Whether employed by an institution or in private practice, the goal of lawyers remains consistent: to represent clients effectively. Inexperienced lawyers might grapple with uncertainties regarding proper procedures, interactions, and strategies. To overcome these challenges, continue reading to learn four tips for attorneys working with children and families, from managing emotions to proper writing techniques.
Congratulations! You’ve started your first legal job working with children and families. Perhaps you work for an institutional provider of legal services for children or as a prosecutor of dependency cases, or perhaps you are defending such cases on behalf of parents and guardians. Or maybe you are in private practice, and this is your first pro bono experience working on a family, immigration, or juvenile court matter. Whatever your role, your job is the same: to represent your client and seek as favorable an outcome as possible.
But you are new, or new to this area of the law, and you don’t know the ropes or who the players are, you are unsure of what your papers should look like, and you are worried about your upcoming cross-examination, client interview, witness prep, or motion. You don’t want to make a mistake, you don’t want to embarrass yourself, and you definitely don’t want to imperil your client’s legal position. You may have had some orientation training, but putting the rubber to the road at this early stage in your career is still so daunting. So what is a new lawyer to do? These universal moments of new-lawyer doubt are part of your initiation to the profession. The doubt isn’t what defines new attorneys; what they do about it is, and that sets the course for the rest of their legal careers.
Your new law license would be so much easier to manage if it came with a user’s manual, wouldn’t it? Well, there is good news: It does! You just need to know where to look. There are ethical rules, state and federal bar practice standards, continuing legal education (CLE) courses, and other resources to help guide your decision-making and skills development, but these may be of little use when you are mid-objection in your trial and need the answer to a novel question immediately, or as you count down precious minutes to a midnight electronic court filing deadline, or while you sweat through a supervision meeting with the partner overseeing the case who wants to know yesterday what you plan to do with the witness tomorrow.
As a professor, I have had the privilege of introducing many years’ worth of law students to the thrill and responsibility of their first real lawyering jobs. I have also had the opportunity to observe the most common challenges faced by these soon-to-be new lawyers. By avoiding a few key common pitfalls and keeping eyes wide open for learning opportunities (your own personal user’s manual), new attorneys can set themselves up for a creative, proactive, and skilled practice in which ongoing learning and controlled risk-taking can form the centerpiece of a very rewarding career.
1. Write Like a Lawyer
First, one of the most common challenges new lawyers face is “writing like a lawyer.” What does that phrase mean to you? Many new lawyers believe that writing like a lawyer means rendering otherwise clear prose nearly incomprehensible by using unnecessary, but perceived legal-sounding run-on sentences filled with “heretofores” and “whereases,” that some words (especially names) must be RANDOMLY CAPITALIZED, and that number words should be immediately followed by their numerical counterparts (so that “fifty days” becomes “fifty (50) days”). The problem with jargon, run-on sentences, and legalese is that your readers become so distracted trying to decode your sentence that they miss the point you are trying to make. The result is a missed advocacy opportunity.
Much has been written on the subject of writing like a lawyer who wishes to be understood, and these texts are your user manuals for legal writing. Plain English for Lawyers (Richard Wydick), Just Writing (Anne Enquist), and Woe Is I: The Grammarphobe’s Guide to Better English in Plain English (Patricia T. O’Connor) are just three books recommended by the legal writing faculty at St. John’s; there are many others, and you can find the one that works for you.
New lawyers should keep in mind that legal writing should be plain, understandable English about legal matters, not writing in some foreign legal language. Before cutting and pasting the boilerplate language from your office’s last set of legalese-laden papers, why not first review that language for the opportunity to minimize jargon and simplify sentence structure? In the Child Advocacy Clinic at St. John’s University School of Law, we advise students that borrowing language from previously drafted papers, letters, and emails is good practice if it keeps you from reinventing the wheel but bad practice if it perpetuates the use of legal mumbo jumbo. Even worse is cribbing language you don’t understand because “it was there before, so I’d better leave it there now.” Lawyers should never use words or phrases (or statutes or cases) they don’t actually understand. Instead, decode the phrase, and, if it turns out to be surplus or simply isn’t doing any work for you, take it out. Think of the old story about the art student who wanted to learn how to carve an elephant: His teacher instructed him to carve away everything that didn’t look like an elephant. The same holds true for legal writing. You need to carve away all the words that aren’t doing any work for you. You are left with an argument (or letter, or email) boldly setting forth your idea, unencumbered by distractions.
Particular care should be taken when writing to clients. Especially because children’s law is often a poverty-law practice and there is an inverse correlation between poverty and level of education, lawyers who wish to be understood should draft letters that do not require knowledge of Latin as a second language, or a thesaurus, to understand.
