Over the past few weeks, I’ve received numerous emails from law students telling me that they want to be criminal defense lawyers and go straight into solo practice. The question posed is, how can they do it?
There is a huge schism in the blawgosphere about the merit of going straight from law school into solo practice, with some promoting it as the panacea of work-life balance and control over one’s life and career, and others, like me, admonishing that brand new lawyers aren’t yet capable of competently representing clients. The two schools of thought are largely characterized by the focus we bring to the issue: Those who promote it tend to be the ones who make a living off it. Those who don’t, like me, tend to be concerned with professionalism and quality of representation. Does that sound unfair? It’s not.
It had been my intention to teach others how to go about starting a solo criminal practice at Solo Practice University, but since my unceremonious dumping following my run-in with the majority of the faculty who came on board to sell their services to the students, that’s not going to happen. The gist of SPU appears likely to focus on how one can market the newbie lawyer, unprepared to handle the most trivial prosecution, into the next best thing since Clarence Darrow.
Can this be accomplished. Yes, I proclaim. Well, maybe, at least. As long as one squints, and doesn’t mind becoming the scum of the earth, lying, scoundrel in the process. Well, that may be a bit harsh, but the fact is that marketing can make a sow’s ear look like a silk purse, but it won’t help new lawyers to be competent lawyers. Having clients without competency is a recipe for disaster for all involved.
But following the implosion of the economy, and with it the disappearance of the job market for entering lawyers, the equation has changed. Whereas once I argued that the notion of flying solo straight out of law school was decidedly wrong, the new reality is that many law students will have no choice. Solo practice is the alternative to sitting at home playing Wii. The latter is not an option.
I see the most dangerous pending proposition to be the focus of new lawyer solos as the quest for clients without a concomitant quest for competency. The former is far easier to attain than the latter, since I do not believe that any criminal defense lawyer can even begin to fulfill his duty to his clients without a certain breadth of experience, which takes between three and 10 years to attain. I fully expect new criminal defense lawyers to inform me that I am absolutely wrong about this, insisting that they are great lawyers and totally competent (if not excellent) in the performance of the representation.
And lest someone else make this point, experience alone does not turn an incompetent solo into a brilliant practitioner. As the saying goes, an old fool is worse than a young fool. Indeed, there are plenty of lawyers who suck after ten, twenty and more years of experience. But that’s because they just aren’t any good at being lawyers, for whatever reason, and no amount of experience is going to change that. We’re talking here about lawyers who can be good, and should be good, but just aren’t yet ready for prime time.
To suggest that new lawyers get a gig with the District Attorney or Legal Aid Society before hanging out the shingle would be facile and pointless under the circumstances. Jobs aren’t there, and suggesting non-existent options is a waste of time. I won’t insult you that way, especially after insulting you in so many other ways.
But I do have two options to suggest. Neither is perfect, but under the circumstances both offer a greater likelihood of developing competency while not ruining the lives of whatever clients the marketers can drum up for you.
Option A: Hook up with an experience, competent criminal defense lawyer
By this, I mean that new solos should establish a hard relationship with a strong criminal defense lawyer, providing support services in exchange for the “apprenticeship”-type experience that she can offer. Handle the late-night arraignments. Fetch the files from the clerk’s office. File the papers. And listen, learn and discuss. The more experienced lawyer can hand off those small cases that she might otherwise reject, to give the new lawyer something to work on, and provide oversight and insight so that the new lawyer develops experience in handling matters that will create a level of depth that only time, or a stream of mistakes, can provide.
If the new criminal defense lawyer has the capacity, she will grow in the relationship, perhaps even to the point of a partnership if she proves worthy of the interest. Shy of that, the respect will earn the new lawyer bigger case referrals, perhaps even co-defendants on multi-defendant cases, and the admiration of others who will see the effort and zeal she’s putting into her cases.
On the other hand, if the newbie doesn’t have the juice, it will become apparent. This is frank talk here, so don’t take this the wrong way. Not everyone is cut out for solo practice, nor criminal defense, nor even the law. Better to find out early, before you’ve destroyed too many lives and make yourself miserable.
