Essays on the Attributes of Outstanding Attorneys

While I was dean of the University of Michigan Law School, Law Quadrangle Notes published a series of reflections I wrote about the attributes of outstanding attorneys.  Those reflections are reproduced below.

Spring 1995: Intellectual Growth and Renewal

This year I will be using this space to consider one of the character traits that distinguishes outstanding attorneys:  the commitment to continuous intellectual growth and renewal.

What defines such a commitment?  It has at least three layers.  At its base, it involves nothing more than a thirst for experiences that are new.  Experiences that are capable of refreshing one’s outlook.

But a simple search for novelty is not enough.  It is not sufficient to eat a new food every day, or to walk a different path to the office, or to wake up at a different time of the morning, or even to read a new work.  Intellectual renewal implies an ongoing effort to reflect about what one has encountered, and to incorporate it into the structures one uses to interpret and be effective in the world.  That means viewing new experiences as an invitation to reconsider, with care, one’s established practices, and one’s ways of living in the world.

Finally, I conceive of this trait as having a third, somewhat conservative component.  To speak of growth and renewal is to suggest that the new must not simply replace the old, but must also build upon it.  As law students, we struggles to tame the intuitively attractive yet maddeningly elusive notion of “precedent”; as lawyers, we personalize that struggle when we try to reconcile periods of change and adaptation with our needs for continuity and integrity.  We aspire to develop, not to indulge in a rootless peripateticism.

Summer 1995: Integrity

I have just returned from a nine-day visit with our graduates in Japan, as well as with some of our many other friends on Japanese law faculties.  Our more than three hundred Michigan graduates who live in Japan have achieved extraordinary distinction in all areas of professional endeavor.  I had the privilege of meeting with a Supreme Court Justice, a recently retired President of Tokyo University, members of the Boards of Directors of major corporations, partners in outstanding law firms, and renowned law professors.  All of them share a deep affection for Michigan.  As I returned to Ann Arbor to welcome a new group of summer starters, I held a heightened appreciation for the fact that our students are destined to be leaders not only in this country, but around the world. 

The beginning of a new generation of students also reminded me that it was time to select a theme for the coming year.  As I reported in this page last year, I intend to organize each year of my deanship around a different theme, a different character trait that distinguishes an outstanding attorney.  During 1994-95, I chose to emphasize the great lawyer’s commitment to continuous intellectual growth and renewal.  I am grateful to all those of you who helped me by offering suggested themes for future years.

Fall 1995: Integrity and Clarence Darrow

At the midwinter gathering of legal academics in January, wedged in among the looseleaf services and the CD-ROM publishers, a dealer in rare books was displaying one of his prized offerings:  a collection of the correspondence of our former student Clarence Darrow.  The collection belongs to Darrow’s granddaughters, and it features letters from many people who would rank high in a list of America’s most notable citizens during the first half of the twentieth century — from Jane Addams to W.E.B. duBois, to H.L. Mencken.   I was enthralled.

Darrow and his accomplishments have been frequently in my mind these past few weeks.  For it is the season when we undertake the difficult task of choosing a new class of law students (the Class of 1999, to be precise).  And it is therefore also the season when, from among that class, we select our Clarence Darrow merit scholars.

Over the past decade, several of our graduates have made generous gifts to the Law School to endow merit scholarships named collectively in honor of our former student.   As dean, one of my most enjoyable tasks is to receive the dossiers of the students whom the faculty committee has selected to become “Darrows,” and to notify them that they are winners.  I must say that reading the files of our Darrows gives one cause for great optimism about the human condition.

Spring 1996: Integrity and Trust

The past ten days have reminded me how much our life in the law and legal education revolves around different forms of conversation.

First the Law School welcomed hundreds of graduates of the Classes of ’50, ’55, ’60, ’65, and ’70 back for a reunion weekend.  Some saw their first law school classes in decades, others saw a faculty debate about the future of legal education, still others participated in an alumni roundtable on the profession.  The Honigman Auditorium was jam-packed for a warm, funny, and thoughtful speech by Dick Gephardt ’65.  (If you have a computer with a sound card that is connected to the Worldwide Web, you may listen to his talk by pointing to  A football game, walking tours, receptions, banquets — even an intimate Sunday brunch for 150 at our home — each setting encouraged a different style of conversation.

Then, this past weekend, the students took the reins and sponsored two nationally significant conferences.  The Michigan Journal of Race and Law launched itself with a spectacular two-day symposium entitled Toward a New Civil Rights Vision.  And the Michigan Law and Policy Review launched itself with equal panache, bringing together distinguished academic and nonacademic commentators to debate the complex problems of tort reform.  Each conference used panel debates to bring out the complexity of multifaceted social and legal issues.

