Why Clients Come Second at My New Law Firm

Why Clients Come Second at My New Law Firm

Law Firm “Culture”

Law firms talk a lot about “firm culture.” It’s like every year the Dallas Cowboys talk a lot about getting to the “Super Bowl.” (Oh, the truth hurts for this long-suffering Cowboys fan.)

I’ve been thinking about law firm culture and values because I just started my own law firm. It’s called Zach Wolfe Law Firm. That choice of firm name was serendipitous, because my name also happens to be Zach Wolfe.

Sadly, if I ever want to start an alt-Americana-rock band (hey, it could happen), I probably can’t name it after myself because Zach Wolfe & the Coyotes would claim a likelihood of confusion.

That means if I ever get around to recording one of my country-rock compositions, like “Otherwise Blameless Life,” I’ll have to do it with Hot Dog Randall. That’s the name of the band I plan to have with my 12YO son when he gets a little better at the drums. His name is not Randall, though. It’s just an inside joke.

Sorry, I got off track. What was I talking about?

Oh, right. Law firm culture.

I’ve been thinking about the kind of culture I want at my firm. I could have circulated a memo about it right before walking out of my old firm, Jerry Maguire-style. But I kept procrastinating, resulting in a totally amicable but boring exit. Which is probably fine, because I don’t think Mrs zachwolfelaw would appreciate me bringing Renée Zellweger to the new firm.

Anyway, now that I’ve had some time to mull it over, here are the five pillars of the Zach Wolfe Law Firm culture.

1. Clients Come Second

Don’t get me wrong, I’m going to put clients before almost everything else, including profits. But clients will not come first at Zach Wolfe Law Firm. That’s because my family comes first.

Of course, this will probably come as a surprise to my wife and two kids. They can all remember me pacing back and forth on my cell phone, trying to finalize a settlement, while they were literally trying to get in line for the “It’s a Small World” ride at Disney World.

So let’s just say the family first thing is kind of like the Texas Lawyer’s Creed. It’s “aspirational.”

Still, in my defense, on Day 1 of Zach Wolfe Law Firm I am not working, but moving my daughter into her college dorm.

And you’re humming the song now, aren’t you? I’m sorry.

2. The Bully Pulpit

My firm will be equipped to handle a wide variety of business litigation matters, plus drafting contracts and other relatively simple transactions, but my practice will continue to focus on disputes involving non-competes, trade secrets, and other “departing employee” issues.

After handling over 80 departing employee matters in the past five or six years, I’ve noticed something. There is a lot of attempted bullying in these matters, and I don’t like it.

I’m not saying litigation should be tiddly-winks. It’s more like tackle football, or girls’ middle school basketball. You’re going to get beat up a little.

What irks me is when people try to use the cost of litigation as a club to hold over my client’s head. For example, if a company doesn’t want its former employee to work for a competitor, they may file a lawsuit with little chance of success just to apply pressure to the employee in the form of attorney’s fees.

Of course, it can also work the other way: a defendant can obstruct and delay a meritorious claim just to drive up the cost for the plaintiff.

Whether I’m representing the plaintiff or the defendant, employer or employees, my goal is to do whatever it takes to avoid letting the opposing party use the cost of litigation to bully my client.

That may require some flexibility in fee arrangements, but here’s the good news. I happen to be sleeping with the head of the firm’s Billing Committee.

3. Diversity

When I eventually get around to hiring for my firm, I will do my best to have a law firm that looks like the city around it. And I’m not just giving lip service to diversity because it’s what all the cool firms are doing.

Do you remember when law firms started caring about diversity?

I can tell you precisely when that happened. It was about five minutes after law firm partners figured out there was money in it.

But hey, if greed means the partner lounge won’t look like one of those black and white photos of the local bar association from 1953, I’m all for it. It’s an example of the American doctrine of “self-interest properly understood,” first described in Alexis de Tocqueville’s Democracy in America.

You down with ADT? (Yeah, you know me.)

4. WFH

Zach Wolfe Law Firm does have a physical office, thanks to some friends who are graciously sharing their fancy office space with me. But I will probably continue to do most of my work from home. If there’s one silver lining to the pandemic, it’s that we all figured out it’s not that hard to work remotely. Maybe you don’t need to make 50 patent lawyers come to your docket call to stand up and say “ready” (*cough* E.D. Tex. *cough*).

There are, of course, benefits to collaborating with your team in the same physical space. There’s a reason WKRP had all the DJ’s “offices” in the same room. All else being equal, working in the same office with other members of a law firm is better than spending your day saying “who just joined?” or “Bob, you’re on mute!”

But, of course, as with so many things in life, all else is not equal.

You know the thing I discovered that is most definitely not equal? Driving.

Now, don’t get me wrong, I like driving. I even like long road trips. I actually look forward to driving up to my daughter’s school in Oklahoma.

But you know the thing I don’t like? Traffic.

I know a lot about traffic because they did this famous traffic experiment in the Houston area. They built the Katy Freeway, one of the widest freeways in the world, 26 lanes in some spots!

The result? Thousands of people moved to Katy, enough to clog every one of those 26 lanes at rush hour.

Spending hours sitting in Houston traffic may be great for catching up with Bob and Clint on the I’m Ok You’re Ok I’m Not Ok You’re Not Ok podcast, or nerding out on jazz and music theory with Adam and Peter on the You’ll Hear It podcast. But that’s not an efficient use of time for Zach Wolfe Law Firm. So we won’t be doing a lot of that.

5. Dress for Success

Right before I left the BigLaw firm I worked for out of law school, they circulated a memo produced by the Dress Code Committee. I remember thinking, Dress Code Committee, seriously? The thought of the buttoned-down senior partners talking about “spaghetti straps” and “crop tops” around a big conference room table cracked me up.

