These are the facts, and they are undisputed: Cobra Kai is my current favorite show on Netflix (considering WandaVision is on rival Disney Plus).
And yeah, I was late to the party, considering Netflix picked up the series in June 2020, but once I started watching, I was hooked.
If you haven’t watched it, here’s the premise. It’s about 30 years after the events of The Karate Kid. Daniel LaRusso (Ralph Macchio) owns a successful luxury car dealership in the San Fernando Valley. He has a smart, beautiful wife, two kids, a fancy house with a pool, and a country club membership. As Dean Martin sings in the intro to episode 2, “how lucky can one guy be?”
Things haven’t gone so well for Danny’s high school rival, Johnny Lawrence (William Zabka). He and his ex don’t get along, his teenage son wants nothing to do with him, and he just lost his handyman job after calling a customer “bitchy.” He seems to spend most of his time drinking Coors Banquet and scoping chicks from his ratty Pontiac Firebird.
Blasting Poison’s “Nothin’ But a Good Time,” natch.
But then everything changes when Miguel (Xolo Maridueña), Johnny’s teenage neighbor who lives with his single mom and grandma, gets assaulted by the cool kids and wants to learn karate. The Cobra Kai dojo is reborn in a Reseda strip mall, to Daniel LaRusso’s dismay.
And the rest of Season 1 practically writes itself. I loved every episode.
I mean, Cobra Kai isn’t deep like The Sopranos, or Friends, but it can be surprisingly moving. And if nothing else, it has some great lessons for lawyers.
That’s because it’s really a show about perspective. Naturally, the original movie told the story from Danny’s perspective. Cobra Kai flips the script and starts from Johnny’s perspective—waking up with a hangover in his crappy apartment.
I came in expecting Johnny Lawrence would be the hero, or at least the anti-hero, while LaRusso would turn out to be the villain. And in the first few episodes, you’re definitely pulling for Johnny, despite his obvious flaws, while it seems Daniel-san has become rich, pretentious, and a little vindictive. But as the season progresses, you see more of the redeeming qualities that made Danny likeable in the movie.
What emerges is a series that deftly shows how much conflict can develop between people who sincerely think they are doing the right thing, from their own point of view.
In the words of Ben Kenobi, the Mr. Miyagi of Star Wars, “you will find that many of the truths we cling to depend greatly on our point of view.”
This becomes clear early on in Cobra Kai, when we learn Johnny’s back story. Would you believe he didn’t become a bully out of nowhere? No, while Johnny did grow up in an upscale neighborhood, turns out he had an emotionally abusive stepfather who bullied him every day. So even if we don’t approve of Johnny beating up Danny in high school, at least we understand.
And when we hear the story from Johnny’s point of view, we even start to wonder if we had it all wrong. Some new kid from out of town moves in on your girl, sprays you with a hose at high school dance, and swipes your All Valley karate title with an illegal kick. Are you supposed to just sit there and take it?
More about that later.
Whatever we think of adolescent Johnny, present-day Johnny is at least trying to do something right. He asks his ex if his son Robbie (Tanner Buchanan) can come live with him. He becomes a father figure to Miguel; they celebrate with a big bear hug after Miguel’s first successful date (with Danny’s daughter, of course). Johnny ridicules his students to their faces, but only so they’ll toughen up and learn to stand up for themselves.
Danny, on the other hand, is not having it, and we can understand why. He wasn’t some rich kid like Johnny; he had to earn success the hard way. Plus, he knows Johnny’s sensei was John Kreese, a coldblooded sociopath. Kreese is now dead, but surely the apple doesn’t fall too far from the tree, Danny thinks.
On Cobra Kai, it’s just like old times
So, even as we’re pulling for Johnny to get more students at his struggling dojo, we also sympathize with Danny trying to protect the kids of his community from a bad influence.
And that, for me, was the biggest lesson of season 1. You see two protagonists in direct conflict with each other, but you fully understand where each one is coming from.
This, of course, is an important skill for a lawyer, especially a trial lawyer. Granted, as a litigator you’re advocating for one side. But the ability to see the case from the opposing side’s perspective is critical.
For one thing, it’s just good strategy. Understanding the motivations of the party who is suing your client, or getting sued by your client, will help you know what to expect and plan accordingly.
But it’s not just that. I think the ability not only to understand where the other side is coming from, but to empathize with the opposing party is important. Whether you’re trying to get a witness to admit an important fact in a deposition or trying to persuade a judge that your motion for summary judgment should be granted, the ability to actually feel what that person is feeling makes a difference.
I’ll take it a step further and say the ability to empathize with everyone involved in a dispute is important. It could be the opposing lawyer, a witness, your legal assistant, a court reporter. Most of these people, most of the time, are doing what they think they are supposed to do. You won’t understand them until you understand that.
Like Atticus Finch famously said, “you never really understand a person until you consider things from his point of view . . . Until you climb inside of his skin and walk around in it.”
And yet, we must not confuse point of view with the truth, as we also learn in Cobra Kai.
Consider Johnny’s rendition of his teenage run-in with Danny. We hear this from Johnny in episode 8, while images from the original movie flash on the screen.
Here’s what Johnny says about his breakup with Ali and ensuing feud with Danny, contrasted with what we see from the flashback:
I figured we would work things out eventually, but then Daniel LaRusso came in town. [Danny arrives with his mom, not looking happy]
Next thing I know he’s hitting on her. I see the two of them flirting with each other. [Danny and Ali with a soccer ball on the beach]
I walked over to have a simple conversation with Ali. [“What is your problem?!” Johnny says to Ali, then grabs her boom box out of her hands]
But LaRusso kept butting in. [Johnny throws the boom box at Danny, knocking him to the sand]
I told him to get lost, mind your own business. Out of nowhere the guy sucker punches me. [Danny gets up and punches Johnny]
I did what any dude would do, I defended myself. [Johnny delivers three hard blows, Danny falls to the ground]
I figured that was that, but LaRusso wouldn’t leave it alone. At the Halloween dance, I’m sitting there minding my own business [Johnny rolling a joint in the bathroom stall], he douses me with a water hose.
I hadn’t seen the guy in months, and he turns a water hose on my head. So I chase him down, try to put an end to things that night, right? [Johnny and his four sidekicks corner Danny]
Turns out the guy’s got a karate master of his own. Guy comes out of nowhere, jumps us, assaults me and my friends. [Mr. Miyagi taking out the five Cobra Kais]
Johnny having a simple convo with Ali, in the original
Sure, we can understand Johnny’s perspective on what happened, but notice what he leaves out.
The fact is that Ali had already broken up with Johnny when she met Danny at the beach.
The fact is that Johnny instigated the fight at the beach.
The fact is that Johnny and his friends were bullying the new kid from out of town.
The fact is that Mr. Miyagi was only defending Danny from five attackers.
I think the lesson here is not to take the whole “perspective” thing too far. Different people have different perspectives on the truth, but the truth is out there. The facts are the facts.
So, many years later, when Johnny shows up angry at Danny’s house after Danny’s cousin sets fire to his car, we can understand why Danny is not about to back down. He knows what really went down back in the day. So when Johnny confronts him, he puts up his dukes. It feels like two aggressive lawyers about to mix it up at a deposition.
Then something interesting happens. Danny’s wife Amanda (Courtney Henggeler) comes out of the house to see what’s going on. She could have said “you’re right, Danny, he’s a bully!” Or she could have said, “you’re wrong, Danny, you should be the one apologizing after what your cousin Louie did.”
But no. Here’s what Amanda says to her husband:
Yeah, you two seem to have this pretty well in hand. It’s a normal Saturday afternoon, a couple of grown men about to kick each other into a pool. You know, as much as I would like to watch you and your childhood karate rival duke it out, I kinda don’t want to get any blood on the patio. So what do you say we try to resolve this over some breakfast instead?
Instead of focusing on who is right about the facts, Amanda makes the guys see how silly they’re acting.
“You wanna go inside?” Danny says. “I could eat,” Johnny replies. Situation defused.
This, my friends, is emotional intelligence. Sometimes it’s not about the facts.
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Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation. Thomson Reuters named him a 2020 Texas “Super Lawyer”® for Business Litigation. This post is dedicated to his wife Rebecca.
These are his opinions, not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.
I was telling my 11YO son about a new client, and he says “you know, Daddy, when you think about it, you really make money off the misfortune of others.”
Ouch. I could respond by saying that we live in a world where people have disputes, and lawyers serve a necessary function by helping people resolve disputes under the rule of law.
But what if we lived in a world where there was no crime, and people didn’t fight over money? Lawyers like to think they serve justice, but wouldn’t we be better off in a more just world where disputes disappear, making lawyers unnecessary?
Perhaps we should consult the greatest book about justice, which—sorry, John Rawls—was written over two thousand years ago.
Let me take you down . . .
In Plato’s Republic, Socrates went down to the Piraeus and made a bold claim: justice requires that the city’s children be raised in common, not by individual families.[1]
His audience is shocked, but there is a certain logic to the claim. There is perhaps no greater source of inequality than the family. The children of rich parents have all the advantages, while the children of poor parents have it much harder. That was just as true in ancient Athens as it is today. If there is to be real justice—i.e. fairness—then the traditional family must be abolished, Socrates suggests.
And while we’re at it, we’d better get rid of private property too.[2] That’s another source of injustice.
Then, with women, children, and property shared in common among the city’s elite “guardian” class, “lawsuits and complaints against one another [will] vanish from among them thanks to their possessing nothing private but the body, while the rest is common.”[3]
Thus, Socrates suggests that a just society requires a sort of “communism,” although that term would be an anachronism in ancient Greece.
This sounds dangerous, of course, especially to us moderns who have seen the catastrophic results of 20th-century totalitarianism. It starts with lofty talk of remaking culture and society and ends with “reeducation” camps. Is that really what Plato—through his character Socrates—thought justice requires?
That question is subject to interpretation and debate. One interpretation is to take Socrates at face value. When he says that justice requires a sort of communism, he really means it. He’s advocating that kind of society.
Another interpretation says that Socrates is serious, in a sense, when he says that justice requires abolishing the family and private property. But it’s one thing to say what justice demands, it’s another to say what should be done. Justice, after all, is not the only human good. Perhaps the lesson of Plato’s Republic is that a utopia of justice would actually be a kind of dystopia.
That’s a sober lesson. It means that even the best society will have to make tradeoffs between justice and other values, and that’s a messy proposition. By asking us to imagine what a perfectly just city would look like, Plato forces us to confront that tension.
He’s a real nowhere man
This reminds me of another famous guy who asked us to imagine what a utopian world would look like. John Lennon released the album Imagine in 1971. Surprisingly, the iconic title track never reached no. 1 on the US charts, peaking at no. 3 that year. But since then, “Imagine” has become Lennon’s greatest post-Beatles hit.
Musically, it is an almost perfect pop song. That piano lick with the reverb and just a hint of the blues, Phil Spector’s ethereal but not too-syrupy strings, the tasty drum fills, and of course, John’s incomparable vocal. It’s no wonder millions of people, young and old, have downloaded the song from iTunes.
But not everyone is a fan. Behind that majestic music are some lyrics that are, let’s face it, kind of dark when you think about it.
I imagine Lennon himself would be bemused to see his provocative song embraced as a classic by middle America, to the point where you might hear it at a kid’s ballet recital. It’s how Bruce Springsteen must feel when “Born in the USA” is played at political rallies. What countercultural revolutionary wants to see his musical manifesto turned into something like the soundtrack for a Coke commercial? It’s supposed to make people uncomfortable, not teach the world to sing.
“Imagine” is especially jarring if you’re religious. Right off the bat, Lennon hits you with “imagine there’s no heaven.” Then, later, just in case you missed it, he comes back with “and no religion too.”
Granted, he never says “imagine there’s no God,” but he comes pretty close.
Then Lennon goes after two more things most Americans hold dear: patriotism and capitalism. “Imagine there’s no countries,” he sings in the second verse, “it isn’t hard to do.” And in the third verse he takes aim at private property. “Imagine no possessions, I wonder if you can.”
Not just equal possessions, no possessions. That is hard to imagine, and not very appealing.
(The common objection that it’s hypocritical for a rich rock star to sing about “no possessions,” while understandable, has always struck me as pretty weak sauce. Would the line suddenly become valid if sung by a poor person?)
But for me, the lyric in “Imagine” that everyone, regardless of political or religious beliefs, should have a real problem with is the line “nothing to kill or die for.”
That line is in the context of nationalism, coming right after “imagine there’s no countries,” and let’s remember, this was in the middle of the Vietnam War, which Lennon despised. So maybe the point was to criticize excessive militarism.
But still, if you take that line literally, it paints a picture of a world that would be pretty bland and joyless.
Nothing to kill or die for? Think about all the great literature, poetry, and cinema that would make no sense if there were nothing worth dying for. No Odyssey, no Les Miserables, not even Saving Private Ryan. And Shakespeare? Forget about it. His tragedies and histories are all about people dying for things they love more than life itself.
Getting rid of those things might make the world more just, but a lot less interesting.
Not only that, but nothing to kill or die for suggests no loved ones. Think about the things in your own life that you would lay down your life for. Yes, of course, God and country and justice and all that, but most of you probably thought about family members first. Is Lennon really saying that a world without family would be a utopia?
Better free your mind instead
Maybe we have it all wrong. Maybe John Lennon wrote “Imagine” to make us see that a world without countries, religion, possessions, and things worth dying for would actually be a dystopia. Perhaps it’s an ironic anthem.
That’s an interpretation, but an unlikely one. Just considering the face of the lyrics, the final line of the song is “I hope someday you’ll join us, and the world will live as one.” That sounds like a fairly earnest call to action. Then when we look outside the lyrics, the extrinsic evidence tells us that the song’s critique of religion, nationalism, and materialism aligns pretty well with the beliefs Lennon espoused in interviews.
In short, the ironic interpretation of “Imagine” doesn’t seem very plausible.
On the other hand, John Lennon was fond of ambiguity. This is the guy who sang “I’d rather see you dead, little girl, than to see you with another man” before he wrote the hippie anthem “All You Need Is Love.”
Even more famously, his song “Revolution” reads like a critique of 60s radicals who embraced the idea of violent Marxist rebellion. “But when you talk about destruction,” he sang on the original single version (the fast one), “don’t you know that you can count me out.” He was all about giving peace a chance.
Or so we thought. Later, when the Beatles released the slower, doo-wop version of “Revolution” (the one on the White album), John sang “don’t you know that you can count me out . . . in.”
