Keeping Your Own Counsel

    The great American attorney Clarence Darrow (1857-1938) reflected, “Inside every lawyer is the wreck of a poet.”

     It’s unclear whether Darrow believed that lawyers’ poetic potentials are degraded in, corrupted by, or simply abandoned during, their professional pursuits.

     However, National Poetry Month (April)— though called “the cruellest month” in the first line of T.S. Eliot’s The Waste Land (1922)—might be a particularly propitious period for lawyers, law students, and pre-law students to revisit, reclaim, and refine their practices of prosody.

     First, lawyers, like poets, should be attuned to words’ fine shades of denotation and connotation, individually and in combination.  Both types of writers desire to draft documents in which, as Eliot wrote near the conclusion of Little Gidding (1942),

every phrase

And sentence. . . is right (where every word is at home,

Taking its place to support the others,

The word neither diffident nor ostentatious,

An easy commerce of the old and the new,

The common word exact without vulgarity,

The formal word precise but not pedantic,

The complete consort dancing together) [and]

Every phrase and every sentence is an end and a beginning. . . .

     Second, like poets, lawyers can be artists of ambiguity.  Poet and commentator Jane Hirshfield asked about a famous haiku, “[H]ow can it be that a poem so seemingly particular, small, and specific is so broadly open to multiple responses?”

     Similarly, in The Lawyers Know Too Much (1922), Carl Sandburg warned,

In the heels of the higgling lawyers, Bob,

Too many slippery ifs and buts and howevers,

Too much hereinbefore provided whereas

Too many doors to go in and out of.

              When the lawyers are through

               What is there left, Bob?

               Can a mouse nibble at it

               And find enough to fasten a tooth in?

     Third, the poetic formulation of a written or oral argument, or of a court’s decision, can dramatically enhance its impact and longevity.  Among the best examples is certainly the New York Court of Appeals’ majority opinion in Meinhard v. Salmon, 164 N.E. 545, 546 (N.Y. 1928), which contained (then-) Chief Judge Benjamin Cardozo’s lapidary, and still-cited, proclamation that

     Joint adventurers, like copartners, owe to one another, while the enterprise continues, the duty of the finest loyalty.  Many forms of conduct permissible in a workaday world for those acting at arm’s length, are forbidden to those bound by fiduciary ties.  A trustee is held to something stricter than the morals of the market place.  Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior.

     According to Andrew Kaufman’s biography of Cardozo, the judge wrote “somewhat humorlessly, or perhaps somewhat disingenuously,” to Felix Frankfurter (who was at that time a member of the Harvard Law School faculty) that the decision “’is one of the cases in which some of my colleagues think that my poetry is better than my law.  I think its law is better than its poetry (which indeed I cannot discover).’”

     Justice Frankfurter himself, responding in 1954 to a twelve-year-old boy’s request for “some ways to start preparing myself while still in junior high school” for a career in the law, wrote that

[t]he best way to prepare for the law is to come to the study of law as a well-read person.  Thus alone can one acquire the capacity to use the English language on paper and in speech and with the habits of clear thinking which only a truly liberal education can give. . . . Stock your   mind with the deposit of much good reading, and widen and deepen your feelings by experiencing vicariously as much as possible the wonderful mysteries of the universe. . . .

     Richard Weisberg, in Poethics and Other Strategies of Law and Literature (1992), cites Cardozo’s decisions, and the judge’s other writings on law, as illustrations of “The Poetic Method for Law”: that is, that “Words do not translate the thought of justice, words are justice, and words can be the absence of justice. . . . Cardozo’s opinion, all opinions, stand or fall on their language, but also on the appropriateness of the fit—the fluid harmony—between the words used and the aspiration toward justice that every legal pronouncement should embody.”

     Fourth, both lawyers and poets appreciate not just gracefulness but economy of expression.  “Omit needless words” is among the earliest of the “Principles for All Legal Writing” enunciated in Bryan Garner’s Legal Writing in Plain English (2d Edition 2013).      

     Fifth, lawyers, like poets, should be mindful not just of their words’ sense, sentiment, and structure, but also of their sounds.  In The Sounds of Poetry: A Brief Guide (1998), U.S. Poet Laureate Robert Pinsky promised “to help the reader hear more of what is going on in poems, and by hearing more to gain in enjoyment and understanding.”

     To better assess the rhythm, pacing, clarity, and tone of their work, legal writers might also be attentive listeners.  Garner advises, “You should probably try reading your prose aloud to see whether you’d actually say it the way you’ve written it.”  Deborah Bouchoux’s Aspen Handbook for Legal Writers (2021) recommends reading a draft aloud as part of the proofreading process, to catch omissions, spelling and grammatical errors, and (“If you get to the end of [a] sentence and are nearly out of breath”) overlong sentences.  Similarly, Steven Stark, in Writing to Win: The Legal Writer (2012), finds even greater than “the value of reciting your prose as you create to capture the right feel” the importance of “do[ing] the same thing when you edit your writing.”

     Sixth, poems provide perspective.  John Adams suggested specifically that his son John Quincy Adams (who would follow him in becoming both a lawyer and president), “Read somewhat in the English poets every day.  You will find them elegant, entertaining, and constructive companions through your whole life.  In all the disquisitions you have heard concerning the happiness of life, has it ever been recommended to you to read poetry?”

     Adams told his son, “You will never be alone with a poet in your pocket.”

     On March 25, The Wall Street Journal’s front page reported on the EDC (or, “Every Day Carry”) trend, in which people pack their pockets, pouches, or purses with “all manner of writing instruments, trinkets, flashlights, pint-sized tools, coins, handkerchiefs, and more.”  Why not add (or substitute) a few printed poems?

     Seventh, in turbulent times, readers of poems might readily re-center themselves (entering Eliot’s “still point of the turning world”), or even lose themselves entirely (in the words of lawyer Wallace Stevens, “The house was quiet and the world was calm. / The reader became the book. . . .”).    

     Moreover, they can quickly find comfort and solace.  In his best-selling anthology, Poetry Rx: How Fifty Inspiring Poems Can Heal and Bring Joy to Your Life (2021), psychiatrist Norman Rosenthal observed that “Although all literature can console, there is something about great poetry—its rhythms and cadences, its conciseness and brilliance—that has a power and charm all its own.  One way in which poetry exerts its effect is that is it easier to remember, recall, and reproduce at will.”