Option B: Find yourself a mentor
The word “mentor” has become ont the favorites of the solo promoters. It’s warm. It’s friendly. It’s a happening kinda word. It’s also a decidedly second string concept, having two significant failings. Anyone hyping mentoring should be carefully scrutinized for the illegal use of adjective (well, it should be a crime, anyway) to maintain that warm and fuzzy sensation despite these failings. Remember, if you’re a desperate new lawyer embarking on a scary solo practice despite the fact that every synapse in your head is snapping, crackling and popping, you will grasp at any straw you can to bolster your decision. It’s only natural.
The first failing of mentoring is that you need continuous and reliable supervision. Mentors are there to help you out when they can, meaning that they have their own lives and work, and you only get as much of their busy day as they are willing to give you. Trust me, you do not come before their children. Maybe not even close acquaintances. You may be the center of the universe to yourselves, but you may not be to the mentor, and they are not prepared to sacrifice their lives and times to convenience you.
The new practitioner has a million questions. Answering a million questions takes up a lot of time. This is time that could otherwise be spent by the mentor earning money and representing clients. Something has to give. Guess who that something will be.
Second, the mentor may be supportive, but supportive isn’t necessarily honest. Someone has to tell you when you screw up. Someone has to tell you that you blew it . Someone has to tell you if you don’t have what it takes. But whoever that someone is, you’re not going to like it (even if you think now that you will appreciate it) and you will turn on them. The mentor has no reason to invite your angst. The mentor is doing you a favor, and while she may be happy to help, she isn’t happy to argue the point.
Similarly, when there are too many questions, demands, issues, DRAMA, the mentor may quietly slip away, appeasing you by agreement while dying to get off the phone or avoid that cup of coffee. You may need answers. The mentor doesn’t need headaches. Your needs and the mentor’s needs are not coterminous, but you won’t see it until the mentor refuses to take your calls anymore.
So if mentoring is so fraught with issues, why do I recommend it? Because there aren’t any other options, and as much as it may be flawed, it’s better than nothing. If the new lawyer bears these failings in mind, and conducts themselves within appropriate limits, it will facilitate the benefits of mentoring without invoking the problems. Of course, it’s not easy for a new lawyer to perform such a metacognitive assessment, or to recognize other people’s limits until it’s too late.
For those new lawyers who hoped to learn how to fly solo at SPU, I feel confident that there’s no one over there who will tell you the downside of your plans. You can expect plenty of cheerleading, but no one to pick you up when you crash and burn. Sorry, but solo practice is real life, and no string of adjectives will cover your butt when real people demand that you fulfill the promises that marketers made on your behalf. Indeed, some will get downright nasty when they realize that you’re all bluff and no substance.
Somebody had to tell you, and perhaps save you a bunch of money that you likely can’t afford to spend to find out that you can succeed by spending even more money on the marketing services of your beloved faculty members. And nobody even mentions that you need to become a decent lawyer.
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Scott, the positive point you’re making here, about young solos’ need for mentoring, is wise and sound. Not long ago I found myself recommending the same course to a solo who had come to me for jury consulting. As we worked together, I realized that I could be helpful, but not as helpful as a mentor could.
I hope, though, that you’ll lighten up on SPU eventually. What I’ve seen there so far has really impressed me. No on-line class is a substitute for the kind of mentoring you’re describing here, of course. But this post and others raise fears of a kind of “modeling school” that takes money and trades on hopes, and that’s not what I’m seeing there at all.
When I see some indication that SPU will in fact fulfill the promises it makes, rather than serve primarily as a vehicle for marketing marketers (at an additional expense, I might add), it will receive my wholehearted endorsement. I see positives and negatives at the moment, and nothing that has as yet “impressed” me. What I mostly see is an excess of adjectives and a shortage of substance. There some things I’ve seen up to now that I find disturbing, but I have not posted about it because I want to give Susan the opportunity to address those areas that fall short.