Out . . . in. What was that all about?
This ambiguity suggests we need to consider Lennon’s whole body of work, and when we do that, a more complex picture emerges.
Just like starting over
Nine years after Imagine, John Lennon released a comeback album called Double Fantasy. I consider it his best solo album, but strangely, there’s nothing on it about politics. Instead, the songs were all about relationships. (“Woman, I can hardly express, my mixed emotions at my thoughtlessness.”)
What happened? Did John go soft?
One thing that happened is that John’s son Sean was born in 1975. At that point, Lennon did something almost unimaginable for a rock star who stood at the top of the world. He quit making music, became a house husband, and stayed home with his kid, changing diapers and watching Sesame Street.
This eventually led to another song with a memorable piano riff: “Watching the Wheels.” It responds to the questions people kept asking John during his self-imposed exile from show business. “Don’t you miss the big time, boy, you’re no longer on the ball?”
But the song on Double Fantasy that has really resonated with people is “Beautiful Boy,” a musical love letter to John’s son. Even if you don’t know the song, you probably recognize its signature line: “life is what happens to you while you’re busy making other plans.”
Everyone can relate to that, especially if you have children. We all have big plans when we’re young. Some want to get rich, or famous, or both. Others want to make the world a better place.
Raising children has a way of bringing us back to reality. This is precisely why Socrates thought the family would stand in the way of complete justice.
And the hard truth is, sometimes having a family gets in the way of those big plans you had. But you learn that the best stuff in life is what happens along the way. You’d think that people would have had enough of silly love songs, but you look around you and you see it isn’t so.
I think this points to a third possible interpretation of “Imagine.” Maybe we need to pay more attention to the title.
Perchance the point is not to get rid of everything we care about and fight over. “Imagine” suggests that the things human beings love the most can also be the very things that make us behave the worst. But by imagining a more just world, we can at least remind ourselves not to let our selfish concerns for our own families, possessions, and beliefs feed into greed, intolerance, and violence.
If that means less work for lawyers, I can live with that. Maybe I can have a second career as a rock star.
__________________________
Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation. Thomson Reuters named him a 2020 Texas Super Lawyer® for Business Litigation.
These are his opinions, not the opinions of his firm or clients.
[1] “All these women are to belong to all these men in common, and no woman is to live privately with any man. And the children, in their turn, will be in common, and neither will a parent know his own offspring, nor a child his parent.” The Republic (On the Just), Book V, 457d (Basic Books 2d ed. 1991, trans. Bloom).
[2] “There mustn’t be private houses for them, nor land, nor any possession.” Id. at 463c.
Shannon Montgomery is a lawyer I know who handles contracts, trademarks, and other legal issues for clients such as social media influencers. We were both presenting at a CLE conference (right before COVID-19), and we got to talking about her training for an upcoming bodybuilding competition. I said something about how hard it would be for me to stick to the kind of strict nutrition plan bodybuilders have to follow.
I don’t remember her exact words, but her response stuck with me. She said something to the effect of, “it’s no different from the things you do as a lawyer that require discipline, you just have to decide to do it.”
You just have to decide to do it. I thought it was great advice. So true, so simple, yet so difficult.
Fast forward a few months, and I found out not only did Shannon enter the competition, she won it. I knew I would have to get her lessons from that experience into a blog post.
I envisioned it as sort of a companion to my post 7 Things Physical Fitness Teaches You About Professional Success. But that post was about physical fitness for ordinary people, like me. I was curious what lessons could be drawn from someone who competes at an elite level.
So here’s my interview with Shannon.
Why don’t you start with telling us a little bit about your law practice?
I do intellectual property and some transactional business work, but it’s mostly contract drafting and review, trademark, and copyright. Most of my clients are fitness entrepreneurs or fitness influencers. And I’m getting into sort of the supplement space as well and doing some work in that arena. I do have clients who are not fitness related, but the majority of my clients are somehow connected to the fitness industry.
Shannon Montgomery of Montgomery Law, PLLC
How did you end up with these clients in the fitness-related industry?
It all started on Instagram. I had a personal Instagram, @liftinglawyer, which I started back in law school, and I used it to post fitness-related content. And then I started getting legal questions from influencers and different people that I was following. They would pop into my DMs or comment on something and ask me some sort of legal question.
I realized that there are a lot of influencers out there who are business owners or who want to start businesses or who just make a lot of money on the Internet, and they didn’t have any legal help. So I thought, you know what, I’m going to go ahead and be the person to help these people out. In law school I spent a lot of time in the sports world. I worked with a lot of sports agents, and it’s kind of the same thing.
What I do now is obviously a little bit more. I help them with their businesses more than I would for an athlete, but a lot of the contract principles and IP issues are the same for influencers as for athletes. I thought maybe I’m a good fit for this because it’s what I wanted to do in first place.
Before you were a lawyer, were you a weightlifter?
Yeah. I started working out when I was very young. My dad took me to the gym when I was in high school at 15, maybe 16. I don’t know if I could drive.
My older sister was really into lifting. She did powerlifting at the high school. She was very athletic. I was always a gymnast and a cheerleader, so I was athletic, but not quite like her. She was working out with my dad, and I went and I just got became obsessed.
So I have been lifting and working out in some capacity since I was in high school, and I just never stopped. When I got to college, I would skip class to go to the gym. I would plan my day around going to the gym.
Were you able to continue a disciplined weightlifting schedule in law school or was that difficult?
Law school was the first time in my life when I couldn’t skip class to go to the gym, because you had to go to class. But I definitely made sure that I planned all of my classes around my ability to get to the gym.
I prioritize the gym. I always have. So you know how they say if you if you really want something and you don’t have time for it, make time. That’s always been the case. It was never a matter of, oh, I don’t have time for this today. It was what else can I take off my plate? Because I have to be able to get to the gym and keep that structure, because it really keeps me sane and focused and allows me to be productive in the rest of my life.
I was going to joke and say, well, it sounds like you had your priorities straight in law school, but it sounds like having that sort of regular schedule helped you with your school.
Yeah, absolutely. I’m one of those people that if I’m not crazy busy and I’m not productive at all, so I need to have structure. I need to have my time blocked out. So I was in the gym every day by 7:00 a.m., typically because I love to work out in the morning or if class didn’t allow, then it was right after class. There was always a slot for the workout because it keeps me focused.
This may be a dumb question, but what’s the difference between weightlifting and bodybuilding?
There’s a lot of different ways to lift weights, so it depends on the context.
When you see people doing clean and jerks, or snatches, which are the two Olympic lifts, that’s technically called weightlifting. Bodybuilding is you lift weights, you can power lift, you can do whatever in order to build your muscle, build your body so you can get on stage in a very small outfit and be judged for how well you build muscle and lean down.
Weightlifting takes a lot of skill. And if you’re competing in weightlifting, you’re obviously a very good athlete.
Bodybuilding is one of those things that takes extreme dedication and discipline. But you don’t really have to be an athlete. You just have to you have to get to the gym and be very disciplined.
How did you make the transition from just the weightlifting to lifting weights for bodybuilding?
I would get questions a lot in the gym. People would be like, what are you training for? Are you a bodybuilder? Do you do physique sports? Are you a Cross-fitter, all that stuff.
When I was in law school, actually, was my first sort of exposure to bodybuilding. I had always thought about it, as the Arnold Schwarzeneggers of the world, and I did not think women competed, or if they did, they looked like a female version of Arnold Schwarzenegger, and I was not interested in that.
But then Instagram, social media in general, but mostly Instagram shed light on these other divisions. There is the Bikini division and the Figure division, which are for women and it’s not this extreme, you’re not huge. It’s really meant to be more someone who’s generally into health and fitness, and it’s a place for you to compete and showcase that.
So when people started asking me, I started looking into it and it just looked like something that was right up my alley. One thing led to another, and here we are six years later, and I’ve done four seasons and 12 shows at this point.
Wow, that’s a lot of shows. Tell us about the most recent competition that you did.
Yeah, so I did the NPC [National Physique Committee] Oklahoma Championship. NPC is the governing body. The NPC is what leads into the IFBB [International Federation of Bodybuilding and Fitness], which is for pro bodybuilders. You can go pro, and you can earn money, although not many of them earn a lot of money.
It was the second show this year to go on because of COVID everything that we had originally planned to do. I started dieting in January, and then every show I was supposed to compete in early May that got canceled. And then I picked another one, and that got canceled.
So it was just like a domino, everything just kept falling. But I got lucky. And this show in Oklahoma was like, are we going to go on? We’re going to take precautions. They limited the amount of people that signed up, a lot of people that could come and I went. It was my first show actually. For years I haven’t competed since 2016.
And I did the Bikini Division, which was actually the two years prior competing I’ve done Figure. So I was kind of going back down into Bikini so I wasn’t used to the posing or just that division in general and very, very nervous. But I went and it was a great show, it was really well run. Everybody was super nice.
There were thirteen girls in my height class. I won my height class, and then I won the overall, which means I beat out all the other girls and all the other height classes too. And it turned out really well. I was not expecting that at all, but I did well and I enjoyed it. So I’m really happy that I got to do it this year.
Congratulations. What was it that made you want to get back into competition after four years of not competing?
It just never feels done, or at least I don’t feel done. I knew the last time that I competed that I was going to take a nice long break, and I was just kind of waiting for the right time. In between I moved from Florida back to Texas, and so when I first got back to Texas, I thought maybe that would be the year and that just wasn’t right. And then last year, I moved to Houston.
Finally this year, January rolled around and I was like, I’m ready to diet and I’m ready to focus. If you’re not one 100% mentally ready to take it on, you should not even try, because it’s exhausting. It takes up a lot of mental space. It takes up a lot of your time. So, I was in a good place, both career-wise and everything else kind of fell into place. I was ready to give it another shot.
When you decided to enter this competition, was your mindset like, ok, I’ll do this competition and I’ll have fun with it and see how it goes? Or was it like, I’m going to do this competition and I’m going to win?
I didn’t necessarily think about winning, but in order to go pro, you have to get first or second place at a national show and there are only four or five national shows throughout the year. So I knew that I needed to get first or second so that I could get nationally qualified. Eventually I would like to compete at the national level and go for that pro card.
I do get on stage just because I love it, but I have been told that I stand a chance of winning a pro card in Bikini. So I was like, this is the year I’m actually going to go in there. I’m going to win first or second and get nationally qualified. That was the expectation. I kind of figured I would just get second, and I kept telling my coach that I wanted to do a really small show so that there would maybe only be like girls in my division and I could get second place, and then I could step on stage at Nationals.
I had no idea that I would take the overall by any stretch of the imagination, especially because I’m not used to Bikini and the posing is just totally different than what I’m used to. So I didn’t have huge expectations.
What was the planning process like?
I started planning way back in September of last year. As far as I knew, I wanted to start dieting in January for a May show. So I have a nice long diet phase so I could go slow instead of because crash dieting is not a good idea.
I started structuring my training around what I know they look for, so I changed up the way I was training a little bit. I kind of stepped back from powerlifting and focused a little more on so hypertrophy training for bodybuilding purposes to kind of grow certain muscles, and then certain muscles stop growing, because I have bigger arms and for Bikini you don’t need that.
The timeframe sounds pretty similar to my law practice where we’re getting ready for a trial, because you’re planning months out. And was there anything that you learned from that planning process that you can apply to professional life?
Absolutely. Fail to plan, plan to fail. Just like with me running my own practice. I don’t litigate, so I don’t have to worry about trial so much, but it’s the same idea with trademarks as they take six to eight months. You’re planning when you get to a client, you have to plan something out maybe even a year. You have to be able to see the big picture, while also seeing the little day-to-day picture, which is 100% what a bodybuilding prep is.
You wake up every single day and you have to take care of these many little tasks that all add up to your long-term goal of getting on stage, which could be a year away, it could be six months away. Until you look at the big larger picture and you can step back and look at things from a macro perspective, then it all adds up to one long bodybuilding prep.
Right. It reminds me a lot of really business development. And I know you have your own firm so I’m sure you know this, but so much so much of it is doing those little things, you know, every day or every week.
Yeah. And just being consistent in what you’re doing.
You mentioned your coach. How was your coach helpful to the process of getting ready for the competition?
I don’t think you can perform or get ready without having a coach. It’s really hard to be objective about the way you’re looking or how your training is going or your nutrition and all of that stuff for yourself. You need somebody who’s outside, looking in, controlling all of that.
Without a coach, I would just grind myself right into the ground almost instantly. I’d be like, we’re going to do one hundred hours of cardio, we’re going to train for three hours, we’re going to not eat anything. That’s not the way to do it.
So having a coach keeps me focused and it helps me stay out of my own head and out of my own way and really gives me the path that I have to follow. And I love structure. I mean, I’m a lawyer. I love it. And so really, somebody else gives me the plan and I can just follow along and makes it way less stressful to have a coach.
It sounds like your coach is not so much pushing you to do things but more like keeping you disciplined and not overdoing it.
Yeah, keeping me in line basically. I don’t struggle with the discipline part. I’m a very self-disciplined person, as I think most attorneys are, I would say, or else we probably wouldn’t have gone into this profession. So that part of it isn’t hard for me. But knowing when to push or knowing when to pull back, I kind of need help with because otherwise I’m just like push, push, push.
You mention self-discipline, which leads to a question about diet. That seems to me like maybe the hardest part of doing something like this. So what was your nutrition plan and your approach for that? How does one eat for a bodybuilding competition?
Well, it depends on who you ask. Obviously, nutrition is very personalized, but for me, I do what we call flexible dieting.
It’s been around for probably ten years now. So the typical old way of thinking was you had to eat fish and asparagus and chicken and flavorless things. And a certain amount of those things. And that was it. But with flexible dieting, you essentially get to eat whatever you want.
You have to track your macros, so your protein, carbs, and then within those macros I’m allowed to eat whatever I want. I typically eat very healthy anyway because you think of it like a bank account. If you eat a doughnut, for example, it’s going to eat up a huge chunk of your carbs and your fat for that day.
So I usually just eat healthy foods. I eat a lot of lean meats, a lot of vegetables. I do love carbs, but I’ll use like potatoes, rice—I do eat bread—that kind of stuff to hit my calorie goal. And then within that, my protein and carb goal for the day.
It sounds similar to the Weight Watchers concept, which I think studies have shown is one of the most effective methods.
