This year will mark the beginning of my 5th decade of practicing law. Lawyers traditionally commemorate such a major milestone by reflecting on how the practice of law has changed over the years.
I won’t be doing that.
The truth is that the practice of law has not changed in the last 40 years. Lawyers act today like lawyers acted 40 years ago. Judges still act like judges and clients still act like clients.
True, the law itself has changed, but then it is constantly changing. There is no alpha and no omega to the law.
The tools used in the practice of law have also changed. The fax machine has come and almost gone, computers have gone from a rarity to a requirement, and law libraries with printed books are considered quaint. But tools are merely a footnote to the practice of law. They can’t issue-spot, analyze or argue. Tools are not reflection worthy.
What is worthy of reflection is how the practice of law changes a lawyer.
The legal profession is unique in that every part of it is adversarial. No other profession must deal with that. A dentist doesn’t install a filling and then have to defend it from removal by another dentist. A priest doesn’t engage in an open debate with the devil every time he gives his weekly sermon. An engineer doesn’t design a bridge while a saboteur armed with dynamite looks over his shoulder.
In contrast, a lawyer must always anticipate an adversary. Every action, whether transactional or litigation, is taken within that framework.
Contracts are drafted to defend the client. That explains why the deal you wrote out on a cocktail napkin will be revised by your lawyer into a 10-page footnoted contract in small print.
Wills are written to eliminate ambiguities and take advantage of laws you never knew existed.
Demand letters must try to resolve a problem while setting the groundwork for litigation.
Lawsuits are filed to obtain the maximum recovery without setting you up for sanctions.
Every action leads to a reaction. A lawyer’s necessary presumption is that the reaction will be adversarial. The result is lengthy contracts, conservative pleadings, and redundancy.
Sometimes even that paranoia is not enough. Judges, especially appellate judges, are not shy about pointing out errors and deficiencies in a case that an opposing counsel had failed to bring up. Sometimes those errors were not errors when they were made, but later became errors because of a newly announced interpretation of the law.
It turns out that judges are adversarial to lawyers, too. That is their job.
Every lawyer learns to listen, analyze, question and challenge. It becomes ingrained, but it is not an especially attractive behavior.
Only slightly more damning to a lawyer’s personality is the attorney-client privilege. A lawyer is restricted from revealing confidential client information, even when that information is generally known. Lawyers learn to keep quiet.
Combative and secretive. What’s left?
Ah yes, the facts. Lawyers are paid to solve problems they did not create. They often must deal with unsavory parties and unseemly situations.
Some lawyers internalize the battle and take a negative outcome personally. They become ineffective professionally.
Other lawyers accept that they did not create either the facts or the law, and their job is to fight for the best outcome. Those lawyers practice happily for their entire lives.
I was changed by the practice of law and that is just fine. Happily, here’s to the next 40 years.
Virginia Hammerle is an attorney with Hammerle Finley Law Firm. She is entering her 40th year in the practice of law. She is Board Certified in Civil Trial Law by the Texas Board of Legal specialization. Contact legaltalktexas@hammerle.com to receive her firm’s newsletter.
