Judge Schiltz on Lawyers

I randomly stumbled across a very interesting and readable old (1999) article written by Judge Patrick Shiltz entitled, "On Being a Happy, Healthy, and Ethical Member of an Unhappy, Unhealthy, and Unethical Profession."

It's long, and somewhat outdated in its particulars, but it holds up rather well. It touches on some themes I've discussed here, but Judge Schiltz has perhaps a better explanation than I do for the apparently irrational profit-maximizing behavior of lawyers:

Why do you suppose sixty year old lawyers with millions of dollars in the bank still bill 2200 hours per year? Why do you suppose lawyers whose children have everything money can buy but who need the time and attention of their parents continue to spend most nights and weekends at the office--while continuing to write out checks to the best child psychologists in town? Why do you suppose one big firm partner I know flew into a rage after learning that his year-end bonus would be only--only--$ 400,000, while the bonus of one of his rivals in the firm would be $ 425,000? Why do you suppose that another lawyer I know (a lawyer making $ 1 million a year) came within a whisker of quitting his firm after losing a bitter dispute with one of his partners (a lawyer making over $ 2 million a year) over a $ 10,000 payment?

It is not because these lawyers need the money. Any of these lawyers could lose every penny of his savings and see his annual income reduced by two-thirds and still live much more comfortably than the vast majority of Americans. What's driving these lawyers is the desire to win the game. These lawyers have spent their entire lives competing against others and measuring their worth by how well they do in the competitions. And now that they are working in a law firm, money is the way they keep score. Money is what tells them if they're more successful than the lawyer in the next office--or in the next office building--or in the next town. If a lawyer's life is dominated by the game--and if his success in the game is measured by money--then his life is dominated by money. For many, many lawyers, it's that simple.

The whole thing is worth a read.

--Bart Torvik

Work-Life Balance is Just a Number (of Clients)

One strain of work-life-balance thinking seems peculiar to lawyers. It's the idea that lawyers' duty to their clients is absolute and therefore any attempt to "balance" something against this duty is fundamentally illegitimate. According to this view, lawyers should know when they enter the profession that "life" must always take a backseat to "work."  Here, for example, is lawyer Scott Greenfield blogging along those lines:

But you have things you like to do, prefer to do, more than practice law?  That's cool, but then you've chosen poorly. Law doesn't happen at your convenience. Judges rarely ask whether the brief they demand tomorrow will interfere with a great band playing at a local club. It's not wrong that you want to go, but that you enter into a responsibility thinking your good times trump duty.  The client, who sits awake at night believing that there is a professional working diligently to save him from ruin, has things he would rather be doing too.

I agree it's reasonable and correct to expect that lawyers will not let their "good times trump duty." I agree with this because everyone agrees with it. It's banality masquerading as straight talk. No one actually thinks "work-life balance" means asking a judge for an extension on an overnight brief (which, in real life, happens only in the middle of trial) to make time for partying, or even for junior's soccer game.

The work-life balance problem is not a battle between noble lawyers demanding duty to clients and feckless lawyers fighting for their right to party. All lawyers agree that direct conflicts have to be resolved in favor of the client. The disagreement, really, is about how many clients a lawyer should have, and how often those conflicts actually occur.

This is especially true at bigger firms. Associates who demonstrate competence will quickly find themselves in high demand. Partners will find more and more work for them to do. Usually, the culture of the firm will make it hard to turn down work without harming your prospects for partnership—even for associates who are meeting their billable hours requirements. This culture creates many lawyers who really just have too many clients. They aren't working 80 hours a week because it's what's required to professionally and properly represent a client or because it's required to earn a decent living. No, they're working 80 hours a week because it's required to properly represent 20 clients, all at once.

The solution when that happens is pretty obvious: get two lawyers to represent 10 clients each, and they'll each get to work 40 hours a week. The push for work-life balance in law firms is essentially a push for that sane solution. It is a push against a culture that rewards those who hoard work and punishes those who refuse to represent too many clients at once. That's all. I also happen to think that it is a pro-client movement, because overworked lawyers are less likely to produce top-notch work.

Lawyers have a duty to zealously and competently represent their clients, and this sometimes requires sacrifice. But there's no duty to have 20 clients at a time. In fact, there's probably a duty not to have so many clients. When I hear stories about lawyers with two hearings scheduled at the same time—offered as an example of how hard a lawyer has to work—I can't help thinking that one (or both!) of the clients is getting screwed. But I have to agree that it sounds pretty macho.

What's driving this? Simple greed. What really pushes big firms to require their associates to take on too much work, and what pushes solo practitioners to take on too many clients, is just lust for money. A solo practitioner with two or three good clients can make a very good living. In-house lawyers tend to do quite well for themselves representing a single client while punching a clock. But many lawyers want, and feel they deserve, more than a decent living. They want, and feel they deserve, to be rich.