It is just like that. Weight Watchers is not as detailed, but it’s the same concept and it’s from a psychological perspective, it helps people adhere to their diet way more because you’re not saying no to anything and you kind of learn to not want anything all that much because you know that you can have it at any point in time, you know, as opposed to say, oh, I can’t eat carbs.
And then when they do let themselves have carbs, they eat a box of cereal and 10 doughnuts and you’re like, no, that’s probably not a good idea.
Most people have a lot of trouble sticking to eating right. How do you do that?
I do love healthy food, and I do love being in control of my nutrition, but really, it’s just making the decision to do something and then doing that thing. I don’t know if that’s a personality trait that I just have, so I always feel like I’m the world’s worst advice giver because I don’t know, is that something that everyone does?
But for me personally, when it comes to sticking to my nutrition or when it came to the bodybuilding and sticking it out even through COVID and the lockdown’s and all of this stuff, it’s just I made a decision to do something.
So I’m going to honor that, and I’m going to continue to make the right choices because I made this decision. I’m going to stick to it.
Are you able to take that mindset of just deciding to do it and use it in your law practice?
100%. Honestly, that’s when I decided to start my law practice. It was kind of like I made the decision and then two days later, I had a law firm.
So again, I’m not the best at giving advice, because when I decide to do something like, I have to do it, I have to get started on that thing right away, or I have to make some sort of move towards accomplishing that thing. So when it comes to the law, when it comes to my practice, that’s pretty much how I get myself to do everything.
You don’t want to do everything it takes to run a law firm every single day. Some of it’s not that fun. Sometimes I’m like, you don’t want to do this. But if I make the decision and I tell myself this exercise is getting done today, then I have no choice. I have to do it. It doesn’t get put off until later, it gets done because I make the decision to do it.
Montgomery Law, PLLC represents fitness entrepreneurs, social media influencers, and other business clients.
Practicing as a solo attorney, what’s the thing that you really dislike having to do every day or every week?
For one, the accounting. I have software for most of it. So, you know, it’s kind of seamless, but I still just hate getting on there. And I don’t like numbers. Yeah, I’m a lawyer, so I hate the accounting part of it.
And then what I would consider the administrative type stuff like some of the emails and intake, the invoicing and all of that, and just those little tedious things.
One more question on nutrition. I know a lot of people are like me in that when you get really stressed, you tend to eat the wrong things. I think most people can relate to that. When you’re training and sticking to this this very specific nutrition plan and running a law practice, I’m sure there’s a lot of stress that comes along with that. How do you deal with the stress?
Well, first, let me say, if you are a stress eater, don’t tell yourself that you’re eating something that’s wrong or bad. You’re just eating something that maybe isn’t ideal for that moment in time. In general, there are healthier choices and then there are less healthy choices, just as a disclaimer for people so that they don’t feel guilty about stuff like that. And for me personally, I’m not immune to wanting to do that.
And now that I’m not bodybuilding, if I’m having a moment of anxiety, it’s like a glass of wine. But when you can’t turn to food or wine or whatever to relieve some of that stress, I might pick a podcast that has nothing to do with business growth. I pick a podcast that is either about training or something fun, something that I just want to listen to. Or go for a walk, or get a book, sit in the corner and read for 10, 15 minutes uninterrupted, and just take a breather and take a moment to myself.
That’s really the only thing you can do when you’re in a bodybuilding preop because everything else is so controlled. Your activity is controlling your nutrition, your water intake, your sleep, all of it. So when you just need that stress relief, it’s really about finding something just a few moments to yourself to shut everything out and then just kind of focus. If you meditate, perfect. I don’t do that. I would love to, but something like that essentially is my version of meditating.
Those sound like much more constructive ways to deal with stress. And you mentioned sleep, which is really interesting to me. One of my most popular blog posts was about how lawyers are so sleep deprived. And I contrasted that with professional athletes who are usually very careful about getting enough sleep. Is getting a certain amount of sleep part of your training for a competition?
Absolutely. And it should be a part of everybody’s training for life, because if you don’t sleep enough, your body doesn’t function properly. And so not only do you have to sleep for muscle recovery, and actually everyone thinks that you’re building muscle in the gym, but you’re not. What you’re doing in the gym is tearing it down. And then when you sleep is when the muscle gets built.
So if you’re not sleeping, you’re not building any muscle. So I am obviously not going to get eight quality hours every single night. But I aim to have everything, have the lights off, have the phone down, everything by 9:30 and in bed.
And I’m very strict about my work-life balance. I will cut things off at 6:30, 7:00. I’m done. I don’t want to check my email. I’m not going to answer a client if they text or call after a certain point in time, you just have to put your foot down and prioritize your sleep. I mean really, truly prioritizing sleep over all the other stuff first and foremost. It’s the most important aspect.
Now let’s talk about getting in the gym. I would say most guys at least, you know, they go in the gym, they throw a bunch of weights on the bench, they do a bench press and they stand around for a few minutes, maybe do some more bench press, maybe go get on the StairMaster. I’m guessing that kind of approach is not going to work for someone like you training for a serious competition.
It’s not ideal. I would say you’re not wasting your time, but you’re certainly not utilizing your time wisely. So, yeah, my programming, my training days are very thought out, usually in two to three-month blocks, and things are progressively overloaded. Everything is very structured.
Even in an off season, when I go to the gym, I don’t just go in without a plan. I go in with maybe it’s a chest day or maybe it’s a shoulder test day. I write things down, I keep track of how I feel, how the weight felt. I track all of that because you really have to train with a purpose and with an intent to actually make progress.
So in or out of bodybuilding, you really should train with intent or else don’t bother going to the gym. Go do something else.
A lot of people will start an exercise program and they don’t really see results from it. What do you think most people are doing wrong when they get in the gym?
Either they’re not doing a good program, maybe they’re just following along haphazardly with different exercises or different workouts that they see online or they’re not giving themselves enough time. I’ve been doing essentially the same types of workouts since I started working out. I don’t do a lot of fancy stuff. Things don’t really change, the bread and butter: the squat, bench press, deadlift. There are some accessory movements that go along with that. But I go and do the same things day in and day out, and then you just have to be patient.
Everybody always wants to change up every couple of weeks, to “confuse” the body. I don’t know where that came from; you can’t confuse your body. You just go in and do the movements that, you know, work, the movements that are hard, that challenge you. And you do the same things over and over. Maybe you’re going to add some weight from week to week, or maybe you’re going to add some reps. But be patient. You’re not going to see results in a few weeks. It’s going to take time.
“I’ve been doing essentially the same types of workouts since I started working out. I don’t do a lot of fancy stuff.”
So we’re not going to see Shannon Montgomery doing a lot of rope climbing or tire flipping?
No, unless I’m having a totally crazy day and I feel like just having fun and doing something totally out there, but not typically. And that works for cardio, I mean, it definitely works, but the same thing goes. If you’re going to tire flip, if you use the same weight tire every single time you do it, you’re not going to get any stronger. So start with a small tire and move up to the giant tire.
Another thing I would guess most lawyers would say about physical fitness is just that it’s hard to find the time, because they’re so busy. For someone like you, where you’re doing client work and the administrative work all on your own, how do you manage your time when you’re doing this training?
So, one, you don’t have to spend tons of time in the gym. You don’t need any more time than 45 minutes to an hour.
And two, like I said earlier, if you want something, you will make it happen. So sometimes it means I’m up at 4:00 a.m. to make sure that I get that workout in before the meeting, or before when I was with the firm, I was in the office by 8:00 a.m., so I was at the gym by 4:40 every single day.
I don’t have kids, so I know a lot of people who have kids, it’s a lot there. There are a lot of moving parts. But you can make something happen. You don’t have to go to a gym, not necessarily. You can go for a run or work out in your garage. If you want to do it, you will find the time to do it.
It’s just about understanding you don’t need to spend two hours and it doesn’t have to be the biggest gym work. It can be a 30-minute, 45-minute body-weight workout in your garage.
That’s great advice. I was also wondering about competing on stage, and I’m thinking that most people, including me, would be terrified to get on stage like in a bathing suit. And not only that, where the people are scrutinizing everything about your appearance. Does that make you nervous? And how do you deal with that?
Yes, super nervous. And still, it makes me nervous every single time. I don’t know if that is something that will ever go away. Maybe I’ll let you know in a few years, but I still get nervous because it is it’s very awkward.
And especially for me. I’m just not like a very flashy center of attention kind of person. And you’re getting up on stage in literally nothing and you’re being scrutinized, and as a female, our biggest insecurity is typically our body. But over the years, I’ve been able to kind of separate that being on stage and what the judges are going to say or think from who I am.
It’s definitely given me so much confidence because if I can get on stage in a bikini and some clear plastic heels, I can probably do just about anything, and that bleeds into just everything else in life, having that confidence.
It has led me to starting my own law firm. It’s like, well, if I can get on stage and do this very awkward thing and withstand that, there’s no way I can’t open my own law firm and be at least mildly successful.
My next question was inspired by watching that documentary, The Last Dance about Michael Jordan. One thing that comes out of that is you see this burning desire to compete and win. You just won a competition. How important is that will to win to actually winning?
I think particularly in bodybuilding, if you don’t have the ability to at least visualize yourself winning, you might never get there, because when it comes to bodybuilding, your stage presentation is most of the battle. So having that desire to win will give you more confidence on stage and will give you the ability to really showcase what you worked so hard for.
It’s perfectly fine to compete and have no expectation and want to just do it for fun, but if you want to compete and you want to win, that will to win has to be paramount. Because there are times during prep where you’re just like, why am I doing this? I’m tired, I’m hungry, I have to go do an hour of cardio, and I don’t want to do it. But the desire to actually get on stage and win something just kind of pushes you through those times.
Are you fun to be around in the final weeks of your training?
Ooh, probably not, honestly. You’re kind of hungry and you’re tired and you’re just like, I’m ready to be on stage. I’m over this. So probably not.
After you won the overall competition, what was the first, I’ll say “bad” food—foods are not bad or good, but you know what I mean. What was the first thing you wanted to eat that you couldn’t before?
One, wine. I had a little glass of wine. And then I made myself I guess they call them brookies, but it’s a brownie and chocolate chip cookie thing. I’m a sweets person. My sweet tooth is terrible. So that’s what I always want. I want the sweetest chocolateiest peanut-butteriest thing I can find.
That sounds great. So overall, what was the most important lesson you took out of this experience of training for and winning this competition?
Well, this year was special because of COVID and because of the gym shutdowns and all the show cancellations and everything. So, I think the number one lesson I learned from prepping through all of this was how resilient I am, but also just how resilient humans are, because there are so many people who were doing the same thing as I was. And we were training in our garages with chairs and stuff so that we can get on stage.
Just knowing that not only can I adapt, I can change, I can pivot when I need to. I am apparently very resilient. So it was a it was a very good life lesson this year.
Resilience. Yeah, we all need that right now for sure. So what’s your next bodybuilding goal?
Right now I am taking a break. I actually am kind of dealing with a little bit of a back injury, so my training has been not great.
Probably in the beginning of next year, I will start another prep for hopefully the national shows that originally are in the summertime. We’re hoping that everything goes back to normal next year, and then I can get on stage at a national show and see what the judges say. Maybe they’ll like me as I am and I can win that card.
Or maybe they’ll tell me, hit the hit the gym, do these three things and then come back. So that’s kind of the goal. But the long-term goal is to win a pro card. So hopefully that’ll happen soon.
Well, I expect we’re going to see that sometime in the future. Now, what is your next big professional goal and related to that, people who want to help you professionally, what can they do to help?
I would love to be able to bring on help to do the things I hate to do. So figuring out how to do that the right way.
And scaling the business a little bit, getting better about that, because I have a tendency to just sort of take everything on and just keep everything. I’m starting to do a little more work, like hiring freelancers for certain things, because they always say hire out, hire out. But being a control freak, that’s so hard for me. But I’m getting better at it.
So professionally, I would hopefully by the end of this year, I’m in a position to where I can bring somebody in maybe part time, if not full time, for some of the administrative stuff and actually be a good manager and actually be able to tell them what it is I need, because I feel like I’m really bad about that.
That’s definitely the goal. And then maybe by next year, who knows, hiring an associate or something, that would be crazy, but also awesome.
Well maybe people who see this interview can help with that. And if people want to keep up with what you’re doing, they can follow you on Instagram?
Yes, they can follow my firm Instagram @montgomerylawpllc, and my personal Instagram focused on weightlifting is @liftinglawyer. I haven’t been super active on either of them lately because I’ve just been so busy, but hopefully I’ll get back on there soon because I do love being on social media.
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Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC. Follow @zachwolfelaw on Instagram to keep up with his latest shenanigans.
It was a rite of passage this past year in the Wolfe casa, when I watched the classic 1980 film The Blues Brothers with my 11YO son, just as I had done with my dad back in the day.
Some of you will remember the opening scene. “Joliet” Jake Blues is finally getting out of prison. Dressed in his jailhouse fatigues, he is led to the property room to claim his personal belongings. He steps up to the counter, and an officer holding a clipboard glares at him (played by none other than Frank Oz of Muppets and Yoda fame). The two escorting officers pull him back to stand behind the yellow-taped line on the floor.
“Sign here,” the officer sneers. Jake sarcastically plants his feet behind the yellow line while cartoonishly leaning forward to sign his “X” on the line. Right off the bat you get a sense of Jake’s personality.
I experienced something similar as a teenager when I went to get my driver’s license. I walked up to the counter, and the lady behind it said “please stand behind the line until you’re called.” Afterwards, I remember my dad saying something like “you give people a little bit of power . . .”
I’ll come back to that.
The 2020 bar exam controversy
You may have heard there has been some controversy about the bar exam this year. The problem is obvious. The last thing you want in the middle of a pandemic is hundreds of test-takers assembled in one big room together for hours on end.
This has presented bar examiners with several options. I’ll list them in order from worst to best:
1. Cancel the exam and just wait until next year. Graduating law school students can just figure something out for a year.
2. Grin and bear it. Stick with the in-person bar exam, but maybe with some extra social distancing. How bad could it be?
3. Switch to an online exam. If monitoring the test-takers is too much of a logistical challenge, then just make it an open-book exam (as many exam critics have already suggested).
4. Considering the unprecedented nature of the COVID-19 epidemic, the threat of spreading the virus to test-takers, the anxiety that the threat of the virus must visit on already-stressed-out examinees, and the fact that the bar exam is not really that essential in the first place, grant admission to the bar based on diploma privilege—at least just this one year.
(Diploma privilege means accepting graduation from an accredited law school in lieu of passing the bar exam.)