Summer 1996: The Lawyer as Teacher

This summer marks the beginning of my third year as your dean, and that means it is time for me to select a new theme from among the characteristics that define an outstanding lawyer.  During my first year, I emphasized the commitment to continuous intellectual growth and renewal.  This past year, I stressed integrity.  During the 1996-97 academic year, I would like to concentrate on a theme suggested to me by Stephanie Smith ’80:  the great lawyer’s inclination to teach others about the law.

Social critics sometimes portray law’s complex rituals and vocabulary as deliberately obscure, designed to maximize the value — social, economic, and political — of lawyers’ expertise.  And we all have known lawyers who present themselves as the anointed guardians of a rare and inaccessible knowledge.  People whose authority is to be accepted on faith, flowing appropriately from talent, training, and specialized experience.  Indeed, at some time or other in our careers we have all yielded to the temptation to see ourselves that way.

Spring 1997: The Lawyer as Mentor

I would like to use my message in this issue of Law Quadrangle Notes to say a few words about one situation when lawyers are most frequently called upon to teach:  when they work with a young, less experienced colleague.

Before I joined the Michigan faculty, I spent four years practicing law with a small Washington, D.C., law firm.  I worked during that period with about ten different partners.  And today, when I try to remember them, my mind invariably retrieves scenes where I was being patiently mentored.

I remember Ron Lewis talking through the way he would order the issues in a negotiation.  I remember Pat Lewis talking through the way she would frame a set of facts for a revenue agent.  I remember Ralph Muoio talking through why it made sense to cut an argument from a brief that I had drafted.  I believe that, if pressed, each of them would confess to two motives for those conversations.  One motive was client service:  they had all internalized the discipline of describing and defending their judgments before putting them into practice.  But the second, independently sufficient motive, was a desire to help me learn my craft.

Summer 1997: Citizenship

Over the past three years, I have used my messages in Law Quadrangle Notes to comment on various qualities that I associate with an outstanding attorney.  I have noted the great lawyer’s commitments to intellectual growth and renewal, integrity, and teaching others about the law.  During the coming year, I will explore a different theme:  that of the great lawyer as citizen.

In approaching this theme, I am using the word “citizen” in a slightly idiosyncratic way.  I am using it to invoke some of the special aspects of a lawyer’s life that derive from membership in a community that extends beyond family.  Membership often carries well-known privileges (such as the franchise, employment opportunities, or material support).  In this discussion, however, I would like to pay special attention to a more complex privilege:  the privilege of bearing the responsibilities of citizenship. 

In his classic little book, The Needs of Strangers, Michael Ignatieff accurately observed that our ordinary language feels frustratingly weak whenever we try to talk about such topics.  “Words like fraternity, belonging, and community are so soaked with nostalgia and utopianism that they are nearly useless as guides to the real possibilities of solidarity in modern society.”  Yet we all know that, even in modern society, those words point towards an underlying truth:  we can and do take a special pleasure in our solidarity with others, with feeling personally responsible for other individual members of the community and for the community as a whole.

Fall 1997: Citizenship Within a Global Community

In my last message I indicated that I have decided to select as my theme for this year the great lawyer’s role as citizen – as member of a community that extends beyond family.  This issue of Law Quadrangle Notes gives us an opportunity to consider just how far the “community that extends beyond family” may reach.  For here at the Law School, we are encouraged every day to see that community as worldwide.

When the University of Michigan was chartered in 1837, the authorizing legislation provided that the University should employ a professor with expertise in international law.  Almost as soon as the Law School began to enroll students in the second half of the nineteenth century, it attracted some of them from outside the United States.  By 1900, 80 students from outside the United States had received degrees from the Law School.

Today about one in twelve of our graduates lives abroad.  Some are American expatriates whose professional and personal interests have led them far from their parents’ homes.  But most are foreign citizens who came to Michigan with the intention of returning home after they completed their studies.  When, in my role as dean, I am called upon to travel outside the United States, I am invariably inspired to learn of the leadership roles that our graduates are playing in every corner of the world. 

Spring 1998: Citizenship and Affirmative Action

This year, I have used this column to reflect on the lawyer’s role as citizen – as member of a community that extends beyond family.  Recent events at the Law School offer a concrete opportunity to discuss how lawyer-citizens can draw on their training to sustain their community under circumstances that threaten to divide it.