     Eighth, memorizing poems has traditionally been considered not only a form of mental training but a semi-meditative, and possibly soul-sculpting, exercise.  Joshua Foer, in Moonwalking with Einstein: The Art and Science of Remembering Everything (2011), resolved to make memorizing a poem “a part of my daily routine,” noting that to writers of previous centuries, internalizing selected works was actually “about strengthening one’s personal ethics and becoming a more complete person. . . What one memorized helped shape one’s character.”  (Students might even—as a creative, analytic, and mnemonic exercise—attempt to summarize some legal doctrines in poetic form.)

     Ninth, like reading the poems of others, writing one’s own requires no extraordinary expense, equipment, scheduling, or setting.  As with journal entries, or Julia Cameron’s stream-of-consciousness “Morning Pages,” there are no “wrong” poems; and their creation can be a productive way to process experiences and emotions, and to clarify one’s perspectives. 

     In A Primer for Poets & Readers of Poetry (2018), Gregory Orr noted that “Lyric poets have always claimed that expressing . . . emotion in words can heal, bringing a transformative sense of release and relief,” and stated that “the poet actively restabilizes herself through expressive writing.”

     Tenth, poetry-writing can help students and lawyers develop their unique (and sometimes humorous) voices and styles, and enhance their appreciation for those of others.  It can be especially fulfilling to demonstrate creativity within the constructs and constraints of particular metrical forms.  Pulitzer Prize winner Mary Oliver concluded, in her own handbook on the subject and skill of scansion, “There is method. . . both in the way the form is severe and in the way it relaxes so that a particular voice may develop its own individuality.”

    Eleventh, law schools and law firms might consider creating poetry reading and discussion groups, speaker series, and perhaps poetry-writing workshops, to feature and foster in their communities a greater appreciation of poetry and its creation, development, and editing.   

    Twelfth, law schools could, as did the Washington College of Law, create a Web page to which their faculty, staff, and students are invited to contribute text and/or videos about their own favorite poems—and maybe (perhaps with the option of anonymity) their own works.

     In 1892, Walt Whitman wrote, “[T]he powerful play goes on, and you may contribute a verse.”

     Ninety-seven years later, after memorably (and literally) discarding an academic’s attempt to accurately assay the “greatness” of particular poems, John Keating asked his students, “What will your verse be?”

     In the 1957 Broadway musical and 1962 movie, The Music Man, peripatetic confidence man Harold Hill (played by Robert Preston) sets out to swindle the residents of an early 20^th-century Iowa town.

   “Professor” Hill’s literal and figurative fast-talking might best be displayed in his exhortation, “Ya Got Trouble.”

     Moments after Hill confides to a confederate that “We must create the desperate need in your town for a boys’ band” (that he will fraudulently solicit money to equip), his persistent patter promises parents that a pioneering pool parlor perils their progeny’s principles and prospects:

       “Either you’re closing your eyes

       To a situation you do not wish to acknowledge

       Or you are not aware of the caliber of disaster indicated

       By the presence of a pool table in your community. . . .

       Ya got trouble, folks

       Right here in River City,

       Trouble with a capital “T”

       And that rhymes with “P”

       And that stands for Pool!

       . . . .

       “Gotta figure out a way to keep the young ones moral after school!”

     On a vastly more valid and legitimate level, the “client alerts” on many law firms’ Web sites highlight the issues and implications of the latest technological and cultural developments, statutes, regulations, and court decisions. 

     Some firms combine their memos, videos, and/or podcasts—commonly found behind a link labeled “Insights”—with “News” items that trumpet their achievements and distinctions, and how they conduct their own operations.  By demonstrating the tenor of law firms’ attention to and engagement with particular issues, this content helps them drum up business from existing and potential, clients. 

     Yet in nine practical ways, law students and pre-law students can apply client alerts for their own purposes.

     First, and most obviously, these abbreviated updates identify possible topics to explore in more detail in one’s own law review articles, seminar papers, or blog posts, or even simply to bring up for discussion in classes. 

     Second, comparing different firms’ treatments of the same item can be a useful education in styles of writing and analysis for clients. 

     For instance, how much specific operational insight, as opposed to general summary, is each firm “giving away”?  How much is each alert self-contained, rather than linking to previous material that the firm posted (or assuming that readers already know the relevant background)?  How detailed (as much as Harold Hill’s?) are the firms’ depictions and predictions of the problems purportedly posed?

     Third, client alerts might well be tailored to the communities and cultures of different kinds of clients.  For example, a firm that represents primarily management might present and assess labor law issues from a different perspective than would a firm that usually represents unions or individual employees.

     Are there differences in the levels of legal sophistication and expertise that different firms seem to assume of their own intended audiences?  Do some “Insights” appear to address new or emerging (or, merging) types of clients?  If so, who are those clients, and what might be their special concerns?

     Fourth, colleagues’ collaborations on client alerts can illustrate the interactions among (and within) various practice groups of a firm, and of their respective domains of law—for example, in overlapping issues of labor law and intellectual property law, or of the various fields in Environmental, Social, and Governance (ESG) law.  Students interested in a particular type of practice might choose to add courses in these related topics, and maybe also to write about their common, or contrasting, concerns.

     Fifth, the degree to which, and topics on which, associates (and particularly junior associates) are publicly credited as the authors or co-authors of client updates could reveal not only specific firms’ willingness to pass the baton (at least temporarily) to them, but also the areas in which newer lawyers might find the most opportunity for recognition, and the most traction for advancement.

     Sixth, readers might discover useful trends and patterns by examining, on firms’ Web pages for individual lawyers who write client alerts in specific areas, their backgrounds, credentials, and other practice specialties and related professional activities.

     Seventh, interested students could build their professional networks by contacting some of those lawyers to ask for advice on career opportunities, paper topics, background reading (such as specialized blogs, magazines, books, and podcasts), and/or on other networking opportunities (like professional organizations or activities) in a particular field of practice.