My ranking of the options is of course just my opinion, and there are pros and cons to each. I’ll concede this is not an easy issue for bar examiners to deal with. Same for the state supreme courts that, in most cases, ultimately oversee the bar examiners.
But that’s about the best I can say for the bar examiners. Overall, if I had to grade their collective response to the COVID-19 crisis, they would get an F. Ok, maybe some of them would get a C, if we’re being charitable.
They should have just made it simple and granted diploma privilege for this one year. That would earn an A.
Granted, as indicated earlier, my grade is based on the premise that the bar exam is not really that valuable. If my premise is wrong, then maybe my grade is too low.
So it comes down to this: what is the real purpose of the bar exam, and how well does it serve that purpose?
Are you ready for some football?
Let’s put it in football terms. NFL teams use the scouting combine to help evaluate college players for the draft.
At the combine, players run a gauntlet of physical fitness challenges that includes things like the 40-yard dash, the vertical jump, and bench pressing 225 pounds as many times as possible. They also get interviewed and take a sort of IQ test called the Wonderlic.
Of course, the tests at the combine are just part of the puzzle. It’s a sports talk show cliché for some former player to say, “I don’t care how good he looks running around in shorts, let me see him on the field in pads getting hit.”
But the physical tests at the combine give the teams some relevant information they find valuable.
No, on game day you don’t get points for running a 40-yard dash in a straight line with no pads for time. But if the defensive back you’re scouting has a subpar time on the 40, that tells you he may not have the speed needed to stay with a Tyreek Hill streaking down the sideline. Seeing that prospective offensive lineman bench press 225 pounds like it’s nothing gives you some idea of what he can do to a blitzing linebacker.
In the same way, testing future lawyers on their knowledge of specific areas of law is obviously not the same as watching them actually practice law, but it gives you some indication of their legal acumen, right?
Well, not so much. The NFL combine is perhaps what the bar exam wants to be, but the reality is different.
Imagine you’re a college football player arriving at the NFL combine, and a team scout hands you a stack of 15 detailed rulebooks from various sports. The sports include everything from tennis to basketball to golf, and maybe—maybe—football. “You’ve got a week to memorize these rulebooks, kid, and then there’s going to be a written test.”
That’s the bar exam.
You can see the problem. First, knowing all the intricate rules to football is no test of how well you are prepared to play football. Second, knowing the rules of, say, professional bowling has no relevance whatsoever to playing football.
Now, in fairness, making NFL prospects memorize these rulebooks and take a test on them might have some value. For one thing, the ability to memorize that much information and apply it on a written test would be some indication of a player’s intelligence. For another, this ordeal would give teams some sense of a player’s grit, determination, and discipline.
It would also serve as a sort of rite of passage, building camaraderie among players. Someday they’ll sit at a bar reminiscing about the experience. “You remember when we had to memorize all those crazy rules of table tennis, that was insane!”
And finally, let’s say the rulebooks include the rules of the NFL. In that case, a player’s knowledge of the rulebook might have some value, even if it’s not the thing that really matters.
So how is my combine hypothetical like the bar exam?
An exam for a bygone era?
The first problem is that the ability to memorize a bunch of legal rules and apply them on a written test isn’t even close to how lawyers actually practice law. It is both too difficult and too easy. It’s too difficult because in practice, if a lawyer doesn’t remember all the elements of the business records exception to hearsay, she’s just going to look them up. It’s too easy because real flesh-and-blood client matters don’t come in neat little fact patterns with right or wrong multiple-choice answers.
But that’s just the least of it. The bigger problem is specialization.
There was a bygone era when small-town lawyers had to know a little about a lot of different areas of law practice. You might draft a will on Monday, appear in court for a criminal defendant on Tuesday, and review an oil and gas lease on Wednesday. The typical selection of bar exam topics seems built for this kind of practice.
But hardly anyone practices like that anymore. Almost every lawyer today specializes in some specific area of law. Sure, the level of specialization varies, and some lawyers have more than one specialty, but very few lawyers now have the kind of general practice that the bar exam attempts to test for.
Let’s say a lawyer specializes in patent law. Testing that lawyer on her knowledge of criminal procedure is about as relevant as testing a wide receiver on his knowledge of the rules of baseball. That would be unnecessary and over-inclusive.
And there’s a less obvious problem. No matter what topics you pick, the bar exam is also going to be under-inclusive. I’ll use myself as an example. My practice focuses on non-compete and trade secret litigation. Sometimes I also handle trademark matters. (This is by happenstance; the two practice areas have nothing to do with each other.)
Guess what? The bar exam I took had nothing about either one of these practice areas.
How can this be? How could the Texas Board of Law Examiners set me loose on an unsuspecting public without first testing my competence in these areas of law?
The answer is twofold and, I think, illustrative.
First, in the case of trademark law, I learned it the old-fashioned way: apprenticeship. I don’t mean any kind of formal apprenticeship. I just mean that I learned it by working with a lawyer who was experienced in trademark matters. I wouldn’t call myself a trademark law expert, but it didn’t take long for me to achieve basic competence in it.
This is how almost every new lawyer learns to practice law.
Granted, there are some intrepid souls who get out of law school and immediately hang up the proverbial shingle. But we don’t need to worry too much about them. Anybody who goes that route is likely to have an unusually high amount of initiative and motivation, which I’ll bet more than compensates for lack of experience.
And that is the exception, not the rule. Very few clients hire a lawyer who just got out of law school and has no experience. So, naturally, the vast majority of new lawyers go to work under the supervision of a more experienced lawyer. Effectively, most lawyers start their careers serving an informal apprenticeship that effectively lasts 1-3 years, or even longer.
This informal apprenticeship—not the bar exam—is the main way the profession trains lawyers for basic competence.
The second way the profession ensures competence is through self-study and the free market. Here’s what I mean. Remember I said the main focus of my practice is non-compete and trade secret litigation? I’m not too modest to say I am an expert in that area of law.
And here’s the funny thing. I didn’t become an expert on non-compete and trade secret litigation through studying for an exam on it, or even through some kind of informal apprenticeship. I learned it on my own through on-the-job training, and then tried to make a name for myself in it. Then the free market does its thing, and people who hear that I’m an expert call me up.
These examples teach us that the bar exam is neither necessary nor sufficient to ensure competency of lawyers.
Having said that, I must give the bar exam its due. Like our hypothetical NFL rulebook ordeal, the bar exam doesn’t prove nothing. Passing the bar exam is probably some indication of intelligence. It is definitely some indication of perseverance and dedication. And, like making NFL prospects memorize the rules of badminton, it may have some value as a sort of shared rite of passage.
Still, these are pretty weak justifications for the bar exam.
I think the real purpose of the bar exam is public relations. The public thinks that some test of legal competence is necessary, and that the bar exam serves that purpose. Lawyers are already an unpopular group. The last thing we want is the PR disaster of the public thinking “they’ll let anyone practice law these days, you don’t even have to take a test.”
So I get it. We probably need some kind of bar exam to assuage an already hostile public. But just among us lawyers, let’s not pretend that the purpose goes much further than that.
And with that backdrop, let’s look at how bar examiners have handled the bar exam in 2020.
What is wrong with these people?
Perhaps the greatest shortcoming has been the simple failure or refusal to grasp the seriousness of the health risks of taking an in-person bar exam, combined with an inflated sense of the value of the exam. The response from the North Carolina Board of Law Examiners typifies this attitude:
For the reasons addressed above, I think this position puts too much faith in the value of the bar exam. It just isn’t grounded in the reality of how new lawyers learn to practice law.
But I will concede that this is at least a plausible position, and one the average John Q. Public probably agrees with. Reasonable people can disagree over whether temporary diploma privilege is the best way to respond to COVID-19.
The problem, though, is not so much that bar examiners have made bad decisions, it’s the way they have done it. Their attitudes have not reflected well on our profession.
Sure, I’m basing this on anecdotal evidence, but the stories I’ve seen suggest that bar examiners have reacted to the COVID-19 crisis with a disappointing combination of pettiness, arbitrariness, lack of compassion and empathy, and even outright hostility towards law school graduates preparing to enter the profession.
I’ll give you some examples.
In the hypocrisy category, let’s start with the fact that many bar examiners, while insisting that we continue with an in-person exam, have required examinees to sign COVID-19 waivers. See also the bar examiner boards that are working from home but still insist on an in-person exam.
In the procrastination category, how about waiting until the last minute to tell law school graduates studying for the bar exam that the exam has been canceled or postponed? Breaking: Florida Man cancels online bar exam three days out.
Then there’s New York. Here’s the New York Court of Appeals explaining why an online exam would not work:
“As the nation’s largest legal market . . .” I can only hear that in the voice of Thurston Howell III. Or maybe Dan Aykroyd in Trading Places, when he complains “that’s my Harvard tie!” The message seems to be that an online exam might be ok for some backwoods state, like maybe Texas, but not a civilized place like New York.
And I love the combination of arrogance and resistance to innovation. “We’re the most important legal market in the world, but using the Internet for an exam sounds way too sophisticated.” (Plus, later they changed their minds.)
In fairness, the response of the Southern states hasn’t been much better.
In the “bold thinking” category, Virginia responded to the unprecedented crisis with a radical change: waiving its necktie requirement. This was a big deal for the Virginia Board of Bar Examiners, which is not down with the whole “casual Fridays” thing:
This notice has such a high-school-principal-measuring-mini-skirts-with-a-ruler vibe, but without the actual concern for the students.
It also has the feel of the law firm managing partner announcing that, in lieu of bonuses this year, lawyers won’t be required to wear ties on Fridays. Wow, thanks.
And of course, “no further discussion of this topic will be necessary.”
Discouraging bar applicants from expressing dissent seems to be a theme. One prominent bar exam official said that complaints from examinees to her board were raising “character and fitness” issues.
What does it say about our profession that our response to future leaders of the bar who take the initiative to propose changes is to say, in effect, “hey, snitches get stitches”?
There also seems to be some generational prejudice at play. You get the feeling the bar examiners look at the bar applicants as “entitled” millennials who think law licenses should be handed out like participation trophies. “You want us to make special arrangements just because you could catch Coronavirus? What’s next, demanding free soy lattes during the breaks?” The collective response from bar examiners has had a tone of “just suck it up and deal.”
This was apparent in the “eye roll” incident. You can look it up.
Rolling your eyes at legitimate concerns from bar applicants strikes me as the wrong attitude. Same with dozing off during a Zoom conference with concerned bar applicants. And then there are the bar officials who suggested law school graduates who couldn’t take the bar exam and get jobs could just ask alumni for money. It’s like telling people who get evicted just to move into their summer homes.
But nothing captures the pettiness of the bar examiners quite like the anti-cheating precautions they have adopted for both in-person and online exams.
Before I get to some examples, let me be clear. Cheating on the bar exam would be wrong, and I don’t fault bar examiners for taking reasonable precautions against cheating.
But let’s be real about this. Cheating on the bar exam would be extremely difficult. You could make it an open-book exam, and it probably wouldn’t make a big difference. You’re not going to have enough time to look up the answer to each question, and looking up a rule isn’t going to help you apply the rule to a specific situation. Plus, there is no way you’re going to cram all the testable information on to some kind of crib sheet. It’s just not the kind of exam where you can write the answers on your hand.
Considering this reality, some of the anti-cheating rules bar examiners have adopted are downright bizarre.
Imagine you’re 38 weeks pregnant and taking the bar exam. Surely it would be reasonable to request a few additional bathroom breaks, right? Nope, the Illinois bar examiners said. You might have written the Rule Against Perpetuities on a roll of toilet paper in the bathroom.
And whatever you do, don’t fidget. Consider these rules from the Tennessee Board of Law Examiners:
Seriously? Reading notes on your hand?
And the part about not looking up, down, or to the side for more than a few seconds cracks me up. It’s like the scene in This Is Spinal Tap when Christopher Guest tells Rob Reiner not to look at one of his special guitars. “Don’t touch it. Don’t point even.”
It would be funny if wasn’t so serious for the people taking the exam.
But for sheer absurdity, nothing can top the Great Tampon Caper of 2020.
It turns out that many states, including Texas where I practice, prohibit bringing menstrual products into the bar exam. I’m not making this up.
But for me, it’s even more fundamental than that. There’s something that’s just so petty and idiotic about it. Why did someone ever think this policy was a good idea? Did they think women were going to write all of the hearsay exceptions on a tampon with a Sharpie?
I mean, what is wrong with people?
Abuse of Power
Ultimately, that’s my big takeaway from all of this. There is something wrong with people. I think the abysmal way that bar examiners have responded to concerns about the COVID-19 virus points out something dark about human nature. People just can’t be trusted with power.
Give us authority over other people, even—or maybe especially—in some small sphere of life, and we just can’t help ourselves. We want to use that power. We want to lord it over other people. We get an inflated sense of the importance of our little rules, and we bristle at any suggestion that we change them.
It’s why the property clerk in The Blues Brothers makes Jake stand behind the yellow line. It’s why the driver’s license lady—who was probably a very nice person to her friends and family—did the same thing to me.
And I think it must be part of why bar examiners have dropped the ball when it comes to dealing with the COVID-19 pandemic.
Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC. Thomson Reuters named him a 2020 Texas “Super Lawyer”® for Business Litigation.
These are his opinions, not the opinions of his firm or clients.
Twitter is not all bad. One good thing about it is the opportunity for lawyers and law school students to interact. It gives the students a chance to hear what’s going on in the real world of law practice. And it gives lawyers a chance to do what they love best: talk about themselves and their jobs. You might call it “lawsplaining.”
A common law-Twitter trope: the law student expresses anxiety about exams, or interviewing, or student loans, and a snarky lawyer responds with something like, “You think your Property final is hard? Just wait until you’re a lawyer and your boss emails you at 10 pm saying he needs a motion for summary judgment researched, drafted, and on his desk by tomorrow morning!”
Yes, we lawyers tend to lay it on a little thick. So if you’re a law student following lawyers on Twitter, adjust your settings for “associate gallows humor,” “bitter senior partner venting,” and the like. And keep in mind that most of us lawyers like our jobs and the profession, even if we sometimes act like we’d rather have some horrible menial job, like accounting.
Plus, it’s hard to compare the existential dread of law school and the bar exam with the everyday headaches of practicing law. Sure, it can be a pain dealing with difficult clients, demanding bosses, irritable judges, billable hours, or bringing in business. But that’s more of a daily grind, and you get used to it. It’s not the same kind of scary as taking that Secured Transactions exam that will determine whether you will get a job or have to default on your student loans.
