by Daniel DeWoskin
Recently, I have been involved in countless conversations with colleagues about starting up new law practices and joining existing practices. The economy is perhaps the most significant reason for this topic coming up so much more now than in years past, but many attorneys are using what might normally be considered adverse changes to their career path as an incentive to achieve better, more satisfying employment.
In this and upcoming issues of our newsletter, I will interview other attorneys regarding their personal experiences establishing their own firms and/or joining existing practices. There is no end to the considerations that we lawyers must examine as we make these sorts of decisions. A lack of planning and preparation can doom a practice before it ever has a chance to get off the ground. Furthermore, maintaining a healthy practice almost always means having the ability to adapt to change.
Trial by Fire
I myself hung out a shingle immediately after learning I had passed the bar. I researched the matter thoroughly, speaking to nearly every lawyer I met, asking their opinions on the matter. I was surprised to find that virtually all but a handful of these lawyers told me that I would be crazy to go out on my own without first working with, and more likely for, another lawyer or firm. Since crazy appeared to be the primary qualification, I was a perfect candidate for instantaneous sole practitioner. I should explain though, that the handful of lawyers that told me to simply “go for it” were, themselves, lawyers who started off on their own. That spoke volumes to me.
My preparation for beginning my own practice began in my second year at Georgia State University College of Law. Completely disillusioned by my law school experience, I began to wander the hallways and courtrooms of the Fulton County Justice Center. I observed dozens of trials before different judges, carefully noting the range of styles, techniques, and abilities of the many lawyers I watched try cases. I started wearing jackets and ties so that jurors would pay less attention to my presence in the courtroom. This was especially disconcerting in some of the criminal cases, where I could plainly see distracted jurors try to figure out whether I was in court to support the defendant or the prosecution.
After observing many trials from voir dire to verdict, I naively believed that with the occasional assistance of friends and colleagues I, too, could represent clients diligently and effectively. I was fortunate enough to see some truly magnificent lawyers try both civil and criminal cases. I took advantage of opportunities to discuss cases, strategies, and the law with counsel, judges, and occasionally even jurors. Some of these same judges, who were then a source of encouragement, later showed trust in my ability by appointing me to represent indigent defendants.
There is no question that I was terrified during my first few months as a lawyer. I was certain I was going to say the wrong thing or show up in court unprepared. I remember once telling Judge Roland Barnes that I was concerned I would not know what caption to put at the top of a particular motion. He took me back to his chambers, where he told me plainly that my caption should begin “Motion for the Court to…” and then simply state what I wanted. As an example, he pulled out a case in which a pro se defendant filed a “Motion for the State to Kiss My Ass” and then proceeded to enumerate a dozen or so reasons why the State should be compelled to comply with his unusual request.
From the moment I started out, I found that there were endless resources available that would help me learn the fundamentals, so that I could provide competent representation to my clients. The lawyers I knew were more than happy to provide me with guidance, and many were extremely generous with their time, as well. I never took this generosity for granted, and today I do all that I can to pass along that same courtesy. In fact I still find myself routinely seeking advice from colleagues, except now I am able to provide a more constructive dialogue based upon my own experience.
In deciding to strike out on my own right out of school, I had foregone much of the safety and security that I might have found working for other lawyers first. Most important among the things I sacrificed, at least at that time, was the paycheck that my fellow graduates were getting on a routine basis, while I had to spend more time marketing than practicing law. In hindsight it was a good opportunity to learn how important it is to manage overhead, and adapt to the financial ups and downs of running a small business. Many times I have envied lawyers who never had occasion to realize that a law practice is actually a business, as well.
It may come as no surprise that one of the most prevalent complaints from clients about their lawyers is that lawyers fail to return calls or to do so promptly. As a sole practitioner, not returning client calls promptly is not a viable option. In my experience sole practitioners are acutely aware of the vital need to maintain a positive working relationship with each client. The strongest commodity an attorney has is his or her reputation, which is established by knowledge, experience, and ability. A reputation cannot sustain itself without the approval of an attorney’s clients. Repeat business is essential. This was something I thought perplexing when I handled a lot of criminal defense cases. However, when there is a well-established trust between attorney and client, the groundwork is already in place for effective representation.
