The Lawyer’s Duty

January 16, 2018 § 2 Comments

In the spirit of the new year, which is always a good time to reassess and reevaluate, I offer you MCA § 73-3-37, with which I am sure you are familiar, but perhaps would like to read anew:

It is the duty of attorneys:

(1) To support the constitution and laws of this state and of the United States;

(2) To maintain the respect due to courts of justice and judicial officers;

(3) To employ for the purpose of maintaining the causes confided to them, such means only as are consistent with truth, and never to seek to mislead by any artifice or false statement of the law;

(4) To maintain inviolate the confidence and, at every peril to themselves, to preserve the secrets of their clients;

(5) To abstain from all offensive personalities, and to advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which they are charged;

(6) To encourage neither the commencement nor continuance of an action or proceeding from any motives of passion or personal interest;

(7) Never to reject, for any consideration personal to themselves, the cause of the defenseless or oppressed.

Magnolia State Chalks up Another Milestone

April 24, 2017 § 4 Comments

Mississippi is unfortunately first among last-place finishes in many categories.

But the latest is a low even by our standards. The February bar examination results are in, and the pass rate was an abysmal 36%. You read that right — 36%. You can read Above the Law’s snarky post on this fiasco at the link.

For comparison, last February’s pass rate was 63%.

What exactly is up with this? Are the law schools doing a poor job preparing students? Have the grading criteria changed? Did someone decide we have too many lawyers and tried to turn off the spigot?

My class still had the diploma privilege when we graduated in the early 1970’s. That meant that graduation from the state-supported law school created a presumption that one was qualified to practice law. The privilege was abolished in the 1980’s, and every graduate from every law school afterward was required to pass the bar exam. I’m not sure that there’s been a major upswing in the qualification level of newly-graduated attorneys since that change.

Notwithstanding my presumed qualification, I took the Tennessee bar exam in 1974, even though my employer did not require it. I still remember opening that letter with shaking hands and the satisfaction I felt at passing. I can only imagine how it must crush one’s spirits to be one of the 64% who did not pass the February exam.

New Year’s Revolution

January 3, 2017 § 1 Comment

The new year. A time when one chapter is closed and another is opened, with 365 glorious blank pages on which you can write the next installment of your life. It’s a time when you can change the plot, add and subtract characters, and even make your hero (you) even more phenomenal.

Most people think in terms of New Year’s resolutions. Those are the seldom-kept self-promises that most people think will somehow turn their lives around.

Why not think instead in terms of a New Year’s Revolution. Declare your independence from some of the old ways of doing things and adopt a new constitution that spells out better, more effective ways.

Here is a handful, just to get you started:

  • Be more efficient. Stop putting everything off until you have an insurmountable mountain of work deadlines all coming due at the same time, usually when you can least afford to deflect attention from even more important tasks. Delegate non-essential and repetitive tasks to your staff. Implement  a file diary system and follow it diligently. Remember that the only way to eat an elephant is one spoonful at a time. Likewise, you will find your life easier if you break complex tasks down to their component parts, address the parts in order of importance, and let your staff help you. That does not mean that you sacrifice attention to detail. A juggler who pays attention can keep may objects flying at once; a juggler who does not pay attention breaks a lot of plates and loses a lot of paying customers.
  • Keep up with your probate practice. Make it your goal in 2017 to be one of those attorneys who file inventories and accountings on time and correctly, who keep up with fiduciaries and wards, and who never let things spin out of control. It takes some attention and the will to create workable systems to manage a probate practice, but it can be done with some effort. It’s not rocket science. Look around you; some of the most ineffective lawyers in other areas somehow manage to stay on top of their probate matters, while even brilliant lawyers get summoned to show cause for not keeping theirs in line. All it takes is the determination to come up with a systematic approach, and then to stick to it.
  • Make time for your life. The law is not your life; it’s only a part of your life. If you are being smothered by the demands of your caseload, you probably (1) are not being efficient (see above); or (2) are not doing a good job deciding which cases to accept and which to turn away, so you are overloaded. You need to have leisure time to share with family and friends, to hunt and fish, or take a walk, or work out, or read a good book, or listen to music, or go to a movie.
  • Be more professional. The new year is a perfect opportunity to evaluate your professionalism. Ask yourself whether your pleadings and other filings look like they were prepared by a top-notch lawyer, or were slopped together by a hobo. Ask yourself whether the way you greet and interact with your clients reflects sincerity, knowledge, and concern for the client’s best interest, or impatience, sloppiness, and overriding concern for fees. Ask yourself whether your interaction with judges, clerks and courtroom staff is courteous and empathetic, or whether you come across as an arrogant, demanding jackass. Ask yourself whether you treat opposing counsel and party with respect and professional courtesy, or whether you treat them like an enemy to be destroyed. The positives can be polished and improved on. The negatives need to be eliminated.
  • Be on time. If lack of punctuality is your vice, take the opportunity of the new year to change your ways. When a lawyer is late in my court, I take it that the lawyer is telling me and everyone else there that whatever she was doing when docket call or hearing started was far more important to her. Being late is being unprofessional. Clients recognize it as such, and so do the other lawyers. Judges certainly do, and unprofessional lawyers find it much more difficult and time-consuming to have their matters concluded by the judge because the judge feels that she has to check to be sure that every i is dotted and every t is crossed. If you are chronically late, you need to come up with some strategies for being timely. Whenever you are late, whether for the first time or twentieth, you need to apologize to the judge and others who were inconvenienced by your tardiness, and give a brief explanation of what held you up.