     Eighth, acquiring and demonstrating familiarity with this aspect of a firm’s marketing efforts—such as being able to (diplomatically) compare a firm’s client alerts to those of other firms—could help distinguish an applicant during a job interview.

     Ninth, although this might be an inadvisable, or at least very sensitive, subject to raise or address in an interview, students could examine individual client alerts, and their supporting architecture on firms’ Web sites, from the standpoint of professional ethics.  For instance, are there conspicuous disclaimers that the content does not constitute legal advice, and that (particularly for older items) it does not necessarily reflect the current state of the law?

     Harold Hill is introduced as a charming but contemptible liar with plenty of brass, looking to snare credulous townspeople.  However, swayed by love from his base inclinations, he winds up as a symbol of redemption.

     Perhaps The Music Man’s most important long-term lesson for law students—and one certainly relevant to reviewing client alerts on a regular basis—appears in its opening scene: both in keeping track of, and on track with, developments in the law and the relevant legal community, “Ya Gotta Know the Territory.”

     (With a capital “T,” and that rhymes with “C,” and that stands for Career!)

     As the newly-elected editorial boards of law reviews prepare to set strategies for the next academic year, they might consider:

     First, planning symposia, and symposium issues, on special (such as 25^th or 50^th) anniversaries of the issuance of key judicial decisions, the enactment of significant statutes, or the promulgation or adoption of notable regulations. 

     Second, creating an advisory board of alumni (including former editors) to suggest, from practitioners’ perspectives, topics for, and potential contributors to, symposia and/or upcoming volumes.

     Third, appointing one or more members to the position of Faculty Liaison(s), to survey every faculty member not only about emerging trends in practice and scholarship, but also, for comparison and useful lessons, about experiences in submitting papers to, and publishing them with, other schools’ reviews.  (Respondents could be given the option of requesting anonymity for themselves, and would not be required to name the particular reviews discussed.)

     Fourth, designating “Cf. Editors” to monitor, and to report to the board on, developments in the social media postings and Web sites of other law reviews.

    Fifth, identifying as Practitioner Liaisons members who could invite submissions (of full-fledged and fully footnoted articles; or, possibly for posting on the review’s own Web site, shorter variations) from: the author(s) of particular posts on law firms’ blogs; speakers at ABA, state bar, or other legal conferences; and members of recently-formed practice groups (such as those involving Environmental, Social, and Governance (ESG) law, cannabis law, or artificial intelligence law).

     Sixth, Practitioner Liaisons might also prepare a page for the review’s site, and even videos for its social media channels, to discuss the preferred form and substance of submissions, describe the editing process and general schedule, and provide contact information for specific inquiries.

     Seventh, it might be “noteworthy” for a law review to feature its editors in a series of social media videos that clarify “The Mysteries of The Bluebook” (or, “Citation Matters”). Such videos could identify common misunderstandings, provide rules of thumb, explore stylistic issues and quirks, and even delve into citation esoterica. 

     Beyond serving as a useful general resource (as well as promotion for, and personalization of, the law review), the series might find a small but devoted following among members of the legal education, and practitioner, communities. (As the Grateful Dead’s Jerry Garcia reportedly said of the band’s appeal, “We’re like licorice.  Not everybody likes licorice, but the people who like licorice really like licorice.”)

     Eighth, a law review’s editors could, on social media videos and/or podcasts, discuss with contributors to its current and forthcoming volumes the genesis, substance, and evolution of their articles.

     Ninth, particularly prolific authors might be invited to offer in such a format their advice and insights on professional productivity. 

     Tenth, as I recently suggested to and initiated with the American University Law Review, editors, faculty, and guests might post on a review’s Web site videos identifying and discussing “My Favorite Law Review Article.”

     Eleventh, Book Review Editors might offer members of the law school’s community the opportunity to submit, for posting on the site, text and/or video reviews of the same specified book; or, more generally, of “A Good Book I’ve Read Lately,” or “Recommendations for Summer Reading.”

     Twelfth, a law review might identify, by objective (such as, the number of citations in other articles, or in court decisions) and/or subjective factors, “The [number] Most Influential Law Review Articles in [particular area of law].” 

     Even if it’s not considered a “bombshell,” a far-reaching symposium and/or symposium issue might be propelled by revisiting one, several, or all elements of this “loose canon.”

    [This essay appears in the March/April 2023 issue of the District of Columbia Bar’s “Washington Lawyer” magazine.]

     In the introduction to the 40^th anniversary edition of his 1971 law school novel, The Paper Chase, John Jay Osborn Jr. wrote that when calling on students as a law professor, he tried “to pick someone who wants the class to be a transcendental experience, right now, this instant.”  Osborn passed away last October at 77.

    When I started my first year at Harvard Law School, 17 years after Osborn did, I wasn’t looking for enlightenment.  But I expected to be—and was—intimidated by Socratic taskmasters who, like the movie version of Osborn’s Professor Kingsfield (a role for which John Houseman won an Academy Award and a Golden Globe Award in 1973), were ready with “always another question, another question to follow your answer.” 

     Although I wouldn’t have agreed with Kingsfield that I’d arrived in Cambridge with “a skull full of mush,” I did, as he’d promised, “leave thinking like a lawyer.”

    During those three years, and later as a law professor, I discovered six practical ways for law (and other) students to make their own academic journeys more meaningful and, if not actually transcendent, certainly more personalized than in the novel (which never identifies most students’ or Kingsfield’s first names).

     First, unlike Osborn’s protagonist, Hart, take advantage of the faculty’s office hours (not necessarily every week) even if you aren’t enrolled in a professor’s course.  Let people know what you’re interested in and ask for their advice.  What might you read and write about?  Whom else should you be talking with?  What career paths should you consider?  One timely suggestion could well change your life.

     Second, keep in mind that, just as there are many different styles of learning, there are different styles of being an effective professional— whether as a lawyer or as a teacher.  The best piece of advice that I received when I left big firm practice for academia was from a veteran professor: “You don’t have to be Kingsfield in the classroom; just be yourself.”

     Third, remember that you’re unique, but not alone.  You bring a special perspective to your classes.  However, if something’s unclear to you, other students are probably wondering about it, too, even if they won’t admit it.  In part because of The Paper Chase (which had also become a television series), at the end of my first semester at Harvard I organized a panel program on “Conquering the Stress of Law School Exams.”  Afterward, a number of my classmates separately told me that they’d appreciated the effort but hadn’t wanted to be seen at the event.

