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Ins and Outs of Specialization

published February 05, 2013

By Author - LawCrossing
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( 4 votes, average: 4.1 out of 5)
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Should a lawyer "specialize"? Perhaps, if he can! But is he always free to do so even if he wishes? On the other hand, is he always free not to?

If a lawyer is so constituted, temperamentally, that he is going to embark on a country practice, he will not be able to specialize. He will take whatever comes. The legal problems of the small community are not sufficiently numerous or diverse to permit him to specialize. In this situation the question of whether or not he should specialize is controlled by the answer he gives to a question: What kind of practice should I undertake? If he chooses country practice, the question of whether he is going to specialize or not specialize has, as the lawyers say, become "academic." This means unreal, hypothetical, of no practical significance.


But why dub such a question "academic"? Because, probably, of the feeling among so many college and "academy" students that what they are studying has no application to real life. This feeling ties in with the general discussion on social conditions and philosophies do, even today, influence courts' decisions and hence why they are really important to you as a lawyer, not merely of "academic" interest. To ask a country lawyer whether he specializes is like asking a boy going steady how he likes dating the field. That one's already been answered.

At the other extreme we have the young lawyer who goes into a firm that specializes in, say, tax work. He will specialize in tax work, period. Or he may be hired by a general-practice firm to fill a certain niche. If so, that niche's peculiarity will be his specialty. The question of specialty was answered when he fitted himself to the niche.

But in between these two extremes we have the great bulk of lawyers who, if they wish, may develop a specialty in the law and practice that specialty, if not exclusively, almost so, or principally. Should you do that or shouldn't you? (If you can, that is.) Well, as is usually the case, there is something to be said on both sides.

Big problem

This is the general practitioner's big problem: Every case in an unfamiliar area of the law requires him to start from scratch and learn the applicable law of that area for just that one case. He may never have another like it. Now, the solution of problems takes time, and (perhaps it was Abraham Lincoln, himself a lawyer, who said this:"Time is a lawyer's stock in trade." At this point we get into some pretty fundamental economics: If the lawyer has to prepare each case in a new field from the ground up, is it fair to his client to charge what his time is really worth? A lawyer may take untold hours while handling his first bond issue. Sometimes a corporation will borrow money, not from the banks but from the public, and if so it may "issue" what are called "bonds" to the lenders. Here the applicable law is complex. The decided cases are hard to study not only because the law is complicated but also because the facts usually are. The trade uses a financial jargon all its own, so you have to learn the language (from whom?), really, before you even start. Then you have to write what is called a "bond indenture," which describes the rights of the bondholders and the borrower. You could go on and on about how hard it is, but it is suffice to say it takes a long, long time.

In that case, if a reasonable charge is made to the client for the depletion of stock in trade –lawyer’s time—the client simply faints, after calling the lawyer a robber. He would have pointed out that good old lawyer Joe Doakes, who had passed away, had handled literally dozens of similar bond issues for much less than that lawyer’s proposed fee. And there, you see, is the answer. Doakes had handled many of them. He had specialized in bond issues. Not exclusively, but he had handled many of them. All those answers that lawyer had to dig out so laboriously, at the cost of his other work. Actually, each of the fees, contemplated high fee, and Doakes' comparatively low one for the same work, was reasonable in view of the time each of us had put on the problem. But it would have been unfair to the client if he had been charged for all the learning time of the lawyer.

You may have noticed, in what we just said, several references to the client and his interests. Again, we are getting down to bedrock. Remember that a lawyer exists to render a service to a client. This service must be accurate and it must be accomplished at a reasonable cost to the client.

