The Good Mentor

Happysphere Alert: Do not read this post if you only want to read happy things.  It will cause your eyes to burst into flames.  You too, Norm.

A while back, Mirriam Seddiq wondered what happened to all the mentors.  Mirriam had a mentor named Terry Kindlon, a hard-nosed, old school lawyer who told it like it is.  No sugar coating.  No hand-holding.  Hard work. Do the right thing. No whining.

Not everyone will have a Terry Kindlon.   But everyone should.  Young lawyers should not be expected to get out of bed and try a killer case with no idea of the tools they have at their disposal.  I get that.  But most young lawyers have friends.  Maybe even older lawyer friends.  Could not a younger lawyer ask questions of other lawyers? What about a trial advocacy class? What about just using the internet to figure out how to prep a case for trial? 

Times have changed.  Mentors have changed.  So have mentees. 

First, the bad news.  Not every lawyer with some age will necessary make a good mentor.  There’s something that happens to some lawyers between their fifth and tenth year of practice.  The idealistic zeal and certainty of youth begins to fade as they endure the harsh reality that life isn’t fair, bad things happen to good people and there is no such thing as justice.  At the same time, a new phenomenon occurs.  The bills come due for braces, the mortgage, school and the car is on its last legs.  Focus shifts off the things one can’t fix onto the things one must fix.  No longer is their time better spent reading the latest Supreme Court opinion then getting a new paying client to avoid the credit card late fee.

Life changes when you’re no longer on someone else’s payroll and your ability to feed the family depends on the next telephone call being a new (paying) client rather than a pitch to donate to the State Trooper’s Orphan and Weapons Fund.  I don’t blame any lawyer for following this path.  Feeding their family is a primary obligation.  But when their primary focus is on scoring the next client, they are unlikely to serve as the best mentors.

Mentees, however, are not what they used to be either.  I’ve mentored a number of law students and new criminal defense lawyers over the years.  I’ve seen the attitudes and expectations change.  While this is merely my anecdotal experience, it’s all I’ve got to work with, but it comports with what I’ve heard from other lawyers I respect.  Take that for what it’s worth.

My mentees used to be sponge-like; more inclined to listen, keep their eyes peeled, soak up everything that happened, whether in the office or in court.  Questions would be asked, but sparingly.  Never would they interrupt me while I was before a judge, speaking to a prosecutor or with a client.  Afterward, I would ask them what they thought, in a Socratic Method sort of way, so see what they took from the experience.  Then I would tell them my take, and we would talk about where and why we differed.  I never asked a mentee to carry my bag, but they would always grab it from my hand and carry it for me anyway.

Over time, things changed.  Mentees began asking more questions, often questions that would be answered if they simply paid closer attention.  They asked questions at inappropriate times, in front of clients and prosecutors, when I was before the judge in the well.  When told that they would have to wait until a more opportune time to discuss things, they would either persist or sulk.  No one had ever told them that they couldn’t have what they wanted on demand before.

The nature of the questions changed as well.  Rather than asking why I did what I did, they wanted to know if there was an easier way to do it.  Faster, simpler, less effort.  I would explain that there was no shortcut.  At first, they would respond with, “Just asking.”  Later, an argument would ensue.  My mentee would “explain” to me why they thought they had a better idea. Finally, it reached the point where my mentee would inform me that their opinion was at least as meritorious, if not more so, than mine.

When the mentee knows more than the mentor, there’s little point to the relationship.  After a few of these experiences, I demurred.  There was no sound reason to spend my time “mentoring” someone when the upshot was my being informed by my mentee that they knew better than me.  And make no mistake about it, it was a time suck.  Often a huge time suck, as their demands of me increased.  And I carried my own bag.

Jeff Gamso posts about a class action brought by a Toronto lawyer against Lexis/Nexis for taking briefs and motions filed in court and selling them to other lawyers online.  This post initially brought me back to the early days of the criminal defense listserv, where a common request was for a motion on “x”.  “I’ve never done a wiretap case before. Can anyone give me a wiretap motion?”

My initial reaction was that if the poster had never done a wiretap case before and felt less than competent to proceed on his own, then he had no business taking a fee from a client to do it.  My second reaction was that motions are workproduct, the physical product of what a client paid to have a lawyer create.  If the request was for the purpose of seeing the format, getting a leg up on how to approach the papers, I had no problem with it.  The poster obviously had no mentor to ask, so he put it out there for anyone, without particular regard to competency.