There are a number of “faculty” members who I think are excellent choices, and have much to offer. But there are far more who bring little or nothing to the table, and some who are downright ridiculous choices. Someone has to keep this enterprise honest, particularly as it seeks to take this horrible job-environment and turn it into a profit making venture on the backs of vulnerable young and unemployed lawyers. If I’m the only one willing to do so, so be it. In the interim, I think it is much healthier for the potential students of SPU to know that someone is keeping an eye on things.
Lots of good lines in this post. As to the central premise? I will happily stay out of the SHG v. SPU fray.
In my opinion, young lawyers could benefit from embracing two ideas.
First, regardless of whether bad lawyers who are good marketers make a lot of money, there are many reasons to sharpen your legal skills and provide high quality legal services. (I can see how you say that legal marketers may tolerate a lesser level of competence. It’s probably in their interest to argue that all any new lawyer has left to learn is solid marketing skills. I’m not sure where SPU falls on this issue, and to be honest, I have little experience with the legal marketing industry (or with SPU) so I don’t have anything to say about this.)
Second, it takes a long time and a lot of experience to refine your sense of judgment, and this is separate from being a competent lawyer. It’s equally important, and something you cannot have right out of the gate.
As to the many folks who are graduating, I’m not so sure things are as bad as you say they are. Sure you can’t get a job making 160K out of law school (or the chances are a lot less). But this doesn’t mean you cannot find a good place to learn, find a mentor, and eventually blossom into a great lawyer.
Finally, I’ve been reading Stephen King’s “On Writing”. This should be on the must read list for all lawyers. He’s definitely old school as to what it takes to be a good writer and he tells it like it is. You’d probably enjoy it (if you haven’t already read it).
As far as the job market goes, I don’t know any more than what I hear, like you. I hear it’s bad, so I accept the premise. Even if it isn’t as bad as I hear, the advice remains the same. I am not a believer that lawyers should go solo straight out of school, and if they can get a job and hone their skills, that’s what they should strive to do.
As for the “SHG v SPU fray,” it’s a false dichotomy. I’m not against SPU by any stretch of the imagination. I’m just not leading the cheers, and if I was still part of the faculty, I would be doing exactly what I’m doing now. I don’t think legal marketers are for or against competence; I think they are for selling their services. If it happens that an incompetent lawyer is desirous of using them, they will be happy to do the job. What they do not do, and understandably so, is tell a young lawyer, first learn to be a lawyer and then come back when you’re ready to handle clients. It’s perfectly understandable from the perspective of marketers, but it is not acceptable from the perspective of lawyers. We have an obligation to our clients. Marketers are there to sell. I just try to remind lawyers which comes first.
The key trait that distinguishes those who will become good lawyers and those who won’t is humility. Recognize that you don’t know anything about criminal defense, and want to learn. A healthy dose of fear is also good, since you hold someone future in your hands.
I have one more suggestion. Find out who the good criminal defense lawyers are, and go watch them. Develop a relationship with the court staff, and they will help you find who to watch, and let you know when they will be in court. Offer to help them out – at the minimum, any lawyer will be happy to have another set of eyes during jury selection. They also will appreciate someone to handle the “gopher” duties during trial.
If you want to learn, and see clients not as income sources but real human beings, you will be successful. Don’t expect it to happen overnight though.
Thanks Walter. I think your last sentence, that clients are human beings and not revenue streams, is what distinguishes real lawyers from the lawyers the marketers would make of us. We represent human beings.
Lawyer 10
We often struggle to make a point which could be made simply, but for the fact that it would offend the very people you seek to persuade in the process.
Although it is not the same as working for a great lawyer or having a mentor, let’s not forget the number of state bars who offer free advisory services through their practice management advisors. If your state has a program, these are great resources to get questions answered and hear opinions unfettered by economic bias.
After doing that work for over 11 years, I am amazed at the proliferation of lawyer coaching/consulting/cheerleading services that have popped up in the last few years. There are certainly some great coaches out there. There are also a lot of people selling a lot of advice that you can easily find by going to the self-improvement aisle of your local book store at a much cheaper rate. Some questions to ask a proposed-lawyer coach are what kind of practice did you have, how long did you do that and why aren’t you doing that any more?
