Friend, here's The Timesheet for August 2008

My kids attended school until about a week before Independence Day. So much for Memorial Day marking the unofficial beginning of summer. So much for a family getaway in June. Within the first week of August, I can look forward to the "back to school list" of classroom supplies that my school taxes fall short of covering, like pens, pencils, erasers, and paper. It’s not that I mind subsidizing public education with stationary store swag. But really, I bought the damn pencils for you—do you think maybe you could sharpen them yourselves?

I have heard marvelous tales from lawyers in practice longer than I, that in glorious days of yore the courts actually closed in August, giving litigants and litigators alike a month-long respite from their disputes. They actually took weeks off at a time, with no e-mail, blackberries, or cell-phones, and no massive towers of mail stacked on their chairs to greet them upon their return. Oh, to have been a lawyer in those heady days! August is now a time for catching up on paperwork, attending depositions, and if you’ve drawn the ire of the wrong judge, perhaps a jury trial or two. Let’s be brutally honest. When a judge schedules a trial during the summer, that’s as good as a sanction.

So this summer, I’ve taken several cruises between the waterfront at Yonkers and Pier 11 in lower Manhattan, being my ferry commute, with the occasional excursion to exotic Staten Island. I’ll be trying a case in mid-August. I’ll be relaxing at home with a box of number 2 pencils and a pencil sharpener. And I’ll be making travel plans for my summer vacation—in November.

"You got that right," my client chuckled wryly.

We went on to discuss the discomfort this client feels in the workplace. She chooses not to be herself in the office, to rein in the zany and hilarious side of herself in an effort to show up as the cool, calm professional whose judgment is above reproach. And, frankly, it’s hard to blame her or any of the others who make a similar decision. Especially in a competitive world in which reputation may be built on first impressions and damaged in a moment, playing it safe may be an appealing choice.

That said, when there’s too much of a gap between one’s "real" self and one’s "work" self, going to work may become unbearably stressful. A great deal of energy can be consumed by molding oneself to expectations, and everyone I’ve known to be in such a situation gets worn down by maintaining a false persona. Even more troublesome, authenticity is generally regarded as a key leadership attribute. People often sense inauthenticity, and when authenticity is lacking, it’s tough to build or maintain relationships.

I’ve always enjoyed the quote, "Be who you are and say what you feel, because those who mind don’t matter and those who matter don’t mind." (Attributed, variously, to Walt Disney, Dr. Seuss, and Bernard Baruch.) Of course, those who employ or retain you do matter. So, what if you feel required to present yourself as someone you aren’t?

1. Change positions. Sometimes it’s a "fit" issue. A firm’s "culture" will define what is and isn’t acceptable, and a baseline fit between lawyer and firm is important. While it’s unlikely that you’ll find a firm that allows you to be exactly who you are at home on a weekend morning among family or close friends, it is possible to find a firm where you can be more or less the same person. If the "fit" is wrong, you’ll likely have the metaphorical sense of wearing a suit that’s too tight: constriction at work followed by the renewed ability to breathe when you’re elsewhere. If you’re happy with your professional self, then the suit has to go. Just be sure to note the areas of constriction so you’ll know what atmosphere would be a better fit.
2. Practice allowing your personality to show. Sometimes the issue is one of comfort: personality might be welcome, but you need to develop a certain comfort level to believe that’s true. Try cracking a few jokes, mentioning your interest in feng shui, or hanging that unusual painting in your office. And measure the reaction you get. Assuming a reasonably good fit, you’ll probably begin to relax a bit (when the situation is appropriate for relaxing) and allow your slightly quirky self to show. Treading slowly is probably a good idea: no one appreciates the colleague who lets the freak flag fly a little too high. But personality is part of what will draw other lawyers and clients to you. No one wants to work with an automaton.
3. Express yourself in covert ways. One of my good friends (not a lawyer) served as a consultant for several years for one of the big companies that functioned remarkably like a law firm. She bought a toe ring that reminded her of her "outside" life and the trip to the Bahamas where she bought the ring. I’ve known lawyers who relished having a navel piercing, living in an unusual part of town, or playing in a rock band on the weekends—none completely secret, really, just private enough to share with a select few.
4. Act in integrity with your values. On occasion, I’ve known lawyers who felt they were required to conform in distasteful ways. Choosing to laugh at jokes that conflict with deeply held beliefs, for instance, puts a higher value on conformity than on the deeply held belief. Integrity requires finding some way to reconcile belief and action, whether it’s ignoring or challenging the distasteful view. Sometimes it’s an opportunity to educate, and sometimes it’s a sign that the firm/lawyer fit is wrong.