Not only that, you have to adjust for the experience and capabilities of the person experiencing the adversity. The Bible says God will not test you beyond what you can bear. Whether you believe that or not, in professional life your ability to handle stress does tend to expand as the tests become more challenging.
I mean, you wouldn’t say to your ten-year-old, “You think fractions are hard? Just wait until you have to get a job and pay a mortgage!” Or maybe you would. But the point is that lawyers shouldn’t try to make law students feel like they’re being wimps for complaining about how tough law school can be.
So, real law school students, take the pearls of wisdom you find on Twitter School of Law with a grain of salt. (Talk about mixed metaphors.)
But still, you can learn a lot from Twitter about what it’s really like to be a lawyer. I have firsthand knowledge of this. I recently tweeted the following:
I was serious. In law school, you wouldn’t dream of turning in a paper citing a case that didn’t support the proposition it was cited for. You certainly would not be so careless as to cite a case that said the opposite. So when I was a law student, I would not have expected real lawyers to do that.
But in the real world of litigation, this sort of thing happens more often than you would think.
It was just an offhand comment, but my tweet went viral (at least by my standards). Over 200 retweets, almost 2,000 likes, and over 300 comments.
The comments were really the best part, although some people seemed to misunderstand the question. The question was about what would surprise law school students, not just “what is something about law practice that you would like to gripe about?”
But still, the responses were fun to read. Some were funny, some insightful, and most of them had a nugget of wisdom.
They were so good that I decided to select the top 50. Now, keep in mind, my goal here was to select things that struck me as both true and unexpected. So if you responded with some unparalleled wisdom that didn’t make the cut, maybe I just thought your point would not be that hard for a law student to believe.
As I selected the top 50, I noticed two things. First, there were some discernible recurring themes. Second, most of the comments were, shall we say, a little on the negative side? So, I’ve grouped the responses by theme, and where needed I’ve offered a counterpoint accentuating the positive.
Law school vs. law practice
1. “The practice of law is way more stressful and demanding than the study of law once prickly senior partners, combative opposing counsel, fearsome judges, and difficult clients are part of the picture.”
2. “Grades don’t matter in practice. Once your in the profession, how well you did means nothing when it comes to how you will do at your job.”
The first response is the typical one I mentioned earlier, although said in a nicer way. And it has a point: practicing law is more demanding than law school, at least in absolute terms. But don’t despair. You have to look at it in relative terms. With more experience under your belt, you’ll be able to handle it.
And here’s some news that may lighten the load of exams: Law school grades do make a difference in getting that first job offer, of course, and low grades may cut off some elite career paths. But for the most part, nobody is going to care about your law school grades after you get that first job.
BigLaw is great, but . . .
My impression is that BigLaw sucks up most of the recruiting oxygen on law school campuses. Still, as these comments point out, don’t think that working for a big law firm is the only worthwhile career path.
3. “That some of the best (and happiest) lawyers work for government agencies. They become experts in their fields. And although they won’t get rich, they make a comfortable living, have healthcare and guaranteed retirement, and go home at a reasonable hour.”
4. “That working for a smaller firm can get you way better mentorship sometimes and as such be better for your better for your career in the long run.”
5. “That quite often, the only advantage that a BigLaw firm has over a solo is the ability to marshal large numbers of (hourly billing) attorneys. That the underlying work sometimes is done better by the solo.”
On the other hand, big law firms hire a lot of students out of law school, and that’s where the money is. Plus, as I conceded in my post Should Clients Pay a Premium for Big-Name Law Firms?, most of the superstar lawyers are at the big firms. So it’s only natural that law students focus on them.
Law is messier than you think
6. “That fact patterns aren’t give to you in a neat, digestible format. You must pull the facts from your client and other witnesses (often, on multiple occasions) and organize them yourself.”
7. “That there is not going to be authority providing neat answers to many/most questions you are researching. So many of the issues we have to deal with are in grey areas, and I don’t think law school prepares you for that.”
8. “Managing ambiguity is part of the job. Sometimes, there’s no clear answer or path to recommend to your client.”
9. “The ethical issues that arise are not usually defendants admitting crimes or telling you where the bodies are. They are often relatively small, easy to miss instructions to do something that you might not immediately realize is unethical.”
The theme here is that law–and legal ethics–are messier than your meticulous outlines. On the other hand, you might be surprised how often you find yourself recalling and applying concepts you learned even decades earlier in law school. So those lessons do have value. Just don’t expect them to give a you a definitive answer all the time.
So much work, so little time
10. “That projects that take half a semester in law school you’ll have to do 2-3 every day.”
11. “How little time there is to do a lot of the work.”
It’s true. That motion for summary judgment you spent a semester on in law school? You might have one night to write it. But again, it’s ok. As the amount of work increases, your capacity for doing the work will increase too.
It’s not all sophisticated legal analysis
12. “My assumption in law school that I’d do a lot of talking as a lawyer was correct, but I though more of it would be in the courtroom. In reality, it’s mostly from my office on the phone. Sometimes I feel like I work at a call center. Dozens of calls a day, 30-60 min. ones are common.”
13. “That a strict system of file organization and client contact tracking heads off 90% of potential problems.”
14. “How far basic things like good record keeping and calendaring will get you. You can write amazing briefs, but if you’re always filing them late that’s going to catch up to you.”
15. “Transactional lawyer here. First, the amount of managing a project needed to get a deal done (vs anything having to do with the law). Second, the use of forms.”
16. “You may well spend days, even weeks completing administrative tasks.”
17. “How much of practice isn’t obvious from reading the rules. For example, how do you get the court to actually consider the motion you just filed and rule on it? In federal court, you sit and wait. In state court, you often have to get on a hearing calendar somehow.”
Law school doesn’t teach you much about practical office skills or internal court procedures. I don’t have a problem with that. Law schools focus on teaching substantive areas of law, because that’s what law schools are good at. Just don’t let that make you think you’re going to spend all your time focused on the law.
It takes a village to raise a baby lawyer
18. “Admins run everything, they all talk, and woe to the baby lawyer who runs afoul of the Admin Network.”
19. “The most important person at your law firm is probably a paralegal.”
No, you don’t want the secretaries and legal assistants mad at you. But if you’re lucky (like me), you’ll get to work with some great non-lawyers who will make your work life so much easier.
Respect your elders?
20. “That the amount lawyers charge has little to [do] with their level of skill or competence.”
21. “That a lot of attorneys who have decades of experience over you doesn’t mean they are better or know what they are doing.”
22. “You will come across senior lawyers, some of them prominent and respected, whose affidavits would get a failing grade in law school.”
23. “That the fact that someone has been practicing for a long time does not mean that they know what they are doing.”
Yes, you will discover that the most prominent or most senior lawyers sometimes have mediocre practice skills–or worse. But don’t disrespect the old folks. I have found that I can learn something valuable from almost every experienced lawyer I encounter. And the really good ones can teach you everything you need to know if you pay attention.
Judges
24. “That judges often don’t read one’s impeccably drafted and cite-checked briefs prior to hearings.”
25. “How many judges were terrible lawyers, then always brag about how great they were once on the bench.”
26. “How absolutely ordinary judges are.”
27. “I was really surprised to hear how much judges talk to other judges about attorneys that appeared in their courtroom. If you were disrespectful or respectful, judges talk to each other about that. A LOT.”
In law school I had an image of judges as the most experienced and esteemed lawyers who went on the bench after successful careers in litigation. The reality is that many judges are judges because they are good at politics, not because they are good at practicing law.
But there are still some really good ones. Given the system we have–elections for state court judges (at least in Texas) and federal appointments based on political connections –it’s a pleasant surprise how many excellent judges there are, especially when you consider they could make 3X more money in private practice (at least).
And regardless of what you think of the judge, follow the rules and be respectful. Word gets around.
Nice guys finish last?
28. “That you will actually get along with, and at times develop friendships with opposing counsel and more surprisingly, it’s almost always a good thing and benefits your client.
29. “Opposing counsel can be an ally. No need for snark. Civility can win.”
30. “How often you end up engaging in respectful conversations with opponents as you resolve disputes! I wish this was featured more in law school to counteract the popular notion that lawyers go around screaming at everyone who doesn’t share their position.”
Finally, some warmer, fuzzier responses. As these tweets indicate, don’t let TV and movies–or a fierce mock trial competition–convince you that the best lawyers treat opposing counsel like dirt.
90% of law practice is showing up?
31. “The awful work product you’ll come across from opposing lawyers, generally. Or the discovery abuse that is never addressed by the court.”
32. “That legal writing assignment that you got a C+ on is probably better quality than 90% of stuff that lawyers file.”
33. “That if you do simple things like show up for court, prepare, answer phone calls from your client, keep up with deadlines, and refrain from actively trying to screw over your client, you will instantly be in the top 10% of lawyers in your city.”
This may be a little exaggerated. But it’s true that after working so hard in law school, you will probably be surprised at how much bad lawyering is out there. So take the job seriously and take care of the fundamentals, and you will already be ahead of the game.
Difficult clients
34. “Sometimes people will be literally angry that you won’t do that legal task for free.”
35. “Despite the fact that you, the lawyer, with your education and practical experiences, are instructing them to do X, they will invariably state that you are wrong and they will do Y. They will then get upset (at you) when Y blows up in their face. Paper your advice folks.”
“Invariably” might be too strong. But you will be surprised how often a client will pay you $400 an hour (or whatever) for your expertise and then want to ignore your advice. On the other hand, it can be very gratifying when a client does trust your advice.
Will justice be done?
36. “You will lose. You can be right on the law, you can have justice on your side, you can write the most gorgeous brief, opposing counsel can do a lousy job… and the judge can go against you and there’s nothing you can do about it.”
37. “A winning argument is sometimes a losing argument when made by a no-name firm. A losing argument is sometimes a winning argument when made by a silk stocking or local firm.”
Sometimes judges and juries just get it wrong. And sometimes you will lose because of favoritism, not the merits. But overall, if you do your best work for every client, in the long run the overall results will be good.
Discovery, rules, and deadlines
38. “The lack of control over the discovery process by the courts despite the pretty detailed rules re timing and sanctions for ignoring said rules.”
39. “As a litigator: That some courts don’t give a single goddamn about schedules or rules.”
You can learn all the rules for discovery and other pretrial matters, but they’re not set in stone. This was another recurring theme. Still, if you play by the rules and meet your deadlines, you will be in a better position to get good results for your client.
Emotional intelligence > legal intelligence
40. “How much of your job is managing personalities.”
41. “If two people describe a situation completely differently, it doesn’t mean either one is lying. You’ll get much further if you assume both are trying their best, and think hard about how each one could see it that way.”
42. “How often even large ‘sophisticated’ corporate clients make litigation decisions based on emotion (usually pride or arrogance) rather than cold hard reason. Starting out you tend to think this is only how family law clients behave. Decisions still made by people.” [Ok, full disclosure: this was mine.]
It can be frustrating when clients make bad decisions based on emotion. But part of your job as lawyer is to put yourself in the clients’ shoes and understand where they’re coming from. Be glad that your clients are not robots.
Business skills vs. legal skills
43. “This doesn’t apply to every lawyer, but for many: customer service skills >>>>> legal skills.”
44. “Practicing law is not the business of law. You have to know and do both. Hard work does not equate with success.”
45. “A corollary to yours, but there are an awful lot of successful lawyers who are great at business development, handwaving, speechifying, etc., but just really terrible at lawyering.”
46. “The huge amount of time, effort and money to market your practice. And that marketing is almost as important as the practice of law these days.”
47. “Unless you have an amazing mentor/rainmaker who takes you under their wing and transitions clients to you, you need to start networking and building a book from day one. Stellar legal work is not enough.”
Oh man, that last one hit me hard. I was clueless about that sort of thing when I came out of law school. I thought I was just not the “rainmaker” type, so I would focus on doing the client work. But that was unwise.
You will enjoy the practice of law a lot more if you bring in your own clients, and you need to start developing the skills to do that from day one. Law schools are not going to teach those skills, and it would be folly for them to try.
The good news is that you can learn those skills. Find yourself a mentor if you can, or at least follow some rainmakers on Twitter.
And now for the true wisdom . . .
48. “Wait, law students wouldn’t believe that? What, did they not do article review for their journals?”
49. “Despite depictions in ads and website photos, you would be surprised to learn that lawyers rarely stand around with their arms crossed.”
50. “Some associates take bathroom breaks. Stunning to me. I didn’t go until my 8th year.”
These responses actually made me lol.
See, I told you Twitter isn’t all bad. Now, Facebook? Facebook sucks.
________________________________________
Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC. Be sure to follow his Facebook page @fiveminutelaw.
These are his opinions, not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.
A totally objective and unbiased analysis by a practicing small-firm lawyer
I have many friends and acquaintances at big-name law firms, and I fear this week’s post may ruffle some feathers. But stay with me, BigLaw Fivers. As you will see, I conclude that it sometimes makes sense for clients to pay the high rates commanded by lawyers at big-name law firms. This is no manifesto against those firms.
Still, have you seen the hourly rates that the most prominent law firms charge business clients these days? I would give some examples, but if I say something like “can you believe partners at XYZ firm charge $950/hour?” the next thing you know people will think, “Ha! that’s nothing, ABC firm is charging . . .”
So I won’t get into numbers. But you know what I’m talking about.
These super-premium rates seem to coincide with the increased importance of branding in the competition for high-end business clients. I’m guessing this is no accident. If you look at the firms charging the very highest rates, I would bet most of them have one thing in common: they are firms everyone has heard of (at least everyone who has some familiarity with the legal field).
I doubt you will find a lot of “no-name” firms charging the highest rates for legal services. Those that are, I congratulate you. But most of the firms that charge the kind of rates I’m talking about are the “household names” of law practice.
Are these sky-high hourly rates justified? Should lawyers criticize these rates as excessive, or should we accept them as what the “market will bear”?
Personally, I’m ok with sophisticated clients paying whatever they agree to pay for their legal work. I don’t see it as an ethical issue.
But is it smart for business clients to pay premium rates for big-name law firms? Let’s look at the main reasons clients pay these rates, and whether those reasons hold up to scrutiny.
1. They’re just better
The first reason clients are willing to pay a premium for big-name law firms is the reason those firms want clients to think is the reason: they’re just better. But are they actually better? And even if they’re better, are they that much better?