I have a saying: getting rich is the easiest thing in the world—you just have to work all the time. This applies to lawyers as much as anyone else. A good thing about being a lawyer, though, is that if you're smart and organized you can be quite well-off without having to work all the time. In practice, this means making sure you never have too many clients.

Or, like me, you can go with Plan B, which is to marry well.

The Hard Work and Home Life of Me, Your Average Lawyer

There's a provocative post over at Lawyerist entitled, "Being a Lawyer Doesn't Mean Long Hours." The author, Chris Bradley quotes someone quoting Sheryl Sandberg, Facebook's COO, saying she goes home at 5:30 p.m. every day, and asks why lawyers can't do the same. The commenters mostly take Mr. Bradley to task for even suggesting such a thing, and I agree with them.

Here's my take. People talk about "work-life balance," but I find the best course is just to maximize everything. The most important thing to me, by far, is my family. Except for my clients, to whom I devote every waking moment. Of course, during the in between moments I must admit that all I care about is myself. And money. I contain multitudes, after all.

A day in my life is just the average day, I believe, in a lawyer's life. I awake before dawn to train with the ghost of Bruce Lee for four hours. I then pen letters to my children and tuck 'em underneath their pillows. Just as everyone gets up to eat the breakfast I've cooked for them, I head to the office. Today, for example, I checked in and started and finished the supreme court brief that was due today. Then it was off to the courthouse for a two-week trial (which I finished in one day). Over lunch I taught a six-hour CLE (three ethics credits). The afternoon was filled with client meetings. I had four clients scheduled for 2 pm, six clients scheduled for 3 pm, etc., all the way until 8 pm. After these meetings, I headed home at 5:00 pm, picked up the kids from daycare, and cooked dinner in time to have it waiting for my wife when she got home from work. After that I bathed the kids while leading seven conference calls with various clients simultaneously. I then read the Lord of the Rings trilogy (including the poems and songs) to the kids and put them down for the night. Next I made sweet love to my wife for three hours (cut it a little short because tomorrow is Valentine's Day, after all). After my wife fell asleep, it was off to my other family's house. I arrived there about 5:30 pm and was also able to cook dinner for them. Baths, all seven Harry Potter books, more sweet love.

Then I surfed the Internet for about 11 hours, daydreamed about the Badgers' recent win over Michigan, and had just a little time to do some blogging.

Nothing special, I admit—just making it work, like all lawyers do.

Judge Posner Ruins Weekends

Not long ago, Mr. Gillette noted that some lawyers like to drop Friday afternoon bombs on their adversaries—apparently just to ruin their weekends. (Although an alternative explanation is that the lawyers are just trying to save their own weekends.)

Longer ago, I blogged about a patent infringement case that started out in the Western District of Wisconsin. The initial "newsworthiness" of the case was that a tiny Milwaukee bakery was included as a defendant among several other multi-national corporations. (**SEE below for update on that front.) But the plot eventually thickened when the case was reassigned for pre-trial and trial here in Chicago in front of Seventh Circuit Judge Richard A. Posner. (Judge Posner likes to keep busy, obviously.)

At that time I noted that Judge Posner's case management order contained a rather unorthodox provision: all motions were to be filed by the close of business on Friday, and responses were due by the end of the day on the next Monday. This is built-in weekend ruination. Someone asked in the comments whether that was standard practice in the Northern District of Illinois, but I never answered. Rest assured, it is not.

I decided to check up on the case. Right now it is mired in patent-litigation hell. Judge Posner issued his "Markman order" (construing various claims of the patent) back in August, then the parties exchanged expert reports. Now both sides have filed "Daubert motions" attacking the foundation and/or reliability of the other side's experts.

Just last Friday, Judge Posner issued an order regarding the Daubert motions. His two-page, single-spaced order notes that the Daubert motions raise two issues that require claim constructions not resolved by his previous Markman ruling. Judge Posner wants the parties to brief these two issues before he can rule on the Daubert motions. And, in this order issued last Friday, he says he wants those briefs by Monday—today.

Once again: happy weekend, lawyers!

***Update on East Side Ovens: Reader(s)™ may recall that I originally speculated that the only reason the tiny bakery (East Side Ovens) was included as a defendant was to secure a basis for venue in the Western District of Wisconsin, which has a reputation as a "rocket docket" in patent cases. This was bolstered when the plaintiff cited that reputation in opposition to the defendants' motions to transfer venue. And it was absolutely confirmed on September 12, 2012, when the plaintiff stipulated to dismissal of its claims against East Side Ovens. By that point, the venue issues were done, and the case had been transfered to Chicago for trial in front of Judge Posner. So there was no longer any need to keep the tiny bakery over the coals.

