Fourteen years ago, I wrote an article for a business journal that summarized a dinner conversation I had with my 4-year-old daughter. She asked me to explain “What is a re-sezz-ee-un?” By the end of our conversation, her greatest concern shining through her little green eyes was whether Santa Claus himself would be experiencing any effects of that “re-sez-ee-un.”
Much has changed since that conversation. That particular recession eventually ended, only later to be replaced by what some economists called a second one. The Cubs finally won a World Series. We sent an unmanned spacecraft to Pluto. An unprecedented world pandemic wreaked its havoc, and Donald Trump became our president, not once but twice.
My daughter has seen quite a journey as well. She became a singer, musician, artist, model, cheerleader and even an actress, playing the lead Dorothy in “The Wizard of Oz” at the Apollo Theater. She is a self-taught competitive gymnast and part of a team that made the national finals in Orlando, Florida. Perhaps most important, my little green-eyed girl grew up and graduated from high school, and she is now a college freshman trying to find her place in this crazy world.
Now we sit together, sometimes late into the evening, and we talk. She has never had any interest in becoming a lawyer, but she has always shown an interest in why I do it. Recently, she asked me a question that I haven’t heard in a while. She asked the difference between being a lawyer today and when I started many years ago.
“The difference is I don’t consider myself just a trial lawyer anymore,” I told her. “Clients once hired me to try their cases. They don’t want that today. Now they hire me to help their business avoid trials.” She looked up at the ceiling, raised her eyebrows and nodded, as if she understood me perfectly.
“Does that apply to all lawyers or just you?” Of course she would follow my answer with an even more difficult question. I had to think about that one.
The truth is that the legal industry has changed along with the rest of our world. First came cellphones. Then came the internet. Then came cellphones with internet and all the knowledge of the world instantly at our fingertips. With that came the expectation for instant satisfaction and an acute lack of patience. People want problems solved instantly, with relatively little discussion. When business owners experience unforeseen and unbudgeted issues, they want them resolved quickly. From Caterpillar to the corner restaurant, the last thing companies want is to devote their resources toward litigation. When businesses hire a lawyer, their historic desire for Perry Mason now takes a back seat to the need for Harvey Specter. Businesses no longer want to retain the best trial lawyer; they want the lawyer who can quickly fix the problem without the need for such elaborate time and expense.
This reality has resulted in a generational swing in which lawyers, just like those in other industries, are forced to adapt to be competitive. Don’t get me wrong: A trial lawyer still needs the skill and experience to try a good case; otherwise, the bluff will get challenged every time. Nevertheless, possessing excellent trial skills just isn’t the sole (or even primary) skill anymore that businesses are seeking. The real talent is solving the situation by avoiding the trial.
I believe this is true no matter what kind of trial lawyer you are. Ask an experienced personal injury lawyer how many cases insurance companies settle today compared with 10 years ago. Ask a criminal defense attorney how many accused are going to trial versus entering into a plea bargain.
Ask any business owner what he or she thinks about litigation. Don’t just ask ones who have been sued and lost; also ask those who have sued and won but didn’t consider it a victory because of the amount of legal fees they paid. I have tried hundreds of cases in my 30-year career. I have heard every criticism of our legal industry that exists, and many of them I agree with. Perhaps the worst of all is the notion that the cost of victory can be just as devastating as the agony of defeat. On the other hand, I have never received criticism from a client after we managed to avoid a trial.
I still have plenty of time left to practice law on this journey I began 30 years ago. Fortunately, my kids keep me “young at heart” and provide me with the tools to reinvent my career when needed. One thing is certain: More change lies ahead. Interest rates, government regulations and debtors’ ability to repay their loans were once easy problems to forecast, analyze and solve—but not anymore. Fortunately, I know I can always count on my daughter’s inquisitive green eyes to help me through the journey.
Joseph VanFleet is an experienced trial lawyer, focusing his practice on small businesses and community banks in addition to Fortune 100 publicly traded entities and large-scale lenders he has always represented. He has represented clients throughout the country and in numerous complex and multidistrict cases, and he has obtained victories in well over 100 trials, appeals and alternative disputes.
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