Accuracy and cost

Let us look at those two requirements (accuracy and cost) in that order. First, as to accuracy: For instance for a lawyer friend, the world has become a very complex place in which to live. His grandparents (true, we're going back some time, now, but after all it isn't ancient history) lived in Missouri and Maine. They probably lived in a simple little agricultural and trade economy. There was no telephone, there was no radio, no television; there were no movies, no airplanes and few railroads, no paved highways, and no supermarkets. You can make up the rest of the "no" list yourself. It was just simply a different kind of life. Now, the legal problems of an age always mirror the society of the age. Thus the lawyer friend’s grandfather, a country lawyer in Missouri, drew deeds, mortgages, and wills, settled boundary disputes, probated estates, tried criminals, and occupied public office. These were all relatively simple legal tasks. Advocacy was prominent among them. A lawyer made his reputation in the courthouse. When court was in session the courtroom was crowded with people who had come from miles around to see the show. Remember: no radio, no movies, and no television. The courtroom provided acting and drama, both in abundant measure. The large cities of the day presented, in the main, problems differing not in kind but in magnitude. There were even then, of course, lawyers specializing in the problems of finance and the "trusts" of the day, but they were, in numbers at any rate, a negligible group.

Contrast the situation today. There are, it is true, communities so small that the practice is still much like what it was in the grandfather's day. "Much like" because even in small communities there are great changes-- taxes, for one thing and the public slaughter on the roads, for another.

Someone is at fault in each of these cases, which means (since the law still grounds liability on fault in this type of case) a suit for damages against the careless driver.

But let's go just one step higher on the ladder of communities, thinking still of a county-seat town, not yet a city. Perhaps you live in one. Let's compare notes. The lawyer friend’s town has a new radio station. That required the lawyer to pass on the title to the property, which the lawyer friend’s grandfather did. But it also required the lawyer to obtain permission to broadcast from the Federal Communications Commission in Washington, and to negotiate a labor contract with the union, neither of which tasks had the grandfather even heard of. The lawyer friend’s town also grew large enough to have a branch bank out in the new suburb.

Again the lawyer examined the title to the land, but in addition he had to get the approval of the State banking commission in the State capitol and a Federal agency in Washington, since it was a national bank. Neither of these agencies existed in the grandfather's time, though there was an elementary control of banking. We could cite many other instances, of course, like chain stores, but you get the idea of increasing complexity.

Now let's go back for a second to the first example we used, the radio station. What is the lawyer to do about getting the necessary certificate, or license? Let's be practical about it.

The owner has been breaking his neck to get the building up, and the equipment purchased and installed, and he has contracted with advertisers to go on the air on June 1. This decision is made in April, let's say, and at that time, if you are lucky, you are authorized to get the license, effective prior to June 1. If you are not lucky the client will tell you, not in April, but about the middle of May. This isn't, normally, carelessness. Clients just don't realize the complexities of some of the legal problems. The same thing happens with respect to wills. Suppose a husband and wife come to you around five in the afternoon, all out of breath from their dash from the travel bureau, and asked you to prepare a "simple little will" disposing of all their property if anything should happen to them since they are leaving for Europe the next day! If a lawyer is smart he will get ready for this one. If you mess up the estate it's no consolation to the heirs, nor does it save your professional reputation, to say that you were in a hurry when you drew the will.

With respect to the radio station, then, how do you get the necessary permission to commence broadcasting? Well, if you had nothing else to do you might learn the applicable law and regulations, and fill out, and put through successfully, the application for license in the time given to you, though you'd have to be a real wizard to do it. What you would actually do, if you were wise, you would be to seek out a lawyer who does this kind of work day in and day out and, with your client's permission of course, put the matter in his hands. In other words, you've gone to a "specialist."

Respect to client

What is the result of retaining the specialist? The most important is with respect to your client (and always remember that his interests control, first, last, and always). He obtains the result he requires, and at a reasonable cost. If you had not sought help the chances are that you couldn't have accomplished the result within the time specified. But suppose you had, should the client be required to pay the exorbitant fee your time spent in learning the law would justify? If not, you have gone into the red on the whole deal, and you can't do that very often, and live,

Of course, if obtaining such a certificate is to be a repetitive task for you, if you have a client who is in the kind of business where this is a part of the service rendered, the situation is more like the bond-issue problem we just considered. You will steep yourself in the applicable law and then, maybe, others will come to you.