Now, this was a blue-chip firm with top-notch lawyers, but my reaction to the idea of a dress code committee was a sign that maybe I was more of a “hang out a shingle” kind of guy. But I wasn’t brave like Aiden Durham, so it took me 21 more years to do it.

Now that I run the zoo, I guess I’m in charge of the dress code. I’ve never really had a strong opinion on burning issues like casual Fridays. If anything, I tend to like the lawyers who go to sartorial extremes. Pick a side: either dress like the cast of Suits or the cast of Dazed and Confused. Or adopt your own unique style, like the personal injury lawyer who came to my first deposition in Fort Worth in a black cowboy hat and Holstein-patterned shirt. I respected that.

But the Zach Wolfe Law Firm dress code will be more practical. I’ve always thought dressing for the season makes more sense than dressing for the day of the week. So, for the summer—meaning about nine months out of the year in Houston—the dress code will be Baywatch tank top and Lululemon shorts. I’ll save the Banana Republic look for the winter. 

Of course, I will still wear a suit and tie when I go to court. You know, to stop the bullies. 

_______________________

Zach Wolfe (zach@zachwolfelaw.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at Zach Wolfe Law Firm. 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.

Are Lawyer Dads Paying Enough Attention to Upward Mobility?

Are Lawyer Dads Paying Enough Attention to Upward Mobility?

Editor’s note: On June 29, 2021, the ABA Journal published Are women lawyers paying enough attention to upward mobility? by lawyer and author Susan Smith Blakely. The following column addresses the same issue from the lawyer dad perspective. The column reflects the opinions of the author, and not the views of Five Minute Law – or the American Law Blogger Association. Five Minute Law is committed to covering all issues of importance to serious people in the law, and we acknowledge the many concerns expressed to us by those offended by this piece.

The number of men graduating from law schools and joining the profession of law remains high today, and that is very good news. In the past, many of these men were denied access to blue-chip law firms that demanded “good grades” and “writing samples,” and the ranks of BigLaw lost out on a lot of beer pong talent.

Male lawyers today are highly motivated, remarkably organized, and detail oriented, at least when it comes to managing their fantasy football teams. These traits, together with detailed knowledge of their college’s five-star high school football recruits, are cause for celebration from the generations of male lawyers who came before them.

But more male lawyers know that getting the job and demonstrating potential is only the beginning. While climbing the promotion ladder and buying a Porsche 911 is the goal for many male lawyers, they must be strategic.

The pitfalls

There are pitfalls. What works for male lawyers in the early years of practice may not work as well for them throughout their careers. And that is particularly true for men who choose to have children. There is nothing that can derail a career faster than the responsibilities of fatherhood—ask any successful male lawyer. Trying to remember the names of his kid’s pediatrician and dentist can cause a very busy male lawyer to lose focus.

I applaud lawyer dads for their best efforts in keeping all the balls in the air. But I also know that they can get sidetracked. Living in the moment may be fine when your child takes his first steps, but it is a bad idea when it comes to planning the wine list for the partner retreat in Napa.

Career vs. job

A career is more than a job. A successful career includes a country club membership. In private practice, the trajectory is junior associate to senior associate to getting appointed court of appeals justice by the governor you did keg stands with in college. But some governors also require you raise money for them, and that can make the runway even longer.

And a career is not just about cronyism. More and more law firms are prioritizing profits, and all members of the team have to pay for their vacation homes in Cabo. Team members have to know that help is around the corner, and that 47.5 hours of document review will need to be billed to the Baker matter before the end of the month. And those requirements are equally true for male lawyers—whether they have children or not.

Fatherhood is demanding. Too often, lawyer dads are so stretched and overscheduled that they cannot easily find time in their days to check the leaderboard at the U.S. Open. They focus on their own March Madness brackets and maximize their time between arrival at lunch at Twin Peaks and leaving happy hour at Top Golf. Many of them take two hours at lunch to play basketball at the Skyline Club, and they lose interest in Shephardizing the cases they just plugged into your brief, reading the “new” discovery rules adopted in 1997, and attending mandatory diversity training. They are exhausted.

Many lawyer dads may have trophy wives who hire a nanny to help ease their burden at home, but children typically look to Daddy for permission to do stuff Mommy said no to, rides in the front of the BMW with no booster seat, and when they’re older, some cash for the mall. That is especially true when Mommy is a busy professional, too.

The burden on lawyer dads was increased during COVID-19, when working from home often included taking additional time to yell at the children “dammit, just play some more games on the iPad!” But things will get back to some degree of normalcy soon. Partners will demand more face time at 9:30 pm, and the responsibilities for squeezing more billable hours out of routine cases will increase. The lawyer dads will be expected to meet the challenge just like everyone else.

Finding the time for all that lawyer dads have to do is challenging, but they are often their own worst enemies. They are typically perfectionists, especially about their lazy son’s backhand, which is going to need a lot more work if he’s going to get in good with the tennis coach at Princeton.

It is better to do a half-assed job of parenting than to obsess over doing the job to perfection, whether it is loading the dishwasher efficiently or braiding a daughter’s hair. There just does not seem to be any other way to meet all the commitments of being a lawyer dad, and chances are that a half-hearted effort will be enough to make your wife say “jeez, that’s enough, just let me do it!”

Taking credit as the path to promotion

Two of the attributes examined during the decision-making process for promotion from one level of practice to another are success at taking credit and effective blame-shifting to paralegals and associates. Both are strong indicators of leadership potential, and without quality leadership, law firm profits suffer. So promotion committees take these things very seriously.

