Published By: Maxwell S. Kennerly, Esquire

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Last week, Stephanie West Allen at Idealawg posted a speech given by United States District Court Judge John Kane at his law school’s 50th reunion.

Some folks jumped all over one paragraph near the beginning as a vindication of their personal grudges against young lawyers:

I wish I had a better grasp of the issues, but this newest generation seems to possess an entirely different set of values. They are more concerned with lifestyle than clients or causes. We thought hard work and perseverance would eventually lead to a partnership in a firm and it was an unusual event when a partner left one firm and joined another. That kind of dogged loyalty is a thing of the past.

I wonder about Judge Kane’s use of the word "we." Judge Kane had a distinguished career, most of it in public service as a district attorney, public defender, Peace Corps officer, or judge. I don’t think he’s representative of his generation; I think he’s a cut above, more dedicated to professionalism and service than most. I thus question his remarks about lifestyle, clients and causes — is he comparing himself to the most lazy and cynical of the young lawyers, or to the comparable public servants and public interest young lawyers?

But let’s move on to the meat of the speech: loyalty. Whose loyalty was Judge Kane questioning?

Later on:

Ten days ago the Bureau of Labor Statistics reported that the American "legal industry," as it is now called, lost another 1,100 positions in April marking the second month in a row of quadruple digit job losses. In the last year the legal industry has lost more than 28,000 jobs. The White House Council of Economic Advisers says the labor market is healing and that’s a sure sign that the economy is recovering from the recession, but it will be years before the recovery visits the legal sector.

Think of these young people who graduated here today. At least half of them don’t have jobs to go to — and many of them are saddled with student loan debts exceeding $100,000. The law schools have become profit centers for the universities and they are churning out law graduates at the rate of 40,000 per year without regard to the economy’s ability to absorb them.

Many law firms are no longer hiring first, second or third year associates because clients are refusing to pay for them. What general counsels are looking to hire, both in-house and out, are lawyers not trained to think like lawyers, but like businessmen. As one such general counsel said recently, "The greatest asset we look for is the ability to read a spreadsheet." One look at the Wall Street fiasco should tell him that is the last thing he should be looking for. He should be looking for wise counsel from someone who understands the value of history and the caution that should accompany every opportunity. We need to ask, however, if that is what the law schools now are purporting to teach.

Even if new graduates can find employment in the private sector, the social contract with law firms has completely eroded. What rewarded the Baby Boomers is no longer available to the Millenials: they have almost no chance of making partner, with the attendant financial security and status that was the quid pro quo for the client-service centered work ethic. What do they have to fall back on?

If you are part of the hiring process at a firm, you need to read that paragraph over and over again until you really understand it.

It was nearly three years ago, at the very beginning of the Big Law meltdown, that I posted Associates Beware: Big Law Feels No Loyalty To You, pointing out the hypocrisy of Thacher Proffitt’s decision to fire only the new associates in their imploding real estate and structured finance departments. A year ago, in The One Fact Law Students Should Know About Big Corporate Law Firms, I pointed out how large corporate firms were risky, transient businesses that will slough off the associates at the first sign of trouble.

None of this information was new. I certainly wasn’t the first to point it out. Open up any post on Above The Law and you’ll see more of the same.

Judge Kane gets it: the social contract between young lawyers and their firms has been broken. Firms show no loyalty to their young lawyers and so receive none in return. Even chimpanzees know the value of fair play; only corporate law firms don’t.

It’s not broken everywhere, of course. I believe in what I do and I like where I do it. Many of my peers, including some at big corporate firms, are the same. But viewed as a whole, young lawyers no longer relate to big firms the way the prior generations used to.

Judge Kane’s advice to young lawyers is sound:

I want to tell this next generation that the philosophers were right; that St. Francis, Buddha, Muhammad, Maimonides — all spoke the truth when they said the way to serve yourself is to serve others. And that Aristotle was right, before them, when he said the only way to assure yourself happiness is to give happiness. And while I’m at it, I want to tell them to read books instead of the computer screen. As the CEO of The Onion, that incomparable organ of informed satire, said to the New York Times when asked his advice for prospective employees: "They should start with Plato. He was a very practical man."

