The Practice of Law

Walter A. Raymond

Editor’s Note: On April 27, 1951, Missouri Bar President Walter A. Raymond of Kansas City provided the keynote address at the University of Missouri Law School Foundation Dinner in Columbia. His remarks, which originally appeared in the May 1951 issue of the Journal, are reprinted below.

The fact that you are students in the law school bespeaks your interest in the subject upon which I am to address you. The fact that I have devoted almost thirty years of my life to the practice of law may qualify me to speak with some degree of assurance on this subject.

I shall not attempt to discuss legal theories but will deal with the subject from the practical point of view based on my experience and observations in the practice. It is my earnest hope that what I shall say will be of some help and encouragement to you.

First I want to call to your attention some of basic characteristics of the profession. As Blackstone said long years ago, the law is a jealous mistress. No truer statement was ever made. If law usurped the lawyer’s time to the exclusion of other activities in Blackstone’s time when the law was simple and law books few, how much more does it now monopolize the time of the lawyer of the present day who has to deal with the vast volumes of statutory and case law called forth by the complex society in which we now live? One who is not willing to put aside other activities and devote himself first to the law is ill-equipped and ill-advised to attempt the practice of law. Such a one is certainly doomed to failure and disappointment. The relationship between a lawyer and the law must be a real love match and no mere flirtation will get him anywhere.

I shall attempt to illustrate what I mean by relating a personal experience. When I started in the practice at Kansas City, there was a great trial and appellate lawyer then in the final years of his practice. He had achieved a fame and reputation throughout Missouri and far beyond its confines. When the word was out that he would make an appearance in court, the courtroom would fill with spectators an hour or so before the court convened. This was most unusual in the metropolitan area where the courtrooms were usually almost empty of spectators. One day, a year or so before his death, when he was quite old, he and I met on a street corner. He stopped to visit with me, as he did with all young lawyers. He inquired my age and how long I had practiced and then with a wistful look in his eyes he put his arm around me and said: “Young man, I envy you, I would give anything in this world to be starting again on a lifetime career at the Bar” and he meant it – every word of it. The name of that man was John J. Lucas, affectionately know to the Bar as “Uncle John” Lucas. That is the kind of enthusiasm and love of the profession you must develop if you hope to reach the top in the practice of law.

Mr. Lucas’ mind was so clear and reacted so quickly that when a Supreme Court Judge interrupted his argument one time to say: “Mr. Lucas, you know that is not the law,” he instantly bowed and replied: “That was the law until your honor spoke.”

If you like variety, the practice of law will please you. Like the ocean it touches on every shore of human activity. You move from crisis to crisis. In the morning you know not what the day will bring forth and this keeps you in a constant state of subdued expectancy. Pity the poor office workers whose days are all alike – made up of tedious hum drum and routine. Engage in the active practice of law and you will never suffer boredom or be in danger of atrophy.

In deciding whether you will make the practice of law your life work you should first decide what you desire from life. I have heard it said that a lawyer can become wealthy – he has just as good a chance as anyone else to inherit a fortune or marry a rich woman. The lawyer who becomes wealthy is the exception. It is proverbial that lawyers live well and die poor and that is in accord with my own observations. Anyone who enters the practice solely for the purpose of making money is almost certainly doomed to disappointment and failure.

One who dedicates his life to the practice of law in the true spirit of the profession embarks on a work of public service. The lawyer is the friend of the poor and weak. Before you are admitted to the practice you will be required to take an oath that you will never reject from any consideration personal to yourself the cause of the defenseless or oppressed. Your greatest satisfaction will come from successful efforts to obtain justice for the widow, the orphan and the oppressed who are not able to defend themselves against the wrongs of others. Lawyers are the foes of dictators and tyrants. When reaching for power, the first thing a dictator does is to abolish the judiciary and the legal profession or render it helpless and subservient. A dictator cannot thrive where there is an independent and fearless judiciary and legal profession. The very foundation of a free government is a capable and efficient judiciary and an independent and fearless legal profession. Without these, liberty, justice and equality soon disappear.

