Cox: Common mistakes of young lawyers

The practice of law takes practice. Experience is required to hone the skills necessary to be an effective advocate and to keep existing clients satisfied as well as attract new clients. There are, however, some common mistakes made by young lawyers that, with forethought and planning, can be avoided. Work to avoid these bad habits and your learning curve will be significantly shorter.

1. Failure to appreciate gravity of professional responsibility. Young lawyers today often voice that they desire work-life balance. This is certainly an understandable ambition. However, many young lawyers fail to appreciate the gravity of their professional responsibility. While it may impinge upon the goal of work-life balance, being a professional in some respects means being “on call.” It means being there for clients and colleagues when they need you and doing what it takes to get the necessary work done. Client needs do not always arise at convenient times or during business hours. Timely completing legal projects does not always fit neatly between the hours of nine and five.

Young lawyers who fail to appreciate the gravity of their professional responsibility are not as responsive as they should be (particularly after hours or over the weekends). They do not see projects through to completion. These lawyers mistakenly assume that, if they perceive their schedule does not permit them to complete a task, they need not complete it, or they have the option to respectfully decline the assignment. They regard their work as optional: If they can’t or don’t do the work, someone else can and will pick up the slack. This is not the way it works. The quintessential professional does what it takes to fulfill her obligation to her client, no matter what.

2. Lack of respect for deadlines. A reliable, organized calendaring system is critical to meeting deadlines and prioritizing multiple obligations. The lack of a proper calendaring system can lead to missed deadlines and other disasters. Young lawyers tend to rely upon senior team members, or their paraprofessional staff or administrative assistants, to calculate and calendar deadlines. It is imperative that young lawyers take responsibility for the proper calendaring of every deadline, even if that deadline is initially calculated and calendared by somebody else. The bottom line is that the lawyer on the case is responsible for the deadline, not anyone else. Accountability in this area is imperative.

 There are often case management orders and pre-trial orders that are subject to interpretation or are dependent upon events or conditions that have not yet occurred, such that attention to the calendaring of these items is essential. In today’s fast-paced environment of electronic communication, young lawyers tend to avoid taking the time necessary to calculate and calendar deadlines or to double-check the work of others. Yet year after year, missed deadlines account for the most common and frequent cause of legal malpractice claims.

Even if properly calendared, many beginning lawyers do not have enough respect for deadlines. During college and law school, time schedules are somewhat flexible. Students are not often put to the test of being on time, or being severely pressed for time. Thus, beginning lawyers have a difficult time adjusting to the tight work schedules many legal projects require. But the consequence of not taking timely legal action can be drastic. You do not want to learn the lesson of respecting deadlines the hard way. If you miss a deadline, it is no excuse that you should have been supervised more closely. You are a professional and, as such, responsible.

You are not safe if you merely have met the deadline. You must allow ample time and opportunity for the assigning attorney or client to review the draft, edit it, and explain what additional work needs to be done, all while accounting for their busy schedules. You cannot cut things too close, and you cannot presume that the client or assigning attorney will have time to process your work product the day it is due or even the day before it is due.

Always advise the assigning attorney immediately if you have any special problem that might prohibit you from meeting a deadline, but understand the problem must be special. The fact that you have other obligations may not suffice. The work of a professional is rarely optional. Rather, we are duty-bound to get the work done. And because the law is a service profession, many times you will have to do things when the client wants them done, or needs them done, even though it is extremely inconvenient for you.

3. Superficial research and analysis. Inexperienced lawyers tend to rely upon the first authority they find for their answer, when thorough and accurate legal research requires an exhaustive review of all relevant authorities on the subject so that you can be sure you grasp the entire body of authority, the context and the competing considerations. Another problem is that legal research memos from young lawyers often capture the relevant legal authority but do not apply that authority to the question presented or to the facts at hand. While conducting the analysis may be the hard part, it is critical.

Moreover, the way online research is structured in today’s research environment, a young lawyer can type in an intuitive question and obtain snippets of cases that speak directly to their question. This leads to an even greater incidence of failing to read the whole case or finding cases that are procedurally similar to the situation at hand. The result is superficial research and analysis. Thorough legal research takes time – often many hours. A fast, canned answer that doesn’t withstand a more in-depth analysis won’t suffice.