Full disclosure: I do not work for a big-name firm, so I am probably a wee bit biased.
But I will give the prominent firms their due. The reality is that most superstar attorneys are going to work at law firms everybody has heard of. If you’re a superstar lawyer at a lesser-known firm, don’t be offended. I said “most,” not “all.”
And if us small-firm lawyers are honest, we’ll admit to ourselves that most of the very best lawyers work in BigLaw, because that’s where the money is. And the prestige. But mostly it’s the money. And we might be just a slight bit envious.
Second, even aside from the superstar attorneys, it is unlikely that a partner at a prominent BigLaw firm is going to be incompetent. (Notice I said “unlikely,” not “impossible.”) So when clients hire big-name law firms, they can usually rest assured that the lawyer in charge of their case will at least be competent. That lawyer probably wouldn’t have made partner otherwise.
But it’s not that unlikely that a partner at a big-name law firm will be mediocre. If that sounds critical, it’s not really. By “mediocre” I just mean someone with average practice skills. Yes, there are many top-notch lawyers at big-name law firms, but believe me, there are plenty of average ones too.
How do mediocre lawyers become partners at elite law firms? In most cases I would bet it’s because they bring something else to the table, like excellent business development skills, or a family, personal, or political connection to a major client. In some cases, they are just good at promoting themselves and taking credit.
But let’s not be too snarky. Most of these lawyers have worked their butts off. And like I said, most of the very best lawyers are at big-name firms. If your lawyer really is that much better than the competition at the no-name firms, and if your company can afford it (more about that later), then there is some logic to paying a premium for excellent legal services.
Also, let’s acknowledge there are plenty of lawyers at well-known law firms who are not charging the kind of rates I’m talking about. So if you’re a client paying reasonable rates for a lawyer at a big-name firm and you’re happy with the work, that’s great.
This post is about the rates that make eyes pop. Are there any other reasons to justify such rates?
1a. Expertise and specialization
I call this reason “1a” because it’s related to reason 1, but slightly different. Big-name law firms don’t just tout their lawyers as better, they also promise expertise in highly specialized areas of law practice that business clients sometimes need.
This is not just hype. There are some practice areas where you’re not going to find anybody experienced who isn’t at a big law firm or a high-priced boutique. For example, I’m guessing there aren’t a lot of inexpensive small-firm lawyers who have done a lot of bet-the-company patent litigation. And a typical small firm is not going to have experience defending massive securities fraud class actions, or doing M&A work for Fortune 500 companies, etc. You get the idea.
Still, if you are a client who is willing to pay a premium for specialization, ask yourself two questions. First, is the work you are sending that big-name firm really that specialized? I often see prominent law firms handling what I would call fairly “routine” matters.
Second, are there lawyers with similar expertise at lesser-known firms who charge less? It may take some hustle to find them, but I would bet that in most cases the answer is yes. You might even already know some lawyers like that. But you stick with the well-known firm because . . .
2. “Nobody ever got fired for buying IBM”
Now we’re moving into the less compelling reasons to pay high rates for legal work. But this one still has a certain logic to it. If you own the company, you can hire whoever you want and if it goes bad, you’re probably not going to fire yourself. But if you just work at the company, then the last thing you want is to hire a law firm nobody’s heard of, have the case go south, and then get blamed for hiring the wrong firm.
In the computer world (where, full disclosure, my dad owned a small business, so more bias), this concept is expressed in the cliché “nobody ever got fired for buying IBM.”
Is this a good reason to choose a big-name law firm over a no-name law firm with similar experience and expertise?
I guess it depends on your perspective. If you’re an in-house lawyer at a big company and you’re looking out for numero uno, then it makes sense to insulate yourself from criticism by selecting the firm your CEO will instantly recognize.
But if you’re truly looking out for the company’s interests, then you should at least consider less expensive options. After all, the company has entrusted you with spending its money wisely.
Which brings me to . . .
3. The “steakhouse” or “expense account” effect
I specifically remember the last time I had dinner with my wife at one of those expensive steakhouses (and I don’t mean Saltgrass). Bear in mind, as a kid growing up in south Austin, for me a fancy restaurant was the Red Lobster on South Lamar. I’m just as happy to get dinner from a taco truck, but I have to admit, this upscale steakhouse was really good.
The prices, on the other hand, were outrageous.
Prices that high give me some moral discomfort; there is something almost obscene about paying that much for a meal when millions of people don’t have enough food to eat. Then again, the amount of money I spend on Starbucks in a year could probably bring clean drinking water to a third-world village, so maybe I’m just a hypocrite.
Anyway, the point is that I was fine with paying the exorbitant price at the swanky steakhouse. Was it because the food was so exquisite? Well, it was good, but not that good. No, the reason I was fine with shelling out big bucks for a piece of grilled meat is that a client had generously sent me a gift card as a thank-you for doing a good job on his company’s case. In short, I wasn’t spending my own money.
I’d bet this is part of the reason upscale steakhouses exist in the first place: many of their patrons are business people taking clients to dinner on the company’s dime. It’s the “expense account” effect.
This is the same reason clients will sometimes select a law firm that charges twice as much for the same quality of work: the person making the decision is not spending his own money. I would even venture to say this could be the main reason.
This strikes me as an understandable reason for paying more, but not a good reason. Would the company’s general counsel pick the most expensive firm if she had to pay the fees out of her own pocket? I doubt it.
Unless . . .
4. Snob appeal, or the “Mercedes” effect
Let’s say the general counsel is rich. And let’s say he wants everyone to know it. In that case, what better way to let everyone know how much money you have to burn than to hire the most expensive law firms?
Now apply that to big companies as a whole.
Snob appeal. It’s the reason people are willing to pay more for a Lexus than for a Camry. Granted, the Lexus may be a really good car. It might even perform a little better than the Camry.
But that’s not why people pay more for a Lexus. Do you think they would pay the same price for a Lexus if they had to slap a Toyota emblem on it? No way. The whole point is to send the message “I make enough money to afford a Lexus.”
Again, I think the same principle is sometimes at work when big companies pick their lawyers. They’re not just paying for the services, they’re paying for the name. They want people to know their lawyers are expensive. It sends a message: “We’re [insert name of global company], our revenue is more than the GDP of most nations, and we can afford to pay for the very best lawyers to be found.”
This strikes me as the least compelling reason to pay a premium for legal services.
But again, we must give big-name firms their due. The motivations for hiring them are usually intertwined. If companies are willing to pay high rates because the lawyers really are that good, I don’t see much harm if a little snob appeal gets mixed in.
My advice to clients: just be clear with yourself what your reasons are.
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Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC. He aspires to someday charge the same hourly rate as a third-year associate at a big New York Law firm.
These are his opinions, not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.
If you’re a lawyer, or if you’ve ever had a lawyer, you’ve probably had a conversation something like this.
It was a conference call I had with a Texas client—let’s call him Fred—who had been dragged into a big lawsuit in another state. We had our local counsel on the line—let’s call him Frank. Frank was an accomplished litigator from the place where the client had been sued.
Frank had a way with words. He meticulously yet simply outlined the legal issues facing our client. He skillfully walked through the pros and cons of the strategy decisions we faced. In short, he laid out all the factors beautifully. I was impressed.
Our client, Fred, was a self-made businessman who had done quite well for himself. He was smart, but plain spoken. Fred’s reaction to Frank’s brilliant presentation of the issues? “Ok, so what should I do?”
That, in a nutshell, is the problem with the Mueller report.
The Mueller Report
Obviously, people have different political views of the Mueller report and the investigation that produced it. Let’s set that aside for a moment.
I’ll start with some easy things we can all agree on. The report has two volumes. I don’t think that’s controversial.
Volume I is about whether Trump and his campaign conspired or coordinated with the Russians to interfere in the 2016 presidential election.
Now we’re slightly drifting into the controversy lane, because some people would say Volume I is about “collusion.” But Volume I is careful to point out that it did not analyze “collusion,” which is not a legal term. See Vol I, p. 2 (“we applied the framework of conspiracy law, not the concept of ‘collusion’”).
Volume I stated a conclusion. The conclusion was: “the investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.” (Vol I, p. 2) While some people might dispute this conclusion, I don’t think anyone disputes that this was the conclusion.
Volume II was about obstruction of justice. I think everyone agrees on that, although some people might think obstruction of justice should not have been investigated.
In contrast to Volume I, Volume II did not state a conclusion.
Now we’re getting controversial (sort of). Because Trump and his team have claimed that the Mueller report cleared Trump on obstruction of justice. “No collusion, no obstruction.” “Total exoneration.” “Case closed.”
But that claim is simply false. Any intelligent and honest person who has read Volume II would have to concede that.
And this shows us the impossibility of a completely “apolitical” or “neutral” discussion of the Mueller report. Even the simplest objective observation about the report directly contradicts things the President has said about it.
I’m not saying this to bash Trump. It’s just a fact.
But I promised no politics. So let’s get back to the things we can all agree on. Like why didn’t Volume II state a conclusion on obstruction of justice?
Oh crap. Controversy again. Trump’s team would say Volume II didn’t state a conclusion on obstruction of justice because there was insufficient evidence that he obstructed justice.
But again, that would be demonstrably not true. The report says the opposite: “[I]f we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, we are unable to reach that judgment.” (Vol. II, p. 182)
So why no conclusion on obstruction? The report identifies two related reasons: (1) the OLC memo and (2) the difficulty of the question.
A Strange Asymmetry
The Office of Legal Counsel memo is an internal Justice Department policy that says you cannot indict a sitting President (there is an original 1973 memo and a 2000 update). This is a hotly contested issue of constitutional law. But the Mueller team decided they were bound to follow this policy.
And then they went a step further. The Mueller team decided that, because they could not charge the President with obstruction of justice, they could not state a conclusion that the President obstructed justice, even if that’s what the evidence established. The Conclusion of Volume II stated: “Because we determined not to make a traditional prosecutorial judgment, we did not draw ultimate conclusions about the President’s conduct.”
I think this was the most important decision the Special Counsel made, and I think it was the wrong decision.
It produced a strange asymmetry: if the evidence established that the President did not obstruct justice, the report would say so; but if the evidence established that the President did obstruct justice, the report would not say so.
And all of this because of that pesky OLC memo, right?
If only it were that simple. The Conclusion to Volume II adds this: “The evidence we obtained about the President’s actions and intent presents difficult issues that would need to be resolved if we were making a traditional prosecutorial judgment.”
Those “difficult issues” are largely questions of the President’s intent, where the report takes pains to lay out the evidence both for and against corrupt intent.
The statement about difficult issues muddies the water. Putting it all together, here’s what I think Volume II is saying:
The evidence does not clearly establish that Trump did not obstruct justice. If it did, we would say so.
There is evidence that Trump obstructed justice, but the evidence presents some difficult issues.
We are not allowed to state a conclusion that Trump obstructed justice.
Because we are not allowed to state a conclusion that Trump obstructed justice, we are not going to bother with trying to resolve the “difficult issues” presented by the evidence of obstruction of justice.
The result is a report that has the same problem as Frank’s advice, recounted earlier. It leaves the public and Congress in the same position as Fred. They are left asking “ok, so what should we do?”
This ceiling is symmetrical. Mueller’s methodology was not.
What should we do? The Mueller report doesn’t tell us. It is much like a legal memo from a lawyer to a private client laying out the arguments and evidence on both sides of an issue, but not giving the client a recommendation on what to do.
But is that wrong? Was it the Special Counsel’s job to tell Congress what it should do? Is it the lawyer’s job to recommend to the client what decision to make?
In my opinion, the answer to these questions is a qualified yes.
Answer the Question
Now, don’t get me wrong. I’m not saying that the Mueller team’s decision not to state a conclusion on obstruction of justice was unreasonable. There is at least a reasonable argument that if you can’t indict the President for obstruction of justice, then you shouldn’t accuse the President of obstruction of justice. The report explains this.
And I’m not saying the Special Counsel acted in bad faith. I don’t think the Mueller team avoided answering the difficult issues because of laziness, fear of being criticized, or some other inappropriate reason.
But I do think the Special Counsel came up short. The report should have stated a conclusion, yes or no, on whether the evidence established that Trump obstructed justice.
If the answer was no, that would likely be the end of it. Sure, some Democrats would have tried to keep the issue alive, but as a practical matter the obstruction of justice charge would be dead.
If the answer was yes, the report could have stated the conclusion that the President obstructed justice. Then it could have simply added that the President could not be indicted because of the OLC memo. At that point the ball would be squarely in Congress’s court.
Either way, it would be an improvement over the current situation. As it stands, we are left to wonder what the Mueller team would have said. I expect some member of Congress will ask Mueller this question when he testifies this week, and that he will avoid giving a direct answer.
But is there any group of people anywhere in the world more qualified to answer the question than Mueller’s team? Whatever you may think of their political allegiances or motivations, these are some of the top lawyers in the country. They have spent hundreds of hours of their professional lives investigating the facts and analyzing the law.
That doesn’t mean we would all have to agree with their conclusion (and you can guarantee that, either way, a large percentage of voters would not). But wouldn’t it be nice to know what they think?
The Lawyer’s Assignment
The same is true when us “ordinary” lawyers give advice to clients. No one is in a better position to recommend to the client what to do than us.
There are, of course, exceptions. The most obvious reason not to give the client a recommendation is if the client doesn’t want one. If a client says “analyze the issues and give me all the pros and cons, but don’t tell me what you think I should do,” then sure, follow those instructions.
But that’s not the way it usually goes down.
Usually the client does not identify the scope of the assignment so precisely. Clients come to lawyers with problems. They rely on lawyers not only to answer their questions, but to make sure the questions they ask are the right ones. The scope of the assignment is usually somewhat open-ended.
Lawyers can be reluctant to give recommendations. There are several reasons for this. An obvious one, especially for the cynical, is that lawyers don’t want to get sued for malpractice. If lawyers don’t give explicit recommendations, one might think, they can’t get sued for giving the wrong recommendation.
That is surely a factor, but I think it’s a minor factor. There are more fundamental reasons lawyers like to leave it to the client to decide what to do.
First, there is the simple human fear of getting criticized for making the wrong recommendation. Legal malpractice suits are very rare, and judgment calls do not make for good malpractice claims. But being blamed for recommending a decision that does not turn out well is all too common. Hindsight is 20/20, and no one likes getting thrown under the bus.
