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< | Time (and Waiting) in Legal Practice |
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> | Time in Legal Practice |
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< | -- By ElizabethHuh - 11 Mar 2022 |
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> | -- By ElizabethHuh - 20 May 2022 |
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> | A Reflection from the First Draft |
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< | Introduction
Being a lawyer is being able to make things happen with words—for the clients, having a lawyer is being able to make things happen with words in a short period of time. The embeddedness of temporal aspects in the legal system is clear from the way law firms operate through billable times, and incarceration is colloquially called “doing time.” A recent Criminal Law reading noted that in courthouse legends, judges openly justify the discrepancy in the plea bargain sentence and the actual sentence by saying “he takes some of my time; I take some of his.” Thus, time is a valuable resource and its taking is wielded as a weapon; in response, the lawyer’s job is to make sure that time is restored from the client, be it through shortening a drawn-out litigation or the judge’s ultimate sentencing. The value in having a lawyer is not just that they could make things happen, but that they could make things happen in a shorter period of time. |
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> | When you told me to cut the draft before you can accept it, my first instinct was to cut it immediately. I could make more substantive edits in my second draft. In contrast, the task before me was time-sensitive—I had to snip, paste, and send. I knew you preferred a more deliberate look, but I thought I could separate that process from the task at hand. I didn’t think that it would damage the integrity of my later draft, which it did. |
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< | A closer look at the way time and waiting operate in the criminal justice system, which is where I will limit my discussion, reveals the real costs of losing time in the form of waiting. Crook County: Racism and Injustice in America’s Largest Court by Nicole Gonzalez Van Cleve is an especially devastating look into the way time is used to consolidate a socially patterned distribution of power and reify racial and economic inequality. At the Cook County courthouse, defendants are expected to convene sharply at 9 AM to wait for their turn in the docket, and their final hearing times are left to the mercy of the judge. They have no discretion: losing their place means more waiting, and waiting comes at a great economic loss. They are missing work and paying for daycare and parking. The role of lawyers creates a sharp divide between those who have private attorneys and those who do not. The attorneys approach the bench and have their client’s cases heard first whereas clients without private attorneys wait indefinitely in the public gallery. |
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> | Since then, and since our office hours, I had time to think about my instincts and my immediate reactions to your comment. Two points stood out. First, the rush reflected my time as a paralegal. Expediency was highly valued and saying “will do!” right after being assigned a task was the norm. As soon as I saw “you have to cut it,” I went on paralegal auto-pilot. Second, this reaction was an extension of my approach to law school. My mind goes blank in cold calls and I don’t take the pause that will allow me to process the question. Instead, I blurt out whatever comes to mind in an effort to move the ball back to the professor’s court. I work reflexively in law school. |
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< | In the criminal justice system, someone is setting the condition of waiting and has the ability to control the other’s own expenditure of time, and this discretion does not fall to poor defendants of color. Empirical experience is key to not only navigating the justice system but being an effective lawyer. Therefore, I think we should begin by realizing that time, despite its exterior as a neutral, mechanical concept, is not a neutral nor equitable resource. |
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> | What Time Means to Us and Our Clients |
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< | Is Time on Our Side in Law School?
It is difficult to say that time is on our side in law school. In some aspects, it is not—1L year is what Professor Moglen has called “frantic language acquisition.” Yet, this compressed time serves not to oppress us; instead, it is intentional and systematic. The shortened period of time merely emulates the knowledge acquisition waiting for us when we are thrown into the legal world. |
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> | Using the reflection as a new starting-off point, I want this essay to be a more internal and critical discussion of the way I can use time to be a better lawyer. However, the impetus for the essay remains the same. Time is a critical building block within the legal system—law firms operate through billables and incarceration is colloquially called “doing time.” If we are to play the time game to help our clients, it is important that we first take a step back and see how it operates in practice. |
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< | It is even stranger is when time is catered to us. My Legal Methods II class was taught by a judge on Zoom, so he arranged for the students to get a chance to chat with him when he was briefly on campus. To defendants, the opportunity to be in front of a judge is a make or break, a sliver of time when they can make their case. Here, we were listening to a judge who had made the time for us and catered to our schedule by holding the meeting in the afternoon after our classes had finished. |
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> | In the Criminal Justice System |
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< | At law school, time becomes a neutral feature. We don’t think about its effect on our potential clients, especially indigent clients, and its lasting impact on the clients’ communities. We think about it in terms of classes and opportunities, a mere Tetris piece in our academic and professional careers. Time’s scarcity for us is in stark contrast to how its loss translates to particular economic and social costs to people at the other end of the criminal justice system. |
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> | Within the criminal justice system, time is not a neutral nor equitable resource. When I read Lawyerland, I was troubled by Robinson’s opinion that time is a tool in our arsenal to get a favorable outcome. There are real costs to losing time, as captured by Nicole Gonzalez van Cleve’s Crook County: Racism and Injustice in America’s Largest Court. At the Cook County courthouse, defendants are expected to convene sharply at 9 AM to wait for their turn in the docket, and their final hearing times are left to the mercy of the judge. They have no discretion: losing their place means more waiting, and waiting comes at a great economic loss. They are missing work and paying for daycare and parking. Thus, in the criminal justice system, someone has the ability to control the other’s own expenditure of time, and this discretion does not fall on poor defendants of color.