When I counsel young lawyers, many of them complain about the low quality of energy drinks in the office break room. The young lawyers are concerned about the impact on their own alertness from this perceived lack of liquid stimulants, and the managers they most often complain about are the lawyer dads.

But it is not only the young associates who notice. Promotion committees understand that a manager who shows little interest in increasing the waking hours of his or her reports impacts the “billing mindset” considered essential to the upward mobility of young lawyers and higher billable hours for the firm.

The “billing mindset” versus “client service mindset” debate is fairly new, but it embodies old concepts. It is now recognized that a billing mindset is the belief that timesheets are malleable, and that people can increase their reported hours over time with creativity and determination. By contrast, a client service mindset is the belief that lawyers should prioritize client service over profits.

It stands to reason that the management and leadership of most law firms would embrace a billing mindset because it allows for private school tuition and that ski lodge in Utah. And if that is true, those same law firms should want to help junior lawyers get around the insurance company’s “billing guidelines” with the assistance of more seasoned practitioners.

Effective mentoring and leadership are essential to successful business models, and as challenging as it can be for lawyer dads, they must be willing to be team players and invest time in picking out the right mahogany paneling for the office reception area.

Risky business

To do anything less is very risky. As lawyer dads strategize about their career paths, they must be aware of the pitfalls. They must understand that getting home in time to read Dr. Seuss to their small children, no matter how praiseworthy, can impact their professional upward mobility. They must make time for martinis and cigars with Les Davis, the corrugated box magnate who is pissed at his current firm for telling him he can’t write off the apartment he rents for his mistress.

A wise man, the ancient Chinese philosopher Lao Tzu, is credited with saying that a 12(b)(6) motion with no chance of success is still worth at least 12.7 billable hours. And I would add this nuance—to maximize the number of hours billed to a corporate client, you must be a frat brother of the assistant general counsel.

Middle-level lawyer dads are key components to achieving this goal. They should keep their eyes on the secretary who will be their third wife, embrace opportunities to exclude younger lawyers from the signature block of the brief, and continue the climb the ladder of success that was interrupted by the pandemic. They should be the narcissists and future executive committee members we know they can be.

_______________________

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 (well, not really), 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.

Lawyer Lessons from Fly Fishing

Lawyer Lessons from Fly Fishing

This is an edited transcript of my interview with appellate lawyer Kendyl Hanks about lessons for lawyers (and others) from fly fishing. You can watch the video of the interview here.

Z: I’m Zach Wolfe. I’m here with Kendyl Hanks. Kendyl, welcome.

K: Thank you for having me.

Z: Thanks for joining us on the show. So, a lot of viewers probably already know Kendyl Hanks, the outstanding appellate practitioner in Texas, greenhouse gardener, dog lover, and all those good things. But you are also a fly-fisher.

K: I am. Yeah.

Z: We’re going to talk a little bit about fly fishing today and maybe how it applies to practicing law or maybe other things, but first, let me give you a chance to introduce yourself and talk a little bit about your law practice.

K: Sure. Thank you so much for having me. I’m a huge fan of your blog Five Minute Law. It’s always a good place to start, particularly like employment stuff, I’m always checking out your blog. I’m a shareholder with Greenberg Traurig in Austin. I have practiced in Texas and New York for the last about, I guess this year will be 20 years. I can’t believe it. Oh, I really can’t believe it. And I have had the good fortune to have an appellate practice, most times it’s in Texas, but I have cases throughout the country for some clients. We do a lot of test cases where we’re creating precedent, a lot of big cases, big verdicts, big judgments, things like that. And I was the daughter of a litigator and I love litigating, but I’m a huge fan of the appellate side. So one of my favorite things is to work with really talented trial lawyers, who I think live by the first principle of appellate law, which is the best strategy for winning an appeal is to win the trial. So, that’s a summary of my practice.

Z: I think that’s probably far too modest, and I know that because I experienced this firsthand. I remember one time I emailed you about this really interesting Texas Supreme Court case that came out, and then you emailed me back and you were like, yeah, that was my case.

K: Sorry.

Z: I should have known. But anyway, my favorite saying about trial versus appellate is “trial lawyers drive for show, and appellate lawyers putt for dough.”

K: [Laughing] I like that.

Z: But that’s golf. We’re going to talk about fly fishing now. But before I do that, you’re very popular on Twitter, and I thought, I’d go look at your Twitter profile.

K: Oh, gosh. Have I looked at that recently?

Z: It’s got three things. It’s got #AppellateTwitter, @LadyLawyerDiary, and #FlyFishing. So before we get to the fly fishing, what is #AppellateTwitter for people who don’t know?

K: I’m not a huge fan of social media, surprisingly. I’m not on Facebook. I actually found #AppellateTwitter because I was doing a program in Washington D.C. on recent developments in the U.S. Supreme court with some really wonderful panelists. A reporter from Bloomberg was live tweeting the program, and one of my colleagues said, they live tweeted your program. Now I gotta get on Twitter. So I got on Twitter and I think in the, in the description he had tagged #AppellateTwitter. I was like, oh my gosh, there’s this thing, appellate Twitter, this is amazing.

And, as I know you know, the Texas appellate community is very robust and close-knit community. We all sort of know each other and send each other business. And I saw a lot of those people on Twitter, which was sort of fun and a surprise. And we started talking about big cases, and trends in different courts, and fonts and spacing and footnotes and Oxford commas. I was like, I have found my people. So, appellate Twitter is just a wonderful community of people who sort of nerd out about law and support each other and send each other referrals. It’s a really great community, and I feel very lucky to have found it.