4. Poor legal writing. Not every lawyer is an effective legal writer, but there are some legal writing pitfalls common to less-experienced lawyers. Superficial legal writing is one common problem. A superficial argument relies upon conclusions, adverbs and adjectives rather than in-depth analysis and discussion. A conclusion, standing alone, will not persuade the reader. To build a persuasive argument, the lawyer must cite specific facts and legal authorities supporting the conclusion. It is not enough to simply tell the judge, “Clearly, this case must be remanded to state court.” Rather, you must provide the judge with the facts and reasons necessary for her to conclude that the case must be remanded to state court.

Words like “obviously” and “clearly” can hurt more than help your writing. If you have to emphasize your argument with these words, the reality is often that your argument is not very strong in the first place, or it has not been developed through your discussion of the facts and the law. Eliminating these words from your writing will make it stronger and will enhance your credibility.

Young lawyers tend to use superfluous language and legalese. Although every legal education includes mastering legal terms, part of becoming an effective legal writer is shedding the archaic legalese and Latin learned in school. These words do nothing but make the text sound like a lawyer wrote it, rather than increasing the persuasive value. There are effective, reader-friendly alternatives that say the same thing.

Young lawyers tend to use overly caustic or sarcastic language. To debunk an argument, you should never find yourself demeaning your opposing party by calling its arguments or analysis “disingenuous” or “misleading.” You should also avoid personalizing the dispute. As a lawyer, you take positions on behalf of your client and so does your opposing counsel. The parties have a dispute – not the lawyers. In legal writing, it is unprofessional to refer to the opposing lawyer by name. It can make you look childish. Judges despise catty, snide, or sarcastic legal writing, and they do not appreciate arguments that seem personal.

5. Failure to proofread. It is shocking how many pieces of work product beginning lawyers submit that are full of errors. When turning in work product to the supervising lawyer, or a draft for the team to revise and finalize, the draft should be proofread in advance. This may sound like common sense, but it is frequently overlooked. This problem could stem from the fact that the work product of young lawyers often does not get immediately delivered to the court or to the client, and it is anticipated that it will go through several revisions. Still, this does not excuse typographical errors and other proofreading problems. The young lawyer should strive to provide a draft that is as “court- or client-ready” as possible. Use your word processing tools as far as they will take you: spell and grammar check; find and replace; etc. But these tools are imperfect. And nothing replaces a careful, manual review of the document. Printing the document out can be helpful if you have been looking at it only on your computer screen.

Focus your proofreading on common problems. Defined terms should be consistent. If you are going to refer to the plaintiff as “Plaintiff,” then call him “Plaintiff” throughout the entire document, not Robert, Bob, or Billy. Be cognizant of whether you have one or several plaintiffs, and use the proper singular or plural possessive form of the word. Check that dates are accurate and in chronological order, as applicable. Double-check any monetary amounts, paying special attention to any parenthetical numerical amounts and their corresponding written amounts. Triple-check references to exhibits and affidavits. Although it is often tedious, making sure these references are correct can prevent embarrassment down the road.

Citations should not only be accurate, but consistent. Always give the pinpoint page cite. If you do not, this suggests to the judge that you were either lazy or that you have not accurately recited the holding of the case. Commas and periods go inside quotations; no exceptions. “It’s” means “it is.” “Its” means “belonging to it.” Make sure you are not being bossy. Avoid telling the court what it “must” do or what it “cannot” do. Instead, simply assert that the court should not hesitate to grant the relief your client seeks. The Blue Book is your friend. When in doubt as to a legal citation, look it up. The Blue Book is user-friendly, and you should have it readily available when you are proofreading.

Take time to carefully proofread your work product. Save ample time for the proofreading process. Proofreading takes time, and it often requires that you have some mental space between the last time you worked on the draft and the time that you are proofreading. If possible, ask a colleague to review your work product as well. Even when you think you have arrived at the final product, take some time and re-visit the draft so you can better evaluate it with a fresh eye. It often takes a new, fresh look at the brief to achieve brevity and clarity.

Typographical mistakes, grammatical errors, and incorrect citations can harm your credibility. They can also cause your clients or supervising attorneys to lose faith and confidence in you. Clients and judges will expect all written work product they see to be perfect. When mistakes appear, the assumption will be that you do not pay enough attention to detail, or that you are sloppy. Nobody wants to hire or rely upon an inattentive or sloppy lawyer. You must teach yourself to proofread carefully.