In December, a lawsuit was filed alleging that the Law School’s admissions policies discriminate unconstitutionally on the basis of race. By way of background, let me say that I believe the Constitution permits us the discretion to craft policies such as the one that our faculty adopted in 1992, and that our policy is in the best educational interest of our law school.  (See story, p.17).  But that is not my point here.  Rather, I would like to remark on how the coming debate about our policies can strengthen our community.

The question of affirmative action in university admissions is one of the most widely debated issues of our time, even among people with no immediate financial or family stake in its outcome.  It engages us not only as self-interested individuals, but also as citizens.  And it is an issue where people of good will are found on both sides.

Summer 1998: The Profession's Image

Over the past four years, I have used my messages in Law Quadrangle Notes to comment on the attributes of an outstanding attorney.  I have noted the great lawyer’s commitments to intellectual growth and renewal, integrity, teaching others about the law, and serving as citizen.  During the coming year, I will explore a related theme:  that of the great lawyer as keeper of our profession’s image.

The legal profession has long inspired a broad range of public  images. Throughout the ages, great lawyers have stood as champions of the underdog, bulwarks against injustice, diplomats, and civic leaders.  We have had countless opportunities to take pride in the lives of lawyers who exemplify the highest aspirations of our craft, lawyers such as Patrick Henry, Abraham Lincoln, Clarence Darrow, Learned Hand, and Thurgood Marshall. 

To be sure, there are other images as well. While it may be easy to romanticize the way lawyers have traditionally been viewed, in truth the caricature of an attorney as venal, unscrupulous, and self-centered has been a longstanding feature of popular culture.  And to our great chagrin, the practicing bar has all too obligingly provided examples to reinforce that caricature.

Fall 1998: The Profession's Image; Listening

In my last message, I argued that a generosity of spirit lies at the core of the image we wish for the public to associate with those who have chosen a life in the law.  A lawyer’s professional training reinforces such generosity of spirit in many ways.  Law School provides innumerable formal opportunities outside the classroom for active community involvement.  More informally, dorm life and the world of first-year study groups allow students to learn the value of individual-to-individual mutual support.

I also believe that the classroom itself, through its core intellectual training, nurtures lawyers’ ability to reach outward.  One of the qualities that leads people such as Darrow to be recognized for their generosity of spirit is also a quality that undergirds effective professional representation.  That quality is the ability to listen.

The ability to be well-spoken is fundamental to good lawyering.   Lawyers speak to clients when they advise.  They speak on behalf of clients as advocates.  Indeed, one rationale for the attorney-client privilege builds on the need to provide ordinary citizens access to an expert voice within a complex and specialized legal system.

Summer 1999: Patience

During my tenure as dean, I have used my messages in Law Quadrangle Notes to explore various qualities that help to define an outstanding attorney.  I have had occasion to discuss how great lawyers pursue intellectual growth and renewal, maintain integrity, teach others about the law, serve as citizens, and bolster our profession’s image.   In the coming year, I would like to turn my attention to a different attribute that we admire when we see it:  patience.

The most memorable words I ever heard about that quality came from the late Justice Thurgood Marshall during the year that I served as a law clerk to Justice Stevens.  I was meeting with one of the Marshall clerks when Justice Marshall came in to talk with him about a case.  He insisted that I stay, and after the case discussion was completed we all talked more generally about the practice of law. During the course of that discussion, Justice Marshall offered the following observation:  “There’s only one kind of reputation that a young lawyer can get in a hurry.”

Fall 1999: The Balance of Patience

In my last message, I wrote about the great lawyer’s capacity for patience.  It is worthwhile to pause and reflect on the different colorations that we associate with the ideal of patience.  Each of those colorations can teach us something important about what it might mean for us to lead a full life in the law.

In one form, the capacity for patience is cultivated in solitude.  It connotes grace and equanimity, a certain spiritual transcendance.  The patient one seems able to tune out the mundane pressures that bombard from without, to listen to an inner voice, to wait.

We have all known lawyers like this.  We marvel at their ability, in moments of the greatest pressure, to show restraint.  In the midst of an apparent crisis, when their clients or their partners are screaming for some action, any action, they choose not to act.  And in twenty-four hours, a new and superior course of action, not apparent to anyone the day before, miraculously appears.

A second form of patience, equally solitary and inner-directed, involves the ability to persist and endure in the face of rejection and defeat.  The patient one fights and loses, but commits to soldiering on, to hasten the day when the tide will turn.  

We often associate this incarnation of patience with the lawyer for a cause.  The world of public interest law includes attorneys of all ideological and political stripes.  But if any one quality unites them, it is an exceptional ability to accept the mantle of the underdog, to situate setbacks within a larger narrative of progress and hope, and to draw inspiration from glorious but distant goals.