But my fear, and belief, was that the real intent of the request was for papers to copy, whether in whole or part, changing the name of the defendant and attorney.  Putting his name on another person’s work.

Give a person a fish and he eats for a day.  Teach a person to fish and he eats for a lifetime.

I was always happy to help another lawyer learn what I knew.  I was not happy to enable a lawyer to freeride.  The lawyer gained a fee off the work of another, while learning nothing in the process.

There are two schools of thought about sharing papers.  One is that it’s better to give the lawyer who lacks the ability to do his own work your papers than have him screw up the case and harm a defendant.  The other is that doing so is enabling bad lawyering.  I subscribe to the latter.  Your mileage may differ.

What Gamso writes about raised this problem to a new level.  Not only does Lexis/Nexis take the work of others, without their knowledge or approval, and make it available to others, thus making the author unwitting enablers should they subscribe to the same school of thought as me.  Lexis/Nexis takes publicly available papers and sells them.  They profit off of other people’s labor and effort.  It’s outrageous.

Whether this constitutes copyright infringement, and whether this is ripe for a class action, I don’t know.  These aren’t my areas of expertise, and I defer to those more knowledgeable about such matters.  But it is nonetheless wrong.

When Mirriam queried whether the internet would be the substitute for mentors going forward, I wondered whether the internet had the capacity to do what mentors do, to challenge and grow inexperienced minds.  Or would it be a place for mentees to shout to the world that they already know it all and have nothing to learn?  Or would it be a place they could just buy their “mentors” papers and never actually learn much of anything? 

From what I see in the blawgosphere, the answer is murky.  There are clearly some who want to learn, but there are also quite a few, ranging from first year law students to lawyers in practice for a few years, who not only know everything there is to know, but feel entitled to tell those of us who used to mentor people like them that we are clueless idiots.  For the sake of criminal defendants, I hope they are right, because the future is in their hands.

But I fear they are wrong.

20 thoughts on “The Good Mentor

  1. mirriam

    I don’t think the internet is a replacement for mentors, because no one can kick your ass, or raise a glass to a job well done, like a living, breathing human being can. But, if that is lacking,then there are legitimate places to go to get help. I suppose the trouble is sorting out the wheat from the chafe.

    I don’t know about copyrights, etc. But I think the current economic climate is driving all these new lawyers to set up shop without a chance to get their feet wet. What do we do about that? We can yell and scream and rant and rave, but they are here and a lot of them want very much to do a good job. How do we help them? Seriously. Yes, some might be annoying and think they know everything, but if we don’t do something to steer them in the right direction our profession is fucked.

  2. SHG

    Have you considered the efficacy of offering well-conceived answers and not just questions?  Your sentence, that “[w]e can yell and scream and rant and rave,” suggests to me that you accept the state of affairs as immutable.  Do you think that’s true, or can it be changed if we stop enabling and those who “want very much to do a good job” decide that there just might be a few things left to learn?

  3. Brian Gurwitz

    One of my mentors once told me, “It’s OK to call a spade a spade, but you don’t need to call it a shit shovel!”

    I now pass that advice on to you. I look forward to you recognizing me at some point as the mentor who made you see things differently, and turned you into a better person. It’s never too late to learn some new tricks, you old dog.

  4. SHG

    Sound advice, but I think the analogy misses the mark.  It’s no longer okay to call a spade a spade.  Now you have to call it an affirmative device that empowers the spread of life-giving nutrients so that pretty flowers can grow.  But I thank you for teaching me a new trick.

  5. Kevin Chan

    I’m a young lawyer-to-be set to be sworn in next month. I’ve been following this debate rather intently for about a month now.

    I read daily, and rarely comment (this actually being my first). Why? Because I know I have little of value to bring to the debate.

    However, I feel I have a reason to post today, if just to point out there are people like the mentees of old which SHG described, and I would hope to qualify myself as one of them. I allow myself such self-flattering liberty namely because I believe my work ethic reflects my above statement describing my reading and posting habits: I work hard, and keep my opinion to myself (and in the process just try to listen and suss out what I don’t understand at first glance). My opinion, spoken out loud, is simply a vocalization of my unformed thoughts – in other words, noise.

    That being said, a lot of what SHG described happens frequently on these blawgs for me. I read and I think and feel no need to comment. I have done this daily, tearing through new posts and archives alike, and I am thankful to have the opportunity to do so.