     Fourth, find some sanctuaries with friends and family, or even by yourself.  In Osborn’s account, Hart and a member of his study group moved to a hotel room to escape pre-exam pressure in their dorm.  (One of my classmates said that her parents, after watching the movie, had offered to pay for a hotel room, which she’d declined.)  My own sanctuaries included long runs, Chinese restaurants, secondhand bookstores, very thick paperbacks, and—the night before our first exam—a movie that I went to alone because everyone I knew in the law library had refused to stop studying.

     Fifth, as Hart ultimately learned, go beyond grades in finding ways to identify and measure success for yourself.  Grades certainly matter, but you might also find focus, fulfillment and networking opportunities while, for example, preparing a portfolio of publications or a well-developed blog on legal issues of interest to you (and to potential employers). 

     Finally, don’t live by default.  Unlike Osborn’s classroom-centered characters, keep your eyes open for social, cultural, and technological changes, as well as the new issues that they, and their interactions, are creating.  If you don’t see a course in an emerging field, consider starting a reading group, student group, or speaker series about it at your law school.

      In fact, his fiction enabled Osborn to avoid the defaults of his day. Instead of writing a traditional third-year paper analyzing a legal question, he arranged to satisfy that requirement with a version of The Paper Chase manuscript.  Then, as an author, he chose not to follow many of his classmates into practice at major law firms, whose culture and operations he would criticize in a little-known novel, The Associates (1979).

     In the half-century following the publication of The Paper Chase, much of the actual paper at law schools has vanished.  Law schools have introduced legal clinics, increased diversity among faculty and students, established new modes of pedagogy (in the classroom and online), expanded the curricula, and devoted increasing attention to compassion, equity, inclusion, and student wellness. 

    If Professor Kingsfield were still teaching, he might begin the semester by instructing the class to “Look up from your laptops.  Discard your preconceptions from outdated books and movies.  Close your eyes and take in a deep and mindful breath.”

    “Mr. Hart, did I say that you could exhale?”

    Rest in peace, Professor Osborn.

Walter Effross is a law professor at American University. His guide for law students, Keeping Your Own Counsel: Simple Strategies and Secrets for Success in Law School, from which this essay is adapted, will be published by Aspen (Wolters Kluwer) in Spring 2023.  His chapter on The Paper Chase television show was included in Prime Time Law: Fictional Television as Legal Narrative.

      In the Spring and Summer of 2022, American University Washington College of Law (WCL) Professor Walter A. Effross discussed with leading in-house and outside counsel the scope and goals of, opportunities and challenges for lawyers in, and useful resources for, the practice of ESG (Environmental, Social, and Governance) law.

     As the conversations indicate, ESG law is one of today’s most exciting, fast-moving, far-reaching, and personally and professionally fulfilling areas of legal practice.

     WCL welcomes and encourages law students, pre-law students, practitioners, and others interested in ESG to review the recordings below.  (In each recording, clicking on the “CC” button adds captions.)

     [This project is entirely independent of, and the practitioners in these conversations had/have not read or endorsed, the remainder of the content of this site.]

Introduction– Professor Effross (12/24/22) [13 minutes]

     -Introduction to the ESG video series; attractions of ESG practice; and, practical resources for ESG lawyers and students

     ● “Here are eight reasons. . . why ESG practice is such a fascinating, flourishing, and fulfilling field.”

Lisa Kim, Executive Vice President and General Counsel

                        East West Bank (Pasadena, CA)  (03/30/22) [6 minutes]

     -Creation of an ESG program, and participation of a company’s departments; involvement of the Chief Risk Officer; and, benchmarks and metrics.

     ● ESG is “almost in our DNA.”

Cameron Findlay, Senior Vice President, General Counsel, and Secretary

                         ADM (Chicago) (04/11/22) [9 minutes]

     -Initiatives including antideforestation, human rights protection, and climate/carbon concerns; formation of a Sustainability and Corporate Responsibility Committee of the board; preparation of an ESG Report; and, involvement of the CEO.

     ● “We’re gone from treating sustainability as a compliance issue. . . to viewing it as a business opportunity, and embedding it in our strategy.”

Douglas Currault II, Senior Vice President and General Counsel

                        Freeport McMoRan (Phoenix) (04/28/22) [10 minutes]

     -Preparation of an ESG Annual Report as a coordinated, company-wide effort; and, the roles of the Legal Department and of the board’s Corporate Responsibility Committee.

     ● “Shareholders want this [ESG] data. . . We’re producing it because our shareholders and our stakeholders want to see it.”

Scott Coward, Chief Legal Officer, Exact Sciences (Madison, WI) (05/04/22)

[11 minutes]

     -Diversity in executive hiring and in the boardroom; environmental initiatives; health equity concerns; and, the roles of the Chief Legal Officer and of the Corporate Governance and Nominating Committee.

     ● “[W]e’ve seen really. . .  an explosion of writing and attention to [ESG].”

June Hu, Associate, Sullivan & Cromwell (NY) (05/13/22) [16 minutes]

     -The lawyer as intermediary/interpreter among the scientific, regulatory, and other communities; understanding different stakeholders’ perspectives and concerns; and, the lawyer as predictor.

     ● “The most important thing. . . I’ve learned in practicing in ‘the ESG space’ is really being a good listener [and] someone who’s up to date on the latest trends and developments. . . . ESG really is an area that allows you to bring the past and the future together in a way that solves the problems we’re facing today.”

Gwendolyn Williamson, Partner, Perkins Coie (DC) (05/13/22) [18 minutes]

      – Advising investment companies and their managers about ESG issues; addressing the absence of standardized terminology for some aspects of ESG; preventing “greenwashing”; and, European rules and SEC (current and pending) rules on ESG issues.

     ● “I’m a regulatory- and compliance-focused practitioner, and I help asset management industry players comply with the federal securities laws that were really put in place to protect ordinary investors.”

