Orientation 2016: ‘On Becoming a Lawyer’
On Becoming a Lawyer
Presented at the 2016 Orientation
Claudette St. Romain, Associate Professor
August 17, 2016
Over the summer, Dean Boozang asked me to address you, and the topic she gave me was “On Becoming a Lawyer.”
At the time I got that email, I was lacing up my hiking boots, filling my water bottle, and I thought, “C’mon. How long do they allocate for this talk?” You graduate law school and pass the bar. Duh.
Well, wait a minute -- you graduate law school, pass the bar and write a check for your bar dues! There it is. Now you’re a lawyer.
Only you’re not, really. You’re on the list of people who won’t be prosecuted for practicing law without a license. But being admitted to the bar doesn’t really mean that you’ve become a lawyer.
We think of lawyers as fighters—you know, standing at the table and yelling at each other like in Law and Order, or My Cousin Vinnie. But when you really become a lawyer, fundamentally, you become a problem solver. What we as lawyers do every day is to help people figure stuff out; help them achieve goals; help them choose how to proceed through a dilemma; help them protect themselves; help them when they’ve been wronged or when they have done wrong; we tell them how to make sure they’re complying with laws or regulations; we help them reach agreements and untangle from agreements once made. We solve problems. Sometimes we solve them in court, sometimes we solve them through negotiation, and sometimes we solve them through meeting and counselling and explaining. But that’s what we are—problem solvers.
Lawyers face a huge array of problems to solve. Just open the paper this summer and look at the kinds of issues lawyers are navigating:
- We saw lawyers accusing Led Zepplin of stealing the musical idea that formed the basis for Stairway to Heaven—and lawyers defending Led Zepplin (successfully).
- We saw lawyers for several States challenging the federal government’s new rules that require states to allow transgendered students to use bathrooms that match their gender identity. And we saw attorneys for the federal government defending the rule against those attacks.
- We saw lawyers representing Verizon and Yahoo in Verizon’s acquisition of the company, working to determine the terms and conditions of the acquisition, what the financial structure would be, what the government regulatory consequences would be, what the obligations to the two sets of employees would be, and how to create a cohesive whole going forward.
- This summer hundreds – maybe thousands-- of attorneys have been working trying to figure out the corporate, tax, employment, immigration and intellectual property consequences of Britain’s exit from the EU.
All of these are in addition to the thousands of attorneys working every day on divorces, child support actions, immigration petitions, settling estates, representing victims and insurance companies in personal injury cases, helping folks in employment actions, regarding evictions, criminal cases, real estate sales, civil rights cases, education law cases, and so on.
All of these cases present problems that lawyers help to solve. And what all of these cases have in common is that lawyers are generally acting in a particular way to try to resolve these issues. Lawyers have a certain mindset or method for problem solving: We solve problems by thinking like a lawyer. When you learn to think like a lawyer, that’s when you are on your way to becoming a lawyer.
Here’s what I think it means to think like a lawyer:
(1) We have to recognize that the problems we solve are not our own problems.
Part of thinking like a lawyer is to acknowledge your place in the structure of the problem. The issues we are resolving are our clients’ issues, not ours. The clients we represent have goals, desires and needs that are not ours. Clients have life experiences that are not always ours. Clients have fears, assumptions, and backgrounds and strengths and sometimes a great deal of knowledge that is not ours.
When we think like a lawyer, our first job is to understand what our clients want and what their priorities are. This involves speaking to clients, and, more to the point, listening to them.
We suggest considerations that they might not have thought about, but ultimately, our clients make the decisions. This can make us uncomfortable—we’re smart, take-charge kinds of folks, used to making the decisions. Making ourselves a servant to our clients’ needs is not always easy.
For example, let’s say you represent a company that supplies construction materials to another company. That buyer company receiving the supplies is late in payment. Under the contract, the supply company – your client—can cancel the contract if payment is not timely. You might counsel your client of those rights—“Hey! People can’t treat you that way! They pay late all the time. You should dump this contract!”
But your client may well refuse that advice —maybe the client is fearful that developing a litigious reputation in this economic sector will hurt them with future contracts. Maybe they don’t have other prospects so that late payment is better than no payment. Maybe they are trying to satisfy this contract with the hopes of bigger contracts from this client downstream. Maybe they just have compassion for other struggling companies, because they were a struggling company once.
Thinking like a lawyer means we don’t run in and tell the client to cancel the contract even if that’s what we would do — we find out their needs, their desires, their goals. We push them maybe—are they getting the reputation of being a company where no one has to pay on time? Are they financially able to float the lack of payments—can they pay their sub-suppliers?
The point is that thinking like a lawyer means recognizing our role that is subservient to our client. Thinking like a lawyer also means that we recognize the extraordinary position we are in when a client asks us for counsel and advice, and the care with which we treat that trust.
(2) When we think like a lawyer, we solve problems in light of history and context through precedence and rules.
When we’re presented with a problem, we can start with “Hey that’s not fair!” Or, “This seems fair!” But if you can start there, you can’t end there. Because when you think like a lawyer, you define fairness by historical consistency—if a court resolved an issue in one way, we expect them to resolve that issue in the same way the next time it comes up. Thinking like a lawyer is an “if-then” proposition—if this happens, then that should happen, because that’s the way it happened before.
We develop the if-then by looking at laws that legislatures enact, and by looking the way that courts interpret and use law, and by looking at common law, which are the rules that have developed over time from court opinions.
Much of the work of lawyers is to discover or derive those rules through legal research, and then apply those rules to the problems we are solving.
That might sound boring to apply history again and again— sort of same old/same old-- but it’s not because it’s so rare that two cases are identical. So while we’re finding the historical way that issues have been handled, we’re usually looking for the way to analogize that historical result or to distinguish that result from a new-fangled situation.