Z: Yeah, same here. And if anybody is not active on appellate Twitter, and you’re interested, go check it out for sure. Now how about this account called @LadyLawyerDiary?

K: Lady Lawyer Diary is an account that grew out of a hashtag, #LadyLawyerDiaries, which was basically a bunch of women who were connected through #AppellateTwitter. So it’s a lot of appellate lawyers, some professors, some in-house, a lot of law firm litigators, and we were talking about not so much appellate issues, although that’s kind of how we connected, it arose in the context of the #MeToo developments, Kozinski, and some of the other issues that were playing out a couple of years ago, and still playing out of course. The hashtag was taking off, and one of the things that we noticed, women in particular felt more comfortable talking about issues when they didn’t necessarily have to do so under their own name, for obvious reasons. There are a lot of fraught issues when it comes to sexual harassment, the pay gap, the lack of diversity, you know, traditionally, and it’s always been a challenge in the legal profession and in the courts.

So we, the group of us, not just me, a group of about a dozen or so of us started the handle as a forum. And we curate that forum, to start conversations, to facilitate discussions. We will post things for people who want to post anonymously. We do things behind the scenes that may not even reach social media, if it’s something particularly sensitive. And one of our co-founders testified before the Senate Judiciary Committee about reforms of the judiciary for reporting with respect to sexual harassment and things of that nature.

So we talk about diversity, inclusion, issues that affect women in the profession, and we try to do our best to promote women’s successes. Women, sometimes we can be really bad about tooting our own horn. And so we try to create a forum where we really encourage that. Like, if you’ve got a big success, a big promotion, and it’s something that’s not privileged, you can talk about it. We want to hear about it. And, and so we’d like to signal boost, things like that.

Z: Well . . . Kendyl, actually . . .

K: Actually . . . Tell me all about it, Zach, I want to hear all about it.

Be sure to follow!

Z: No. Okay. All right. Let’s get to the fly fishing this past summer, you published an article in the ABA Litigation journal called Fly Fishing Lessons. And it’s a great article. Everybody should go read it in addition to watching our fabulous interview, but I’m curious, what kind of feedback have you gotten about the article?

K: It’s been interesting. I’ve gotten a lot of emails from people, some who I’ve known before, and some I’d never met before, who read it and who were either anglers and they were like, wow, I’ve never made this connection, and you’re so right. Or people who are not anglers, but they’re litigators or appellate lawyers and they’re like, wow, now I want to go fishing, which I think is fantastic.

So, great feedback. I mean, we’ve all written a lot of articles and spoken on legal developments and big cases, and this is very different. This is a very personal, almost a thought exercise in some ways about how something that I’m really passionate about in my personal life, I’ve learned has a lot of lessons for my professional life, and I didn’t even really necessarily make that connection until I got deeply into this article, and I was thought, that’s something I do in my career that is also something that is great in fly fishing, or something I don’t do professionally that I really should be doing more of.

Z: Yeah. Well, we’re going to dig into that, but let me start with the most basic question, and I’ll confess, I don’t really fish.

K: That’s ok.

Z: What is fly fishing?

K: So fly fishing, there’s different kinds of fishing, right? I mean, if you there’s commercial fishing with nets, right? There’s spin cast fishing, which is you toss out a heavy lure and then you reel it back in and then you toss it back out. And a lot of spin casting, you might use a fake lure, or you might use a worm, for example, you know, your traditional sitting by the pond with a worm on a hook.

Fly fishing is a different setup. It is a rod that uses the weight of the line to push an artificial fly out onto either the surface of the water or to a spot where you can pull it down through the water. And the idea is that it mimics the food source of the fish, usually the food source. Sometimes if it’s salmon fishing, for example, you might not want necessarily a food source. You might just want to make the fish angry and territorial, so something really flashy and obnoxious. But usually fly fishing is known for trying to mimic the food source of what a trout or something else you might be fishing for is going to go for.

And so there’s a little bit more strategy for it. You’re not actually throwing the worm in the water. You’re trying to recreate a creature on or in the water that is so enticing to the fish that they want to come up and catch it. So it’s not so much tossing something into the water as it is learning how to control the line in the air and how to get this itsy bitsy tiny little thing, you know, 30 feet out into moving water.

Z: Sounds challenging. I can sense the connection to appellate law, but tell me, what’s your earliest memory of fly fishing?

K: My mother’s family is from Idaho, and she grew up fly fishing. Maybe I was nine or ten. Certainly before 12 or 13. When I was about 13, we took a pack trip, like an 11-day pack trip with mules and everything in Yellowstone. So it was before that. Copper Basin is this beautiful basin in Idaho. They have gorgeous streams full of trout and otters and all sorts of wildlife. And I was young enough that I still had a spin rod, and we would put salmon eggs on the spin rod, which is like Ambrosia for trout. So, if you’ve got fish in a river and you want to catch a whole bunch of trout, and this is one of these trips. It was long enough that , we had trout for breakfast, trout with eggs, then we had trout for dinner. So we were literally eating what we were catching.

And so I just got a little bored and my dad was fly fishing. It looked really cool. And I mean, I was catching tons of fish, but this fly fishing thing was really intriguing to me. And so I tried it out. I was terrible at it. I was like 10 and hardly had the coordination. But I sort of got hooked on it after that.

And then, by the time we took our Yellowstone trip, a year or two later—I think I posted this picture on Twitter once—I think my parents were worried about me getting lost in the forest. And so I was dressed in like head to toe bright yellow, right? I mean, I literally looked like a banana walking around Yellowstone park, but this is where I learned how to fly fish, up in Yellowstone, which now as an adult, I know is some of the most pristine and spectacular fly fishing in the world, which I couldn’t have appreciated as a child.