Neil Popovic, Partner, Sheppard Mullin (San Francisco) (05/13/22)

[20 minutes]

     – The involvement of many practice areas of a firm in its ESG counseling; identifying emerging issues for clients; mandatory and voluntary standards; SEC-proposed rules; and, the ESG-related roles of the board, board committees, and the (relatively new position of) “Chief ESG Officer.”

     ● “[ESG law] is a uniquely multidisciplinary practice, and an interdisciplinary practice, . . . both on the paying side and on the pro bono side. . . . If most of us think back, this is the kind of stuff that made us want to go to law school in the first place.”

Jonathan Ocker, Partner, Pillsbury (San Francisco) (05/17/22) [19 minutes]

     -The relation of an “executive compensation” practice to ESG; “say on pay” votes by shareholders; the role of ISS (Institutional Shareholder Services); and, the role of a Chief Sustainability Officer (including at some law firms).

     ● “Almost every big company has started adding an ESG factor to its [annua] cash bonus plan” for senior executive officers.

Evan Van Hook, Chief Sustainability Officer;

Su Ping Lu, General Counsel for ESG 

                            Honeywell (Charlotte, NC) (05/20/22) [32 minutes]

     -Developing a company’s ESG program; ensuring accurate and appropriate disclosures; identifying emerging issues; becoming grounded in both the relevant science and the relevant law; specializing within ESG practice; dealing with nonstandard terminology; and, helping regulators shape policy.

     ● (Mr. Hook:) “There are roles for lawyers throughout the entire spectrum of creating an ESG program.”

     ● (Ms. Lu:) “In this area, there’s a lot of opportunities to go deep and specialize; there’s also a lot of opportunity to go broad. . . and cover the entire canvas. . . . No matter what area of law you’re practicing on a technical basis, there’s an ESG aspect to it.”

Michael Blankenship, Managing Partner, Houston office of

Winston & Strawn (05/20/22) [12 minutes]

     -The advantages to ESG lawyers of a general business background, and of industry-specific education; working with evolving definitions and metrics; the components of ESG; popular misconceptions about ESG practice; and, the relevance to ESG practice of crisis management experts.

     ● “ESG finance has become big now. . . It is another [ESG] area that people probably don’t think about.’

Susan Maslow,  Co-founder and Partner, Antheil Maslow & MacMinn

(Doylestown, PA) (05/24/22) [18 minutes]

     -The American Bar Association’s (ABA’s) involvement with supply chain issues, particularly with regard to preventing forced labor and child labor; ABA resources, initiatives, and opportunities for lawyers and law students; the diversity of legal practice areas related to ESG; identifying emerging topics; and, increased ESG activism by employees.

     ● “The most significant attribute of [involvement with ABA programs] on the part of the law student might be networking—It’s not just content, which is extraordinary, but also the networking opportunity, which is. . .  incredible.” 

Sofia Martos, Partner, Kirkland & Ellis (NY) (06/01/22) [28 minutes]

     -Emerging issues in the “Social” element of ESG; specializations within, and the range of a practice groups that can become involved with, a law firm’s ESG practice; the role of outside ESG counsel; international aspects of ESG law; the preparation of “client alert” memos on new topics of concern; and, a concluding three minutes of special advice for law students.

     ● “[ESG law is] a really dynamic space, and requires a lot of collaboration [with colleagues at the law firm], and it requires a lot of learning.”

Jessica Burt, Partner, Stradley Ronon (DC) (06/02/22) [15 minutes]

     -Mutual funds’ disclosures to investors; the effort to standardize terminology used in such disclosures; the “hive mind,” and global aspects, of ESG practice; helping boards to fulfill their oversight responsibilities; preventing “greenwashing”; and, regulatory initiatives.

     ● “One of the things that I tell junior associates when they sign up for [writing] these client alerts [memos] is, ‘You know, it doesn’t count for billable hours right up front, but I promise you, when you start investing your time in this, you will become the ‘go-to’ expert on this, and it’ll turn into billable work.  I have seen it happen.’  . . . It’s really a booming industry to get involved in.”

Cravath Swaine & Moore (NY) partners John White (Chair, Corporate Governance and Board Advisory Practice), Matthew Morreale (Head of the firm’s Environmental Practice), and Michael Arnold (Member of the firm’s Corporate Governance and Board Advisory Practice) (06/06/22) [40 minutes]

     -Paths into, and backgrounds for, ESG practice; the relationship of ESG practice to more traditional practice areas; advising boards on ESG issues; the allocation of ESG responsibilities within a company’s governance architecture; ESG-related skill sets for directors; and, the board’s reponsibility, beyond its role in developing strategy, to install ongoing, company-wide systems for collecting, processing, and producing reliable data.

     ● (Mr. White:) “Right this moment, [ESG] is pretty much dominating our advisory practice. . . . It’s the priority topic.”

Jillian Kirn, Shareholder of Greenberg Traurig (Philadelphia) (06/14/22)

[13 minutes]

     -Backgrounds for practicing ESG law; the appropriate time for a company to consult ESG counsel; the relationship of ESG to compliance; identifying best practices; moving towards standardization of terms and practices; and, the overlapping components of ESG law.

     ● “ESG is a conversation. . . It’s also developing around the world.  It’s a global conversation, and that’s part of what makes it so dynamic.”

David Colvin, Partner, Fox Rothschild (Philadelphia) (06/15/22) [52 minutes]

    [*This conversation, because of its broader focus on practical issues of legal ethics, might be of interest even to those not primarily concerned with ESG issues.]

     -The aspects of a “professional responsibility” practice; the distinction (if any) between the offices of General Counsel and of Chief Legal Officer; the sometimes-blurry line between “legal advice” and “business advice”; the application of the ABA’s Model Rules of Professional Responsibility 1.1 (Competence) and 2.1 (Advisor) to ESG practitioners; Pinocchio, the Blue Fairy, and Jiminy Cricket; providing counsel in rapidly-developing situations; the professional ethics of giving an “I don’t know” answer, or a substantive answer but under extreme time limits, to a client; and, professional responses to perceptions of “bad vibes” and/or “hinkiness.”

     ● “Because ESG touches every corner of every company, any legal service that can be delivered and targeted to those areas falls under the ESG umbrella.”