If you are to perform your full function as a lawyer, you must interest yourself in the activities of the organized bar. You must be interested in improving the administration of justice. This is a continuous process of growth and development of which you should become a part for your own good and for the development of the profession. Neglect of this duty by the bar generally, for even a short period, will most certainly bring about socialization of the bar. The profession as it will given into your hands has a long and illustrious history. Lawyers played the leading role in establishing our liberties and have been the chief defenders and preservers of our American form of government and way of life. Magna Charta was drafted by a lawyer. The Declaration of Independence was drafted by a lawyer. Sixty percent of the members of the Constitutional Convention were lawyers. The executive branch of our government has been dominated by lawyers – 23 of our 33 presidents were either lawyers or law trained. The judiciary, in its higher branches, has always been exclusively manned by lawyers. Both houses of Congress have always contained many lawyers. During most of our history, the most influential members of both houses of Congress have been lawyers. That heritage and that background stand back of you, but with it also goes a great responsibility. You must strive to keep the judiciary strong and pure and the profession independent and fearless. Speedy, even-handed justice must always be kept within the reach of the humblest citizen. In no other way can the American way of life, of liberty and justice for all, of individual enterprise, be preserved. You are the veritable high priests at the altar of liberty. What an opportunity – what a privilege is yours.

There are always some selfish reasons why you should become active in bar activities. An older lawyer I knew once solicited a young lawyer just starting out to join the bar association. The young lawyer inquired as to what advantage could possibly come to him from joining the bar association. The older lawyer replied: “For one thing, it will get you acquainted with the lawyers in your community. A person considering hiring you as his lawyer is likely to ask other lawyers about you. The most damaging thing that can happen to you when that occurs is for your fellow lawyer to say he does not know you.” But there are other advantages. Lawyers talk shop at bar meetings, at the banquet table, in the corridors and everywhere. You will seldom attend a bar meeting that you will not learn something worthwhile. Furthermore, it is the best place there is to make friends at the bar. At bar meetings the lawyers are at ease, they relax and are in a genial mood and you will there find the finest fellowship and camaraderie known to this mortal existence. You will be derelict to your profession and rob yourself of some of its greatest pleasures if you do not attend bar meetings whenever possible.

You should already begin to contemplate the relationship which will exist between you and your clients. It will be a fiduciary relationship of the greatest trust and confidence. The clients’ inner-most secrets are entrusted to you as well as his property rights and often his liberty and very life. As a part of the lawyer’s oath you will promise to maintain the confidence and preserve inviolate the secrets of your client. Wise is the client who confides fully in his lawyer. A bad situation fully disclosed to the lawyer may often be handled in such a way as to avoid threatened catastrophe. When such information is held back and sprung in the trial as a surprise weapon by the other side, it often wrecks the client’s case. Be sure that your client tells you the whole truth and does not let you stumble unwittingly into a trap laid by your adversary.

I shall attempt to illustrate what I mean. Another lawyer and I represented a young man plaintiff in a personal injury case. We sensed that he was not giving us all the information we should have, but we could get nothing further from him. On the eve of trial we put such pressure on him that he finally broke down and confessed he had embezzled from his employer and served a term in the penitentiary. In qualifying the jury, and before the defense attorney had an opportunity to say anything to the prospective jurors, we told them of the mistake our client had made, and how he was trying to make amends and then asked them if they would be prejudiced against our client on that account. Later when defense counsel sought to introduce the criminal record of our client, we objected on the ground it could only affect his credibility, that the jury already knew the facts, and the only purpose of the offer was to embarrass our client. The court sustained our objection and we won sympathy and a psychological advantage for our side. What could have been a bad situation was turned to our advantage.

How far should you go in maintaining the cause of your client? You should employ for the purpose of maintaining the cause confided to you every means within your power consistent with truth and honor. You are the champion of your client and you are expected to fight for him to the extent of your ability within the bounds of truth and honor. To be sure that you exert yourself to such extent, I shall give you a little test I have found useful in my own experience. In your own mind change places with your client and then ask yourself, “Would I want my lawyer to rest on the preparation he has made thus far or would I want him to exert himself further?” The putting of that question to yourself will almost invariably stimulate you to further effort, and that extra effort will often win for your client.

You are expected to be partisan in the representation of your client to the extent that you vigorously present your client’s cause from the most strategic approach and in the most favorable light. You will be derelict in your duty if you do not do that. Many courtroom battles are hard fought affairs. Feeling often runs high on both sides. You must learn to keep your head when the going is tough and the battle hard and bitter. Nothing can hurt your client’s cause more than for you to lose your head and engage in controversy with the court or quarrel with an adverse witness or opposing counsel. It is a badge of weakness which will frequently destroy your cause.