    I believe that all of those participating in this online discussion via their blawgging make an invaluable contribution to the legal community. You indeed all play the role of mentors for all of us who are humble enough to listen.

    Thank you all for speaking passionately about the topic. And, on the topic of language, if anything, calling a spade a shit-shovel just adds some color to my reflections for the day.

    Kevin

  6. SHG

    While it’s not even close to real mentoring, I’m glad that you’ve found the blawgosphere helpful.  For me, it’s the anticipation that someone like you will read blawgs that pushes me to write about other people’s assertions that I believe to be wrong or, say, in need of further discussion. 

    But please don’t misunderstand about opinions.  Your opinions aren’t worthless, but they may not yet have matured to the point of being as worthwhile as others.  By expressing them, you may get reactions that help for better frame your thoughts, perhaps note nuanced distinctions that you hadn’t thought about yet or were altered by experience.  It’s all good, as long as we continue to think. 

    Only people who suffer from the Dunning-Kruger Effect have no further use for learning or thinking.

  7. Gritsforbreakfast

    The complaint about profiting off your work product strikes me as pretty iffy. For starters, most routine filings fall into the cookie-cutter category. Plus, when you file a motion in court it becomes a public record. Lexis purchases, packages and sells that public record to somebody else, which happens every day with all types of public information (real estate deeds, driver license info, corporate SEC filings, etc.). Even if Lexis didn’t do that, the information is publicly available at the courthouse for anyone diligent enough to look. If another lawyer copies what you did, I don’t see where you have grounds for complaint against Lexis anymore than against the district clerk who also distributed the information. Your beef would be with the individual lawyer who copied you, and even then in most cases the alleged plagiarism isn’t wholesale and would probably fall under fair use unless it was. Lawyers have been copying each other’s briefs for generations. It’s ever been thus; the Internet just makes it easier and more obvious. It’s not like your filings were ever trade secrets.

  8. mirriam

    Wait, I’m confused. And, yes, there are no well conceived answers here (come on SHG, conception with me has never been easy)and just more questions but ok. So if I produce an original product (that isn’t copied from someone else) and I file it then it’s ok for someone else to copy it because it’s at the courthouse? Is that the theory? So, if someone buys a CD and puts it on the internet on a file sharing system, why is that a problem? What if it’s a cover of a song? I mean, someone else already wrote the song and played it and they are just copying it and then its just copying that the internet has made easier for me. I really don’t know why its different for my original work but not for Jessica Simpson’s?

  9. Jeff Gamso

    The technical answer probably has something to do with the fact that court filings are public records. That’s not true of the file sharing world as I understand it.

    The taking and using without credit may be offensive, but that’s a different issue.

    And it’s why my beef is really against Westlaw and Lexis rather than against the lawyers who use them. As I keep saying, I routinely make briefs and motions and the like that I’ve written available to lawyers who ask.

  10. SHG

    Is there a reason why you keep repeating that you have no problem with plagiarism, knowing that others do?  No one says you can’t give away anything of yours that you want, but does that mean others have to as well because you do?  Are others bad people because they prefer not to have others take their work, change the name and sell it to clients as if it was their own?

  11. Jeff Gamso

    No, I don’t find it at all objectionable that others are offended/feel ripped off by the plagiarism of their legal work product.

    I’ve said it a couple of times in response to Grits because he was making the same point – as he said – on my blog (where I said it in response to Mirriam, too), but mostly because I’ve been trying to focus on the particular part that offends me.

    It’s actually only in the context of legal motions, briefs, and the like that I don’t mind it. In every other context I find it deeply offensive. And the legal context view is personal, idiosyncratic, and I suspect atypical.

  12. SHG

    I appreciate that.  I would think that even with your general position, you would still want the choice to be yours rather than Lexis’.   While addressing the aspect that’s most offensive to you, let’s not sell out the other sart of the equation for others. 

  13. Gritsforbreakfast

    Scott, it wasn’t your choice before Lexis, either. If you filed a brief with the court, it became public and others could access or even reproduce its contents in their own briefs. This is by no means only an Internet-era practice.

    Also, the filing is on behalf of your client, it’s your work product but it’s your client’s brief. Ditto for the “plagiarized” brief, which is why I think it’s likely fair use. The CLIENT of the plagiarizing lawyer is the one technically “using” it, and it’s for a non-commercial purpose – their criminal case. The lawyer is the client’s agent, the brief is not your property.