Now the point of all of this is that the law has today become so complex that (unless your practice is a very simple one, legally speaking) a lawyer almost has to specialize and seek the services of specialists if he is to render any kind of adequate service to his clients. This does not mean, in most cases, that he practices no law but that of his specialty. He will have other fields of competence, also. But there should be certain areas of the law in which he is a real expert. These, as we have seen, may be forced on him, or they may be the result of chance, but whatever the cause the result is the same-specialization. Some of the common areas, incidentally, in which lawyers hold themselves out (in the legal directories) as specialists are taxation, commercial law, trial work, financing, real estate, patents, wills and probate, labor law, copyright and trade marks, antitrust, international law, admiralty, and others, or combinations of one or more of those listed.

The growing complexity of our life has caused two outstanding changes in the legal profession. The first is the very thing we are discussing, namely, the need to specialize to a certain degree in order better to serve the client. Always re member that if there is a real need in our society for a certain kind of legal help, and if the lawyers, for some reason (blindness or conservatism or inertia, or what not) don't recognize it, laymen will, and they will rush in to fill the need. The tax laws are a case in point. For many years lawyers regarded this area with a good deal of standoffishness. They were unfamiliar with it. It required a measure of accounting skill, which they didn't have, and which they were too busy, or something, to acquire. Yet there was a real need for sound tax guidance, and the accountants filled the need-and largely continue to do so.

Other great areas of law have been taken over by expert groups of laymen for much the same reasons. Title companies, trust companies, and collection agencies are doing work once thought to be within the exclusive domain of lawyers simply because the legal profession had too much inertia, or some thing, to cope with the changing times. Look at the article on "Practice of Law in New York City" published in an old issue (April 25, 1896)of Harvard Law Review wherein you find these two sentence: "Within the last twenty years the local bar has endured a great loss of income in the matter of searching titles to real estate.

Corporations formed for the business seem about to absorb it utterly. Twenty years more will tell the tale." It has, of course. The problem of the legal profession today is not whether we can afford to specialize but whether we can afford not to.

Change in emphasis

The other outstanding change has been what we may call a change in emphasis. The leading lawyers of our grandfathers' times, generally speaking, made their reputations as courtroom lawyers. They were orators and trial specialists. This is no longer true. The leading lawyer of today, in all but the smallest communities, is now more apt to be the man who sits at a desk and figures out how to accomplish a complex corporate merger, or how to set up a chain of stores. He is a person who can fit the business wishes of his client to the regulatory de vices of the government in such a way that the business can be done at a profit without landing the owner in the hoosegow for violating, say, a State statute controlling monopolistic practices or the Federal or State regulations governing the sale of securities. The legal technician thus skilled, not the courtroom virtuoso, has become the leading figure in the profession.

Now, if you are going to specialize in some branch of the law, should you attempt to specialize in school? If, while you are still going to law school you know what you are going to be doing in practice (maybe going in with your father in a certain kind of practice), you should get as much of that particular area of the law as your school offers. That is only common sense. It probably won't be too much, anyway, for law schools not to prepare students for specialization. It's all they can do to cover the basic groundwork in the usual three years allotted to the study of the law in law school. (You will really study law all your life. All kinds of inquiries will come to your mind, as you ponder the law and how it works. For instance, some time, even if you don't become a lawyer, study a strictly legal analysis of the trial of Christ. It was a mockery of justice, a flagrant disregard of the rules and procedures of the body He was brought before.)

So, specialize in school, if you think it wise, and to the degree that you can, in whatever branch of the law you are going to practice. Concentrate, to put it another way, on whatever your own personal "admiralty law" is going to be. But never forget one thing: Your admiralty law may turn out to be mining law. And, along this same line, it is perfectly astounding how many times a young lawyer's most important case will involve a subject he never "took" in law school. There's a lesson in all this. Can you figure it out, by yourself? The really important thing from study in law school is not to learn "rules" of law. They are important, of course, but they change. Moreover, life just isn't long enough to learn all the rules of all kinds of law. The important thing to learn is how to study a legal problem, to analyze it, to research it, and thus to be able to predict what a court will do in your client's case. Of course, it's a lot easier, later on, if you did all of that in school with respect to the very kind of law your important client is interested in, but if you didn't it isn't fatal. In fact, it just makes the new problem more interesting.

