the real greats of our profession had “rabbis” who stood behind them and gave them a big boost up the ladder of success. Perhaps the classic case that comes to mind is that of the mentor “chain” that started with Elihu Root, Teddy Roosevelt’s great Secretary of State, who, while U.S. Attorney in New York hired and promoted Henry L. Stimson, who succeeded Root as U.S. Attorney and years later became Secretary of Defense. Stimson in turn hired an assistant U.S. attorney by the name of Felix Frankfurter who gave Stimson glowing reports about a lawyer by the name of Billings Learned Hand, whom Stimson supported for nomination to the United States District Court in New York in 1910.
The final touchstone of my alternative model is generosity. This is a more subtle, but no less important, ingredient of a positive environment for junior lawyers. It reminds me again of Judge Wisdom. I can very well remember his coming into the library, where we law clerks worked, on, say, the Friday afternoon before a long weekend. “Don’t let me catch you around here over the weekend,” the Judge would say. “The work will wait.” He gave us permission to have a life—a little push in the right direction.
But that wasn’t all. In the year I spent with Judge Wisdom, and long after, I observed that he went out of his way to help others climb the ladder of professional success. He devoted great care to letters of recommendation. He never hesitated to speak to one of his friends or acquaintances on behalf of a young lawyer—one of his own law clerks, yes, but other lawyers as well and often members of the court staff and virtually anyone else he could help. Judge Wisdom wasn’t undiscriminating or intellectually dishonest in his recommendations; to the contrary, he was entirely sincere. He simply had a generous nature that genuinely saw in each of us the potential to be so much more.
In a law firm setting, the touchstone of generosity doesn’t necessarily mean something as formal as recommending young lawyers for new jobs. It’s a mindset that should pervade all of a senior lawyer’s interactions with his or her junior colleagues. It means going to bat with a client to get an associate a chance to argue a motion in court even if the client would rather that the senior partner handle every remotely significant step in a case. It means making sure that junior lawyers meet clients and turning them loose to deal with clients on their own even at some risk of the client transferring some of its loyalty to the junior lawyer. It means excusing and minimizing, even defending, ordinary rookie mistakes, not refusing to work again with those who make those mistakes and certainly not trumpeting the mistakes to other senior colleagues.
Recently, a lawyer recounted to me appreciatively how a senior partner reassured a fellow associate who was very uptight about a difficult, fast moving case for which the associate had multiple responsibilities. “Don’t worry so much about it,” the partner said. “There’s very little you can screw up that I can’t figure out a way to straighten out.”
Let me summarize, then, my model of a beneficent law firm, the kind of firm in which we’d all like our children to practice. I don’t think it would be so far-fetched for law firms to adopt, and for new lawyers to pay some attention to whether law firms adopt, an “Associate’s Bill of Rights” along the lines of the four touchstones I’ve just outlined:
- A reasonable expectation of partnership within a reasonable period of time
- A reasonable regimen of good work
- A commitment to mentoring, in the old-fashioned way
- A commitment to generosity in spirit and practice
Of course, I recognize that some elements of my Bill of Rights would never be practicable economically in the national firm model I began by describing. But that is not my target audience. I am talking primarily to lawyers who practice in groups and in cultures, including the vast bulk of our Louisiana firms, that still aspire to norms like those I have outlined.
I don’t bring these issues to you as a matter for abstract discussion. There is a distinct and growing role for the law schools in stimulating awareness of these issues and preparing law students to deal with them as they enter the practice of law. As you may be aware, over the course of the last thirty five years or so, and particularly in the last 15 years, the law schools have focused more and more intently on preparing students for the practice of law. That preparation includes, but goes far beyond, the traditional classroom, doctrinal training lawyers of my generation, and those before mine, knew. Today, we are required to offer simulated skills training and “live client” and real “world” clinical legal education opportunities to our students as a condition of our accreditation by the ABA. We at LSU are in the midst of dramatically ramping up our clinical program.
If an important part of our job is to prepare students for the real world of law practice, and I believe that it is, the time has come to prepare students to meet the challenges of our profession as they exist in law firms today. We should offer courses, as Harvard and other law schools already have begun to do, on what students will face “after the JD”—courses on law firm planning and management; courses on managing or “running” large cases; courses on working collaboratively with lawyers from different disciplines, different jurisdictions, and even different nations; and courses that ground students in such sensitive fundamentals of transactional lawyering as legal opinions, disclosure dilemmas, and corporate governance conflicts.
It goes without saying that there also is a role for the leaders of the bar in preserving a true professional culture in our law firms and in preparing our new lawyers to deal with the cultural challenges they will encounter. Many of you have taught as adjuncts and contributed greatly to the programs of our local law schools. Consider what you might offer our students by also teaching courses on the profession itself. Many schools offer programs, for example, to prepare students for work as judicial clerks. For years, LSU Law has offered a course on law firm practice, designed primarily to acquaint the future sole practitioner with the challenges that will confront him or her.
We need to look more broadly at preparation for the profession, broadly defined. Our students will be far better off if they know what to expect in the world of 21st century law practice than if they learn the hard way, at great cost to their careers and to their future as lawyers.
I also ask you to consider whether there is a role for the Law Institute in this vital dialogue about our profession.
Let me conclude on an optimistic note—by emphasizing the silver lining to which I alluded in the title of my remarks. Our state has a tremendous opportunity to preserve some of the traditional values of the profession and avoid much of the alienation and dehumanization that is plaguing some firms in the nation’s largest legal markets. These traditional values, in my view, are one of the greatest assets of the legal profession in our state. On this the occasion of the 70th anniversary of the founding of the Law Institute, let’s recognize this valuable asset, treasure it, understand it, and preserve it, along with our laws themselves, for the benefit of the young lawyers of today and generations of Louisiana lawyers to follow.