Another challenge I faced was not knowing exactly what kind of work I wanted to do. I knew I wanted to be a trial lawyer, but I was equally fascinated by medical malpractice cases, personal injury cases, and criminal cases. Although I did not wish to be a jack of all trades, at first I accepted work that I cared very little for, simply because I was paid to do it. I reviewed contracts, represented neighbors in disputes against one another in magistrate court, and spent hours and hours getting up to speed in areas of law that I was not at all interested in. I learned what sorts of cases I enjoyed, and what sorts of cases I did not. It is not by chance that I worked on exactly one bankruptcy case and exactly one divorce case. Suffice it to say that I do not like dealing with my own family’s issues, so getting paid to deal with someone else’s was not an intriguing proposition for me.
Aside from financial difficulties, I occasionally struggled with a lack of confidence about my knowledge of the law. I had not learned how to speak to clients and other lawyers. There was a very steep learning curve in some of these encounters that would have been much easier had I had an experienced mentor overseeing the details of my work. Today, I look back on some of the punches I took on the chin as the price for having done things the way I chose to do them.
That brings me to the benefits that I afforded myself by starting out on my own. While my first set of business cards was still at the printers, I had reassured myself that the worst case scenario was not going to be disbarment. I was convinced that the worst thing that could happen was that my phone would not ring, and no clients would ever find or be referred to me. When I could no longer suffer dinner from a can, I would have to search for a job. This is exactly what I would have had to do if I did not go it alone right then.
In all honesty, I never did have to eat dinner from a can. Things picked up rather quickly. My friends, lawyers, and others trusted me with their referrals. I handled some court-appointed work, which proved to be invaluable as I encountered clients from all different backgrounds, and I learned what I needed to do in each situation in order to effectively communicate and represent them.
In fact I now see that it was to my benefit in many ways that I did not have another attorney telling me how to talk to clients. This is a necessary skill for any good trial attorney, and it is one that fundamentally requires the lawyer to be himself or herself. Because I had not learned how to talk to clients, I had never learned to talk down to clients. On my best days as a lawyer, I speak to clients, jurors, and lawyers in the same manner as I would have before ever applying to law school. Every trial lawyer knows or should know that the phrase “You talk like a lawyer” does not mean you are an effective communicator.
Being a sole practitioner right out of law school also meant that I had to learn how to run my business, manage my office, deal with clients, meet my deadlines, investigate my cases, and prepare and try my cases without any assistance. Although this was often a nightmare, I knew every aspect of my practice, never forgot a client’s name, and personally knew the most minute details of each of my cases. The convenience of having assistants, such as investigators and paralegals, can be a weakness if taken for granted.
Finally, the responsibility that I took on by hanging out a shingle meant that I had the authority to call the shots and determine how I worked my cases. Aside from judges, nobody told me what to do or when to do it. I was never comfortable taking direction from others, so this aspect of my work really suited me. There was no one else to blame for any bad habits I acquired (but myself), and I hope that today I am a better lawyer for it. When I won my cases, it was because I was well prepared and did a good job. When I lost my cases, it was because the jury was wrong and biased, or maybe it was the judge’s fault. The point is that I was able to see my own work in action.
After a year and a half on my own, I began to share office space with an experienced trial attorney. Soon thereafter we formed a partnership that lasted four years. At the time this was the best of all worlds, as I did not have to answer to anyone else, yet I had someone else right there to give me feedback. Even this partnership would not have been possible had I not first practiced alone. At present, I am on my own again, but I am much more comfortable in my abilities as an advocate.
Working at a firm would likely have meant that I would have gotten far less courtroom experience as soon as I did, and I would have had far less discretion on how to prepare my cases. I might not have learned so quickly the type of law I enjoyed practicing. Today, I have many friends who were hired by firms after law school, and made salaries they never imagined they could achieve. They worked very hard for years, and some made partner. However, many of these lawyers have recently suffered from layoffs. Now, they are finding it difficult to market their particular skills. Having never had to market to clients, some of these lawyers feel truly lost at the moment and are having to reevaluate their careers entirely.
It is simple to lose sight of the fact that there are many applications and opportunities for lawyers. The fact that someone has spent the past five, 10, or 15 years working with mergers and acquisitions does not preclude him or her from taking up work as a criminal defense lawyer. The most fundamental lesson I learned has nothing to do specifically with being an attorney. You have to want to go to work each morning if you want to be successful.
In the end there is no substitute for experience. My confidence grew with each case I handled, and my abilities as an advocate were enhanced with both successes and failures. I have absolutely no regrets for the decisions I made. I continue to embrace the fact that this path means learning new things every single day. Being a sole practitioner is not for everyone, nor is hanging out a shingle without ever working for or with another lawyer. For me, though, there was no other way to go.