A Practice of One’s Own

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Pam Pepper

When I was in college, I did not study what one’s parents might consider “practical” or “useful.” I did not study economics, business, accounting, or marketing. I did not even study teaching, or early childhood development, or psychology. No, I spent four years and boatloads of tuition studying … acting.

Yes, acting — Lawrence Olivier, Meryl Streep, Al Pacino, David Schwimmer (okay, maybe he’s not in the same category as the others, but he graduated from my alma mater a year behind me). Further, I didn’t take “How to Get a Sitcom 101,” or “Landing Brand-Name Commercials,” or even “How to Be a Good Waitress While Waiting for Your Big Break.” Nope, I really went the whole nine yards — Shakespeare, Chekov, Shaw (my favorite), Ibsen, Moliere, the Greeks.

I took voice classes (“What a to-do, to die today, at a minute or two to two — a thing distinctly hard to say, but harder still to do!”). I did character studies, imagining what Nora thought about when she wasn’t cooking Scandinavian food for Torvald, or building whole fantasy conversations between Othello and Iago. All the while, I suspect, my parents quietly shook their heads and imagined me flushing my college years down the … well, you know.

In fact, however, the years I spent studying acting — or, more to the point of this discussion, the years I spent studying the outward manifestations of people’s inward states — have proved valuable in my career as a solo practitioner. Not in the way that people think — it hasn’t made me a courtroom terror, capable of persuading the most skeptical juror that my side is the winning one. My experience is that evidence, or the lack thereof, is responsible for most jurors’ decisions, not good thespian skills. Rather, it’s given me some equipment for trying to tackle one of the most difficult things a lawyer can do — deciding whom to represent.

In our early days, many of us who practice alone or in small practices take almost anything that comes through the door. We don’t feel we have the luxury of deciding whether this client or that client is a good “fit” for us — whether it’s truly the type of case we feel we’re good at handling, whether this client’s expectations are in line with what we think we can accomplish, whether this client’s personality and our style of practicing can peacefully co-exist.

In fact, it’s not unusual for a newer attorney not to realize that those sorts of decisions are even relevant. The questions for many people at that stage of practice are: Do they want to hire me? Can they pay me? Do I know how to do the work? If the answer to all three questions is yes, it’s tempting just to take the case. (Unfortunately, some of us take the case even if only the first two questions can be answered with a yes — a situation which tends to lead to trouble later, but that’s another conversation.)

Over time, however, many lawyers start to get to know themselves better, and to seek better “fits” with their clients. They start to learn that every lawyer isn’t right for every client. They start to have a sense of the kinds of clients who will make them crazy in some way or another, and the kinds of clients with whom they’re likely to have a smooth working relationship.

The determining factor isn’t just whether the client can and will pay the fees — it’s whether the client needs 14 phone calls a day to feel comfortable, or whether a meeting once a month is too much for them. It’s whether the client wants the bad news head on, or would rather be constantly reassured. It’s whether the client expects you to jump up and down and turn purple any time you talk to opposing counsel, or whether they want you to try to “make nice” at every opportunity.

Admittedly, this is an art, not a science. But there do seem to be techniques that one can utilize to help take some of the guess work — and risk — out of the process.

Some of those techniques do fall into a rather scientific, formulaic realm: If a person has been represented by several lawyers prior to coming to me, a red flag goes up — particularly if the predecessors were respected colleagues. When someone says, “Money is not an object,” that usually means that it is. When a prospective client expresses dramatically unrealistic expectations, those expectations are unlikely to change, and the client is unlikely to be pleased with anyone who cannot fulfill those expectations.

Some signals are more subtle, though, and that’s what brings me back around to that seemingly impractical acting training. It helps me spot the client who can’t make eye contact, who wiggles at strange junctures, who has that odd, high pitch to her voice when answering a difficult question. The client who seems fueled by anger and revenge. The client who protests too much. The client who sends subtle signals that he or she sees me as a tool for accomplishing a certain agenda, not someone to help them resolve a problem. The client who feels that this is all — you’ll forgive the theatrical allusion — “much ado about nothing.” (I’m a criminal defense attorney — rarely is being investigated by law enforcement “much ado about nothing.”)

Of course, the fact that I studied “Candida” and “Waiting for Godot” years ago doesn’t mean I haven’t, more times than I care to admit, stood in the smoking, burning wreckage of an attorney-client relationship and said, “You know, I had a bad feeling about this one from the beginning.” I suspect I’ll always have a client here and there whom I misjudged, or misunderstood, or who turned out to be a bad “fit” with my particular practice style. But I’ve gotten better at the process as time has gone on, and I learn from each attorney-client relationship. I think the acting training helps — but maybe that’s just me trying to justify all that tuition…

After her clerkship on the Eleventh Circuit Court of Appeals, Pam Pepper served as a federal prosecutor in Chicago and Milwaukee. Since 1997, she has had a private criminal defense practice, working in federal courts in Chicago, Madison and Milwaukee and in state courts around southeastern Wisconsin.