I often find myself speaking to law students and young lawyers who are having difficulty deciding what area of law they should practice. I also hear from older lawyers lamenting their original choice and thinking about making a change.
For a bunch of smart people, many of us lawyers choose how to spend most of our waking hours in some pretty dumb ways.
This is unscientific, but I am pretty sure that some of the leading motivators for choosing an area of practice are: (i) television and movies which make litigation sound exciting and fun; (ii) a great professor who makes a particular area of law come alive; (iii) where an articling job can be secured; (iv) a good articling experience in a certain department; and (iv) who is hiring at the moment. From one perspective this makes perfect sense. From another it is sheer lunacy.
One of my former partners used to call litigation ‘Sad Law’ and corporate law ‘Happy Law.’ To some extent this distinction probably works equally well to distinguish litigation from just about everything else.
In Sad Law, the client is already a loser the moment that they enter the litigator’s office. At best, they are going to have to waste time, money, and emotional capital fighting to obtain compensation for something that was taken from them or to which they were entitled. At worst, they are going to waste time, money and emotional capital defending a claim that they often consider baseless, and then lose and have to pay damages and costs. In Sad Law, the clients tend to be sad. Often, sad clients make for unhappy lawyers.
Sad Law can appeal to people with a social conscience who want to use the law to change our societal rules for the better. It also attracts those who genuinely enjoy helping people who are disadvantaged. Now having run out of good motives to attribute to litigators, I get to the real truth, which is that for the most part Sad Law simply attracts people who are competitive. They enjoy the fight. They like winning.
In Happy Law, the lawyer is often working cooperatively with the client to build something. The clients are happy about almost everything except for the legal fees, and they can even learn to accept those when they are being spent to build a business, eliminate risk, or reduce a tax burden. Happy Law often attracts people who are more cooperative. They like to be part of building things and facilitating the success of others. Happy clients make for happier lawyers.
So when lawyers ask me about how to choose an area of practice, I tell them that the first step is stare deep into their own souls and figure out what motivates them.
After that, they have to think about how each area of practice might affect their physical and mental health and their family harmony.
Lack of control over one’s life is a major cause of stress. Litigators have less control than lawyers in other areas of the law. The client calls and an injunction is required. Drop everything else, work day and night and be in court in forty-eight hours. The court calls and says that the court list has collapsed and your trial has been accelerated. Drop everything and get ready for trial. The court calls again and says that your trial is not going ahead on the scheduled date. Stop trial preparation and do it all over again in a few weeks or months. You blocked off your calendar for a month for the trial and the case just settled. Now you have nothing to do. It is exciting, but it is not calming. You may not like it. Your spouse may hate it.
Transaction lawyers can have similar stresses. The deal runs your life.
Intellectual Property lawyers need to be smart. They have to understand and manipulate sophisticated intellectual concepts (probably why they call it intellectual property.) But deadlines? Not really. I was a trademark agent for 25 years and I have to say that it is the only area of practice that I know of where the ‘other side’ sends you a letter and says, ‘you are required to reply within three months.’ And if you don’t want to reply within three months because it is inconvenient? You write them a letter with an excuse that you made up and pay them a tiny amount and they give you another two months. I am sure that I will hear from some I.P. lawyers telling me that I am completely off-base, but from my vantage point it looks like the Zen area of practice. (Note, this does not apply to the intellectual property litigators. See above. Litigation bad.)
The bottom line is that different areas of practice have their own unique demands and are suited to different personalities. Young lawyers often do not fully understand this. There are things that they should be doing to figure out what is right for them, which they rarely do. Things like: (i) behavioural and psychological testing; (ii) counselling; (iii) reading about what is involved in practicing various specialties; and (iv) possibly most important, speaking to lawyers in different areas of practice about what they like and do not like about their legal work and how it affects their well-being.
Or you can make the same mistakes that I made. I became a business lawyer for three reasons: (i) I was afraid of judges; (ii) my corporate articling rotation was the only one in which the lawyers gave me positive feedback and made me feel good about myself; and (iii) someone offered me a job doing corporate and I needed a job. Please, be smarter than me!