This is the part that’s often left out of rants about how lazy and selfish young lawyers are: when young lawyers speak of "balance," they speak not only of the time they put into their work, but in the meaning of their work. Judge Kane’s advice to lawyers — find meaning in your work and your life by serving others — is often exactly what young lawyers want, but can’t get, because they’re too desperate clinging on to whatever job they can find in this bleak market and too worried that the first sign of trouble at the firm they’ll see is a text from a friend saying "sorry to hear about your firm."

Finally, Judge Kane’s words to the generations above the young lawyers bear repeating:

We can leave our legacy by participating in mentoring programs, by becoming active in volunteer programs and the Inns of Court, and by having simple one-on-one conversations. The next time a friend or relative tells you that his or her grandchild is thinking of going to law school, what message will you impart? How have you lived your profession? Wasn’t the service you gave to others the source of your satisfaction? Our obligation is tell them just that.

Some of the most important developments in my career have come through simple conversations with lawyers, judges and professors.

If you’re fretting about how young lawyers don’t feel the way you do about the law, why not sit down with one and talk to them about how you find meaning in serving others through the law?

Trial lawyers — both defense-side and plaintiff’s-side — are always looking for an edge.

Every aspect of the trial has to be planned in advance, with multiple levels of contingency planning for when testimony, rulings or evidence goes awry. That’s a given, but it’s not enough.

There’s a whole cottage industry of jury consultants built upon trial lawyers’ insecurities, some reputable, some not so much, all of it quite pricey.

Most of it strikes me as pointless. Sure, a mock jury or consultant review can expose weaknesses in your case and reveal the importance of issues that you hardly considered — but so can a discussion with one of your colleagues. So can mere contemplation; if a case is prepared long enough in advance, it will take on new dimensions over time.

The trial consulting out there isn’t all bad. David Ball’s Damages holds a singular place in the canon of trial advocacy.

His latest work, written with Don Keenan — Reptile: The 2009 Manual of the Plaintiff’s Revolution — goes astray.

It’s not a bad book. Far from it. It’s a great book, with a lot of useful ideas for trial lawyers. And it certainly didn’t say anything that would warrant introducing it into one of Keenan’s trials.

The problem is with the "hook" the authors use:

Learn about the reptile brain, and how and why jurors make the decisions they do. This groundbreaking new research from Ball, Keenan, Jim Fitzgerald, and Gary C. Johnson teaches you how to make tort reform have only a negligible impact on juries. Using the jurors’ most primitive instincts of safety and self-preservation, you can show jurors that your case isn’t only about getting justice for your plaintiff, but about the livelihood of each individual juror and their communities.

Count me unimpressed. I’m happy to read about what those folks have to say about persuading juries.

But the "groundbreaking new research?" The "reptile brain?"

It reminds me of another field looking for The Next Big Thing:

A recent Times article described the use of neurological research and cognitive science in the field of literary theory.

“At a time when university literature departments are confronting painful budget cuts, a moribund job market and pointed scrutiny about the purpose and value of an education in the humanities, the cross-pollination of English and psychology is providing a revitalizing lift,” the article said.

Does this research — “neuro lit” is one of its nicknames — energize literature departments, and, more broadly, generate excitement for the humanities? Is it yet another passing fad in liberal arts education? If the answer is both, why does theory matter, even if we sometimes don’t understand what the scholars are saying?

The distinguished panel brought together by the Times’ is unimpressed. "The search for ‘the next big thing’ has seduced, and then bedeviled, literary studies for some time," says one. "New approaches to literature are always welcome, but, in general, they only provide a few jobs for the leaders of the movement and the first generation of acolytes," says another.

So it goes with trial law and neuroscience.

It’s a gimmick.

Last month the ABA Section on Litigation’s monthly magazine (titled, surprisingly, Litigation) published Classical Rhetoric and the Modern Trial Lawyer (subscription required to read it). The article focused on Artistole’s Rhetoric, published nearly two and a half millenia ago.

"Groundbreaking new research" it is not. "Withstood the test of time" is more like it. Here’s the full text of Rhetoric online. A sample:

There are, then, these three means of effecting persuasion. The man who is to be in command of them must, it is clear, be able (1) to reason logically, (2) to understand human character and goodness in their various forms, and (3) to understand the emotions-that is, to name them and describe them, to know their causes and the way in which they are excited.