William O’Shaughnessy, Deputy General Counsel and Corporate Secretary,

                                   Quest Diagnostics (Secaucus, NJ)  (07/11/22) [24 minutes]

     -The ESG-related roles of in-house counsel and of other elements of a company’s governance structure; balancing the perspectives and concerns of different stakeholder groups; the perils of reducing complex explanations to “soundbites”; the future of ESG; and, specialization versus generalization in ESG practice.

     ●  “One of the most interesting aspects of working in [the ESG] space is that so much of the activity can be driven by what you find on the first page of the newspaper.”            

Although they’re rules of thumb rather than rules of law, the following “Rules of Three” apply to law students and/or lawyers:

     ● Class Participation.  Some recommend that law students try to be called on at least once during every three sessions of each course, but not more than three times during any one session.

     ● Choosing Courses.  I’ve suggested that law students take care not to overload their schedules (and minds) with statutory courses (like Evidence, Federal Personal Income Tax, Securities Regulation, and Secured Transactions).  Three such courses per semester might be a useful limit.

     ● Maximizing Productivity.  “The Rule of 3” featured in J. D. Meier’s Getting Results the Agile Way (2010) involves identifying, and focusing on, “three outcomes for the day, the week, the month, and the year.”

     ● Clarifying Causation.  According to the management manual, The Seven-Day Weekend (2004), written by Ricardo Semler, the CEO and majority owner of Brazil’s Semco Partners, “If we have a cardinal strategy that forms the bedrock for all our practices, it may be this: Ask why.  Ask it all the time, ask it any day, every day, and always ask it three times in a row.”  (By contrast, Toyota asked the question five times, “going to a deeper level with each ‘Why?’ to get to the root cause of the problem.”)

     ● Billable Hours.  At a minimum, law firm associates might aim to bill enough hours per year to produce, at their current hourly rate, an amount equal to three times their annual salary.  One-third would return their salary to the firm; one-third would help pay the firm’s rent and other overhead costs; and the remaining one-third would be profit for the firm.

     ● Categorizing Counseling Content.  Advisors should keep in mind three key communications components identified by Colin Powell, former Secretary of State and Chairman of the Joint Chiefs of Staff, in It Worked for Me (2012): “I developed for my intelligence staffs a set of four rules. . . I’m told they hang in offices around the intelligence world.  Tell me what you know.  Tell me what you don’t know.  Then tell me what you think.  Always distinguish which from which.”

     ● Making Decisions During an Emergency.  Cade Courtley’s SEAL Survival Guide: A Navy SEAL’s Secrets to Surviving Any Disaster (2012) advises that in “life-threatening situations,” one should “Come up with three—and only three—possible options or courses of action.  Look at the pros and cons of each option.  Honestly weigh factors like risk, your ability to accomplish each option, and whether your plan is realistic. . . Then, without debating and rethinking each of your options, make the call and choose the one your gut tells you is the best. . .  [M]ost importantly, be confident in your decision and proceed.”

     ● Negotiating (1).  Former FBI hostage negotiator Chris Voss, in his best-selling Never Split the Difference (2016), recommends obtaining someone’s agreement “to the same thing three times in the same conversation[, b]ecause it’s really hard to repeatedly lie or fake conviction. . . The first time they agree to something or give you a commitment, that’s No. 1.  For No. 2 you might label or summarize what they said so they answer, ‘That’s right.’  And No. 3. could be a calibrated ‘How’ or ‘What’ question about implementation that asks them to explain what will constitute success, something like ‘What do we do if we get off track?’”

     ● Negotiating (2).  Voss identifies, among his hostage negotiation skills, as “the closest one gets to a Jedi mind trick” the “almost laughably simple” technique of “repeat[ing] the last three words (or the critical one to three words) of what someone has just said. . . . [Y]our counterpart will inevitably elaborate on what was just said and sustain the process of connecting [with you].”  (In Star Wars, however, the Jedi mind trick actually most often involves compelling another party to repeat, and to believe, one’s own statements.)

     ● Marketing (and Eliciting Testimony).  Relying on the theory that encountering a statement, or a reference to a product or company, for a third time dramatically enhances someone’s perceptions of its truth or reputation, commentators have encouraged law firms to market their services to potential clients through a variety of methods (including online); and have suggested that a litigator enable a witness or expert to make the same critical statements three times in her testimony.

     ● Creating a Motto or Mission Statement.  Sixteen of the states, and many groups, organizations, and institutions, have adopted three-word mottos and/or mission statements. For example, the motto of the American University Washington College of Law is, “Champion What Matters.”  Several years ago, a Maryland church posted on its outdoor display the powerfully simple message, “Find Hope Here.”

    ● Making Presentations.  Many believe that information—whether it’s presented orally, in writing, or in some combination of the two– is best received, best understood, and best remembered as part of a group, list, or sequence of three items, reasons, or (as in Cade Courtley’s case) options.

    ● Refraining from Reacting and/or Interrupting.  Lawyers are certainly not the only professionals who have been advised to, in some circumstances, restrain themselves for three seconds before interrupting or otherwise reacting to someone.

      In Agatha Christie’s Afternoon at the Seaside (1961), a component of her trilogy play, The Rule of Three, one character instructs another, “Hold your breath, count three, and don’t say anything you’d be sorry for afterwards.”

    ● [Bonus Rule:] Structuring Presentations.  Common wisdom offered to those making oral or written presentations is: “Tell ‘em what you’re going to say; tell ‘em; and then tell ‘em what you told ‘em.”

    I hope that this collection of “Rules of Three” has been of some interest, use, and enjoyment to law students, lawyers, and others.

     Early in Tony Fadell’s best-selling memoir/manual, Build: An Unorthodox Guide to Making Things Worth Making (2022), the designer and engineer behind the iPod, iPhone, and the Nest Labs (now, Google Nest) Learning Thermostat advises entrepreneurial readers to join a company whose products similarly resolve, “in a way you’ve never heard before, but which makes perfect sense once you hear it,” “a problem—a real pain point—that a lot of customers experience daily.”

    Fadell points to Steve Jobs’ 2007 speech that publicly introduced the iPhone: “He used a technique I later came to call the virus of doubt,” deliberately enraging customers about the shortcomings of their current devices “so they can get excited about a new way of doing things.”  Such an advance, the author recommends, should be presented with “a human example,” “a compelling [but simple] story,” or a “great analogy.”