6. Digital addiction. Young lawyers often overuse email as their primary means of communicating. For many communications, there is nothing better than a face-to-face meeting. A meeting is frequently best to ask a question, convey a new idea or communicate about a pending project. A great deal can be lost in translation via email; and, in an email, people don’t take the time to convey the details that they would convey had they spoken directly. Do not over-rely on email for communications.

In this age of email and texts, new lawyers also seem to overlook that every communication must be professional. Email correspondence with clients and opposing counsel should resemble a formal written letter. There should be subject line, a greeting, and a complimentary close. There should be punctuation. Lawyers should fight the urge to answer emails on their mobile device because of how many errors are made. If it is imperative to respond via a mobile device, the response should be just as professional as if it were sent via your desktop or formal written correspondence. Your address block should appear on every email, even if it is sent from your mobile device. There is nothing more frustrating than trying to call a person who has emailed you only to find that the email ends with nothing more than the person’s name. Or, worse yet, the phrase, “sent from my iPhone.”

There should be a hard and fast rule that a lawyer never sends a communication via text to clients, opposing counsel, or anyone in a professional matter, EVER! These communications cannot easily be documented in either the physical or electronic file, and they are far too casual and abbreviated to have real meaning or a professional appearance.

In meetings with clients and colleagues, it is imperative that you pay attention, and that you convey the appearance of paying attention. While you may think you are being attentive, if you are looking at your hand-held device or your laptop, you convey the impression that you are not listening, you do not care, or you are distracted. You may be an efficient multi-tasker, but the look of inattention and distraction can be very frustrating to your clients and colleagues. And the fact is, if you are reading or responding to emails and texts, you are not listening well.

7. Feigned overconfidence. Some young lawyers can be overconfident, but most seem afraid to admit that they do not have all the answers. It is OK to ask questions and walk through the consequences of a particular course of action with a more-experienced lawyer. It is dangerous to pretend that you have all the answers, or to move so quickly that you fail to think through all the risks and benefits of a recommendation. Keep in mind that you may have been assigned a discrete project or task associated with a matter, and you may not fully appreciate the larger context or bigger picture. There could be business considerations at play that require you to consult with others before drawing conclusions or making a recommendation.

Many beginning attorneys will not ask questions because they don’t want to reveal how much they do not know. But if you do not know, you should exhibit a desire to learn. It is better to learn now, the easy way, by asking a simple question, than to learn the hard way by making a big mistake. Senior attorneys understand that law schools make varying efforts to relate their programs to the problems attorneys face in actual practice. For most attorneys, the first few years of practice are a time of intense learning. You should view them as such. You should observe other attorneys carefully, note their strengths and weaknesses, and learn from them. You should read the advance sheets in your practice areas. You should immerse yourself in constant learning and never be afraid to ask a question. Senior attorneys will be impressed that you are trying to learn as fast as you can, not that there are many things you do not know. They know that already.

8. Overreliance on senior attorneys. It is difficult for young lawyers to learn the proper balance between asserting themselves and taking initiative versus deferring to the seniority and experience of other team members. But it can be very frustrating for young lawyers to seemingly over-rely upon senior attorneys for instruction, guidance, assignments, projects, proofreading, etc. If you are assigned to a case, you should presume that you are responsible for all deadlines and events on the calendar. You should inquire in advance of an upcoming event as to how you may be of assistance in preparing for or handling the event. You should not wait to be told what to do. And, repeating the advice on proofreading, when handing in work product, you should not presume that the senior members of the team will catch your mistakes, correct your typographical errors, or check your citations. If you are working with others who have superior writing skills, you should not turn in a sloppy or poorly developed draft under the presumption that the draft will be “fixed” by the more senior members of your team.

Beginning attorneys also seem to assume that the senior attorney’s knowledge of the rules is so superior to their own that they need not look at the rules themselves. In many cases, the senior attorney may have no better understanding of the actual court or procedural rule than the beginning attorney. The senior attorney often relies upon the beginning attorney, without actually saying so, to make sure that they are fully complying with all applicable rules. This problem can be more acute with state and local rules than with federal rules, but it will arise with rules at every level. Always check the rules. Don’t wait to be reminded to check them. Don’t presume that the assigning attorney or more senior member of the team has assured compliance with the rules.