Julie Fleming Brown, J.D., A.C.C. provides attorney development coaching and consulting to law firm associates and partners, focusing on topics such as leadership, client, and professional development; career strategy; and work/life integration. A certified leadership coach (Georgetown University), Julie publishes the weekly email newsletter Leadership Matters for Lawyers and posts often on the Life at the Bar Blog. Learn more at www.LifeAtTheBar.com or by contacting Julie by telephone at 800.758.6214 or by email to jfb@lifeatthebar.com.

©Stu Rees. All rights reserved.

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Last month our readers were offered the opportunity to find out about four topics by clicking the link to each topic. Here are the selection results:

Cutting your spouse out of your will: 24%
Legal articles: 4%
IP law: 5%
Videos featuring monkeys: 64%

• Understandably, you had considerable interest in cutting your spouse out of your will. Any married person would see this as obvious. Why then, do lawyers and their marketing advisers keep pushing under-attended seminars on conveyancing and trusts when the real interest is in useful legal topics such as "How to murder your spouse—and get away with it"?
• You are not as interested in intellectual property law as we lawyers thought. This will be a big shock for intellectual property lawyers but they are a pretty dull lot and will get over it.
• A low 4% response to legal learning, in general, will ruffle many legal feathers. Lawyers tend to think that people (especially their clients) are interested in the law’s many twists and turns. Could we really be wrong? Could this mean that your lawyer should spend less time explaining the law to you and just get on with it? The effect would be that you would be less informed and lawyers would earn less money. Surely this can’t be right. If this is really true, why didn’t you just say?
• Now I turn to the most groundbreaking result. It suggests that people, if given a choice, prefer to watch a video featuring monkeys rather than learn about the law. This is useful feedback, indeed. I doubt if bankers or accountants would fare any better; however, some financial planners would give them a run for their money.

Paul Brennan is a legal cartoonist, author and speaker. He is the author of The Law is an Ass . . . Make Sure it Doesn’t Bite Yours and A Legal Guide to Dying . . . Baby Boomer Edition (both coming soon to The Billable Hour Co.), which are intended for a worldwide audience. He blogs at www.101reasonstokillallthelawyers.com. In his day job, he is the principal of Brennans Solicitors, a law firm located in Mooloolaba, a Queensland, Australia seaside town, where he practices in the areas of business law (including franchising), intellectual property, trusts and estates, immigration and real estate. For more information on booking Paul as a speaker, visit www.lawanddisorder.com.au.

©Dan Rosandich. All rights reserved.

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We're thrilled to introduce you to Paul Brennan, our new "renaissance lawyer":

By the end of August, we'll be selling Paul's books, The Law is an Ass . . . Make Sure it Doesn’t Bite Yours and A Legal Guide to Dying . . . Baby Boomer Edition in our Games and Books department and featuring his cartoons in The Billable Hour Card Store.

Watch more hilarious videos from Paul and from around the web, join us at The Video Venue!

The formbooks were smash hits with the legal profession. As a result, all of the linguistic oddities discussed above, and many more, became set in stone, carefully preserved, and passed on from one generation to the next. When the British colonized North America, English law and English formbooks came with the package.