So those are my first memories, getting bored with regular fishing, with bait casting, with bait fishing and saying, you know, I really want to try that, even if I’m not good at it yet.

Z: I see. So you’ve been doing this a long time. Now in the article, you talked about issue spotting, which lawyers are familiar with. So tell us, how does issue spotting apply to fly fishing?

K:  I think one of the challenges in appellate law is there may be 20 things that you think the trial court did wrong. This was clearly a bad decision. The question is what are the issues that are going to make the difference in the case? What are the points of error, the issues on appeal, you can narrow this down to that are going to get the court of appeals’ attention, persuade them that you are right, and reach the result that you want, which is to win. Whether, you know, to reverse, if you’re the appellant, or affirm, if you’re the appellee.

In fishing, I think it’s easy to want to just sort of throw anything out there. It’s like, they want salmon eggs, right? Fly fishing is maybe not for you. You really have to understand your audience. What are you fishing for? Are you fishing for brown trout fishing for rainbows? Brookies? Are you saltwater fishing? Are you fishing for striped bass, what is the water like? What are the aquatic insects like? What is the air like? I mean, you need to understand the environment in which fish are making their choices and you need to understand why fish make their choices, right? So trout care about three things—food, shelter, and sex—and depending on what they’re doing at a particular moment, they’re going to care about different things. And that drives your choices in terms of what flies you might pick.

Choosing a particular kind of fly: Is it a wet fly that goes under the surface? Is it a dry fly that sits on top? Is it a big, huge, obnoxious fly? Is it a teeny tiny—I’ve got some here that are like, you can barely see, that’ll catch enormous fish, even though they’re super tiny.

The process that goes into choosing the right kind of fly for a particular environment and a particular audience, a particular kind of fish on a particular day on a particular river is very much to me, feels like the same process that goes into picking the right issues for an appeal, especially in a high court. So, when you’ve got discretionary review at the Texas Supreme Court, they’re not necessarily going to care about a court of appeals or trial court having done something that should have been different. They’re going to care about the important stuff, the things that are going to set precedent that matters in the state. So for me, it’s not so much translatable in a template way, it’s translatable in a process way, if that makes sense.

Z: Oh, I absolutely see the connection. Just like you might have your favorite flies that you like to fish with, you’ve got your favorite issues, but those may not be the issues that your court of appeals cares about.

K: Exactly. I’ve had plenty of days on rivers where there are some flies that are my favorite flies. I love these flies. They’re pretty, they’re cool. They’re easy to tie on. I know how they go in the air. I know how to get them on the water. But if it’s not what the fish wants, it is going to be pointless. There have been different kinds of flies and kinds of fishing that I’ve had to learn in order to be successful on different kinds of rivers and in different kinds of environments, because the stuff I’m used to and I get excited about isn’t necessarily what the fish gets excited about.

Z: In the article you also talked about the importance of assembling your own fly-fishing outfit. So one, what is the outfit, and two, why is it important to assemble it yourself?

K: When we say outfit, usually what we’re talking about is the rod and the gear-up that we’re putting together. Although there’s plenty of great fly-fishing outfits in terms of, I have my stuff that I go out in, all of which has tons of pockets, which is something that is woefully lacking generally in women’s wear. A lot of people, the first time they learn, there’s a lot that goes into actually putting a rod and a reel and a line and a fly together before you can get on the river. And you’re not going to have those skills the first time you’re introduced to it. So someone is going to show you how to do that. But a lot of people, they may go fishing four or five times in their life, like on a trip with some folks or whatever, and somebody will just hand them a rod that’s already set up right. And say, okay, go out on the river, cast it around, see if you can catch some fish.

I think there is great value in putting that setup, that outfit together yourself. Getting the line on the rod, learning the knots and to tie the line—the line is the weighted part—and you take the line and you attach it to a leader, and then you take a leader and you attach it to tippit, and understanding what those pieces are.

It is very similar to when I was a younger associate, before everything was electronically filed, we’ll walk down to the Dallas courthouse, meet the clerk, see what it is that they do with the document, have a conversation with people. And putting different pieces of a brief together and understanding their role in a brief. An introduction is different from a summary of argument, is different from a statement of facts, is different from a statement of jurisdiction. They have different purposes. They have different consequences if you don’t get it right. So putting together sort of your outfit when you’re getting ready to go fishing helps educate you a lot on how it all works, how it all comes together.

This is so nerdy, by the way, like I’m listening to myself talk and I’m thinking, oh man, I’m going to get so much hell for this.

Z: Yeah, but it’s nerdy in a good way.

K: I hope so. It is very nerdy.

Z: You mentioned pockets, let’s see the vest.

K: Oh, okay. So this is my, I have a bunch of vests because I share them with people when I take them out, but this is my personal vest, that I’ve had for gosh, 20 years maybe. So, as you notice, tons and tons of pockets, pockets everywhere, it’s lined with pockets literally, and it actually has a creel on the back, so if I wanted to keep a fish—I don’t, I do catch and release all the time now—but you can actually stick a fish in the back of your vest.

Z: I could wear one of those to court, and like you’d stick highlighters and flags in it.

K: Right. Everything’s right here, got these little grabber things that, you know, it’s wonderful. I love it.

Z: And you want to show us your hat as well?

