Assume the Worst

It's not clear when exactly it happens. Some of my younger buddies on twitter and in the blawgosphere tell me that a lawyer is "pretty good" because they've become friends with them, followed their twits, read their posts, and, well, like them.  Maybe it's age 40? 50?

As the sage curmudgeon, Mark Herrmann writes at Above the Law, there comes a point when the glass is no longer half full.

I don’t live in Lake Wobegon.

I live in Lake WoeIsMe: All of the children are a little below average.

Or maybe I just have a bad attitude.

I’ll be frank: If I just met you, I assume that you’re inept. Not because you necessarily are inept, but because I’ve been blindsided too often in the past by the mistakes of people who I foolishly believed to be competent. That ain’t gonna happen again.

I live next door to Mark. The other day, a lawyer asked me for some advice on where to take his practice. We spoke on the phone for a while, during which I asked a bunch of questions about where his practice was and how he got there. It did nothing to answer his questions, but then, it wasn't my purpose. Before discussing where he wanted to go, I needed to know who he was, how he thought, what his motivations were. I could not simply assume he was a great young lawyer who had a clear understanding of his purpose.  As it turned out, his answers made it clear to me that this was a lawyer with a great future, and someone I wanted to help.  But I didn't take it for granted.

As I’ve written before, I don’t assume that you’re inept because I know that you’re inept. When we first meet, I don’t know you at all. Rather, I assume that you’re inept because you’re haunted by the ghosts of incompetents past, whose memories stick in my craw. I don’t have to hedge against you being good; that would be a welcome surprise. I have to hedge against you being bad; that would ruin my life (as has happened too often in years gone by).

Nearly every young lawyer attributes fabulous skills to herself.  Just ask and they'll tell you how awesome they are.  When you question their self-assessment, they get angry. Old jerk. Douche. Mean curmudgeon. It's understandable, as no one has ever doubted their awesomeness before, and every young lawyer knows how stupid and incompetent old lawyers are.

But Herrmann's message isn't that you aren't a great lawyer; it's that old lawyers have been burned by self-proclaimed geniuses too many times to assume it's true. We don't take it for granted with each other. We don't take it for granted with new lawyers. We assume the worst. Horrible.

When confronted by a young lawyer whose skills are unproven, and whose reaction to my questioning their abilities and work ethic is to inform me how much better she is than all those miserable, lazy, incompetent old lawyers she's seen, I pose a question: If inexperienced lawyers are so smart and hardworking, far more so than old lawyers, how does it happen that the young lawyer grows so much stupider and lazier after a decade or two of experience?  They hate this question. 

The guy (or gal) who I’ve worked with before and who has proven (as opposed to asserted) that he’s a fine lawyer. Assertions don’t mean anything; the proof is in the summary judgment papers.

If I don’t know the right lawyer for a matter, then I locate someone who’s proven himself to be competent, and I ask that person for a recommendation. It’s true this makes me nervous, but it’s far better than the alternative of trusting some unknown clown who tells me that he thinks he’s a good lawyer.

Curmudgeons call people "guys" and "gals." It's not sexist, just the language we were raised with.  But some old lawyers, this one included, has no plans to refer a case to anyone I know from twitter. I take referrals seriously, and won't send a human being to a lawyer I assume to be inept. So your twits are cute? Informative? Cool?  That's wonderful, but it doesn't make you a good lawyer. 

This isn't a slap in the face to new lawyers. I know it feels that way, but it's really not. You haven't suffered the experience of the screw-up that should never happen, the simplest of things that can never go wrong going wrong.  Stick around for a while and you will. When you look into the eyes of a client and offer solace by saying "I thought she knew what she was doing," there will be no comfort taken. The rest of the world won't be as forgiving of your mistakes as you are.  The rest of world doesn't really care about you. Just like you, people really only care about themselves.

And so the glass will be half-full, and you will be inept, and something will go wrong, and curmudgeons expect it, anticipate it, and do everything in their power to stop it from happening.  This means we nudge you, tell you stuff that you think is obvious and make you feel as if we're treating you like some monumentally dumb fool.  "You don't trust me?" you say. No. I don't. I can't afford to trust you, and I have no intention of letting things go south and then, after the mistake that can never happen happens, have to clean up your mess.

Does this happen to a person at age 40? It's hard to say, but it comes with the experience of having seen too much go wrong to assume that things will go right.  The sooner this realization happens, however, the sooner you can be trusted. Once you recognize that Reagan was right about one thing, hope for the best but prepare for the worst, you have half a chance of getting things done right.

Until then, when you're still filled with your awesomeness, you can't be trusted and curmudgeons, like me, will assume the worst.

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