Until the late eighteenth century, American lawyers borrowed from British formbooks, but after independence, they began to clamor for something a little more homegrown. In 1797, New Jersey lawyer William Griffith promised to give them just that with his Scrivener's Guide—the title alone gives one goose bumps. It turns out the book was only a slightly-changed version of an English book of the same name, advertised as being "Useful for all Gentlemen, especially those that Practice the Law."

The same was true of Joseph Story's A Selection of Pleadings in Civil Actions (1805), which promised to give "American" precedents but consisted mainly of recycled English forms. The fact was that American practice was so closely modeled on the British that uniquely American forms, although appealing to the patriotic spirit, scarcely existed.

Later in the nineteenth century, legal publishers realized that they could vastly increase sales by pitching their books to the general public. Thus

Everybody's Lawyer and Book of Forms, written by a Philadelphia lawyer in 1869, promised that every man could be his own lawyer—provided he bought the book. Everybody's Lawyer also made the bold claim that "[i]n no instance has injury or loss resulted to anyone from [this book's] use." Which may well have been true, but it is also unlikely that the book caused anyone to get a four-hour erec'tion.

"Superstition" would be the best word to describe the law's attitude toward forms. Like a gambler unwilling to wash his lucky shirt lest it lose some of its magic, the average lawyer wouldn't change a comma in a trusted boilerplate form. In Australia, a corporate executive once tried to rewrite one of her company's standard form contracts. Where the existing contract said:

The Agreement shall commence on __________ and expire on _________,

In a 1999 law journal article, a Michigan lawyer named David Daly proposed improvements to a standard indemnification clause, by which one person promises to compensate another person for loss. The standard provision stated that "the indemnifying party [may select] counsel satisfactory to [the] indemnified party." Daly proposed to replace that with a sentence saying that the indemnifying party "may select counsel satisfactory to the other party." Although there could be no doubt as to the identity of the "other party" in the context, another lawyer wrote to the editor of the journal protesting that Daly's revisions had upset the "legal relations" described in the document.

Academic law journals feature scientific-sounding studies of boilerplate forms—and with titles like "Standardization and Innovation in Corporate Contracting" to choose from, why should anyone suffer from insomnia? The results of these studies are often blindingly obvious. One journal declares "[d]eletions generally must meet a high threshold of justification . . . [b]ut inclusion of new boilerplate . . . requires much less justification." In other words, lawyers tend to add new language to existing forms without deleting any of the old language. The ones who add the most boilerplate end up with a reputation for being "precise."

What's more, lawyers often preface a new bit of boilerplate with the phrase "anything else in this agreement to the contrary notwithstanding" or words to that effect, meaning, "this clause trumps any other clause in the contract that is inconsistent with it." If you use that phrase more than once in the same form, things get very complicated.

If they can send a man to the moon, why can't they fix boilerplate? The Precision School argues that cutting out boilerplate will lead to fatal ambiguity. Others claim, ingeniously, that clients are to blame because they expect their lawyers to produce documents bristling with legalese. If they don't, the clients think they haven't got their money's worth. Although this may be true in some cases, the majority of clients would probably be happy with plain language. The problem is, they don't want to pay for it. Writing a plain English contract from scratch takes far more billable hours than cutting and pasting boilerplate. Few lawyers have the gumption to ask their clients to pay extra for plain English contracts when the boilerplate versions will get the job done.

It may be that lawyers earnestly plan to clean up the forms, remove the excess verbiage, and make their documents more user friendly just as soon as they have some free time. Although that doesn't sound like a very appealing weekend project, one Chicago law professor reports that "many lawyers" "fantasize about the perfect form." They ought to get out more. Excerpted from the book The Party of the First Part: The Curious World of Legalese by Adam Freedman. ©2007 by Adam Freedman. Reprinted by arrangement with Henry Holt and Company, L.L.C.

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©Suzan Charlton. All rights reserved.