There’s an old saying that those who can do and those who can’t teach you how to. There are a lot of great teachers out there, too, and I don’t want to slam them. But there is a ton of free practice management advice online on the various blogs.
An important bit of advice I give to young lawyers setting up a practice is to really watch their monthly overhead and try to keep it low. Before you make any financial commitment, make certain you know what you are getting!
And your very best marketing assets, even though the payoff is a slow road, are satisfied clients who refer your their friends and the respect of your fellow lawyers who view you as having integrity and competency.
Jim, I think you have grossly misapprehended the point of the post. This isn’t about “practice management” and the scum marketing vultures that prey on young lawyers. Not at all. Not even close.
This is about competence, the issue that none of the scum vultures concern themselves with at all. About the ability to represent human beings, not the ability to scam an unsuspecting populace out of a legal fee. This is about being able to fulfill the function people expect of a lawyer, not about how to cut the cost of paper clips and which model phone to use.
And absolute last thing this is about is sleazebag marketing. Who cares if you have clients if you are incompetent to represent anyone? Of course, the answer to that is marketers, the “lawyer coaching/consulting/cheerleading services” that thrive online and prove incapable of comprehending what it means to serve clients. For them, it’s all about cash: The lawyer’s to the marketer, and then the clients to the lawyer. Good hionest lawyering has nothing to do with it.
“grossly misapprehended,” eh?
Could be. And we may have to disagree. (I do agree with your 3 to 10 year window for serious criminal defense trial work.)
But IMHO it is simply impossible for a solo to be competent without being on the ball in managing his/her practice and more than a passing understanding of technology. It matters not how good your persuasive skills are if you don’t show up for the hearing or if you lose your client’s trust because you never call him back. In large firms, the cocoon can shield you from everything but substantive law. But that’s not so for the solo.
I know that’s not the same as learning how to be a lawyer from a real lawyer, which is why I led with that in my initial post. In many ways we all suffer from not having mandatory apprenticeships.
But the solo has to wear many hats, whether practicing in criminal law or bankruptcy law, and again IMHO, a solo can’t be competent without understanding their big picture and their priorities or if they regularly take 3 hours to prepare a document that should take 20. It is, in many ways, the fundamental difference between a solo lawyer and a small firm lawyer.
Thanks for the use of your “microphone.”
Perhaps I’ve been unclear. My post wasn’t about the nuts and bolts, but about whether a kid straight out of law school has the ability to hold someone’s life in his hands and be entrusted with it. As for nuts and bolts, that’s why Carolyn wrote her book, Solo By Choice, which covers pretty much everything you need to know. To piss money away on a coach when they couldn’t do half as well as Carolyn’s book is downright idiotic. But this post was about legal competence, not practice management, and most assuredly not about marketing.
Scott,
As always, this is real and honest, and tremendously helpful. Thanks so much.
Leon
Thanks Leon. You can find BS anywhere. A little honesty, even when ugly, is a scarce commodity.
I wonder why “recovering lawyer” Grant Griffiths is no longer practicing law.
A recovering alcoholic is still an alcoholic. Is the same true for lawyers?
I dunno, but it’s the same for writers.
Good afternoon Scott,
I have Asperger Syndrome (AS); it’s part of the autism spectrum. We Aspies, not to mention autists, often have (greater than average) difficulties navigating social environments, because among other things we pick up on social cues (hints, understatements, body language and the like) less often.
I write a blog, Building Common Ground, on how Aspies and autists can best get along with others – and vice versa. I’ve written on the importance of a good mentor or set of mentors – and on the importance (and relative rarity) of honesty – yes, even when ugly.
I found what you wrote on mentoring issues quite interesting, so I’ve blogged about it here.
Cheers,
Jeff Deutsch
Hey Jeffrey,
I’ve read your blog and it’s terrific, and a subject that is dear to me as well. I’m glad that my post was helpful.
I too followed that link — what a terrific blog. Thanks for the work you’re doing.