For example, let’s say your state defines robbery as the unauthorized taking of someone else’s property by force or intimidation. In our legal research, we read a case where someone stops a guy on the street, puts a gun to his back, and says “Give me your wallet or I’ll shoot.” The victim takes his wallet from his pocket. The criminal grabs it and runs. The court says, yes that’s robbery—it was someone else’s property, there was a grabbing or a taking, and there was specific threat.
But let’s say you are prosecuting a case where someone gets a text that says, “Leave $10,000 in an envelope on the second table of the Newark Starbucks on Tuesday … or else.” Is that robbery? That’s the problem we have to resolve. And we do so by thinking like a lawyer.
We apply history and context, because if this is like the gun case, then this is robbery. So we ask, is “or else” intimidation? Or does intimidation have to be contemporaneous? Does it have to be spelled out or can it be vague like “or else”? Is it even a taking if the victim is the one who acts to produce the funds at some time distant from the intimidation?
When we think like a lawyer, we figure out not just whether the historical interpretation of a law compels a result in our case, but we also struggle with why law was enacted or how it developed. We figure out what the legislatures were attempting to accomplish and what was most important to the development of the rule. When these robbery rules developed, were courts more concerned with the taking or with the threat of violence? If the legislature was most concerned with protecting people from an immediate threat, then maybe the text case won’t be defined as robbery. If the legislature was most concerned with a taking, then maybe it will.
(3) When we think like a lawyer, we are forward thinking—because we’re bound by history, we need to think about how our solution of a problem will affect future similar problems.
If a court holds that the texting case is not robbery, what does that mean for future cases? If the court held that it is not a taking when the victim produces the funds, does that mean that criminals can avoid prosecution by forcing the victim to physically produce the money? If the court holds that the threat was too vague, does it mean that if the criminal doesn’t specify the exact way he’ll harm the victim, then it’s not robbery?
Because of precedence—the process of applying past law to current cases—thinking like a lawyer means we must always be aware of how cases will stretch to future situations.
(4) When you think like a lawyer, facts are critical.
Much of what a lawyer does is to investigate facts. This involves not just listening, but listening critically—giving it that “wait, what do you mean by that?” or “Hmm—I’m not sure that makes sense! Hold on—you need to explain to me how that works…”
Of course, not all facts come from speaking to people—most facts come from looking a documents or things or analyzing data. But the same considerations apply—when you think like a lawyer, you look critically at these transmitters of facts.
Thinking like a lawyer means that we made decisions based on specific fact. If a client comes to you and says that her office discriminates against women, we don’t end there. We ask how many women are employed there, how many are supervisors, whether any have been fired,
whether any left due to pressure, whether there are text messages or emails containing offensive comments, and so on. We make decisions on the basis of fact, not on supposition.
(5) Finally, when we think like a lawyer, we do so against a background of professionalism and ethics.
First, there are specific rules that guide our behavior. You’ll learn about those rules in Professional Responsibility in the spring semester. There are rules about safeguarding clients’ confidences and about handling a client’s money; about conflicts of interest; and so on.
In addition to these formal rules, thinking like a lawyer means adopting your own professional sensibilities and a personal code of ethics.
For example, as a lawyer, we work hard. We don’t take unnecessary shortcuts. We believe in better than just good enough. We do more than just get by. We have a professional responsibility to be excellent.
We respect the process and everyone in the process.
We approach the practice with humility—when you think like a lawyer, you understand that we don’t know it all and we’ll never know it all. Part of thinking like a lawyer is committing to a lifetime of learning and a lifetime dedicated to improvement.
Thinking like a lawyer requires a great commitment to honesty. When you’re a lawyer, I’ll quote a potential first lady who was quoting an actual first lady: “Our word is out bond.” When you think like a lawyer, you don’t fudge the facts and you don’t lie. You are scrupulous about honesty.
Thinking like a lawyer also means committing to giving back to those in need. Thinking like a lawyer means that we volunteer for others, and that we use our good fortune to help those in need even if they can’t pay. Many of us work in the public interest or in public service. But even if you don’t, we volunteer to take cases from our local legal services office, or we volunteer to represent a veteran or a poor kid in some legal trouble. We volunteer to do some real estate work for a group home for the disabled or to do some corporate or tax work for a local community center that’s trying to organize. Part of thinking like a lawyer is to understand that the justice system relies on us to assure that everyone has access to representation.
Over the course of this year, you’ll start to think like a lawyer, and there are things you can do to advance that process.
When you read your cases, imagine yourself representing one of the parties. What arguments would you make? What resolutions of problems would you propose?
Think about why rules developed. Especially in civil procedure, we sometimes approach a class as if the rules descended from the heavens arbitrarily—but the rules developed for reasons. The rules accomplish goals—what are they?
Think about the future consequences of the cases you are reading. How can these cases be used in future, and in somewhat different circumstances? What are the limits and the breadth of the cases.
And volunteer. In your 2nd year you can do pro bono work, and in your third year, a clinic. In your summers and in the school year you can work in externships for government and non-profit lawyer. But right now, you can put yourself out there to enhance your community. You can see someone in your section who seems really different than you—and go to coffee. You can see someone who seems down and sit with them for lunch. You can notice a reticent student who gets called on in class and shines, and give them some props.
Some of you were high school athletes and you had coaches who would say that when you were the uniform you have to behave a certain way, or when you were the team tee-shirt, you have to behave with integrity. When you’re a lawyer, you were the tee-shirt 24/7; your behavior always has to represent the integrity we expect of attorneys.
At some point—maybe October, maybe November—maybe not till mid-December—you’ll start thinking like a lawyer. And when you do, even though you haven’t graduated, and even though you haven’t passed the bar or paid your bar dues, you will be on your way to becoming a lawyer.