Mark Herrmann, a
partner in Jones Day’s Cleveland office (and, notably, a Princeton grad), has
Curmudgeon’s Guide to Practicing Law" (ABA Publishing: 2006), a copy
of which he sent me, inscribed "To the Managing Partners’ Curmudgeon."
That gives you the flavor of this absolutely
addictive, unputdown-able book.
"Curmudgeon’s Guide" pulls off—with great elan—a technique that many writers attempt, only to crash and burn in the face of its extraordinary degree of difficulty. That technique is to deliver deadly accurate truths veiled in laugh-out-loud humor. Although Mark can of course take no personal credit for the foreword, it aptly sets the tone for what’s to follow by opening with a juxtaposition of these two quotes:
- "The life of the law has not been logic: it has been experience." (Oliver Wendell Holmes, Jr.)
- "Experience is the name everyone gives to their mistakes." (Oscar Wilde)
Just how deadly are the truths delivered? Suffice to say: When I was halfway through the book, I emailed Mark to tell him that had I read it as a first-year associate, "it might well have changed my career"—I might have had a prayer of figuring out what it was really all about, in other words.
Because "Curmudgeon’s Guide" is, at least on its face, addressed to associates starting out, you might think it beneath you, or at least behind you: But not so fast. Not only does it include a chapter about arguing an appeal (when was the last time a junior associate at an AmLaw firm did that?), but it tells truths that are so timeless you would be well advised to keep it in your right desktop drawer, no matter how senior you are.
A theme—perhaps the theme—of the book is stiff-backed, utterly unyielding, rigorous insistence on excellence in your work. To open the chapter, "How to Fail as an Associate," Curmudgeon tells the story of an aide to then-Secretary of Defense Robert McNamara who delivered a memo. Two weeks later McNamara summoend the aide to his office and asked, "Is this the best you can do?" Both chastened and motivated, the aide spent another week working on the new version. Two days after he delivered it to McNamara, the call came: "Is this really the best you can do?"
Working furiously all weekend, the aide polished the draft until it glittered and returned it to McNamara Monday morning. That afternoon came the call: "Do you really mean to say that this is the best you can do?" The aide had had it: "Yes, that’s the best I can do! That’s the best I can do! What do you want out of me?!"
McNamara: "OK, now I’ll read it."
Curmudgeon says this is "a joke. Sort of."
His point is, of course, is that there is no such thing as a "draft." Or at least, not a draft you share with anyone other than, maybe, possibly, just on a dare, your office-mate or spouse. His reaction to getting something marked "DRAFT," so that the author can disavow it if challenged?
"Keep it. Stuff it. I don’t need garbage with an apology. I need answers. Someone has to figure out the answer. Someone has to take responsibility for the answer."
And there’s this: "I have one secret to share with you. No one has ever failed to make partner at this firm by being too conscientious."
Wondering how to write, as an associate or otherwise? Wondering how to discuss a case?
On writing, we have nine rules plus the uber-rule, which is "it is your obligation to follow these rules. It is not my obligation to find your mistakes and fix them." Here are two of the rules:
- "Write in short sentences. If a sentence runs on for more than three and a half typed lines, break the sentence in half. Make it two sentences."
- "Start each paragraph with a topic sentence. This is important. Few people do it. You will do it. If you don’t know what a topic sentence is, look it up. Now."
Or how to discuss a case: There is one and only one way to do so.
- Somebody sued somebody for something.
- The trial court held something (held: not discussed or analyzed or believed).
- The appellate court held something (ordinarily, it affirmed, reversed, vacated, or remanded).
- Now, you can say whatever you want about the case.
And Curmudgeon’s shrewd tactical advice about his favorite kind of case to cite? It’s a case where the trial court did what his adversary is asking this court to do, and the appellate court reversed. Judges hate to get reversed. Res ipsa loquitur.
If you haven’t already resolved to read the book, there’s more: For one, an entire chapter devoted to "The Curmudgeon’s Law Dictionary," with entries such as: "Federal common law: The body of law eliminated by the Supreme Court in Erie v. Tompkins, which currently controls the outcome of many lawsuits."
Or, the Curmudgeon on clients. "What industry are we in? Wrong. We are not in the legal industry, we are in the service industry. When we work with clients, we try to do just one thing: Make their lives easy."
Now, do you understand why I say that had I read this as a first-year, "I
might have had a prayer of figuring out what it was all about?" Thus
my strong recommendation to Managing Partners and Hiring Partners in the audience: Buy
your associates this book. (I’m not shilling for Mark; all proceeds
go to Jones Day.)
Finally, after a section on building your practice, which involves extensive exhortations to publish, write, and speak, Curmudgeon closes on his last, truest, note, hypothesizing that he could write a book called The Curmudgeon’s Guide to Practicing Law, but that it would be worth "nothing" to him, since it would lure no clients and royalties would go to his firm. But he might write that book, not because it would be profitable, not because it would be right, but for essentially no reason at all: As a labor of love.