    However, as summarized at the beginning of Chapter 5.7 (“Lawyer Up”), Fadell’s expectation of counsel’s contribution to corporate creativity is somewhat more subdued:

    “Your legal team is there to inform your choices, not make them for you.  So a ‘no’ from legal isn’t the end of the conversation—it’s the beginning.  A great lawyer will help you identify roadblocks, then move around them and find solutions . . . [But m]ost lawyers excel at two things: saying ‘no’ (or ‘maybe’) and billing you.”

     Despite labeling lawyers as prospective deal-killers, Fadell does find occasion to heed their “no”: he recommends following legal advice “explicitly” with regard to “anything actually illegal.  Or lies. [Would those sometimes be characterized as a “maybe”?  It’s unclear from that chapter.]  Or any of the basic stuff you need a lawyer for—contracts or HR or the terms you put on your app for protections and privacy.”

     Nonetheless, Fadell suggests that the parties negotiating an agreement agree on “fundamental deal points” before “let[ting] the lawyers argue the legalese.” (Exactly how he distinguishes in his company’s contracting process between “basic stuff,” “fundamental deal points,” and “legalese” is also left unsaid.)

    Not surprisingly, the author praises lawyers who become well-versed not only in a client’s legal posture but also in its business goals and priorities.  From this perspective, paying even an apparently exorbitant settlement amount could be wise if it precludes protracted and distracting litigation.  (Probably to reflect such inclusion of in-house counsel in their “C-Suite” decision-making, many large corporations now use the title, Chief Legal Officer rather than the traditional, General Counsel.)

     Fadell’s ideal illustration (literally, with a photo) of a situation solved by “a lawyer who doesn’t just think like a lawyer” involves Nest’s General Counsel in 2015.  That individual helped him to devise, as the company’s CEO, a very practical response to the federal requirement of attaching to the corded Nest Cam video camera a “Strangulation Hazards” warning sticker—to whose “strangled baby” diagram Fadell took particular exception (only figuratively, though: “Sometimes in life you just have to nestle your new product right next to a picture of a baby in mortal peril.”). 

     However, most lawyers, and many law students, might have pointed out to Fadell the inconsistency between his description of lawyers as “maybe”-prone and his highly questionable pronouncement that “lawyers live in a black-and-white world.  Legal versus illegal.  Defendable versus undefendable.  Their job is to tell you the law and explain the risks.”  

     Moreover, are not identifying and analyzing many of those “risks” the lawyers’ own ventures into “grayness”?

     Finally, someone of Fadell’s long experience in the stratosphere of “the high-technology space” must certainly be aware that lawyers can also—and can perhaps best—“add value” precisely when “the law and. . . the risks” are both uncertain, and/or labile.  

      (With regard to his “cheap” shot on billing: like (famously, but possibly apocryphally) Archimedes, many engineers, designers, and executives don’t confine their client-related considerations or insights to their formal working hours, and/or their official offices.  I think it’s beneath Fadell to jab gratuitously at lawyers who “bill you from the shower” if that’s where they happened to be thinking productively about a client’s legal issues.)

     Another dimension of a top executive’s sidelining his company’s own lawyers appears in Behind the Cloud (2009), by Mark Benioff, the founder, chairman, and CEO of Salesforce.  

     Especially “in international situations where we don’t want to appear to be litigious Americans and we want to build a strong relationship with the partner or vendor,” the company uses a “well-drafted contract with ‘light and love,’” that is, “a one-page document that is bulletproof and executed perfectly—with as little legal language as possible. . . . The key is that it is tight enough to be binding, but loose enough to give latitude so that each party can operate freely. . . . ”

     If Fadell most appreciates lawyers who “realize their voice is part of a chorus,” perhaps heard only after the first verses have been sung, at least Benioff would, though keeping lawyers in the background, involve them from the very beginning of the construction, calibration, and careful customization of Salesforce’s seemingly simple and straightforward song.

     Pre-law students, law students, practitioners, and others might find unexpected, and possibly life-changing, rewards from browsing in the physical “stacks” of a law library, particularly in the sections listed below (with associated call numbers from two classification systems).

     Even books that were first shelved decades ago might suggest topics for contemporary (re)consideration; and even the most specialized analyses of legal issues might be useful sources of perspective and/or inspiration.

    Of course, using a book’s title for a search on Amazon could quickly identify more recent and/or practical discussions of the same topic.

    For a deeper engagement with legal research resources and strategies, and with a community of experts in their use, the American Association of Law Libraries, an organization dedicated to “championing the value of legal information and legal information professionals,” offers a (week)daily e-mail newsletter, a variety of publications, and other educational and networking opportunities.

   The annual (June 1 – May 31) membership rate for college students and law students is $70 (and for non-students, $281).

   (In 2023, National Library Week is April 23-29.)

K50-54   [KF 156] Dictionaries; Words and Phrases

K58        [KF159]  Maxims; Quotations

K85-89   [KF240-247] Legal Research (including using Artificial Intelligence)

K94        [KF250-251] Legal Writing and Drafting

K100-103 [KF261-292] Legal Education; Succeeding in Law School

K115-130 [KF297-334] Legal Profession (including Legal Ethics)

K140-165 [KF350-374] History of Law

K170       Biography

BF318-575 Psychology, including: Decision-making; Learning; Attention; and Motivation

BF637 Negotiating

Traditional First-Year Courses:

K720-792   [KF566-698] Real Property

K923-968   [KF1246-1327] Torts

K1024-1045 [KF801-839; KF 911-935] Contracts (Sales of Goods)

K2100-2385 [KF8810-9075] Civil Procedure

K3154-3370 [KF4501-5130]  Constitutional Law

K5000-5582 [KF9201-9461; KF9601-9760] Criminal Law and Procedure

In the late fall of 1984, towards the end of our first semester as Harvard Law School students, several classmates and I signed up to have lunch with one of our section’s professors.

       During that meal, he asked us, with what seemed to be genuine concern, whether we were feeling stressed, either in his course or generally.  We all looked at each other; we all told him that we were just fine.