Another:

No systematic treatise upon the rules of delivery has yet been composed; indeed, even the study of language made no progress till late in the day. Besides, delivery is — very properly — not regarded as an elevated subject of inquiry. Still, the whole business of rhetoric being concerned with appearances, we must pay attention to the subject of delivery, unworthy though it is, because we cannot do without it. The right thing in speaking really is that we should be satisfied not to annoy our hearers, without trying to delight them: we ought in fairness to fight our case with no help beyond the bare facts: nothing, therefore, should matter except the proof of those facts. Still, as has been already said, other things affect the result considerably, owing to the defects of our hearers. The arts of language cannot help having a small but real importance, whatever it is we have to expound to others: the way in which a thing is said does affect its intelligibility. Not, however, so much importance as people think. All such arts are fanciful and meant to charm the hearer. Nobody uses fine language when teaching geometry.

Getting an edge is great, but don’t forget the basics.

Following up on their own post a month ago, the dynamic defense duo at Drug & Device Law posted:

A couple of weeks ago, Herrmann noted in passing that, although many big firms now sponsor blogs, none of the ten firms with the highest profits per partner (that much-despised, but oft-cited metric) do. …

Many folks contacted us, on or off-line, to suggest why lawyers at the most profitable firms don’t blog.

Those ten most profitable large corporate firms — Wachtell, Quinn Emanuel, Boies Schiller, Sullivan & Cromwell, Paul Weiss, Cravath, Simpson Thacher, Cleary, and Schulte Roth — "have no apparent affiliation with any blogs at all."

D&D Law summarize the opinions offered to them as:

1. Lawyers at the most profitable firms are stupid.

2. Lawyers at the most profitable firms are too busy.

3. Lawyers at those firms won’t stoop to blog.

4. Lawyers at those firms don’t want to give away their product for free.

5. Lawyers at those firms lack the necessary skill set.

6. Lawyers at those firms believe that blogging is unlikely to yield a decent return on investment.

A little more detail at their site; sadly, they keep their conclusions to themselves. Maybe next time. Legal Blog Watch links to a few other arguments on the subject.

Let me take a page from another arena: content publishers. There’s been a big hoopla in the blogosphere lately over Malcolm Gladwell’s highly critical review in The New Yorker of Free, the new book by Wired Magazine’s editor-in-chief Chris Anderson, whose blog ("The Long Tail") is here. If you’re interested in that debate, Anderson’s response is here, Seth Godin’s take is here ("Malcolm is wrong"), and Clay Shirky’s ruminations on the inevitable end of the newspaper is here.

More useful for our purposes is Michael Nielsen’s thoughtful examination of the scientific publishing industry, in which he argues that "even smart and good organizations can fail in the face of disruptive change, and that there are common underlying structural reasons why that’s the case:"

[S]ome of the forces preventing change are strongest in the best run organizations. The reason is that those organizations are large, complex structures, and to survive and prosper they must contain a sort of organizational immune system dedicated to preserving that structure. If they didn’t have such an immune system, they’d fall apart in the ordinary course of events. Most of the time the immune system is a good thing, a way of preserving what’s good about an organization, and at the same time allowing healthy gradual change. But when an organization needs catastrophic gut-wrenching change to stay alive, the immune system becomes a liability.

Elite law firms’ hostility to the concept of "blogging" is a function of those law firms’ highly effective immune systems. The most profitable firms on those lists earned their way to the top by building effective, reputable practices that can command top fees for unique talent and experience. They are diversified, in demand, and have remained at the top of the field through multiple changes in leadership and in the marketplace. They have proven themselves.

Consequently, elite corporate law firms have built over time strong organizational immune systems, systems that, for example, quite literally reject foreign bodies from entering by way of resistance to lateral partners.

Mention blogging, social media, or the like and watch the immune system kick in. Why waste time messing with success? AmLawDaily picked up the phone, called the firms, and got exactly that answer:

[W]e put out calls to managing partners and spokesman at nine of the ten firms (we excluded Kirkland & Ellis, because, as Beck and Herrmann note, a Kirkland associate played a role in creating the popular Sports Law Blog) to ask them about their stance on blogging. The conversations we had centered on a general theme: The firms just don’t see the point. They are already successful, so they don’t feel the need to market themselves or prove their grasp of a particular subject matter in the limited spare time they have. 