Financially, what is the score? Here there is no real argument. The specialist is 'way ahead. The general practitioner has a more difficult time building up a clientele. After all, he can't advertise. Laymen sometimes wonder why. It is partly traditional, partly practical. On the traditional, historical side, a lawyer is an officer of the court rendering a service to people in trouble. Practices that are appropriate to a profit- making enterprise, the laudation of the product, the drive for a larger share of the market, the fulfillment of the profit motive, are all foreign to the profession. Can you imagine what it would be like, otherwise? Eventually we would have the same screaming billboards, the same radio jingles we get from other "business”. You furnish the client. We furnish the evidence." It doesn't take a very astute thinker to figure out the practical result of such conduct, either: the degradation of standards and the miscarriages of justice should the profit motive supplant the search for justice in the courts.

Changes in law

The chief way a lawyer becomes known (barring dramatic trials) is by word-of-mouth recommendation. That is a slow process, particularly among the general population of any reasonably large community. His normal day-by-day work is largely repetitive in nature, drawing routine deeds of real estate, discharging mortgages, and so forth. Soon these things become almost second nature. The same law is applied again and again. He must, of course, keep abreast of changes in the law from time to time, resulting either from decisions of the Supreme Court of his State or from new laws passed by the legislature, and this takes study, since his practice covers a broad field. But although these repetitive matters do not re quire fresh research as to each transaction (though they do take time), neither do they bring in much by way of fees. The more substantial fees come from the more important matters, and each of those, to the general practitioner, may present a new problem, as to which, indeed, he may require the aid of a specialist. Nevertheless, it cannot be denied that the range of problems coming to the general practitioner is in itself, to a certain type of person, both challenging and stimulating, and in this challenge, and in this stimulus, he finds his real reward.

The adventure

It is something like the challenge of the ocean to the old-time sailing-ship masters. Every day brought a new adventure, a new problem. If they weren't blown off course in a hurricane, they were becalmed. They were at the mercy of the winds and the seas. Well, almost. The degree of their skill was the measure of their subjection to the elements. Some men could not be paid to do it. Others could not be paid to leave it.

The specialist, on the other hand, does not travel in so wide an orbit. His specialized skill permits him to render the best possible professional service for a fee that, reasonable for the responsibility, is substantial in dollar value. In other words, his fees are commensurate with the importance of his cases and the magnitude of the interests involved. And, unlike his brother the medical specialist, our legal specialist need have no large investment in unique and expensive equipment. He buys the same reports, the same compilations of statutes, as the general practitioner. Often, in fact, his professional library is far less comprehensive than that of the general practitioner whose cases may range, in a single week, from the abandonment of a child to the zoning of a new addition to the city. If it is true that he has not the range of interests of the general practitioner, neither does he have his range of problems. His greatest problem (and we shall look at it for a moment merely that you may be on your guard if you should decide to specialize) is the temptation to become so immersed in his specialty, and the income from it, that he forgets his obligations to the profession of which he is a member. Because his professional interests are narrowed they should not, as well, be blunted. He remains, first and foremost, a lawyer, an officer of the court, a part of the machinery of justice. If legal procedures are inadequate to the needs and if the dockets are clogged, it is a part of his professional duty to take part in the fight for betterment. Too often has he persuaded himself that these are the general practitioner's problems, not his. If the call comes to public duty, he should respond, at least for a time, though his income suffers

So, we conclude with the same question with which we opened it: Should a lawyer specialize? We close with the same answer:
 
It depends. Now, possibly, you may see more clearly that much depends upon your own character, as we have seen, and the location where you may be required to practice, and the office of your choice. But if you are so built and so equipped that you may take specialization or leave it, as you wish. The law has become so complex (as society itself has become more complex) that a lawyer who is a jack-of-all- trades may, if the case is more than mere routine, end by neither doing justice to his client nor to his client's cause. Our dedication is to the cause of the client. His welfare, indeed his life, may be in our hands. If those hands are gross or palsied or inept, the client's cause is lost and the client with it. That, for a professional man, is a situation he cannot countenance, far less endure.

published February 05, 2013

By Author - LawCrossing
( 4 votes, average: 4.1 out of 5)
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