      He was certainly too intelligent, and experienced, to believe us.  Looking somewhat befuddled, he peered at us over his glasses and wondered, “Honestly, I don’t know why you all don’t treat law school as a three-year party.”

        My classmates and I looked at each other again.  Somehow, we all managed to keep straight faces, but this time none of us had a ready answer for him. 

        Almost four decades—and numerous technological, cultural, political, social, and economic changes— after that lunch, it seems even less appropriate to compare law school to an extended party. 

        In fact, like the novel on which it was based (and like the television show which would follow in 1978), the 1973 movie, The Paper Chase, focused on the intense commitment, concentration, and hermetic (if not hermitic) existence of law students.  Actor John Houseman’s fictional Professor Kingsfield imperiously intoned, “You come in here with a skull full of mush, and you leave thinking like a lawyer.” 

        Similarly intimidating is a book that a well-meaning relative gave me the summer before I started law school: One L, Scott Turow’s account of his first-year experience at Harvard in 1975-76.  (I found it so unnerving that I put it away after only a few chapters, and completed it ten months later, while returning home after final exams.)

        During that summer, I scoured libraries and bookstores for any guide to this new environment, but came up with little that seemed useful, insightful, practical, or even especially encouraging.  (On an early visit to the campus, I’d asked an especially prominent professor, after one of his class sessions ended, whether he had any advice for a newly-admitted law student: he’d answered, “I’m very tired now.  Why don’t you see me in the fall?”)

       The book that you are now reading contains my version of the information that I so nervously searched for in the spring and summer of 1984.  It organizes and distllls more than twenty-five years of advice that I’ve given to, and heard from, prospective students, students, and alumni as a member of the faculty of the American University Washington College of Law (WCL); and, before that, as an adjunct faculty member at Seton Hall Law School.

        These chapters also include lessons I that learned as a law student at Harvard, as a judicial clerk for the Supreme Court of New Jersey, and as an associate at two of New Jersey’s largest law firms, Roseland’s Lowenstein Sandler and Newark’s McCarter & English.  (There are no “composite characters,” but in some cases personal details have been modified to protect the privacy of individuals.)

        All the views expressed are my own, and are not official statements or positions of any of these institutions.  I have no financial interest in any of the books that I recommend, except for my own book on corporate governance; and I don’t necessarily agree with every view expressed in them.

        The material is arranged in roughly the order in which you might find it of use during your law school career.  However, you might want to browse through the entire book before your first day of classes.

        This is a book of “you might” and “you could,” and even, “you should”; but never, “you must.” 

        Rather than attempting to offer a complete, definitive, or one-size-fits-all guide to law school, Keeping Your Own Counsel suggests—and, in its eight appendices, provides further details and examples of—some simple and supportive strategies, systems, schedules, and structures, many of which you might not see or hear elsewhere, for engaging with and enriching your law school journey.  

        The title refers not only to the chapters’ recommendations and reasons for constructing specific types of lists, but also to their emphasis on preparing a portable professional portfolio to maximize your career opportunities.

        I hope that this book will help you navigate from acclimation to acclamation, and that it will make your law school experience, if not quite a three-year party, as productive, fulfilling, manageable, and meaningful—and as enjoyable—as it can be.

Copyright (c) 2023 by Aspen Publishing. Reproduced with permission.

Chapter 1- Ten Principles of Success in Law School [starts on page] (1)

Chapter 2- Your Personal Purpose: Five Lists to Consider Creating (6)

Chapter 3- Five (and Ten More) Reading Recommendations for Your Pre-1L Summer (9)

Chapter 4- Nine Differences Between College and Law School (13)

Chapter 5- Fourteen Ways Law School Might Affect Your Thinking (15)

Chapter 6- Thirteen Themes: A Starter Set (19)

Chapter 7- Twenty -Two Ways in Which Law School Differs from Law Practice (24)

Chapter 8- Nineteen Ways in Which Law School Resembles Law Practice (29)

Chapter 9- Getting (Fully) Oriented (34)

Chapter 10- Assumpsit: A Word About Dictionaries (38)

Chapter 11- Eight Useful Supplies (40)

Chapter 12- Four More Core Lists (42)

Chapter 13- Engaging In, Taking Notes During, and Preparing for Class (47)

Chapter 14- Five Secret Words for Success (and Five Reasons Why) (51)

Chapter 15- Thirteen Tips for Constructing Course Outlines (53)

Chapter 16- Effective Exam Preparation: A Semester-Long Process (57)

Chapter 17- What to Read, After Settling In (59)

Chapter 18- Writing, to Be Noticed; and, Nine Notes on Writing (65)

Chapter 19- Fourteen Aspects of Assessing a Law Review Article (73)

Chapter 20- Starting a Reading (or Other) Student Group (76)

Chapter 21- Of Stress, Sanctuaries, Celebrations, and Saving Worlds (79)

Chapter 22- Eleven Suggestions for Answering Exam Questions (84)

Chapter 23- Considerations for Your Course Selections (87)

Chapter 24- Five Surprising Secrets of Business Law (91)

Chapter 25- ESG Law, Practice, and Resources (95)

Chapter 26- Compliance: A Corporate, Cultural, and Curricular Crossroads (98)

Chapter 27- Fourteen Advantages of Studying and Practicing Bankruptcy Law (100)

Chapter 28- Preparing for, and Succeeding During, Job Interviews (104)

Chapter 29- Seven Books About Large Law Firms (110)

Chapter 30- Eight Virtues of Judicial Clerkships (113)

Chapter 31- In Conclusion: Of Keys, and Bees (115)

Appendix A- Thirteen Aspects of Preparing and Presenting “Actionable” Advice (117)

Appendix B- Enhancing the Decision-Making Process (122)

Appendix C- Fourteen Suggestions for Ethical Counseling in Fluid Situations (131)

Appendix D- A Sample/Starter Checklist for Drafting/Editing/Proofreading (135)

Appendix E- Policies, Procedures, and Practices for Decision-Making by Voting (139)

Appendix F- Topics for Papers and Blogs (141)

Appendix G- Zen and the Art of Crisis Management (147)

Appendix H- Creative Career Suggestions for ESG and Corporate Law (151)