9.  Inadequate note-taking. Young lawyers seem to think they can sit in a meeting or on a conference call and listen without taking notes because they will either remember what was discussed or they will be able to “Google” the answer later. This is unrealistic. First, heaps of important information is conveyed in these settings that cannot be found online. That information needs to be taken down in detailed notes. In a meeting with your supervising attorney who is giving an assignment, you will often be able to glean that attorney’s vision of what the ultimate work product should look like. If you fail to take notes of these instructions, and you deliver a work product that looks much different than the supervising attorney had in mind, then the supervising attorney will lose trust and confidence in you and will become frustrated with the amount of time it takes to delegate to you. That doesn’t result in repeat business.

Second, as your work load and responsibilities increase, you will find that you are not able to consistently rely upon your memory for the important details of a communication or meeting. There will simply be too much going on in a given day for you to retain the volume of information conveyed. Information stored only in your head does not serve to document the file, refresh your memory months or years later, or help to inform others on your team. Take good notes.  

10.  Poor timekeeping. The quality of your billing entries is important not only to your clients but to the billing partner who reviews and revises the draft bill before it goes out to the client. The quality of your time entries reveals how you are developing as a lawyer and how you may be perceived by clients. If you fail to describe your time adequately, this only means you are leaving it for the billing partner to correct your time entries or write off your time. This can be frustrating to the billing partner who wants to see that you are effectively using your time and that you care about getting paid for your time. If you have spent a large chunk of time on a particular project, the way you describe that time should justify the time spent, or else it will look like you are over-billing or spending an excessive amount of time on a particular project. You should not prepare vague time descriptions; each time description should explain in detail the task performed and why you performed it. An entry for a telephone call should include who you called, what their relationship to the case is, and the nature of the call or subjects discussed. Because legal research is so time-consuming, it should be described in detail as well, including the topics researched and the purpose for performing the research, and perhaps the jurisdictions examined.

The key to effective time-keeping is to minimize the interval between the work done and the entry of the time record. Lawyers who complain the least about time-keeping are those who keep their time contemporaneously. They record the time spent on a matter at the moment they switch to a different task. You can do this on a piece of paper, a computerized timesheet, through dictation, or whatever works for you. If you do not follow these rules, you will inevitably forget time you actually spent working on matters, and your descriptions will be more difficult to create as time passes. It is often impossible to accurately reconstruct how you spent your time, even if you try to capture it as early as the next day. This results in clients not being charged for time actually spent on a matter. It also may appear that you are not working as diligently as you actually are. Neither of these misrepresentations help you seek advancement, promotion, and credibility.

Also, deliberately under-reporting the amount of your time for fear you have taken too long to complete a particular task or project is counterproductive. Usually, the justification for this behavior stems from basic insecurity regarding work efficiency. Beginning lawyers assume they are slow and taking more time than necessary. But the habit of discounting your own time can result in the client being under-charged and your total hours worked being under-counted. Both of these are undesirable results. You should always charge your time as accurately as you can, no matter how much time you have spent on the project. How are you, a brand new attorney, supposed to know how long it takes to do a particular task? You have virtually no basis whatsoever for the impression that you took too long. And, you have no idea how long another attorney would have taken. Let the billing attorney decide whether to charge all of your time to the client or not. That attorney has a much better basis from which to make that judgment. Beginning lawyers are expected to take more time and be less efficient; that is one reason why they have a lower hourly rate.

Your reputation begins to build on the first day of law school and continues to grow (or decline) throughout your entire career. Your reputation will be comprised of your skill, talent, personality, integrity, ethical standards, imagination, judgment and diligence. Each encounter you have with another attorney, judge or client either builds on or detracts from your reputation. You want to be regarded as reliable, intelligent, diligent, practical, talented and trustworthy. If you make the mistakes outlined above, they will become part of your reputation and will be difficult to overcome. Many attorneys have survived making these mistakes, but that is no excuse for repeating them. With professional communications, through reliable legal research and analysis, persuasive and high-quality legal writing, inquisitiveness, timeliness and dependability, you can convey your commitment to your professional obligations and soar as high as that commitment will take you.•

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Dina M. Cox is an attorney with Lewis Wagner LLP in Indianapolis. She focuses her practice on professional liability defense, drug and medical device/products liability defense, consumer class-action defense, insurance coverage, and insurance bad-faith defense litigation. The opinions expressed are those of the author.