As a lot of you know, I’m taking the bar exam in about a week an a half. I’m arguing a habeas petition on Monday under the supervision of a licensed attorney. The state is paying for his representation.
I’ve taken a personal interest in this. Without violating confidentiality, I’ll say that simply the dude has a good case and I think he can be a productive member of society. I’ve spent some late nights researching and writing briefs. Should the state (or a private client) have to pay for that? What level of representation is required of me as his attorney?
I can imagine airplane flights to London to research the old English common law while staying at 5 star hotels on one end versus drinking whiskey and thinking intermittently about the client on the other extreme. Where between there is the sweet spot in which I have represented my client effectively?
Further, I can’t imagine that I will give my future clients the same physical and emotional work I’ve put into this case. Does that mean I have failed them somehow?
To answer the last point - no, it won’t be a sign of decline in your professional dedication. What’s happening now is that you’re not just working for this first client; you’re teaching yourself how to research and prepare the case. The more cases you do, the more experienced you’ll be, and the less time it will take to prep for later cases. That will be a sign of your own experience and self-confidence, not a decline in your professional commitment.
A lot of what you can do is determined by what the client can afford. If a client can’t afford an expert witness, you won’t be using one…unless you’re doing court-appointed criminal defense work, and can persuade a Judge to authorize it, or it’s a med-mal or PI you’ve taken on a contingency and you’re fronting expenses. You may have to prepare to cross examine the other side’s experts even when you don’t have one of your own.
That said, I’ve never encountered a case that required a trip to England to research common law, or anything remotely so extravagant. Most cases are fairly routine. You do some research online as needed, file pleadings, write motions & briefs, conduct discovery, interview witnesses, attempt to negotiate settlements, and try cases if necessary.
Law practice is very much not a John Grisham novel. Your experience will vary considerably depending on what your work situation is. Working for “Big Law” is a very different world than government work, which is different from non-profit work, which is markedly different from flying solo–as I do now. In “Big Law” you’re focused on billing 2000+ hours per year hoping to make partner eventually while trying to survive office politics. As a new solo, you’re hoping a paying client comes in before the end of the month when you have to cover office expenses.
The rules of Professional Conduct (adopted in all states, but the numbering may vary) touch on this in Rule 1.1: Comptence.
The comment elaborates greatly on the basic rule which is (duh) “be competent.”
Your textbook-style copy of the Rules, which you have from your law school Professional Ethics course (right!?) should have further commentary and relevant cases.
First off, best of luck to you on the bar. I’m preparing to take the NY bar in a week and a half as well.
Regarding your concerns, has your supervising attorney been of any help in guiding your efforts? I haven’t worked career yet, of course, but during my summer jobs it seemed that supervising lawyers always preferred that I ask how long to spend on any given issue, so that I wouldn’t research too little or waste resources on the other extreme. Even on the state’s dime, I’m sure he/she should have some input to give…
Northern Piper, that makes me feel much better about having to learn what experienced lawyers have known for years. Practice plainly requires knowing much more than law school could teach…
I understand this practical side, but the rules require me to “zealously” represent my client. I’m sure that doesn’t mean that I must invest my very soul into his representation, but let’s say my (non-existent) brother had a birthday party tonight. Should I not go so that I can focus on the hearing tomorrow?
My biggest problem is that I don’t think that any future client will get this kind of representation from me. It will be impossible. I will have more than one client at a time. I can’t go on 3 hours of sleep every night for a week for the rest of my career.
I realize that as I mature in my knowledge of the law, it will take less time to do what I am doing now, but maybe I could reach an even better result by working myself to death when I have more knowledge?
So much of it depends on what kind of work you end up doing. I’ve tried cases I’d never even seen before calling the first witness. Sub-optimal, but it can be done. Particularly when I worked as a child support attorney for the state, I’d get called to cover a court date for another attorney that was sick/fired/quit/whatever with little notice. Those cases all involve the same issues, so it was no big deal.