That’s a meager few, but if you can’t come up with some on your own, they are at least a starting point.

Oh, and every day is another start to the rest of the year. So if you fall short one day you can recover the next.

Every day is an opportunity to be a better person, spouse, parent, lawyer, friend.

Paying Attention

November 1, 2016 § 8 Comments

Has this ever happened to you? You have arrived at the head of the line at Wendy’s (or your customary fast-food joint):

You: I would like a small number one combo to go; hold the cheese and onions.

Wendy: Number one combo. Here or to go?

You: To go. And did you get the no cheese and onions?

Wendy: Number one combo. Large or small?

You: Uh, small. And no cheese and onions, right?

Wendy: You want no cheese and onions?

You: Right. No cheese and onions.

Wendy: Number one combo. No cheese and onions. Small. Here or to go?

[If you weren’t paying close attention, you might want to read through that again slowly]

When you get to your vehicle, odds are 3-1 that there is either cheese or onions, or both, on your burger. Happens all the time.

Not trying to pick on Wendy’s. Or fast-food joints in general. Or the people who work there. It’s just a cultural thing nowadays that people are used to getting their information in small, rapid snippets. They are accustomed to doing three or four things all at once, not doing any of them particularly accurately. They simply are not used at all to pausing to gather enough information and apply a cognitive process to it. That takes too much time and effort.

And our modern apparatuses facilitate this. I have sat at a table in a nice restaurant and observed all four people at a neighboring table studying their smart phones as if they were sacred idols. No conversation. No interaction. When the waiter asks if they are ready to order the scramble is on to pick something off the menu so they can get back to their devices. At home, how many of us spend our evenings staring at the tv screen, or dabbling on a laptop or tablet while the tv is going, or doing all of that and talking on the phone — all while someone else sits across the room doing the same? None of this is paying attention, by the way; it’s scattering attention to render it completely ineffective.

This lack of attention thing seeps into your practice via your clients. You get something like this from your clients all the time: “You said the judge would definitely find my ex in contempt for not allowing me visitation” when you know good and well you never said any such thing. People don’t take time to hear and process.

Oh, and you and your office staff are not immune. You proofread discovery while answering email while returning phone calls and giving directions to office staff. You can’t pay attention to one thing when your attention is divided four ways.

It seems to work so well in everyday life, though. People seem to survive and even thrive while juggling three different devices and information sources.

But what works in pop culture and even in day-to-day business does not necessarily work well at all in the law.

Not paying attention is a luxury in which no one in the law or the judiciary can afford to indulge. Too much is at stake. The law requires precision in language, in thought, and in writing. Poorly worded questioning will allow a slick witness to slither away from the truth, or, worse, will deprive you of a crucial point in the record for appeal. Your unthoughtful arguments will be picked apart by counsel opposite and the court. A sloppily drafted contract or PSA will wind your client back in court nine times out of ten.

Lawyers who have been here in the Far East of Mississippi can confirm that I don’t do telephone conferences except in the most extreme situations. That’s because if you are sitting in my court room or in my office I can observe whether you are paying attention and whether I am making contact with gray matter. Over the phone, I don’t know that; I don’t know that you aren’t practicing your putting, or texting, or working crossword puzzles, or playing Minecraft while I am instructing how I want the order drawn.

Paying attention may be our most essential survival skill. A wildebeest that does not pay attention, for example, gets to enjoy being a lion’s dinner. It certainly applies in the law. Pay attention: the life you save may be your own.

25 Reasons Why Lawyers Hate to Practice Law and Go Crazy

March 18, 2016 § 4 Comments

An interesting article at catalogs 25 reasons why the practice of law can be corrosive and eat away at your well-being. You can find it at this link.

Some of the reasons include: being accountable for so many small details; having to work constantly and compete with peers; exhaustion from the constant conflict; the stress; the very high cost for making mistakes in mundane matters; the pay is not enough; student loans.

If you don’t seek out and find oases of peace and contentment the practice of law will eat you alive.

An article in the Washington Post relates that the rate of lawyers who have “hazardous, harmful alcohol-dependent drinking” problems is 20.6%, while the rate for all Americans is only 6.8%.

Stress and its Toll on the Legal Professional

February 21, 2016 § 1 Comment

A thoughtful post on Phillip Thomas’s Mississippi Litigation Review & Commentary blog on stress and the unhealthy ways that lawyers cope with it.

How Will You Measure Your Life?