The People Who Want It All Are Hurting America

On Wednesday night, I read Anne-Marie Slaugher's thought-provoking and much-discussed Atlantic article, "Why Women Still Can't Have It All." I've been ruminating over it since, and figured I'd share my scattered thoughts here. 

Slaughter is of course correct that women still can't have it all. But no one can—at least not if you define "having it all" to mean achieving something more than tenure and deanship at Princeton without making significant personal-life sacrifices. Because it was only after Slaughter took a sabbatical from Princeton to work as a high-ranking State Department official that she had her epiphany that not every vector in life can be maximized simultaneously.

Slaughter makes clear that she is writing about only "highly educated, well-off women who are privileged enough to have choices." And what are their "choices"? Princeton or Yale? Nanny or au pair? Kidding aside, the choice is this: "Should I acknowledge that I have achieved enough, career-wise, and turn my attention to a more satisfactory personal life? Or should I attempt to absolutely maximize my career achievement, and hope against hope that somehow this will not involve significant sacrifices in my personal life?" 

When you spell it out, the answer seems rather obvious—and I think it is obvious to most women. The only people who get this question wrong are a small subset of robotic super-acheivers, almost all of whom are men. In other words, more men are career super-acheivers because only a buffoon would think that it is wise to make the sacrifices necessary to absolutely maximize career achievement—and almost all buffoons are men.

So men can't have it all either—they're just much more likely to think they can. The buffoon-robot-super-achievers end up going-for-broke, "achieve" the insane (literally) success they were seeking, and refuse to admit they've made a shambles of their life in the process. Since the human brain is essentially a machine that rationalizes whatever decisions we have made ("I have no regrets"), people rarely admit these kinds of fundamental errors in judgment ("Everything happens for a reason"). But from the outside, it's easy to see that most people who devote their lives to achieving maximum career achievement are absolutely wasting their lives. 

I espouse a mode of life that one writer has memorably called "the medium chill." The underlying insight is that maximizing achievement (or maximizing anything, really) is unwise, and not the route to the good life. I think most people (especially most women) actually agree. Most people (including most men) are unwilling to maximize career achievement at the expense of family life. The problem is that a majority of the buffoons who are willing to do so are men, so we end up being ruled mostly by men. Perhaps it would be better if more of these buffoons were women, but I tend to doubt it.

So how do we fix this? How do we change the world so that reasonable people are enticed to aspire to positions of leadership and high achievement? Slaughter argues that women have been able to achieve rather equal success at the highest levels of academia because of the flexible hours that an academic career permits, and points out that most other prestigious or powerful careers lack this feature. That's a great point, and it both explains the gender gap at the top of many professions and suggests a solution: flexibility and fewer hours. 

Especially fewer hours. Slaughter talks about "time macho," which is essentially the idea that he (always he, obviously) who puts in the most hours wins.  This is really the root of most of our problems. Even Slaughter sort of brags about how, as dean, she would tell student groups that she couldn't meet after 6:30 (because she had to go home to have dinner with her family) but that she was happy to come back after 8:00. That's still macho, Ms. Slaughter. The work day should just end at some reasonable point. If there's a job that requires someone to work 12 hours a day seven days a week, it doesn't take a mathematician to realize that that's actually two jobs. Two people should be doing it, not one.

The problem is that the buffoons are willing to work 200% of the hours for 175% of the pay. They're greedy—they want all that money. And they're arrogant—they think only they are capable of doing the work. Even though they are (supposedly) doing much of it at night after working all day, which is clearly not a recipe for good brain-based work. In fact, there's a real contradiction there: if these jobs are so mentally taxing that only the select few have the brain power to do them, then they are also too taxing for someone to do effectively for more than eight hours a day. On the other hand, if what really distinguishes these jobs is that currently they require a commitment to working very long hours, then it should not be a problem to simply split the job in half and have two people do it. Maybe we lose some efficiency, but probably not, and the other gains (increased employment, increased productivity) should more than offset the losses.

Culture is the problem. For example, in some professions people who try to work normal hours are thought by some people to be unserious about their work or lacking ambition. My response: "fuck 'em." When I worked at a big law firm, that was my advice to new associates wondering how to achieve work-life balance.  If you want a home life, you just have to go home at 6:00. If forces at the firm are pressuring you to stay later, you just have to accept that one of the consequences of having a life may be that you have to work at a different firm. Because if you don't, you end up sacrificing your personal life to keep working at a job you hate. The way to change the culture is for people, especially men, to stop making the idiotic choices that result in them sacrificing their personal lives in order to succeed at jobs they hate—choices that create a culture in which only the most insane can ultimately succeed. This really shouldn't be too hard. But it is!