We’ll let Jonathan Schiller of Boies, Schiller & Flexner sum it up: "I think the lawyers here are just too busy," he says. "I’m too old to blog. I’d rather play golf if I have a bit of free time."

The real question is not why big firms don’t "blog;" the answer is "because they don’t want to blog." The immune system rejects blogging, much as it rejects changes to alternative fee arrangements and compensation structures.

The real question is if elite corporate law firms should blog and the answer is yes.

How do I presume to know that? Because, as the AmLawDaily further points out, most elite firms effectively blog and have blogged for some time:

We wonder, though, whether there is much difference between blogging and putting out so-called client memos and (often) displaying those memos on a firm’s Web site. Wachtell, Lipton, Rosen & Katz, for instance, has about as austere a Web site as exists online anymore, and thus seems perhaps the least likely candidate in the Am Law 100 to produce an opinionated or less formal blog. But the firm regularly releases memos that are quite opinionated, including one in the fall that implored the SEC to reinstate the Uptick Rule to limit short-selling. That could just as easily have appeared on any high-brow economic law blog. (A firm spokeswoman and name partner David Katz did not respond to our messages seeking comment.)

You can read many of these Wachtell memos, along with memos from heavyweights at Cravath, Sullivan Cromwell, Latham Watkins, Gibson Dunn, et al, at The Harvard Law School Corporate Governance Forum, which refers to itself as a "blog." Skim down the list of "guest contributors" (not "guest bloggers") on the left side of the "Forum’s" website — might as well be a Wall Street Christmas party.

But they don’t call it "blogging." They call it "updates" and "newsletters" and "forums" and "panels" and "discussions." 

The wording doesn’t matter. They’re out there every day showing off their expertise for free. Welcome to blogging, you blogging bloggers.

One more issue before we go. As Nielsen also noted:

The problem is that your newspaper has an organizational architecture which is, to use the physicists’ phrase, a local optimum. Relatively small changes to that architecture – like firing your photographers – don’t make your situation better, they make it worse. … Unfortunately for you, there’s no way you can get to that new optimum without attempting passage through a deep and unfriendly valley. The incremental actions needed to get there would be hell on the newspaper. [Ed by MSK – more on this concept’s application to business here]

Thus, the real real question is if this blogging or crypto-blogging is the major shift itself or merely a small experiment as part of a much larger "disruption" in the legal industry comprised of, inter alia, blogging, social media, transparency, alternative fee agreements, telecommuting, virtual workers, outsourcing, and collaborative / cooperative practice?

Put another way, are elite corporate law firms sitting in a "local optimum" that works now but keeps them from getting to where they want to be in the future? Elite firms are certainly considering the possibility, hence finding their "client memos," for free, alongside competitors’ free "client memos," on a law school blog. They’re also upending the structure of their compensation and associate training, even if clients don’t believe them.

We may have to wait and see what the answer is. As described in Clay Shirky’s piece linked above, in which he summarizes the turbulent transition following Gutenberg’s invention of the printing press as "chaotic:"

When the Bible was translated into local languages some people saw it as an educational boon, others as the work of the devil. Erotic novels appeared, prompting the same sort of response. Copies of Aristotle and Galen circulated widely, but direct encounter with the relevant texts revealed that the two sources clashed, tarnishing faith in the Ancients. As novelty spread, old institutions seemed exhausted while new ones seemed untrustworthy; as a result, people almost literally didn’t know what to think. If you can’t trust Aristotle, who can you trust?

Only in retrospect were experiments undertaken during the wrenching transition to print revealed to be turning points. Aldus Manutius, a Venetian printer and publisher, invented the smaller octavo volume. What seemed like a minor change—take a book and shrink it—was in retrospect a key innovation in the democratization of the printed word. As books became cheaper, more portable, and therefore more desirable, they expanded the market for all publishers, heightening the value of literacy still further.

That is what real revolutions are like. The old stuff gets broken faster than the new stuff is put in its place. The importance of any given experiment isn’t apparent at the moment it appears; big changes stall, small changes spread. Ancient social bargains, once disrupted, can be neither mended nor quickly replaced, since any such bargain takes decades to solidify.