Over at the Delaware Corporate and Commercial Litigation Blog, Francis Pileggi highlights one of the many quirks of practice in Delaware:
Professor Bainbridge discusses an article here from The Wall Street Journal that quotes a Delaware Superior Court judge in connection with a dress code for those who appear in his court. Most Delaware lawyers know that it is at least an unwritten rule that a “white dress shirt” is expected of lawyers who appear in a Delaware court.
Delaware, it must be said, has among the most formal and quaint procedures I’ve ever seen. Even though, as Pileggi previously pointed out, Delaware law recognizes no formal distinction between “local counsel” and “forwarding counsel,” it is still generally the practice in Delaware for local counsel to sign all discovery and letters for the court. Only a few months ago, opposing local counsel called me out for signing discovery requests with my name, rather than local counsel’s; in response, I shot back a copy of that opinion, and never heard another word from opposing counsel (thanks Francis!).
But I save the retorts for opposing counsel — far be it from me to tell the judge it’s odd and unnecessary for local counsel, as is the custom, to personally introduce me before each and every oral argument, even after I’ve been granted pro hac vice status and thus have entered the case, with the same responsibilities and duties as the local counsel.
When in Delaware, do as the Delawareans do.
But let’s switch gears for a moment.
I tend to agree with Mark Bennett that “experienced” isn’t “better” when “experienced” doesn’t mean “wiser,” just “older”:
When looking for a less-expensive lawyer, you can go one of two ways: either to a lawyer of the same vintage who for some reason charges lower fees, or to a younger lawyer. I always recommend that you look for the latter—a lawyer who is in the situation I was in, say, ten years ago: with four years of criminal-defense experience behind me, but without children, big mortgages, or a steady stream of clients; competent, experienced, and well-trained (ten years ago, I was coming off a string of acquittals and five weeks at the Trial Lawyers College) but working on developing the business side of my practice. Highly determined and energetic, and with lots of time to dedicate to the few cases on my docket.
The alternative would be an older lawyer who might be charging lower fees because he doesn’t have confidence in his abilities (and so doesn’t think he’s worth more), because he has a high-volume practice or because, despite the time he has had to build a reputation, others don’t think he’s worth more. This should not inspire confidence in the potential client.
That said, there are dozens of unwritten rules applicable to the practice of law, only a few into which other lawyers will clue you. There is, for example, no rule governing how a potential qui tam relator must preview a potential false claims act case to the U.S. Attorney’s office — there’s just a way of doing it, a way you only learn by doing it.
Which reminds me of one of my posts from last fall, Why It’s Hard For BigLaw Associates To Start Rainmaking, where I wrote:
Experience drives word of mouth, drives referrals, builds ability, builds confidence, and enables your practice to grow.
So how do associates get “it?”
Get clients in the door. You can’t compete on experience, so compete on price, on selectivity, on service, on anything you can.
Maybe that means cutting rates. Maybe that means billing fewer hours. Maybe that means taking difficult, frustrating, unprofitable cases. Maybe that means jumping into other fields and wasting dozens of unbillable hours just making sure you’ve got the basics right. Maybe that means spending some time, off the clock, figuring out how potential clients in your field find lawyers, and figuring out how to make their name the first that a potential client hears.
That is to say, associates need to use the methods other entrepreneurs use to build business.
Yet, few of those methods are available to associates at BigLaw firms, because the business model — which generates most of its profits by creating unnecessary work for recent law graduates — is designed for the short-term compensation of the partners, not the long-term career of the associates. Experienced rainmakers can squeeze every last penny of profit out of a case by having you spend all weekend reviewing documents. You don’t even have a case at all.
It’s hard to go a day without reading something about “work/life balance.” But what about work/career balance? “Working your way up the ladder” is often cited as a way for associates to succeed, but let’s be honest: these days, few people are putting out ladders for you to climb.
So scrap the ladder metaphor, start thinking about the bootstrap instead, and go learn all the white dress shirt rules out there.