Spring 2000: Patience and Impatience

This year, I have used these messages to discuss the great lawyer’s capacity for patience.  We can learn more about this complex and nuanced quality by exploring its obverse.  I am thinking here of the great lawyer’s impatience.   For sometimes the mark of a truly outstanding attorney is the ability to charge ahead decisively at a moment when the easier course would be to wait and temporize. 

I am not here thinking of the ability to be impatient with others.  That is, of course, a talent that many lawyers both great and mediocre have in abundance.  Rather, what I have in mind is a certain impatience with oneself.  

Ours is a cautious profession.  By our training, we become exquisitely attuned to risk.   As we learn how to recognize the strongest arguments against any legal position, we learn more generally how to anticipate the possibility that things might not play out according to plan.

Business clients are ambivalent about this quality of ours.  They want to be warned of anything that might go wrong.  No surprises.  Yet they quickly grow weary of the counselor who sounds like an unrelenting prophet of doom.  

In the business world, risk is a fact of life.  The successful business person becomes comfortable with the need to manage risk prudently.  To form judgments about risk magnitudes, to put limits on the potential damage if things break badly, and to accept the fact that great opportunities are never risk-free.

Summer 2000: Optimism

Each year I use my messages in Law Quadrangle Notes to examine a quality that helps to define an outstanding attorney.  I have discussed how great lawyers pursue intellectual growth and renewal, maintain integrity, teach others about the law, serve as community citizens, bolster our profession’s image, and exhibit patience.   In the coming year, I would like to explore the quality of optimism.

As a philosophical concept, optimism has had a rough go.  It originated in the early eighteenth century theological writings of Gottfried Leibniz, who contended that our world is an “optimum” in the mathematical sense.  Leibniz asserted that there had been a divine decision to create “the best of all possible worlds,” and that evil and suffering are necessary elements of a universal order.

Relatively few people read Leibniz today, thanks largely to Voltaire.  A few years after an earthquake devastated Lisbon in 1755, Voltaire began to depict optimism, at least as it had been popularized by Alexander Pope, as a form of complacent speculation, irrelevant to the real-world problem of how we might alleviate suffering and evil.  In Candide, Voltaire satirized Pope with the memorable character of the tutor, Dr. Pangloss, who prattled on insipidly about how everything must be for the best.  “He could prove to admiration that there is no effect without a cause; and, that in this best of all possible worlds, the Baron's castle was the most magnificent of all castles, and My Lady the best of all possible baronesses.”

Fall 2000: Optimism, continued

In my last message, I suggested that great lawyers are optimistic.  Not complacent Panglosses.  But, rather, pragmatic activists who are inspired by a faith that their actions as attorneys are not pointless.  They are people who believe in their own efficacy.

Any experienced lawyer has a deep repository of war stories in which the wrong thing happened.  A correct legal argument was rejected by a trial judge or an appellate court.  An honest and accurate witness was disbelieved by a jury.  An innocent person was charged, prosecuted, convicted, and sentenced.

Given such experiences, why do lawyers persist?  Perhaps the simplest account would be that they believe errors are more or less random and will balance out in the long run.  (In metastasized form, this view might become a belief that the judicial process produces results that are entirely unrelated to the merits of the underlying dispute, but that extreme of cynicism is not necessary to explain the willingness to persist.)

There is something unsatisfying, however, about this “errors cancel out” view of things.  For one thing, it is not clear why errors should cancel out.  Why shouldn’t errors on one side overwhelm any errors on the other side, as a result of systemic biases?  Why shouldn’t structural flaws of one kind or another lead to the conclusion that the judicial system is simply incapable of reaching a just result, at least in certain classes of cases?

Spring 2001: Optimism and Problem Solving

My theme for this year has been the quality of optimism. 

A decade ago, University of Michigan psychology professor Christopher Peterson and his collaborator Lisa Bossio surveyed the extensive literature concerning the relationship between optimism and physical health.  Their book, Health and Optimism (Basic Books 1991), offers insights that can help us to explore this terrain with greater specificity.

Peterson and Bossio define optimism in cognitive, rather than emotional, terms.  Their definition entails a set of beliefs about the real world, beliefs that lead people to approach the world actively, gathering information they can use to solve problems.  The authors measure subjects’ optimism according to how they explain the causes of misfortunes they experience.  Optimists are those who attribute bad events to causes that are external to themselves, unstable (i.e., ephemeral), and specific to the particular event.