It cannot be overemphasized that legal writing is intended to be understood. To ensure that your writing is understood, draft short, clear sentences in the active voice, and organize your writing in a simple and straightforward manner. “The argument proffered by respondent mother Ms. Jane Doe is, accordingly, and for the foregoing reasons, factually and legally incorrect” becomes “Ms. Doe’s argument is wrong because. . . .”
At the same time, try to be a little more formal than you otherwise might be when communicating electronically. Emails, texts, and WhatsApp messages are often drafted, as they should be, in a less formal voice than letters or motions. But care should be taken not to be too informal in such communications. Attorneys should consciously slow themselves down before replying to the texts and emails of their clients, opposing counsel, and witnesses. Our clinic represents children who often request that we communicate with them by text or WhatsApp. Attention must be paid not to appear too casual and familiar lest you inadvertently blur the lines of the attorney-client relationship or reflect a less-than-professional level of formality to, say, opposing counsel. But there are genuine benefits to communicating by text, including the ability to send a smiley face to convey good news to a nervous young person, or having counsel be able to text you immediately when the judge is back on the bench, for example.
2. Ask for Advice, but Not Too Much
New lawyers are, understandably, eager to learn how more seasoned attorneys do things—but relying too heavily on the advice of others may slow down an attorney’s ability to build up his or her own legal muscle. Your next user’s manual in this area, then, is not just the advice of others but your own experiences. As with physical exercise, the best way to develop independent legal muscle is to exercise it. Because supervising your own litigation is a learned skill, and because everyone has to start somewhere, the best way to begin developing your own good legal judgment is to start proposing possible courses of action during meetings with supervisors. There is a world of difference between the attorney who asks “What should I do now?” and the one who walks into a supervisor’s office (no matter how tentatively) armed with three possible suggestions about what to do next—even if every suggestion is ultimately shot down. Good supervision will generate a conversation about the pros and cons of each suggestion, leading to a better understanding of the factors that go into a wise course of action and the factors that result in an idea being sent back to the drawing board. It is this process of developing independent litigation supervision skills that will set self-motivated and creative thinkers apart from the crowd. Independent thinkers will not only develop skills more rapidly than their counterparts, but they will also quickly develop a reputation for being thoughtful and proactive attorneys.
Remember, too, that lawyers are “professional learners.” Not only must lawyers keep up with current developments in the law, they often learn entirely new substantive subject areas with each new case. Lawyers must learn not just how to get widgets into evidence but also what widgets are, what makes widgets tick, how widgets are built, common off-label widget uses, how the public (a judge or jury) feels about widgets, the main differences between a widget and a gizmo, common widget misconceptions and biases, policy implications of widget regulation, etc. Lawyers for children and families must also learn about the effect of widgets on adolescent development, widgets for siblings, safety concerns for children and widgets, and so on. Learning all of this information and much, much more is what lawyers do every day. Becoming a skillful and well-rounded lawyer, therefore, requires becoming a skillful and well-rounded learner.
Skillful independent learning requires reflection. Whether or not your reflective process thus far has been the product of deliberate and conscious effort, it is unlikely that you made it past the bar exam without some degree of reflection on what kinds of note taking, test preparation, or study-group practices work best for you. Until this point, you have probably also relied on grades to help you assess the success of your various learning techniques. But how does the practicing lawyer gauge the success of lawyering skills without a final exam as a guide? How does a new lawyer know whether a client interview, legal argument, cross-examination, or letter to opposing counsel was excellent or if it missed the mark?
Lawyers must learn to reflect on their experiences to learn from them. New lawyers can ask themselves, “What made that winning argument I just saw successful? What could that other attorney have done better, and how will I avoid a similar fate when it is my turn?” Free, live action “CLE” is unfolding before your very eyes every day: Take notes on the cases you observe. Was the effective attorney organized, speaking clearly, and prepared with case law? Was the less-effective attorney scattered, caught off-guard, and unsure of his or her position? Take similar notes on that cross-examination you are sitting through while waiting for your case to be called. Which kinds of questions are most effective? How did the attorney set a trap for the witness? During argument, how did the attorney maneuver out of a potentially difficult situation? Observe, too (but from a distance), attorneys speaking with their clients in waiting rooms. Do the clients appear interested, angry, despondent, terrified, or reassured? How is the attorney handling the client? Is it effective? Review your adversary’s papers. Are they well organized? Did your adversary use a particularly effective rhetorical device? Were there unprofessional aspects of the papers, argument, negotiation?
New lawyers might form a regular lunchtime meet-up to discuss what they observed that week. Or a lawyer might choose to journal privately about recent events. Regardless of the method used, making a regularly scheduled time each week to consciously reflect on the elements of excellence in lawyering will allow the new litigator to focus on the specific skills needed to improve his or her own performance.