K: Oh, my hat. So this is one of the things that I was thinking when I wrote about diversity and inclusion in the article, and it’s something, obviously I care a lot about with @LadyLawyerDiaries. There’s not a lot of gear out there for women. So it’s sort of like when Sarah Weddington argued Roe vs. Wade at the U.S. Supreme Court, there were no women’s bathrooms. She had to go to a totally different floor to find a women’s bathroom. The fly-fishing industry is sort of the same, it’s really geared toward men. And so we’re constantly having to adapt to men’s gear, like men’s shoe sizes and vests and waders. And one of the things recently is that some shops are realizing there are a lot of women out there who like to fly fish. And one of my favorite fly shops is the Taos fly shop in New Mexico. And they did this hat, it’s “fish like a girl”

Z: I like it. Nice.

K: It is utilitarian as well, because it’s, you know, you’re out in the sun, you’re out in the water and you can easily get badly burned up in the mountains. But being a woman and fly fishing, particularly when I was growing up, when I was younger and took a year off from college to go fishing, basically, there just weren’t a lot of women who were out there all the time like I was. That’s starting to change, but not fast enough for me.

Z: Yeah, and in the article, you talked about “fishermansplaining.”

K: It’s like mansplaining. Right.

Z: That sounds pretty self-explanatory.

K: So there’s actually a story about that, that I did not put in the article, but when I was about 14, we were on a raft trip in the middle fork of the Salmon River. You stand up on the bow of the boat, moving through rapids and you’re casting from side to side to side to side. And there was a guy, it was a big group trip, probably about 20 people, or so, and there was this guy who came over and he’s like, wow, you really should be doing it this way and that way and this way.

And he takes my rod away and he starts casting and he grabbed himself right here in the lip, like with the hook. And I thought to myself, I just don’t need men to explain to me how to do it. I will do it the way I want to do it.

So “fishermansplaining” is just one of those things where everyone has their own way of doing it, their own way of learning. There are some truisms about the physics of how a line works, but a lot of it’s about personal style. And, I love learning and from accomplished anglers, but it’s like someone who comes in and edits, not the substance of your brief, but the style. They want to change all of your em-dashes to commas and semi-colons and stuff like that. That’s like, you know, don’t tell me how to cast to my fish. If I ask, you can tell me, but it’s the same in mansplaining, right? Like if I don’t ask for your advice, I actually don’t need it.

Z: Yeah, the catching the hook on the lip kind of makes me think of, it’s like a lawyer being in court and the judge says, what’s the standard of review, and you say “the usual one.”

K: Oh yes. The usual one. What? No, is it regular? Is it strict scrutiny? No, it’s the regular one, or something like that.

You have to learn the fundamentals before becoming a master

Z: The regular one, right. Now, another parallel between the fly fishing and practicing law is you said something about needing to master the basics before you get creative. What did you mean by that?

K: So, like I mentioned, the physics of a line, so this is unlike spin casting, where you have something that’s weighted at the end. So you’re literally tossing the weighted thing into the water. And that pulls the line out. Fly fishing, it’s this very long line. You have to manage that line in the air in order to propel a virtually weightless thing dozens of feet away.

There are certain basic skills that you need to learn about how that works, like riding a bike, right? You need to learn how the pedals work. You need to learn how forward motion goes, how to stop. Same thing in fly fishing, but once you get the basic rhythms down, then it’s a lot more nuanced about what works for your body style, for your height, for your arm length, all of that stuff.

And getting creative, there are a lot of different ways of casting and a lot of different ways of keeping the line in the air, of laying it down on the water, and people have sort of different ways they adapt to their own form. And that’s the creative part. So it’s like art, right, in many ways.  You need to learn the basics of art before you can turn into a Picasso. I mean, not that I’m comparing myself to Picasso, but you know what I mean. Like you hear sometimes people say, oh, abstract art, like any 10-year-old could do that. Well, I mean, a lot of those masters they weren’t making abstract art as young artists. They were learning the fundamentals of art, and the medium, and the canvas, and all of that, before they started getting creative, if that makes sense.

Z: Yeah, and how would you apply that in an appellate practice?

K: You need to understand the court rules. You need to have a good, fundamental writing skill set. And I think a lot of us have voices as lawyers. I can read a brief and be like, I definitely wrote that brief. And I think a lot of people are like that. That was not necessarily the case when I was a younger lawyer, not just in things that were filed, obviously, which went through partners and things, but when I drafted them, I was so focused on just getting the argument, the law, the points, all of that out. I think as you grow as a lawyer, you sort of find your way of persuading that works with your voice, and that authenticity that’s specific to you in some ways, without making it about you. I think part of persuasion is finding a voice that is not just persuasive because it’s right, or it has a really good argument, but because it’s conveyed in a way that is persuasive to this particular audience, and compelling.

And fly fishing is like that. You can get the fundamentals down, like anybody can toss a line in the water and sometimes catch a fish, even if they have no idea what they’re doing, which is wonderful. I think beginner’s luck is a big thing in fly fishing, just like it is in litigation. But it’s not that one lucky hit, that fish that you managed to land, or that big case that you managed to win. It’s the consistency. It’s developing your practice and your voice and your skill sets so that you know your patterns, you know what battles to pick. Do those corollaries make sense?

Z: It makes a lot of sense. You could have the most creative legal argument in your case, but if you don’t understand the deadlines in the rules of civil procedure.

K: Yeah. I mean, if you just pop out into a local river and start taking fish home, you’re liable to get in a lot of trouble with the local fish and game. I mean, you need a license, there are limits to what kind of bait you can or can’t use, lures, there are regulations about barbless hooks. Flies that you buy have barbs on them, which make it harder for the fish to get off of them. And a lot of rivers that I fish require barbless. And if you don’t know any of that stuff, not only are you not operating correctly in the environment, you can actually get into trouble for it. So mastering the fundamentals is also about understanding the culture in which you’re working, and the rules that govern that culture, and being able to identify the most likely avenues for success.

Z: Can you cite unpublished cases in fly fishing?

K: Well, if fish tales count, then yes.

Z: Yes!

K: Although now nobody has an excuse anymore, because everybody’s got their phones and can take pictures. When I was growing up, 95% of the fish I caught, no one else ever saw them because I didn’t really walk around with a big camera. Maybe a guide took a picture, but everybody was like, I caught this 29-inch brook trout, which is not true, nobody is catching a 29-inch brook trout, you know what I mean? [I just fact-checked myself and indeed found an article pictures of the angler who caught a world-record 29-inch brook trout! So anything is possible.] Now we’ve got little phones. I can pull them out and take pictures. So yeah, everything gets published now, even if it’s technically unpublished.

Z: Right. It’s probably not as fun. Now in the article, you have a quote from Jeena Cho, and it says, “we know that when you’re in a stressed or fight or flight state, you are unable to access higher cognitive functions such as imagination.” What do you take away from that?

K: Well, first of all, Jeena is amazing. You know, she wrote the book Anxious Lawyer, and she writes a lot about mindfulness, mental health, and the legal profession. She’s just amazing, I love her. So I encourage anybody to look her up and read her stuff. What I take away from that is we, our chosen career is a very stressful one. Whether it’s family law, or criminal law, or business litigation with companies and employees and a lot of money on the line, it’s a lot of stress, a lot of pressure. Someone else is putting their future in some respect in our hands. And it’s a lot of stress. It’s not a coincidence that the legal profession has the highest incidents of substance abuse, depression, and suicide.

It takes a real toll. And I think that when you’re living in that constant stress place, it’s difficult to really sort of stretch your wings and get more creative about your practice. And so, Jeena’s talking about  mindfulness, and how important mindfulness is to take us out of that fight or flight sort of mindset, to give ourselves the space to be thinking in a much bigger and creative way, instead of like, Oh my God, I must win, here are the reasons why: X, Y, and Z. Trying to pull ourselves out of that and saying, okay, let’s think about this case big picture. It’s not just about whether, you know, who wins this particular case. It’s about where the law has been, where it’s going, what it’s going to mean for different industries.

Employing that sort of mindfulness to the process makes us better lawyers. I think it makes us more persuasive. I think it allows us to communicate to the court why a particular case is important and why their decision is important and why they should agree with us, of course. But it also, I think, makes our practice more enjoyable and more sustainable long-term. Because if you’re practicing out of a constant sense of fear of failure—what if I don’t get promoted, or what if I don’t make partner, or what if I don’t make this kind of money, and what if I lose my job—if those are the decisions, those are the fears that are driving our decision making, that’s a really hard way to live. And I’ve lived that way plenty, don’t get me wrong. I’ve learned the hard way that that’s not a good way to live. And so I try to be much more deliberate and sort of, you know, coaxing that mindfulness state out of my process in a way that I wasn’t as good at when I was younger.

Mindfulness. Good for fishing. And lawyering (?)

Z: What you just said is something that also comes across at the end of your fly-fishing article. And that was the thing that kind of caught me by surprise. You know, I could kind of guess some of the other parallels, but when you made that turn, that’s what really caught my attention. And especially this statement where you said “fly fishing teaches that embracing the process without judgment is plenty effective in achieving results.”

K: It’s so counterintuitive. We are so focused on quantifiable results and chalking up wins, and don’t get me wrong, those things are important. I have clients. Wins are important to them. You know, I’m a partner in a law firm. Those things are very important. But when those are the driving impulse, when we are so focused on results-oriented achievement, we lose the importance of the process that’s supposed to get us there. And I think that one of the things that fly fishing has really taught me is that if you invest in the process, the moments between the beginning and the end, and you engage in those moments in a meaningful way, you are inherently perpetuating positive results.  hey may not necessarily be the ultimate perfect result that you want, but you’re perpetuating good positive results for yourself, for your client, for your firm, for the legal system. And I think that when people get tunnel vision focused on one specific thing that must be, and anything else is failure, you’re just setting yourself up for that. Because that’s not the way our system is set up, and that’s not the way fly fishing works.

Z: Yeah. That was my number one takeaway from the article.

K: Was it? That’s interesting.

Z: I mean, just the idea, it’s somewhat counterintuitive, but when you’re not worrying as much about the results, but just enjoying what you’re doing, you actually tend to get better results.

K: Yeah. Enjoying what you’re doing and also just being mindful of what you’re doing, even when you may not really love it. There’s certainly, you know, briefs that I’ve written where I was like, I really, this is not my favorite part of the brief, I really don’t want to work on it. But being mindful of that particular piece of the brief, why it matters, what it advances, how it fits into the bigger picture, that investment in the process and enjoying that process, I think really yields results that are good.

Z: Agreed. Now, before we finish up, I do want to mention Project Healing Waters. Tell us a little bit about that.

K: Of course. Project Healing Waters is a national nonprofit that operates throughout the country, that serves men and women in military service in our armed services and veterans who have suffered physical injury or invisible injuries. We work with a lot of service people and veterans who have PTSD or depression, very serious physical injuries, brain injuries, things of that nature. And one of the really amazing things about fly fishing—and this is supported by scientific studies—is that the process of fly fishing, the physical movements, tying flies like that very detailed, small work with your hands, focused attention, it’s amazing for rehabilitation. And so Project Healing Waters operates throughout the country. We have programs for our participants, teaching them how to tie flies, to build their own rods, to fish, and then we even take them out fly fishing places.