In Big Law
Time is different when lawyers are working for corporate clients. Playing the delay game isn’t just lucrative for the associates but could be an important strategy that the clients themselves favor. Associates usually have a billable minimum that they have to meet, and they must keep track in 6-minute increments. Billables are at once the units by which law firms earn money and a source of restriction for associates. Further, even though I was a paralegal, I had to spend my vacation days replying to emails. My time was not mine. Lawyers are expected to be available at any time and to send in work products immediately. Attention to detail is valued, but sometimes expediency takes precedence over quality. |
| | Time in Practice |
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< | In Lawyerland, Robinson states that a lawyer’s medium is time. The lawyer is “playing the delay game” and accommodating their strategy depending on whether time is on their side or not. Robinson’s words imply that time is a flexible and malleable tool in our arsenal to get a favorable outcome for our clients. However, describing a legal strategy as a delay game is grossly simplistic when we think about the real costs of delay for the clients. Time is a medium for us but a valuable—and limited—resource for clients. If we are to truly understand the social forces behind decisions and their consequences, we have to look at the way deploying time as a strategic means sweeps its effects under the rug. |
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< | Making Things Happen
There is a dissociative effect from recognizing the often destructive effects that time may have yet acknowledging that we are to weaponize this. The latter is already overpowering the former through our legal education. Time has already shifted to our side because it is stripped to its neutral façade: as we make our ways to become “legal professionals,” time is a tool to meet deadlines and there are costs only in so far as it shapes our academic and career opportunities. In fact, we have people waiting for us. |
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> | The value and use of time are variable. Time could serve both to restrict the lawyers and clients and to aid them. What do we make of time, then, if it could be many things at once at different points in our practice? My takeaway is that first, we have to understand that deploying time as a strategic means sweeps its effects under the rug. We must be mindful of the value of time to our clients, and we must communicate with them clearly what is going to happen and how long processes are expected to take. This is applicable to indigent clients rather than institutional players. As of now, I don’t know the dynamics and nuances of client representation in real life (and know that exact time frames are never a given), but I know this transparency doesn’t happen frequently in actual practice. I think it is important to acknowledge that we want to restore time for our clients and not treat it with Robinson’s handwaving. |
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< | Our legal education necessitates that we think in sequence, following the straightforward trajectory from law school to practice. This class is a disruption of that sequence, an opportunity for us to ponder about the lawyers we want to be and the lawyering we want to practice in an institution that actively prevents such reflection before we hold jobs. But, as Professor Moglen says, we are already engaged in legal practice. Dissociation generates discomfort. The next question is how we should respond to this discomfort. One that we will trade-off for security, or one that becomes an impetus for courage? |
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> | Further, we need to approach our time with deliberation, and the approach will be critical to the type of lawyer we want to be and will be. I want to be a lawyer whose work reflects care and prudence. |
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> | Taking my Time and Operationalizing Deliberation |
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> | Expediency will still be valued in big law, but whether I want that to be the defining feature of my practice is a separate question. Frankly, I’m still figuring out how to do the above in practice. No one will tell me to slow down and pause in the hopes that I do as well, and I already identified a larger pattern of anxiously rushing rather than thinking. What I do know is that it will be up to me to intentionally take these pauses. I will have to actively make decisions to take my time instead of providing the quickest turnaround. I want to make those habits upfront particularly because I want to work in public interest after I work in big law. |
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Elizabeth, this draft is almost 1250 words, 25% over the maximum. You have to cut it to within 1,000 words before I can accept it. There is plenty of slack you can remove, and you might want to consider the relationship of time and space in language as you do so; it's really the implicit subject of the essay.
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> | I have taken small steps. Being mindful of the changes I want to make, I had much better cold calls towards the end of the semester because I take pauses when I have to. I not only felt less anxious but also have been more deliberate in my answers. I have no doubt that I am a better student and will be a better lawyer as a result. |
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> | (Word Count: 1000) |
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