  14. SHG

    While you’re theoretically correct that it could have happened in the old days, it didn’t.  And certainly it wasn’t sold by someone rumaging through files and making copies of papers.

    And your are right abut the work being done for the client, though the workproduct itself is the lawyer’s.  It’s a nuanced distinction.  The lawyer is the client’s agent for purpose of the client’s responsibility (the client is bound by the lawyer’s representations and arguments), but not in the sense you use here.  The content of the brief is the lawyer’s workproduct, not the client’s property.

  15. Christian deFrancqueville

    Before I went to law school I was a carpenter. I was passionate about my work. I would look at other people’s work that I admired and burned with the desire to learn how to do it. I worked as a laborer for a construction company. I started getting my skills together. It got to the point where none of the other experienced carpenters would teach me how to do new things. For some reason, they were reluctant to share their experience with the young guy. So I quit and took a job where I would learn new things. Eventually, I got to know the best carpenters in the area. I took a pay cut and began working for one of them. This experienced carpenter liked to teach. He wanted to be a mentor. While in law school I ran a successful construction company. I generated business and fulfilled my customers expectations.

    While I was in law school I lived next door to a very respected and well known defense attorney. It was no accident. My friend owned the building next door and he let me renovate a run down apartment and I moved in. I wanted to get to know this defense attorney. I wanted him to be my mentor. I wanted him to hire me. For the most part he discouraged me from becoming a lawyer. At one point he said “you don’t have what it takes”. He rarely discussed his work with me. When I graduated and passed the bar I painted his building. I renovated an office in the basement of his office where I could work. All in the hope that we would start sharing his experience with me and maybe give me some work. I organized his library for free. I renovated the office for free. Then one day he said he had no interest in being a teacher or a mentor. Years of my effort went down the drain and I was out of there.

    I never wanted a “job”. I wanted be around someone to learn from. Luckily I had my carpentry to fall back on to pay the bills. Finally I discovered the blogging world. I was working on building a website and googled “Albany Criminal Defense Attorney”. The “Albany Lawyer Blog” popped up and here was this blog by a lawyer talking about his work. He was sharing his knowledge and experience. A few days later a job offer by him showed up on Craig’s list. I got the job and took a big pay cut to work for him. His name is Warren Redlich. His dad was a Professor at Albany Law. He liked to teach and wanted to be a mentor.

    After eight months I had argued at several hearings, prepared for trials, filed motions, and appeared in court three or four times a week. I learned quickly. And than I got fired. I was insubordinate. I started to disagree with some decisions. I might have even called him an asshole. I was devastated but pressed on. I was getting calls by potential clients. I started my own practice. It is going well.

    A few weeks after being fired I read one of Warren’s early blog posts. He said that his practice was his baby and he would rather teach an associate how to start his or her own practice than let go of his responsibilities.
    That’s my mentor story.

  16. Venkat

    Lexis and others have a way to get around any ownership issues that may arise. (Also, with things like PACER, so many pleadings are available online that people who want to track down pleadings have ample alternatives.) Lexis could index the pleadings, and just point subscribers to where the pleadings are available online (Pacer/court websites). You would be paying for the index created by Lexis. Regardless of who owns the copyright (probably the lawyers) the copyright owners would have a pretty tough time arguing that Lexis is infringing by indexing pleadings and making this index available. Ultimately, the copyright owners would be left with claims against the lawyers who copy the pleadings, and it would be pretty tough to hold Lexis liable for this.

    This sort of reminds me of the time when a law firm asserted copyright in a cease and desist letter the law firm had sent (to prevent the letter from being posted). Most people laughed at this, although it ended up resulting in a fair amount of wasted expenditure.

    My own feelings about lawyers complaining about “stealing pleadings” is probably influenced by this type of a situation. I do get annoyed when people ask, but even experienced old-school credible lawyers do look at other pleadings. They don’t copy them, but they’re helpful to look at often. So it’s tough to pin down whether someone is asking out of laziness or because they just want to see how others are dealing with certain issues.

    [A crowd-sourced system is another alternative. It has obvious drawbacks, but people could probably upload or point to pleadings for the purposes of discussion. If people want to download for purposes of copying, that’s their issue.]

  17. mirriam

    He is one of the only people in Albany who has a blog (well, I did, but I was anonymous). I now wonder who the criminal attorney was that you did the work for that never hired you. The Capital District is a small world.

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