We have a place up in Montana called Freedom Ranch where we will bring veterans. They stay in the lodge and they fly fish right there on the water. I personally did not serve, but most of the men in my family have served in the U.S. military. It’s something that I love doing, and fly fishing has been a wonderful thing for my own mental health. When I was struggling with depression, fly fishing was something that really sort of pulled me out of that a bit. And I love being able to share that with people. And so it’s just a way of giving back and it’s a wonderful organization. I would love for people to check it out. We have great fundraisers. We have trips that we sell at these fundraisers and fly rods and all sorts of stuff. So, check it out.

Z: Great. So, we’re doing this interview in February 2021. We’ve all been on some form of quarantine for almost a year, most of us. So I’m guessing that has kind of put a damper on the fly fishing.

K: I have not been fly fishing in over a year, and it’s driving me crazy. I am trying to plan, I don’t have a scheduled vaccination yet, so I don’t know, but, I’m going to try and assume that that happens by the summer. And I’m definitely gonna get a couple of trips in, I’m going to try to do one in the Rockies somewhere, probably Southern Colorado or somewhere in New Mexico where I have family, and then probably something on the coast, either the coast of Texas has some really great flats fishing or, maybe in Florida, I have some pals out in Florida. Maybe we’ll go out to the keys and do some bone fishing or something like that.

Z: That sounds great. Now, when you eventually get to go on one of these trips, does your dog, Molly, get to come with you?

K: Yeah. Oh, do you want to see Molly? Come here.

Z: Oh yeah.

K: Oh, good girl. She’s tired. She was napping. Here’s Molly.

Z: Sleeping on the job.

K: No, she does not. She gets bored. And we’re sort of out in relatively remote places. There’s coyotes and eagles, and Molly is of the size that an eagle could pick her right up. And I’ve actually been with her out in New Mexico, like on a walk, and a coyote came right in between me and her. She was about 15 feet in front of me and had I not pitched an absolute fit . . . So yeah, she’s not much of a fishing dog. You kind of need to have a bigger dog to survive the perils of that kind of wilderness.

Z: Makes sense. Well, Kendyl, this has been great.

K: Are we done already? That went so fast.

Z: Well, is there anything you want to add?

K: It’s such a treat to talk to you. Obviously, it’s something that I’m really passionate about, and I love sharing it with people, and it’s a real treat to be invited. Thank you.

Z: You’re welcome. Yeah. I mean, like I said, I have no experience with fly fishing, but it’s really fun hearing you talk about it,

K: But we’re going to have to change that.

Z: Well, yeah, maybe I’ll learn. We’ll see. All right. Thanks, Kendyl. K: Thank you.

________

Kendyl T. Hanks is an appellate shareholder with the Austin office of Greenberg Traurig. She has earned some professional recognitions, but none has made her feel more alive than disappearing into the mountains, messing about in a river, and catching these fish (which were promptly released).

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 has never caught a trout, but Thomson Reuters named him a 2020 Texas “Super Lawyer”® for Business Litigation.

Lawyer Lessons from Cobra Kai

Lawyer Lessons from Cobra Kai

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.

_________________________________

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.

Imagine There’s No Lawyers

Imagine There’s No Lawyers

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.

[3] Id. at 464e.

Lawyer Lessons From Winning a Bodybuilding Competition

Lawyer Lessons From Winning a Bodybuilding Competition

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.

______________________________________

Zach Wolfe (zach@zachwolfelaw.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at Zach Wolfe Law Firm. 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.

What Is *Wrong* With People? Lessons From the 2020 Bar Exam Debacle

What Is *Wrong* With People? Lessons From the 2020 Bar Exam Debacle

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 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:

Screen Shot 2020-08-16 at 2.55.37 PM.png

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.

Screen Shot 2020-08-17 at 7.34.13 AM.png

Then there’s New York. Here’s the New York Court of Appeals explaining why an online exam would not work:

Screen Shot 2020-08-16 at 5.00.35 PM

“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:

Screen Shot 2020-08-16 at 5.04.31 PM.png

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.

That’s like saying “nice application to the bar you have there, it would be a shame if something happened to it.” See NCBE Prez Issues Threat To Tie Up Licenses of Bar Exam Critics.

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:

Screen Shot 2020-08-16 at 5.08.10 PM

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.

This of course raises gender equality issues. See If You’re Menstruating or Lactating During The Bar Exam You’re Screwed. Obviously, it puts a burden on women that men don’t have to worry about.

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.

p.s. The Great Tampon Caper at least had a happy ending in Texas. Kudos to Texas Supreme Court Justices Brett Busby and Eva Guzman for helping to get this policy changed. See Texas lifts tampon ban at bar exam after complaints over discriminatory policy. Maybe human nature isn’t all bad.

_____________________________________

IMG_4571Zach 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.

50 Things Law School May Not Teach You (But Twitter Law School Can)

50 Things Law School May Not Teach You (But Twitter Law School Can)

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:

Screen Shot 2020-02-23 at 11.42.54 PM

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. 

________________________________________

IMG_4571Zach 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.

Should Clients Pay a Premium for Big-Name Law Firms?

Should Clients Pay a Premium for Big-Name Law Firms?

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.

____________________

IMG_4571Zach 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.

 

Totally Apolitical Lessons for Lawyers from the Mueller Report

Totally Apolitical Lessons for Lawyers from the Mueller Report

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:

  1. The evidence does not clearly establish that Trump did not obstruct justice. If it did, we would say so.
  2. There is evidence that Trump obstructed justice, but the evidence presents some difficult issues.
  3. We are not allowed to state a conclusion that Trump obstructed justice.
  4. 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?”

arches-architectural-design-architecture-135018
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.

__________________________________________________

IMG_4571Zach 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.