Peterson and Bossio describe many interesting studies that link optimistic thinking with such different health attributes as reduced incidence of the flu and prolonged survival after breast cancer.  And they offer thoughtful suggestions about how such a relationship might be explained.

Summer 2001: The Lawyer's Voice

Each year I use my messages in Law Quadrangle Notes to examine a quality that helps to define an outstanding attorney.  I have discussed how great lawyers pursue intellectual growth and renewal, maintain integrity, teach others about the law, serve as community citizens, bolster our profession’s image, exhibit patience, and sustain a form of optimism.   In the coming year, I would like to explore the quality of voice.

The famous English preacher Charles Haddon Spurgeon once published “Hints on the Voice for Young Preachers” in 1875.   Most of his guidance had to do with diction – with qualities such as articulation, cadence, and volume.  And while that is not the kind of “voice” I am speaking of here, I nonetheless expect most lawyers would find his recommendations entertaining at least.  Consider, for example, the following advice:

·      “[A]void the use of the nose as an organ of speech, for the best authorities are agreed that it is intended to smell with.”

·       “It is impossible to hear a man who crawls along at a mile an hour. One word to-day and one tomorrow is a kind of slow-fire which martyrs only could enjoy.  Excessively rapid speaking, tearing and raving into utter rant, is quite as inexcusable; it is not, and never can be powerful, except with idiots.”

Fall 2001: The Lawyer's Voice and September 11

Over the summer, I decided to devote my messages to the ways that a great attorney’s  “voice” can shape his or her relationship with listeners through choices about timing, syntax, tone, and word selection.  In this message, I would like to reflect on two ways in which the events of September 11 altered our voices.  The first has to do with the ways in which faculty, students, and alumni spoke within the Law Quadrangle during the subsequent two weeks.  The second has to do with the way one of our graduates chose to speak out a month later.

At 11 a.m. on September 11, I cancelled a luncheon across campus and raced back to Hutchins Hall.  I and my faculty colleagues fanned out among our students – in the hallways of Hutchins, in the Lawyers Club Lounge, and in the cafeteria – and we struggled together to comprehend the news that was unfolding.

 I called an emergency faculty meeting that afternoon, in which we talked about how to speak with our students.  We found ourselves in a completely unfamiliar role.  We ourselves were anxiously seeking reassurance and comfort, and we knew that many of our students were looking to us for those same things.  The term in loco parentis, long since banished from the scene of the modern university, had made a startling reappearance. 

Spring 2002: The Lawyer's Voice When Delivering News

This year, I have been devoting my messages to the ways that a great attorney’s  “voice” can shape his or her relationship with listeners.  In my concluding message of this series, I would like to focus on my experience of how outstanding lawyers deliver news.  How they deliver bad news.  And how they deliver good news.

The reason I want to concentrate on that particular feature of the lawyer’s voice is because it is one that I often hear mentioned in a particular context.  Each year, several times a year, I host lunches at the Law School in a series that I call “the Dean’s Forum.”  In a typical Dean’s Forum, ten or fifteen students have lunch with a lawyer who is now running a business.  The lawyer speaks about career path.  Frequently, the lawyer speaks about what it is like to be a client.

Often a student will ask our graduates what they think distinguishes a good lawyer from a bad lawyer.  As often as not, the response concerns the way the lawyer delivers news.

The easiest examples concern the delivery of bad news.  By bad news, I mean news of the form, “the course of action you describe may well be illegal or would expose you to civil liability.”The best lawyers seem to know intuitively that the delivery of such news is a delicate art indeed.

Summer 2002: Empathy, Sympathy, Compassion

I traditionally use my messages in Law Quadrangle Notes to examine a quality that helps to define an outstanding attorney.  In past years I have discussed how great lawyers pursue intellectual growth and renewal, maintain integrity, teach others about the law, serve as community citizens, bolster our profession’s image, exhibit patience, sustain a form of optimism, and deploy their voice.  In the coming year, I would like to explore the related qualities of empathy, sympathy, and compassion.

The historian Gertrude Himmelfarb has recently described the evolving discussions of sympathy and compassion over the course of the British Enlightenment.  Earlier writers such as John Locke and Thomas Hobbes believed that sentiments such as compassion had to be inculcated through rigorous education.  But later writers such as David Hume and Adam Smith insisted that such feelings were innate, an essential aspect of what it means to be human.

Of course, in modern times Adam Smith’s name has become popularly associated with a rather callous and unfeeling vision of the free market economy.  It is therefore interesting to see how much his economic program was grounded in a vision of moral philosophy which assumed that people identify with and care about one another.  In the first chaper of The Theory of Moral Sentiments, he offers the following observations: