Five by Five – Carolyn Elefant

First up in this week’s Five by Five is Carolyn Elefant, solo practitioner, and author of the My Shingle weblog. Carolyn’s site is more than a blog. She’s collected hundreds of links and resources for lawyers looking to go out on their own.

So, Carolyn, if you had the power to change five things about the practice of law, what would you change?

1. Every law school and courthouse library should be required to make full service LEXIS (not the junky lexisone service currently available free) and Westlaw, i.e., all the libraries and citation service, available at no cost on at least one computer. In fact, law schools and courts should make a free LEXIS and/or Westlaw (or both) account a condition of taking service from these companies.

To me, this proposal is really a no-brainer – and frankly, I don’t know why there hasn’t been an outcry for free research service by the bars, law libraries and the courts. Access to free legal research service in this manner is the cheapest way that I can think of to improve the quality of legal services for all. Many solo attorneys do not have access to this type of service and either rely on “manual” research which is incredibly time consuming and not nearly as effective (even law librarians will resort to LEXIS to answer questions rather than stumble through the decennial digests – and they are supposedly research experts) Moreover, the ability to run a search not only in one’s own jurisdiction – but across the board and to search law review articles might give practitioners ideas on arguments that they might raise. I would even go so far to argue that death row clients might not be there had their attorneys had access to LEXIS and Westlaw which would have afforded a whole range of issues to raise during a capital trial.

LEXIS and Westlaw already offer full service LEXIS and Westlaw packages to law schools for so-called “academic” purposes, so free service is not unprecedented. Moreover, it’s not as if these companies would lose customers by giving away service for free. Biglaw attorneys – and indeed, all attorneys with a decent budget – are always going to purchase some computerized research package to have 24-7 access and avoid a possible line at the free kiosk. Moreover, free LEXIS and Westlaw in libraries and courthouses would also give the general public a way to research the law, which after all, belongs to us.

2. The bar associations ought to encourage more mingling and cooperation between big firm, small firm and government attorneys.

I’ve said it before, but what I love most about the blog-o-sphere is the conversation and discourse between biglaw, solo and government attorneys. That’s something that I’ve never experiences with the bar. In fact, there’s very little crossover between big firm and small firm lawyers at least where I practice – and my experience, I don’t think, is unique. For example, on a trip to Boston this past fall, I visited with two friends who are biglaw partners and neither even knew a solo practitioner.

I realize that some of the segregation is self-selecting. For example, a solo might not have any interest in a bar committee on corporate securities law while a biglaw attorney would not be inclined to join a bar section on general practice. Still, one would think there would be opportunities for solos and biglaw attorneys to work together on pro bono projects. However, (at least in my area), what typically happens is that one law firm will man a legal clinic for an evening. And frequently, when the bar or a legal aid group assigns a large pro bono matter, it will be handled by one firm. Why not staff the matter with, for example, a solo attorney, a government attorney and a biglaw attorney? Solos and government attorneys might also be more inclined to accept a pro-bono matter if they could work with a biglaw attorney who could more easily cover most of the costs.

All of us – biglaw attorneys to solos – share the law in common. We can learn from each other and gain a new perspective if only there were more opportunities for interaction.

3. E-filing at every court with searchable data bases.

This is a dream, I know, but every court should aspire not only towards a robust e-file system but also one where attorneys can perform word searches to pull documents from court files. The federal court developed an e-file system in-house and it has drastically cut my work load and likely that of other users. But the cases that are filed – and all of the pleadings only searchable by party name or docket number, possibly case type. Users can’t use a word search to find documents with arguments that might relate to their cases. As a result, there is a wealth of information – pleadings with legal arguments, maybe even factual information about parties who’ve been in litigation before which is still impossible to find unless you know what case you’re looking for. What a waste to spend so much money on e-filing and only have it reach half its potential.

Also, relatedly, I have noticed that at least one court where I practice is now watering down e-filing and requiring attorneys to send paper copies of documents over 25 pages which is a minor annoyance. Let’s not go backwards on this.

4. Modify the case method as taught in law school.

I don’t advocate abandoning the case method system – after all, that’s pretty much what we attorneys need to do in our careers- understand the principles in cases and analogize or distinguish them to build our arguments to the court or advise our clients. Still, to get students thinking more about how the judge reached a decision, I’d take at least one case in every course and really analyze it in depth – review the complaint, the pleadings – all materials readily available in the court file (which should be much easier now that we have e-file). I’d have students look at the briefs – many will be surprised to learn that courts sometimes don’t address certain arguments – or mischaracterize others. Perhaps students will identify certain factors – like a sloppy, typo-ridden brief or a nasty tone – that may have influenced a judge to rule one way or another. I realize that after law school, some students take on clerkships and learn this anyway. But most other law students will never have an opportunity to examine cases in this way. And, this is one exercise in practical lawyering where law professors (many of whom have never worked at a legal job) could actually be of value, since most, if not all have held clerkships and could provide insight into the judicial decision process from that perspective.

5. At a minimum, allow lawyers who have practiced law for more than three years in one state to automatically be eligible to practice in any other state touching their jurisdiction. (so for example, a DC attorney could automatically practice in Maryland and Virginia after 3 years).

I understand that bars want to uphold professional competence standards and all that, but frankly, it is just ridiculous for attorneys admitted in one state to have to either take another bar exam or fill out a lengthy admission form and pay hundreds of dollars in fees (as well as annual dues) just to go to court on the other side of the border. And pro hac vice motions don’t help much either because in many jurisdictions, the attorney of record has to appear in court with the foreign attorney anyway.

One Response to Five by Five – Carolyn Elefant
  1. A Penny For...
    June 21, 2004 | 4:53 pm

    The Second Five by Five

    I encourage you to read the second installment of the non-billable hour’s Five by Five. This week, Matthew asks the question “If you had the power to change five things about the practice of law, what would you change?” Carolyn, Sheherazade, Denise, Ev…

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