Have Law Firm Careers Changed for the Worse?
The Way It Used to Be, and the Way It Is Now

By EDWARD LAZARUS

Thursday, May. 29, 2003

I do not ordinarily read lawyer autobiographies. As a general matter, they tend to be overly self-congratulatory, turgid, and unenlightening.

But a new autobiography by Chicago trial lawyer John Tucker, entitled Trial and Error: The Education of a Courtroom Lawyer, merits serious attention. Tucker was involved in some of the most interesting and important cases of his day, and like many trial lawyers, knows how to tell a good story. He also delivers a valuable tutorial on the courtroom arts of cross-examination and oral argument. But these merits are not the real reason for his book's deep and lasting significance.

Tucker's Story: A String of Landmark Cases, Often For Pro Bono Clients

When Tucker joined his firm, Jenner & Block, senior partners encouraged him to volunteer (with their help) to defend indigents charged with serious crimes. Eventually Tucker had the opportunity to work on a case testing the limits of the insanity defense, and to argue and win a critical case before the U.S. Supreme Court. The case was Pate v. Robinson, which established a defendant's due process right to a hearing on the issue of sanity.

Not long afterward, Jenner & Block volunteered to handle the habeas petition of William Witherspoon, a death row inmate challenging, among other things, the process by which juries are selected in capital cases. Again the case turned out to be a landmark.

At the time, prosecutors were allowed to strike any prospective juror who expressed moral or religious qualms about the imposition of capital punishment. But social science evidence indicated that the result was to produce a "prosecution prone" jury. That is, a jury that had no problems with the imposition of capital punishment, was also naturally tilted towards convicting capital defendants and sentencing them to death. Or, put another way, a jury willing to execute, was sometimes also inclined to execute.

Here, too, Tucker and his firm, made legal history. In a rare death penalty precedent that remains good law 35 years later, the Supreme Court ruled in Witherspoon v. Illinois that it was unconstitutional to automatically remove any so-called "scrupled" juror, because it led to a jury tilted towards imposing death.

Meanwhile, at about the same time, Tucker became heavily involved in a case arising out of his generation's "trial of the century" - the case of the "Chicago Eight."

The prosecution arose out of the confrontations between Mayor Richard Daley's Chicago Police Department, and the anti-Vietnam War protesters who had descended on the city during the 1968 Democratic Convention. As a national television audience looked on, the Chicago police gleefully bludgeoned members of an ever growing crowd of hippies, yippies, and peace activists. Then, after it was all over, rather than charging the police with crimes, the local federal prosecutor instead charged eight of the protest leaders - the Chicago Eight - with conspiring to incite the riots.

During the trial, the federal district court judge, Julius J. Hoffman, ordered a black radical, Bobby Seale, to be tried while bound and gagged in his courtroom seat. Later, after a brutally contentious trial, Hoffman ordered the lawyers for the defendants (without the benefit of trial) to be jailed for a period of years for contempt of court. It was at this point that Jenner & Block intervened, to successfully represent (with others) the lawyers in challenging these contempt charges.

In that time of extraordinary social discord and division, it took some guts for an establishment law firm such as Jenner & Block to align itself with the attorneys who had represented dissidents such as Tom Hayden and Abbie Hoffman - whom the prosecutor unabashedly described as "freaking fags . . . out to steal your children." Chicago, like the entire country, was in the midst of a virtual civil war.

Could a Young Lawyer Today Possibly Replicate Tucker's Career?

That was then - and this is now. In his book, Tucker not only recounts his own fulfilling career, but expresses, in an understated but unmistakable way, that careers like his own are now a thing of the past. Such a life in the law, he suggests, is now nearly impossible to replicate.

Why does Tucker view himself as so plainly a member of a vanishing breed? To answer that question, one need only look at what he identifies as the key ingredients of his success - and the difficulty it would take for a young lawyer now to attain any of them.

First, as a young lawyer, Tucker enjoyed the time to develop and hone his skills as an advocate, averaging somewhere between 1600 and 1800 billable hours per year.

Today, a young lawyer of the same age would bill, instead, at least 2200 billable hours - a sum requiring a total commitment of 60-70 hours a week, every week of the year. Such a schedule simply does not allow for the kind of side projects on which Tucker cut his teeth.

Second, Tucker was able to take on primary responsibility for trial and appellate cases early on in his career - in the form of paying matters that were relatively small, and time-intensive, trial level pro bono matters. The firm supported his interest in both types of cases.

Today, such opportunities at major firms are few and far between. Small business matters that senior lawyers could turn over to their juniors don't come to the firms in the first place - even associates' billing rates are too high. In addition, many of the blue chip law firms have cut back on their pro bono commitments - especially at the trial level, where a very substantial allocation of firm resources may be required.

Third, Tucker benefited from a relatively stable cadre of mentors and colleagues within his firm. They formed a cohesive group of people who shared a vision about the kind of law they wanted to practice, and the risks they were willing to run to achieve their goals.

Tucker accordingly did not have to fear that doing too much pro bono work would undermine his chances for partnership. To the contrary, his mentors and future partners respected the pro bono work he did, and counted it in his favor, not against him.

Has Money Taken Center Stage At the Expense of Other Values and Virtues?

Of course, the bottom line, when it comes to all these change, is money. One astute federal judge is fond of remarking that the decline of firm practice began with the advent of the American Lawyer magazine, which published estimated partner profits at every significant law firm in the country. This is surely an exaggeration, but its gist is all too true.

Law firms now rank themselves based in large part on their profitability. Moreover, increasing profitability has become essential to a firm's ability to keep its star lawyers from jumping to a more lucrative shop.

And how can a firm become more profitable? Often the solution is twofold: Raise billing rates, and squeeze the maximum possible billable time out of associates. The result is that associates have little opportunity or encouragement to make the financial trade-offs that are - as Tucker's life exemplifies - often essential to having a full and fulfilling life as a big firm courtroom lawyer.

In short, more money has come to mean a lot less fun. It also has diminished the contribution most large firms make to the public good.

Large firms often are aware of this very problem: While one can get rich working there, it's hard to find professional happiness and fulfillment. And many firms have begun to struggle with how to right a balance that now seems out of whack. Sadly, though, it's terribly difficult to put the genie of greed back in the bottle.

In good time, we'll know how effectively firms are addressing the trade-offs between profit and professional development. All we'll have to do is look, in twenty or thirty years, at the books retiring partners write, and see if they look back at their careers with the same contentment as Tucker. With a few exceptions, I fear they are unlikely to - and they may have more regrets than reminiscences.


Edward Lazarus writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books - most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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