Now, flying solo, a client may walk in to my office at 4 in the afternoon with a hearing the next morning. If he’s got money in his pocket, I’m there. Obviously, I’ll ask for a continuance if needed, but if that’s denied, you do the best you can. I’ve done family law forever, so I know the issues and applicable law. You go to court and make lawyerly noises. Whatever happens, the guy is going to be better off than if he was unrepresented.
Can I ask what rules you’re talking about? Nowhere in the current Professional Responsibility rules in force in New York State is zealous advocacy required. For some reason I thought you were in NY. I’d be interested what state is still using zealous.
In fact the dropping of “zealous” was a matter of some comment at the time.
I’ll start with the caveat that I’ve always had pretty bad OCD. That it wasn’t completely debilitating is surprising even to me. That can be a good thing up to a point depending on what bent your compulsions take since you’ll be more thorough, consider more contingencies, etc. But in areas like the law, where there tend not to be hard boundaries etched in stone, the more compelled you are to find certainty, the more certainly it will drive you mad.
That was one of the biggest considerations when I bailed on practicing all together - especially since what I did was what you’re talking about, research. It always bothered me that I never knew when I was “done” with a case. There was always another argument you could make, another case, law review article, etc. that you could read. You had to trust your understanding of your own areas of expertise enough that a) you would be able to spot all of the relevant issues that had at least non-vanishing probability of success and b) that you could locate and present the relevant precedent relating to (a). I never trusted myself enough to believe that I’d turned off the faucets before I’d left the house, so this was always a bit of a challenge.
First, the law is current. The most relevant cases are the most recent ones. The older a case is, the less likely it is to be still relevant or binding: statute law is always changing, and courts are always churning out new cases, with new takes on the law. Sure, there are some old cases that are still significant, but they stand out because it is rare for an old case to still have much relevance. And those old, still-leading cases, should be available in modern sources.
Second, the common law of England is not of much relevance generally to a US lawyer. With the revolution, there was a clear break in the legal continuity; the statute law of the states and the federal government, and the cases considering the local common law, took on much more importance than the English law. Even here in Canada, where there was no such break and English statute and case law continued to be relevant much longer, it’s very rare that we need to research English law.
Third, if for some reason you do need to research English law, there’s no need to go to the UK. There are some major research law libraries in both Canada and the US that have extensive English materials. The Great Library at Osgoode Hall, in Toronto, is a good example in Canada; Yale and Harvard Law Libraries are good examples in the US. Heck, even in my provincial capital where I practise, we have access to the Statutes Revised, the English Reports (the multi-volume collection of historical cases), the Law Reports, Halsbury’s Laws of England, and Halsbury’s Statutes. Then there’s British electronic research options. There’s simply no need to travel to England.
That’s a different professional skill that you need to develop: prioritising. If you know that your brother has a birthday party the day before you’re appearing in court, you could opt not to go to the party and keep working all evening.
Or, you can say to yourself, “I want to go to that party. I’d better clear a block of time earlier this week to do my prep for my court case, and I’ll have to be sure not to drink too much the night of the party - can’t be hung over in court.”
In other words, once you start practising as a lawyer, you have to move away from the study habits that got you through law school (studying every evening after class), and move to a more balanced approach, where you don’t try to work evenings and week-ends.
If you try to practise law the same as your law school study habits, you’ll crack up. You’ve got to find work-life balance.
This reminds me of an episode of The Paper Chase where law student Bell files a suit against the city. I haven’t seen it in ages, but as I recall he spent all of his time preparing a treatise on lawsuits against the sovereign starting from ancient Rome (as he would do for a law school class). As he starts reading it to the judge, the judge just cuts him off and says something like “It’s well established that you can sue the city, move on to the case.”
IDK. I can see someone working it into a brief just for sport. You get your kicks where you can after a few hundred hours in the library. But I know precisely jack about property law so I’m not even going to guess.
The point is that a common law system is based on precedent, so to say that the only law you care about is new law is a little puzzling. Maybe an area like tax law I could understand that, but I’m hard pressed to think of many other examples.
But I know precisely jack about property law so I’m not even going to guess.