Second, there is the simple fact that sometimes the client doesn’t really want the lawyer’s recommendation. What some people actually want are legal reasons to support the decisions they have already made in their minds. In these situations, lawyers who are good at keeping clients don’t want to recommend what to do until they figure out what the client already wants to do. You don’t want to take the risk that you recommend the opposite.
In both cases, the lawyer’s impulse to avoid giving a sincere recommendation on what to do is understandable, but not commendable.
Just as the Mueller team was in a unique position to give an opinion on the obstruction question, a lawyer is a unique position to give a client guidance on the best thing to do. Who is better qualified to give a recommendation?
Of course, there are often things the lawyer does not know. It can be hard to gauge the client’s risk tolerance. There can be unidentified factors, especially personal factors, that bear on the decision, e.g. the lawyer may not appreciate that taking that settlement offer is better than the emotional toll of two years of litigation. And it is even possible—gasp!—that there are undisclosed facts the client knows but the lawyer doesn’t.
But factors like this underscore the importance of understanding the client. You have to get to know Fred before you tell him what to do.
Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC.
These are his opinions, not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.
I know what you’re thinking. “A blog post about blogs? Wow, Five Minute Law has really jumped the shark.”
But if you’re a lawyer who blogs, a lawyer thinking about blogging, or just someone who reads lawyer blogs, I think you’ll find these ethics tips worthwhile. And so “meta.”
These tips focus on Texas ethics rules, because that’s where I practice, but other states have similar ethics rules, so read on, non-Texas lawyers.
Ethics Tip #1: Don’t imply an attorney-client relationship
There are two things you don’t want your blog post to do: form an attorney-client relationship or provide legal advice.
Forming an attorney-client relationship requires that the client communicate an intent that the lawyer provide legal services and that the lawyer consent to do so. The grey area is that the lawyer’s consent can be express or implied. Implied consent happens when the lawyer knows or reasonably should know that the client is reasonably relying on the lawyer to provide the services.
It is unlikely that a person would form an attorney-client relationship by reading a lawyer’s blog post. No one reading a blog post would reasonably think “that lawyer just agreed to provide me with legal services.”
But sometimes people are unreasonable. So be careful not to write anything that implies you are agreeing to provide the reader with legal services. And if you want to be extra cautious, include a disclaimer. On my YouTube channel, for example, I say “Zach Wolfe is not your lawyer (unless you have signed an engagement agreement with his firm).”
The danger of an inadvertent attorney-client relationship is greater in the comments section. Imagine a reader comments, “thanks for the helpful post about non-competes” and then asks if you think his non-compete is enforceable. (Something like this has happened to me.) Don’t ignore the comment, but make sure your response does not imply that you have agreed to be that guy’s lawyer.
The second thing to avoid is related, but thornier: legal advice. It’s related because if the person reading your blog post is not your client, then generally you can’t be held responsible for giving that person bad legal advice. It’s thornier because the whole point of many blog posts is to give guidance based on your expertise. Of course it’s legal advice, in a sense.
So there is no perfect solution to this problem, but it is a good practice to include a disclaimer. The best disclaimer I’ve seen was on a Twitter profile: “Expressly incorporates all disclaimers of all Twitter lawyers everywhere.”
But seriously, a disclaimer can clarify that your expert analysis is not legal advice for anyone’s specific situation. Again, that should be obvious, but it doesn’t hurt to say it.
Ethics Tip #2: Be aware of potential issue conflicts
You know you have arrived as a law blogger when opposing counsel cites a statement from your blog post against you in the courtroom. That is the greatest compliment.
But this points out a risk that makes lawyers nervous about expressing opinions on legal issues: issue conflicts. There is always the risk that an opinion in your blog post could conflict with the position of your client in a present or future case. The situation is analogous to “issue conflicts” that can arise when a lawyer advocates for conflicting positions in different litigations.
Considering this danger of issue conflicts, law bloggers have essentially three choices:
Never express an opinion on a legal issue; it could be cited against you.
Say whatever you want; it’s just your personal opinion.
Express educated opinions about legal issues in your practice area, but be careful how you do it.
Choice 1 strikes me as overly cautious. If you’re that risk averse, then blogging probably isn’t for you in the first place. And if you are blogging, one of the best ways to develop a reputation as a “thought leader” in your practice area is to express opinions. You’re a blogger, not a reporter.
But Choice 2 goes too far the other way. I respect the attitude of saying whatever the heck you think, but if you want to get and keep clients, you should at least consider how your opinions could impact clients and potential clients.
The prudential considerations are obvious. Your client probably won’t be happy if you express an opinion directly adverse to the client’s position in a pending lawsuit. In some cases, the issue conflict might even present an ethical issue.
The rules on issue conflicts are fuzzy. Here is comment 24 to Model Rule 1.7 on conflicts of interest:
Applying this to law blogs, we essentially get the following rule: a lawyer taking an inconsistent position in a blog post is generally not a conflict of interest, except in the rare case where it would materially limit the lawyer’s effectiveness in representing the client.
So it depends. Let’s take three different opinions as examples:
Texas should only allow non-competes in the sale of a business.
Under Texas law, the employer has the burden to prove that a non-compete is reasonable.
The Texas Citizens Participation Act (TCPA) applies to a claim that an employee misappropriated trade secrets.
These are different types of opinions. No. 1 is a personal opinion about what the law should be. No. 2 is a plain-vanilla statement about what the law is. No. 3 is somewhere in between.
I doubt that expressing a personal opinion about what the law should be would ever violate an ethical duty to a client, especially when the First Amendment is factored in. If you’re prosecuting a drug offense and the defense attorney cites your public statement that marijuana should be legalized, the response is easy: that was just my personal opinion. It’s a free country.
But exercising your freedom of speech could present a practical problem. If your practice is defending medical malpractice claims, your clients probably won’t be too excited if you publish a blog post opining that caps on pain and suffering damages in med mal cases should be abolished.
The second kind of statement—simply stating what the law is on a basic issue—is also unlikely to create an ethical issue. That is, unless you take a contrary position in court. Let’s say I write a blog post saying the statute of limitations for a certain claim is four years, and then in court I say it’s two years. That kind of stark conflict is going to hurt my credibility.
The solution to this problem is fairly simple: be accurate in your statements about what the law is, and don’t take unfounded positions in court.
Opinion 3 is a harder case. When you express an opinion about an unsettled question that is troubling the courts, you could say it’s just your personal opinion. And judges should understand the difference between your personal opinion on a difficult legal issue and your role as an advocate for your client.
But the reality is that many judges are more formalistic in their thinking. If the judge thinks there is only one “right” answer to the legal issue, your conflicting statements about that issue could weaken your position in the eyes of the court. One could argue that “materially limits” your effectiveness in the lawsuit.
Assuming your opinion could hurt your client—even if it shouldn’t—do you violate an ethical duty to your client if you express an opinion on an unsettled legal issue that goes against your client’s position? Generally, I say no.
But that’s just my opinion, man.
Ethics Tip #3: Don’t say you “specialize”
After that difficult issue, let’s go to a simple rule.
Texas Rule of Professional Conduct 7.04 generally prohibits lawyers from saying they “specialize” in a certain area of law. There are exceptions, most notably if you are certified by the Texas Board of Legal Specialization. Unless you fit one of the exceptions, you should not say that you “specialize” or that you are a “specialist.”
Texas lawyers break this rule more often than you might think. If I see a Texas lawyer say in a blog post that he “specializes” in some area of law that I know the Texas Board of Legal Specialization doesn’t recognize as a specialty, I’m going to raise an eyebrow.
The solution to this problem is also simple. Just don’t use the word “specialize.” Say that your practice “focuses” on a certain area of law, and you should be fine.
Does this put form over substance? Sure, but the Texas State Bar seems to be comfortable drawing the line here.
Ethics Tip #4: Remember that a client’s “confidential information” includes non-confidential information
This may be the most counter-intuitive tip.
Suppose you represent a client in a bitter business dispute that goes all the way through trial and appeal. There’s a transcript of the trial testimony on file with the trial court, plus an appellate court opinion detailing the sordid facts of the case. So you’re free to write about the facts in a blog post without client permission, right? I mean, it’s “public record.”
Not so fast. Look at Texas Rule of Professional Conduct 1.05(a). “Confidential information” includes both “privileged information” and “unprivileged client information.”
Privileged information is easy to understand. But the definition of “unprivileged client information” is surprising: “all information relating to a client or furnished by the client, other than privileged information, acquired by the lawyer during the course of or by reason of the representation of the client.”
Read that again. Confidential information includes all unprivileged information:
relating to a client or furnished by the client and
acquired “during the course of” or “by reason of” representation of the client.
This is an extraordinarily broad definition. It doesn’t matter whether the information is publicly available. If the information “relates” to the client and you obtained it during the course of the representation, it’s confidential.
That means, generally, you can’t publish such information in a blog post. Rule 1.05(b) says a lawyer may not “reveal” confidential information or “use” confidential information to the client’s disadvantage.
There are, of course, exceptions, e.g., when “the client consents after consultation.” See Rule 1.05(b) and (c). But the bottom line is that in most cases if you want to say anything about a client’s case in a blog post, you’re going to have to get the client’s informed consent.
Can this be right? The press is free to write an article discussing all the facts of a case that are available in the public record. But if I represented one of the parties to the case, you’re telling me I can’t blog about the facts, even when I’m portraying my client in a positive light.
Here’s a possible solution: You could make a case that you’re not violating client confidentiality by focusing on the rule’s use of the word “reveal.” Implicit in the word reveal is the idea that you are communicating something not already known.
That’s the textualist case for allowing lawyers to blog about the facts of their cases. And there’s a non-textualist argument as well: surely, despite the literal language of the rule, a common-sense interpretation would allow a lawyer to write a blog post that discusses facts that have already become public, provided the discussion doesn’t disadvantage the client.
Maybe, but don’t expect help from the American Bar Association. ABA Formal Opinion 480 on lawyer blogging says the rule means what it says: lawyers cannot blog about “unprivileged confidential information” without permission, even if the information is not really confidential.
Unless an exception applies, the ABA says “a lawyer is prohibited from commenting publicly about any information related to a representation.” And it doesn’t matter if the information is in the public record: “information about a client’s representation contained in a court’s order, for example, although contained in a public document or record, is not exempt from the lawyer’s duty of confidentiality.”
There’s one obvious solution: just get client consent. But it can be awkward to contact a client or former client every time you want to include a little war story in your next blog post.
There’s an easier way to avoid disclosing “unprivileged confidential information.” Just don’t name names. When you describe the facts of a case you’ve handled, don’t name the parties. Just describe the situation generically, or as a hypothetical.
This will sometimes solve the problem, but be careful. As the ABA opinion points out, if your description is specific enough that the reader can figure out who you’re talking about, you may still be violating the confidentiality rule. “A violation is not avoided by describing public commentary as a ‘hypothetical,’” the opinion says, “if there is a reasonable likelihood that a third party may ascertain the identity or situation of the client from the facts set forth in the hypothetical.”
And hypotheticals can sound like real cases, especially when you handle the same type of case over and over. When I describe a hypothetical departing employee lawsuit, I sometimes wonder if a former client might think I’m talking about him, only because the fact patterns tend to be so similar.
Here again, a disclaimer may be helpful. On my LinkedIn profile, for example, I say: “Hypotheticals are based on my general experience and reading, not particular actual cases.”
Ethics Tip #5: File your blog post if it contains “advertising”
Texas lawyers must file any advertisement in the public media with the Advertising Review Committee of the State Bar. See Rule 7.07(a). So lawyer bloggers have two options: put as much advertising as you want in your blog post and file it, or avoid saying anything in your blog post that will turn it into advertising.
Simultaneous filing with the State Bar is a pain (and there is a fee), so most lawyers will opt for the latter. But when is a blog post considered advertising?
The Texas ethics rules don’t expressly define “advertisement” or “advertising.” But the State Bar has provided guidance in Interpretive Comment 17: “Blogs or status updates considered to be educational or informational in nature are not required to be filed.”
So if you’re trying to avoid making your blog post an advertisement, “educational or informational” is your mantra. To avoid an ethical issue, you should aim to educate and inform your audience, not to brag about yourself. And this usually makes for a better post anyway.
But even when you’re trying to educate and inform, it’s easy to stray into content that could be considered advertising.
Here are three things likely to turn a lawyer’s “educational or informational” blog post into advertising:
Promoting good results obtained for a client
Touting the lawyer’s experience or qualifications
The “call to action”
Trouble is, these are natural things to do in a blog post. A good result you recently obtained for a client is a classic blog post topic. Talking about your experience and qualifications is also natural. And many marketing experts say your content should conclude with a “call to action,” e.g. “if you’re facing a difficult divorce, call me now at the number below.”
The first two things that can make your blog post an advertisement are matters of degree. If you write about a result obtained for a client, do it in a way that is educational, without expressly using it to promote yourself. Similarly, you can convey information about your experience and qualifications in a subtle way. In both cases, the key concept is “show, don’t tell.” Show the readers that you understand a particular area of law.
The call to action is different. In my opinion, any post that includes a call to action is crossing the border into Advertising-Land. So you’ve got two choices. Either don’t include the call to action, or include it and just deal with the hassle of filing your blog post with the State Bar.
There’s one more thing that is likely to make your blog post an advertisement: comparing yourself to other lawyers. That brings me to the next tip.
Ethics Tip #6: Don’t compare yourself to other lawyers
This is another fairly simple one. Rule 7.02(a)(4) of the Texas Disciplinary Rules provides that a lawyer may not compare the lawyer’s services with other lawyers’ services, “unless the comparison can be substantiated by reference to verifiable, objective data.”
It’s a rare comparison that can be backed up with verifiable, objective data. So, if you can document that “I’ve tried more mesothelioma cases to verdict in Jefferson County than any other practicing lawyer,” then have at it. If you know for a fact that “I’m one of only nine Texas lawyers board certified in both Real Estate Law and Civil Trial Law,” then I suppose you can say that.
But just about any opinion comparing yourself to another lawyer is going to be off limits. By definition, if it’s an opinion it probably cannot be proven with “verifiable, objective data.”
Comment 5 to Rule 7.02 gives some examples of unsubstantiated opinions: “we are the toughest lawyers in town,” “we will get money for you when other lawyers can’t,” or “we are the best law firm in Texas if you want a large recovery.”
Never mind if you see lawyers making statements like this all the time. Don’t do it in your blog post. In addition to violating Rule 7.02, it also risks turning your blog post into an advertisement, as discussed above.
Plus, who wants to read a blog post where a lawyer just boasts and compares himself to other lawyers? That’s almost as bad as a blog post about blogging.