Again you must not let personal feelings creep into your relationship with opposing lawyers. If you develop a feeling of enmity and anger toward every lawyer who successfully opposes you in litigation, you will soon be at outs with most of the bar. You will antagonize them to the extent that they will refuse you the favors and accommodations commonly extended between opposing counsel. This will make the going very rough for you and cause you much unnecessary work and unhappiness. You must develop a chivalrous and sportsman-like attitude toward opposing counsel. In the language of Shakespeare: “Do as adversaries do in law, strive mightily, but eat and drink as friends.”

When the battle is over, hold no animosity against your opponent. He had a right to vigorously uphold the cause of his client, and you could not respect him if he did not do that to the best of his ability. The bitterest of legal battles need not, and should not, interfere with the friendship and mutual respect of opposing counsel.

One of the most important things I can say to you is to learn to be a good loser. By that I do not mean you should develop a defeatist attitude. When a lawyer who has been in the practice any length of time makes the statement that he has never lost a case, it immediately becomes apparent to us in the practice that the lawyer has not tried many cases or is taking poetic license. It is rare, indeed, when both sides win in a lawsuit. In almost all cases one side must lose. In other words, normally half the lawyers and half the litigants lose. So if you try many cases, you are most certain to lose part of the time — which reminds me of the occurrence of two young lawyers who had met defeat in the trial of a case. They returned to their office in an obvious state of dejection. An old seasoned trial lawyer in the same office noticed their depressed condition. He inquired of them what was wrong, to which they replied that they had lost their case. The older lawyer immediately expressed his sympathy and said that he had never lost a case. The younger lawyers looked incredulous, as they knew he had been an active trial lawyer for many years and could not have won all of these cases. The older lawyer then said: “My clients have often lost but I never have paid a judgment yet.” The point I want to make is that you have discharged your full responsibility when you serve your client to the best of your ability. If the case has been lost for your client and you have reached the point where you can do nothing further about it, review it in your mind for the purpose of determining whether you made any mistakes or what you might have done differently which could have helped your cause. When you have sufficiently reviewed the case for the purpose of learning what you can from it, dismiss it from your mind and get to work on the next case. Do not brood over defeat after it is too late to do anything about it. It is an utter waste of time and if persisted it will demoralize you and eventually affect your health. The test is not whether you won but whether you did your best for your client. More than that your client has no right to ask, and more than that your conscience should not require of you.

Most young lawyers starting out in the practice have the ambition to become great trial lawyers. That is more exciting and dramatic than office practice. But it is also a greater physical and mental strain on the individual. A lawyer was once introduced to the sales manager of a large corporation. The sales manager said to him: “So you are one of those supersalesmen.” The lawyer replied: “You must have misunderstood. I am not a salesman at all, but a lawyer.” The sales manager replied: “I did not misunderstand. I still say you are supersalesman. My men go out and sell one man at a time, but you have to sell the judge and twelve jurors all at the same time.” That is a very good description of a trial lawyer. He has to worry about the performances of the witnesses and try to sell the court and all twelve jurors all at the same time. Objections must be made instantly or it is too late. He must be ready for any surprise and react instantly. The necessity of remaining poised at all times during the trial is very fatiguing. One who would devote his time to the trial of cases must develop a zest for the contest and a sporting attitude similar to that of great athletes. When the race is over, shake hands with your adversary and turn your thoughts to the next contest.

You likely will ask yourself, “Am I adapted to become a trial lawyer? Will I be successful as a trial lawyer?” Some lawyers have inherent qualities which make them natural trial lawyers. But such is not necessary to success. When I was starting in the practice, I picked out certain ones I thought were not adapted to trial work and could never be successful as trial lawyers. In many instances I proved wrong. Like most every other phase of the law practice, eagerness to learn and willingness to work are the most important factors. I have seen colorless, timid young lawyers without fluency of language become successful trial lawyers. Their learned preparation and sincerity are more valuable than mere personality and empty eloquence or bluffing.

I pause here to say that it has been my observation over the years that the lawyer of average ability who is thoroughly prepared will most often prevail over the brilliant lawyer who is not prepared. Brilliance is often a weakness. One who possesses it gets to rely upon it and neglects his preparation. Do not be intimidated by the fact a big-name lawyer is opposing you. He is probably too busy or too confident to prepare as he should. Knowing you are not capable of successfully competing with him on the same level of unpreparedness, you will depend on superior preparation, which will give you the better chance to prevail.

You should probably decide early in your career whether you want to be a trial lawyer or an office lawyer. The reason for that is that each calls for the development of a separate and distinct set of traits. A trial lawyer must learn to think and act like lightning. He must be willing to take chances. He has to shoot on the wing. The office lawyer must do just the opposite. He must take no chances. He must take all the time that is needed and dig in the library until he knows he is as near right as a lawyer can be.

I pause here to remind you that law is not an exact science. You are dealing constantly with human relations and human psychology. Many cases are close enough that one honest judge might decide one way and another equally honest judge might decide the same case the other way. One jury might find for the plaintiff. Another jury might decide the same case for the defendant. You must learn to appreciate the flexibility and inexactness of the law and the variation in viewpoint of different judges and different juries. That is human nature and there is not much that can be done about it. The main reason for a jury trial is that a group of twelve will not vary in that regard so much as one judge or a lesser number of jurors.

If you decide to be a trial lawyer, do not try to imitate some other lawyer – learn to be yourself. I do not mean that you should not learn by observing the tactics and mannerisms of the best trial lawyers. You may even be able to imitate some of their traits successfully, but do not overdo it. No two personalities are alike and your tactics and mannerisms must be suited to your personality. Thoroughly prepare your cases, know what you want to do and then do it in your own way. That will put you at ease and give your work a genuineness and effectiveness nothing else can. You can only be yourself – do not try to be anybody else.

There is one thing you will soon learn. That is that each of your clients feels very strongly that the matter he has entrusted to you is the most important piece of business in your office. He will never let you forget that. A busy lawyer finds himself with many most important pieces of business on his hands and he has to step lively to keep all his clients satisfied.

Your client is usually deeply concerned over the matter he has confided to you. He often seeks or in any event receives advice from other sources and then in a spirit of helpfulness brings it to you.

I very well recall one such instance. When I had been in the practice not over two years our office was employed to represent a laboring man in some minor litigation. Because it was minor, it was entrusted to my exclusive care. The client was much concerned about his case and because of my limited experience apparently did not have full confidence in my ability. Several times he came in with suggestions meant to be helpful as to how I should handle his case. None of the suggestions had in fact been helpful. Finally, one day he came in with a suggestion that bordered on absurdity. He urged it with unusual persistency. Finally, I became a little irritated. I knew the suggestion had not originated with the client, so I demanded to know who had made the suggestion to him. All he would say at first was that it was a friend. I then demanded to know what his friend did. With difficulty, I finally wrung from him the admission [that] the friend giving the advice was his barber.

I slid his file across the top of my desk into his lap and said: “Take this file to your barber and let him handle your case. When you need a haircut, see me. I guarantee your hair will look as good as your file.”

No doubt you are already concerned about where you will locate, the law organization you will start with, and the type of practice in which you will engage. Those are your major problems in getting started. It will largely be a matter of individual choice.

Of one thing I am quite sure. You should not immediately open your own office but should seek employment with some experienced lawyer or law firm for the first three to five years. You will get more and better experience that way, and much faster than if you get it alone. Your main concern for the first five years should be to get the best possible experience in the fastest way, and all other considerations should be subordinated to that.

Personally, I think it is better to seek employment from some older individual practitioner who has more business than he can handle by himself. He will likely take a greater interest in you and there is a good chance for you to become a partner in a few years and later inherit the business.

Before seeking employment with a large firm, there are several things to which you should give consideration. Firm business is usually departmentalized. You will likely be assigned to a particular department and given training and experience in only one branch of the law. If you remain in the firm you will likely be advanced only as those ahead of you are advanced, no matter how hard you work or how superior your work. The only way I know to escape this lock-step progression is to marry the boss’s daughter.

Good experience can be obtained in a firm and also in doing claim work and even collections for not over two or three years. To remain in such work longer is stultifying and in many cases destroys a promising career.

In closing, I want to say to you that if you will develop a love for the law, will work hard with a determination and perseverance that will not be denied, there are no heights which you cannot attain.

Opportunity is now knocking at your door, and I hope and trust that you will not turn her away.