Make Way For The New Generation Of Lawyers, Lest You Be Left In The Dust


Readers know that I use the word “dinosaur” to refer to us old lawyers of a certain age and certain number of years in practice. Now, thanks to Justice William Bedsworth of California’s Fourth District Court of Appeal, Division 3, I have two possible words to replace dinosaur. And what are those words?

In a column about meaningless laws, which every state has, Justice Bedsworth found California Government Code section 425.7(a), effective just this past January 1. This law designates Augustnolophus Morisi as the official state dinosaur. What a fabulous final Jeopardy question! After typing the Latin word several times, Justice Bedsworth shortened the name to “Augie.” (Sorry, Your Honor, but you qualify as a dinosaur.)

The other choice to replace dinosaur, but not quite as accurate, would be the saber-toothed cat (Smilodon californicus), which has now been legislated as the official state fossil. California Government Code section 425.7(b). Readers, remember, this is California.

Wikipedia includes in its definition of “fossil,” a derogatory humorous definition (humor is in the eye of the beholder), which is “an antiquated or stubbornly unchanging person or thing.”

I think that we lawyers, especially the Augies or Smileys, whatever your preference, live on a planet called Oblivia. (It hasn’t been discovered yet, but trust me, it’s out there.) The results of the latest Altman Weil survey confirm that.

The survey reports that more than two-thirds of law firm partners are resistant to change. Perhaps that’s because a lot of the partners are Augies/Smileys. While the pace of change is accelerating and law firms acknowledge that, the impetus to change is just not there for more than two-thirds of the firms. We Augies and Smileys may have to share space on Oblivia with ostriches.

Change affects how we practice, what we practice, and how much money we make. It’s no surprise that there are too many lawyers chasing too little work, true even as law schools continue to crank out graduates and too many law students crash and burn on the bar exam. The report also says that a little more than half of the equity partners in law firms are not busy enough. I think that’s precisely why change is perceived as a threat to career and financial health. How much economic pain will it take to get law firms to adapt to the changing legal environment? Right now, the report says that almost two-thirds of the law firms haven’t suffered enough economic pain yet (notice the “yet”) and barely a third of the law firms actively engage in testing out innovative ideas and methods.

I don’t think that most lawyers are flexible thinkers. We follow precedent, argue when we can for deviating from it, but generally, we’re rooted in tradition, and that makes innovating even more difficult. It’s moving out of our comfort zone, and we all like to be comfortable. Just look at our desk chairs.

In a book called Elastic: Flexible Thinking In A Constantly Changing World, the author, Leonard Mlodinow, argues that we all need to be flexible thinkers today.  Lawyers epitomize logical, rational thinking, but today’s world demands more than that. We need to be creative, to try new things, and not be afraid to fail. That’s very hard for us to do.

What about letting the junior lawyers be more involved by ignoring the “we’ve always done it this way” philosophy about cases and clients? And no, I  don’t mean more involved in doing discovery scut work. I mean being involved in formulating strategy, case management, interacting with clients, prepping for trial (or arbitration) and even examining witnesses.

As a Scientific American article points out in its interview with Mlodinow, a recent study in the Journal of the American Medical Association showed that there was a thirty percent decrease in mortality rate of high risk acute patients when the attending physician was out of town and care was in the hands of more junior doctors. The report said that most errors physicians make are due to the forming of opinions based on previous experience, but those opinions can be misleading or even wrong in cases that are not routine. The conclusion:  inexperience can be a blessing, not necessarily a curse.

Young lawyers: take heart. This experiment can hold true for our profession as well.  I have heard so many young attorneys complain that they are told that “it’s always been done this way,” and thus, senior people are not open to new ideas, new methods, new ways of  doing things, and sharing work.

What Mlodinow sees as aversion to change is not so much change itself, but the collateral consequences of change: more work for less money, layoffs, and as he calls it “unemployment aversion.” Elastic thinking is putting aside everything we’ve learned to do as lawyers, and letting ourselves not follow the rules. (Yes, I know heresy for lawyers.)

Elastic thinking is not billable hours, and that’s also heresy for lawyers. Ever try billing a client for just “thinking”? I thought not. Even more heresy for those of us who live and die by hours billed is Mlodinow’s prescription to choose pleasure over work because that will make you more productive at work. (I hear teeth gnashing of all managing partners). Elastic thinking is being open to different ideas, to trying the untried, to being receptive to change and even actively embracing it.

It’s creative thinking, it’s “let’s try it this way for a change,” it’s letting the newer lawyers push forward, regardless of what the Augies and Smileys may say. After all, it’s going to be their world going forward, and change is the only way that law firms will survive. Without embracing change, Altman Weil says that you’ll be left in the dust, and there’s no money for us in dust collection.

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