December 18, 2015 § 2 Comments

Lawyers are driven to accomplish. We are ambitious and goal-driven. Sometimes in pursuing lofty goals, though, we can lose sight of the opportunities we have to make a difference. The importance of making a difference in your own little slice of the universe is something about which I have posted here previously.

Here is a Ted Talk with Harvard Business School Professor Clay Christensen that offers some insight into what really counts and what will ultimately be the measure of your life.


Thanks to Attorney Michael Grace

Why are Lawyers so Unhappy?

September 22, 2015 § 2 Comments

An excerpt from psychologist Dr. Martin J. Seligman’s book, Authentic Happiness.

The Bar’s Economic Survey

August 27, 2015 § 6 Comments

I was looking to find time to summarize the results of the Bar’s 2015 economic survey when — Voila! — Philip Thomas did it handily on his Mississippi Litigation Review and Commentary blog yesterday. You will find his article at this link.

Mr. Thomas likes to poke fun at himself for his somewhat gloomy outlook about the state of legal practice in Mississippi — he humorously refers to himself as “Mr. Sunshine.” Yet it’s hard to argue with the numbers that show the legal profession in economic decline. It’s too soon to conclude that the decline is permanent or even long-term. We all know and have experienced that cycles of boom and bust have occurred in the legal field for as long as there have been people paid for dealing with the law.

There are, however, some structural factors that point to a more pessimistic future:

  • The cap on damages has slowed down PI firms and defense firms alike, and that is not likely to change until the caps are removed.
  • The economy is slow. Most Mississippians have not been able to climb out of the hole they fell into in the 2008 recession. As a result, they have less money to spend on lawyers and litigation and lawyers are retained only when absolutely necessary; when they are retained, they are under pressure to keep costs low.
  • Another side effect of Mississippi’s sluggish economy is that case filings are down; in some districts they are ‘way down.
  • The commoditization of legal practice continues to expand, putting pressure on lawyers to innovate or go extinct.
  • Business has become on-demand, and people are used to having instant or near-instant access to what they want. Our court procedures, on the other hand, take months and years to reach even simple conclusions. Some of the ways that we practice law and administer our courts, using nineteenth-century techniques and concepts that are becoming increasingly unwieldy in the twenty-first century, encourage people to look for more efficient processes. They want to to avoid cumbersome court procedures and the expensive lawyers who work with them in favor of more streamlined, quicker means.

That’s the downside. The upside is that lawyers and judges are increasingly becoming awakened to these realities, and are beginning to find ways to adapt and survive. New forms of fee arrangements are making lawyers more affordable and accessible. Lawyers are using technology to speed up their communications with and service to clients. More and more state courts in Mississippi are using electronic access. And, as commoditization becomes more widespread, so will the need for lawyers to come in and clean up the self-inflicted mess.

I commend the economic survey to your study. It’s important to understand the trends, to think about how you will cope with them, and to plan for the future.

Researching the Research

August 3, 2015 § 5 Comments

Commoditization of legal matters has caused small-firm practitioners to look for areas to cut costs. Lawyers have told me that they have discontinued services like Westlaw and Lexis because they are simply too expensive.

Google Scholar offers a free legal research tool. You can access it at this link. I can’t really tell you how accurate or helpful it might prove to be in the routine practice of law, because I haven’t spent much time with it. I accessed it on a test basis last week and entered “joint custody impractical” as a search term. It returned a bunch of cases, all of them, as far as I could see, on point. It did not return last week’s COA decision in Thames v. Thames, which is the latest case on that issue. Nor did it give me Mosley v. Triangle Townhouses, LLC when I searched for “real estate commission for non-licensed broker,” likewise a COA case from last week. I don’t know the delay between hand-down and reporting on Google.

An article that may help you discern the strengths and weaknesses of the Google engine can be found at this link.

The MS Bar offers access to the legal search engine Casemaker as a benefit of membership, thereby saving you additional subscription fees for that service. You may have had excellent results with it, but I never did when I was practicing, and I have heard other attorneys complain about it; conversely, I have never heard anyone extol it. Your experience may be different.

If you google “free legal research engines,” you will pull up a wealth of links to various services, and you may wish to sample them.

We judges use Westlaw, and in the past have used Lexis when it offered AOC a better deal. Both are good, and produce useful, topical research results. Here in Lauderdale County the supervisors purportedly provide Westlaw as a service to the bar and jailhouse lawyers. The only problem is that access is limited to one person hired by the Sups to do the job, so lawyers are at the mercy of a non-lawyer to do their legal research for them. That’s an entirely unsatisfactory arrangement that could invite malpractice claims, and I don’t know of a single lawyer — other than the writ-writers behind bars — who avails himself or herself of this program. It might be possible for a county to provide a monthly subscription at a terminal for lawyers who pay a set fee for X amount of time, and then are billed for any overage.

No matter what your solution, you have got to have the ability to do legal research if you care to survive any amount of time as a lawyer.

— Thanks to Attorney Marcus Evans for the links to info about Google Scholar 


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