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.