The author of “The Vanishing Trial” reflects on the keys to achieving success and happiness in the business of law.
When I entered private practice in February 1977, the legal world was dominated by white men and their favored educational, professional and social institutions. After decades of exclusion, Jewish lawyers and law firms were becoming a meaningful presence in the field, but women and people of color were rarely seen, and almost never heard.
While the problems of racism and sexism have hardly disappeared from the practice of law today, a host of new problems have emerged that make professional happiness and success more elusive than ever. The COVID-19 pandemic has only multiplied daunting and unresolved difficulties in twenty-first-century lawyering. Among them are the existence of too many law schools, the concentration of too many lawyers in our major cities and too few in the rest of the country, and the impact of technology on the business of law.
On the more positive side, the over 150-year dominance of a handful of law schools as gatekeepers to the legal profession’s top positions is beginning to face scrutiny. As one example, listen to Malcolm Gladwell’s podcast “Revisionist History,” Season 4, Episodes 1 and 2. You will learn that a prominent statistical analysis of the legal profession reports that the correlation between success as a lawyer and the law school he or she attended is zero.
That’s right, zero.
So, with all of this uncertainty, what advice does someone admitted to the New York Bar in 1972 have for much younger colleagues?
Succeeding or Failing in the Business of Law
1. Be Open to Opportunities
In retrospect, I have often explained the success of my small, white-collar criminal law firm, Kaplan & Katzberg, in the following way: My partner, Ken Kaplan, and I did the right thing, by and large, for the wrong reasons. By that, I mean that when we left the United States Attorney’s Office after working together for four years, we believed we had the necessary relationships and experience to attract clients and maintain a private practice. Lawyers are professionals, of course, but in private practice, lawyers are also businesspeople. It is one thing to have the training and experience to perform legal tasks on a sufficiently high level; it is quite another to have actual clients willing to pay you for those services.
As it turned out, the people and circumstances Ken and I believed would provide a client referral base turned out to be more wishful thinking than an accurate prognosis. Fortunately, people we had not yet met and circumstances we could never have imagined provided the basis of a business that lasted until I moved to California 39 years later.
So the first lesson is: Be open to new opportunities.
2. Treat Everyone as a Potential Referral Source
A second insight worth sharing came from Harry Kaplan, Ken’s father, in early February 1977 during the first week of Kaplan & Katzberg’s existence. Harry, a veteran courtroom lawyer, had invited Ken and me to lunch in the coffee shop of the Transportation Building in lower Manhattan, where his three-person, plaintiff’s negligence firm had its office. During the lunch he gave us advice that was worth its weight in gold: Treat everyone, whether they be clients, other lawyers, opponents, or judges you appear before, as potential sources of business, because that is what they are. You never know in what future circumstance any person you are dealing with professionally today, will tomorrow be in a position to either refer a matter to you or keep you out of one.
3. “Good Lawyers Master the Art of Giving Up Nothing Graciously”
Next is a maxim attributed to the legendary criminal defense lawyer Edward Bennett Williams. “Good lawyers master the art of giving up nothing graciously.” When your opponent wants something from you, or you are requested by the court to do something, something that doesn’t adversely affect your position, or does so only at the margins, the smart lawyer is gracious in acceding. It costs nothing while allowing you to appear evenhanded and appropriate, a posture that will serve you well when it comes time for you to make a request.
4. Keep Your Promises and Your Credibility
This rule is the hardest to follow, yet as important as any: Never promise what you are not certain can be delivered.
Whether it is a statement made to a client, colleague, adversary or judge, your credibility is everything. It is why clients come to you, it is why other lawyers listen to you, and it is why judges respect you. It is too precious an asset to lose to ego, inattention, guile or posturing.
5. It’s Human Nature …
Whatever pandemic-safe practice will ultimately emerge; however the legal community adapts to better reflect and serve the general population; however we ultimately integrate technology into the practice of law; however legal education is modified to better suit new challenges, one thing is certain: Human nature will remain a dominate factor in career outcomes.
As a consequence, how you deal with others, and how others view you, will be the key to success or failure in the business of law. In short, interpersonal skills are as important as technical skills, personal connections, professional experience, educational background, or anything else.