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Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who focuses—he didn’t say “specialize”—on non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC. He expressly incorporates herein all disclaimers of all law blogs everywhere.
These are his opinions, not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.
Donald Trump made news when he suggested it might be time to pull American troops out of Afghanistan. U.S. military forces have been there about 18 years. That’s an easy number for me to remember because my daughter is 18 years old. She was born in 2001. Then 9-11 happened, and I’m kind of glad she wasn’t old enough to remember it.
Going into Afghanistan seemed like a no-brainer at the time. The Taliban controlled Afghanistan and were harboring Al-Qaeda. It seemed the only people who opposed President George W. Bush’s decision to send U.S. troops into Afghanistan were the kind you can count on to oppose virtually any U.S. military action (far left with a sprinkle of libertarian types). In the wake of the worst attack on American soil in my lifetime, W’s approval rating was high even among Democrats.
Of course, that didn’t last. Opinions on the Iraq war were more divided, and today it seems there is a broad consensus that Iraq was a mistake. Not only that, people are even questioning whether it makes sense to stay in Afghanistan. Eighteen years later the Al-Qaeda threat looks significantly diminished, yet Afghanistan seems like an endless quagmire.
More traditional hawks tend to reject this Afghanistan revisionism. If we leave Afghanistan now, aren’t we admitting that going in to get Bin-Laden and Al-Qaeda was a mistake? After all the dollars spent and American lives lost, how can we just give up?
This, of course, is the Sunk Cost Fallacy. It’s primarily a principle of economics, but it applies in a wide range of scenarios. The idea is that in deciding whether to spend additional money or resources on a project that is in progress, a rational actor should consider whether the future benefits are likely to outweigh the future costs. It is a fallacy to consider costs incurred in the past—the “sunk” costs—because there is nothing you can do to change them.
In other words, it’s a fallacy to continue pursuing a venture that is not going to be profitable on the ground that you’ve already invested time and money in it.
Sound familiar, litigators? If you have any experience with litigation, you have probably experienced the sunk-costs fallacy firsthand. Let’s consider an example from my favorite hypothetical lawsuit, Paula Payne Windows v. Dawn Davis.
The Sunk Cost Fallacy in Litigation
Dawn Davis was the top sales person at Paula Payne Windows, but she became disgruntled when her business development budget was cut and she couldn’t do her annual trip to Vegas with her best customers. So she accepted a job offer from Paula Payne’s fierce competitor, Real Cheap Windows.
Then Paula Payne sued Dawn, claiming breach of contract and misappropriation of trade secrets. But the judge thought the non-compete was too broad and denied Paula Payne’s motion for a temporary injunction.
Six months later, Paula Payne had obtained no relief and spent over $50,000 on legal fees. Documents produced by Real Cheap showed that Dawn had brought several customers to Real Cheap, generating about $100,000 in revenue. Paula Payne’s CFO estimated that Paula Payne would have made about $20,000 in profit on those sales if the customers had stayed with Paula Payne.
“Paula, we’ve got to make a decision,” the company’s lawyer said to the founder and CEO. “Our trial date is only six months away,” he said, “and we need to hire a CPA as a damages expert.” And here’s the kicker: “I know a good one we can use, but he’ll need a deposit of $15,000.”
Paula grimaced. “Ok, and how much are your fees going to be from now through the trial?” she asked. “Hard to say,” her lawyer said, “but you’re looking at paying us at least another $50,000.” “So you may want to think about settling,” he said, “especially considering your damages may be less than $50,000.” He added that Real Cheap’s lawyer already indicated Real Cheap would be willing to do a walk-away settlement.
“No way,” Paula shot back. “What was the point of suing Dawn and Real Cheap and paying you $50,000 if I’m just going to quit now?”
And there it is. The Sunk Cost Fallacy. A rational business person would coldly look at the cost of going forward (around $65,000), the potential benefit (let’s assume a recovery of around $50,000), and the chance of success. Even assuming a better than even chance of success, it looks like the smart move for Paula Payne would be to settle for whatever she can get, or even to walk away.
The Sunk-Cost-Fallacy Fallacy
But of course real people—even sophisticated business people—don’t think like that. It doesn’t feel right to spend $50,000 on a project and then decide to shut it down. It’s easy to understand that emotion.
If want to put it in economic terms, you could say there is a psychological cost to giving up on a venture when you have already invested your time, money, and energy in it. The mental pain that Paula will feel if she quits is real, and in theory you could assign a dollar value to it. Isn’t that similar to what juries do when they consider “mental anguish” damages?
When you take that pain into account, then maybe the economic critique of the Sunk Cost Fallacy is itself a fallacy. The economic problem with the critique is that it doesn’t take all of the relevant costs into account.
Putting aside economics, there’s a more practical problem for Paula Payne’s lawyer. If he approaches the issue from purely an economic standpoint, he’s going to under-appreciate the importance of Paula’s emotions, and he won’t have a happy client. In other words, presenting the issue to Paula as purely dollars and cents doesn’t reflect high “emotional intelligence.”
It turns out there is a second principle at play: the Sunk-Cost-Fallacy Fallacy. It’s a fallacy to think that a client who has sunk costs should make decisions based purely on a rational assessment of the future economic costs and benefits. After all, Paula’s not a robot. In the words of Bob Schneider, she’s only blood and bones.
The First Law of Holes
Let’s assume that Paula Payne’s lawyer gets that. He has high emotional intelligence and is aware of the Sunk-Cost-Fallacy Fallacy. That means he will not be too quick to dismiss Paula’s objection that she has already spent $50,000 on the lawsuit. He will understand that for Paula, simply giving up is not an option, even if walking away makes economic sense. He will “feel her pain.”
I’m fixing a hole, where the rain gets in
So, full speed ahead! Forget the fact that Paula Payne may have to spend over $65,000 on lawyer and expert fees to go to trial on a $40,000 lost profits claim. At least she’ll be able to look herself in the mirror and know she stood up for the rights of her company. Right?
Maybe. But here’s the problem. Chances are, the case is still going to settle. I’ve taken a non-compete case to trial before, but it’s rare. A trial of any kind of case is rare. Nine times out of ten (or more), it’s just a question of when the case settles, and for how much.
Let’s assume that six months in, Paula Payne Windows decides to keep moving forward. Then she spends another $30,000 on legal fees over the next three months. At that point, Real Cheap offers $20,000 to settle the case. Now Paula has an even more difficult decision. Settling is going to be even more painful because now she’s spent over $80,000.
This brings us to a third principle: the First Law of Holes. The First Law of Holes says when you find yourself in a hole, stop digging.
Yes, the pain of walking away after spending a lot of money is real. But that pain is only going to increase after you’ve spent even more money. In our hypothetical, Paula would have been better off—and probably felt better about the outcome—if she had stopped digging at the six-month mark.
So we’ve come full circle. In a sense, the First Law of Holes is just a version of the Sunk Cost Fallacy. But the First Law of Holes brings home the crucial point that sunk costs keep increasing. Better to cut your losses now than later.
That doesn’t necessarily mean the U.S. was wrong to go into Afghanistan, or that Paula Payne made a mistake when she decided to sue Dawn Davis and Real Cheap Windows. She understandably felt she had to do something to protect her company. And it is not to say that business people should never press forward with a lawsuit. Then I would be out of a job.
But whether we’re dealing with litigation, foreign policy, or day-to-day business decisions, we should be self-aware enough to recognize when the Sunk Cost Fallacy is tugging at our heart strings. Even if it’s just human nature, we should resist that pull. And sometimes the right decision will be to stop digging.
Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC. Follow @zachwolfelaw on Instagram to keep up with his latest shenanigans.
These are his opinions, not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.
If you’ve read my morning routine you know that one piece of it is listening to sports talk radio to find out for the final time if Lebron James is better than Michael Jordan. Another perennial drive-time debate is whether Bill Belichick has won so many games with the New England Patriots because he has Tom Brady as his quarterback, or if Brady has won so much because he has Belichick.
Wherever you come down in this debate, you have to admit the Patriots had an amazing run in the Brady-Belichick era, with 11 Super Bowl appearances and six Super Bowl wins.
This is infuriating for fans of other teams because the NFL is supposedly built for “parity.” In contrast to college football, it rewards winners by giving them worse draft picks. Perhaps this is why, sadly, the Patriots replaced my Dallas Cowboys as the NFL’s most hated team.
Haters will claim it’s the cheating. But some part of the credit for the Patriots’ astounding run should go to the well-known philosophy posted in their practice facility: Do Your Job.
This is a great mantra because in three little words it conveys two distinct messages, one of exhortation, the other of relaxation. “Do Your Job” says first, take care of your responsibilities. Your teammates are counting on you. But second it tells you not to worry too much. You don’t have to do anything spectacular, just do your job. Trust that if your teammates do their jobs too, the team will succeed.
This reminds me of a scene from the 2014 historical drama Selma, directed by Ava DuVernay and starring David Oyelowo as Martin Luther King, Jr.
Selma tells the story of Dr. King leading the protests that culminated in the famous march(es) across Edmund Pettus Bridge, and ultimately, the Voting Rights Act of 1965. If you haven’t seen the movie, I highly recommend checking it out on Netflix.[1]
The scene that sticks in my mind takes place about 18 minutes into the movie, in the modest kitchen of the King home in Atlanta. Mrs. King is folding laundry at the kitchen table. The phone rings.
Coretta: Hello? [We hear a man speaking in ominous tones over the receiver, she hangs up as Martin walks in.]
Martin: Same thing? [She looks at him knowingly then turns away.]
Coretta: When are y’all heading out?
Martin: We, uh, head back to Selma at 5 am. Turned out to be an ideal staging ground. There’s a . . . a full couple of weeks planned, quite a bit to be done.
Coretta: [drinks from a glass of water] I see. [Martin takes the trash bag out of the kitchen trash can.] That highway is nice now, get you there in a couple of hours. Good people in those parts, though. [She hands him a new garbage bag.][2]
Martin: Well, I’m worried about the ones who ain’t so good. [He puts a new bag in the trash can]. This local sheriff, Jim Clark,[3] is supposed to be bad business. Won’t go down without a fight, they say. And since we don’t fight . . . Well, good a place to die as any, I guess.
Coretta: I wish you wouldn’t talk like that.
Martin: It just takes the edge off.
Coretta: You and your friends can joke about that. I don’t joke about that.
Martin: You’re right. I’m sorry.
Coretta: I’ll uh, put these things away in your bag now, I didn’t realize you were leaving so early [she walks out carrying some folded clothes].
[Martin turns off kitchen light, hesitates.]
This is a great, economical scene. It conveys a lot of information without a lot of action or dialog. You know the Kings are receiving harassing phone calls. You sense tension in their marriage. You get the exposition about what’s happening with the sheriff in Selma. And, perhaps most important, you see that Dr. King is a real flesh and blood person who has to balance his family life with the very real possibility that his activism could get him killed.
But there’s one part of this scene that really resonated with me. Did you spot it? Remember, this is Martin Luther King, who we see in the opening scene preparing to accept the Nobel Peace Prize. Martin Luther King, the hero who led the Civil Rights movement. I mean, today the dude has his own national holiday. Yet in this scene we see him taking out the trash?
Why did the director or screenplay writer include this detail? The Kings could have simply stood in the kitchen, or sat at the kitchen table, talking.
Maybe it was just to give the actors something to do so the dialog would sound more natural. But I suspect there was more to it. When we see Dr. King emptying the trash can, it’s a reminder. Even a person who is doing great things still has to deal with the mundane necessities of daily life.
Of course, when the people doing the great things are rich, they pay other people to do the tedious things. The wealthy can’t be bothered with even the simplest of tasks, like folding their own umbrellas.
But still, even Very Important People have to do a lot of the same things ordinary people do. They put their pants on one leg at a time just like the rest of us. Or to vary a common saying, their trash stinks too.
And seeing Martin Luther King take out the trash was a small but important lesson for white-collar “professionals.” It was especially necessary for me because I work in the profession with the whitest of collars: the law. There is a tendency for us lawyers—especially lawyers in the more “elite” firms—to think we’re above everyone else. We have advanced degrees. We have licenses. We don’t take out the trash; we have people who come through the office after 5:30 to do that.
And when your hourly rate is $500 or higher, you start to think your time is more valuable than other people’s. Why should you spend an hour doing yardwork when you could be billing that time?
I’m not saying lawyers–or other busy professionals–shouldn’t pay someone else to mow the grass. I’m more concerned with the mindset. Do you get frustrated with the time you have to spend doing “ordinary” things when you’re trying to accomplish something important? I know I do. And all I’m trying to do is build a law practice. It’s not like I’m leading a movement to overcome 100 years of state-sponsored terror and voter suppression.
But maybe we shouldn’t look at household chores as a hindrance. Why should we expect to be trusted with great things when we can’t be trusted with the little things? Selma reminds us that taking care of minor tasks we don’t really want to do is perhaps the simplest form of morality.
So do your job. Take out the trash. Or whatever the equivalent responsibility is for you.
And trust that if you do your job, and other people do theirs, great things can happen.
Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC. Thomson Reuters named him a 2020 Texas Super Lawyer® for Business Litigation.
These are his opinions, not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.
[1] I recommend the movie with one significant caveat. As you may recall, there was some controversy over the film’s historical accuracy, particularly its portrayal of President Lyndon Johnson as a reluctant ally who King had to pressure into supporting the Voting Rights Act. Former Johnson aide Joe Califano blasted this portrayal as inaccurate. Director Ava DuVernay responded that she was telling a story, not making a documentary. This raises thorny questions: How much historical inaccuracy we should accept as artistic license? Do factual inaccuracies lessen the quality of a historical drama? Are minorities held to a double standard when they use artistic license? Interesting issues that I will save for another day.
[2] Apparently the clear plastic trash bag in the scene was an anachronism; such bags were not used in 1965. Also, you can see the blender on the counter is plugged into an outlet that has a green LED light. But let’s not quibble.
[3] Sheriff Clark was an ardent segregationist known for recruiting a horse-mounted posse of KKK members, wearing military style clothing, and carrying a cattle prod that he infamously used on black protestors. In his later life, Clark sold mobile homes, got accused of embezzlement, and even served time for conspiring to smuggle marijuana from Colombia. He was unrepentant to the end. In a 2006 interview, Clark said “I’d do the same thing today if I had to do it all over again.” See Jim Clark, Sheriff Who Enforced Segregation, Dies at 84.