3. Invest Time Now to Properly Maintain Files
The words “file maintenance” often bring tears (not of joy) to the eyes. Updating call logs, scanning in correspondence, keeping the contact list current, maintaining contemporaneous time records—your law school application essay likely did not focus on a desire to serve justice through record keeping. And yet, here we are—me writing about it, and you reading about it.
Care and attention to record keeping isn’t just important; it’s critical. It’s critical so that private practitioners can bill their clients properly, so that attorneys can protect themselves from malpractice claims, and so that trial lawyers can quickly respond to inquiries from the court. More than once, our office has made motions based on a pattern of unreturned phone calls, letters, and email. Such motions can be made only by keeping accurate records of not just the conversations had but also the attempts made to have those conversations. We once obtained a court order directing the local agency to return our phone calls within 24 hours this way.
On this same subject, there are many ways to organize a file, and so long as you and your supervisors are able to locate documents and information when needed, your system will probably work for you. But new practitioners may find the following practices particularly helpful in maintaining files. First, maintain a contact list for each case in a central location in the case file. Update the list regularly when addresses, phone numbers, or attorneys change. It is especially important to keep track of the foster homes, as these can change frequently, and you cannot predict when or why you might need to communicate with or about a prior foster parent. Make sure to date your contact list each time you update it. Never delete old contacts from a contact list; instead, retire old lists to a separate folder or use a strikethrough font with an “as of” date to indicate when the information changed. This way, you will always have a record of the contacts relevant to each point during the litigation.
Next, never keep recorded time by jotting it down on little scraps of paper stuffed into your pockets. This is an invitation to send your billable hours through the wash instead of to the client. Instead, download a timekeeping app (there are hundreds of such programs, many of them free or inexpensive), or, as a last resort, address an email to yourself on your phone, noting the time you spent on various tasks, saving the email as a draft as you update it throughout the day and sending it before you go home for the night. Contemporaneous time records are the best evidence of time spent and work done on a case, and the lack thereof can impede a fee recovery. Reconstructing billable hours is not only unwise; it can be financially painful. Your user’s manual here is the leading case in your jurisdiction, such as Scott v. City of New York, 643 F.3d 56 (2d Cir. 2011) (a true cautionary tale in which a sympathetic court was unable to award attorney fees due to a lack of contemporaneous time records), or Perez-Sosa v. Garland, 22 F4th 312, 329–31 (1st Cir. 2022) (vague entries reduced by 30 percent).
Some offices have document-naming conventions that can be extremely helpful in organizing computer files. If your office does not use a document-naming convention, consider creating one for yourself. Instead of version numbers, you might name documents using the format CaseName.DocType.DocDescrip.Date.Time so that you do not end up with documents such as “Smith Visitation Motion_Tuesday Morning Version 4,” but with “Smith.OTSC.visits.23.05.01.0830am.” However you choose to name your documents, avoid using the word “final” until after the papers have been filed or sent—at which point you should then rename the version that was used “final.” (There is nothing more annoying than a document named “FINAL.final” or the equally bad “final[2].”)
Lastly, know—or at least be able to find—your most basic facts at all times. Before a court appearance, consider creating a one-pager listing all of the important biographical data about your client, such as full name, date of birth, address, phone number, school, place of employment, and family members, and keep that list at the top of your file. This one-pager will be an essential user’s manual when you are on the record. When the court asks you to confirm basic information, you will be able to do so quickly, confidently, and without rifling through a stack of papers.
4. Manage Emotions
Working with children and families in crisis is draining work. Emotions run high, and it takes self-control, together with personal and professional maturity, to be an effective and passionate advocate without crossing the line and becoming emotional. Judges do not wish to hear from emotional attorneys, and your argument would be swallowed by the drama of the presentation, in any event. Emotional attorneys can also be written off as difficult to work with.
New attorneys can, and should, be full of outrage and passion for justice—but law happens. Sometimes you will be successful, and sometimes you will not. Sometimes you can persuade your adversary, and sometimes you cannot. Keep in mind that you can control only what you can control—your own work, not the work of others. The more effective advocate is the one who can maintain his or her composure. If you find yourself becoming emotional, take a drink of water, or step outside for a moment to compose yourself. If you are moved by a client’s circumstances and find yourself becoming emotional in conversation with or about the client, try to (discretely) briefly and physically refocus your attention elsewhere, perhaps by contracting a muscle or gripping your fingernails into your palm. (I’ve done both.) Remember your legal options: Is the issue appealable in one forum or another? Is there a legal avenue on which you can focus your emotional energy? Avoiding strong displays of emotion and remaining composed under all circumstances are critical for maintaining and enhancing your reputation as a professional.
Conclusion
Each of the skills outlined in this article is, in fact, a user’s manual for an improved practice—but only if the attorney takes the time to analyze each experience thoroughly for ways to move forward. It is hoped that the tools set out in this article will help give new attorneys the confidence to try new methods of moving toward excellence when working with children and families.
Original article published on americanbar.org
