Monthly Archives: November 2012

19th Century Black Practitioner’s Vision of NC Lawyers

Tarboro lawyer George Henry White was one of only a handful of African American lawyers in North Carolina during the entire time he practiced here (1879 to 1900). He was the only black member of Congress in the 55th and 56th Congresses (1898 and 1900), representing North Carolina’s Second District.

In 1899, White was two years away from leaving Congress and moving out of North Carolina, having famously concluded that he could no longer remain in North Carolina and “be treated as a man.” His decisions to leave came as the result of the 1900 election in which voters approved amending the North Carolina Constitution to impose literacy tests as preconditions of voting.

The 1900 election is now generally viewed as having been “grossly fraudulent.” It followed a campaign in which White himself, and his family, were attacked based on false, racially inflammatory charges advanced by political opponents including many North Carolina newspapers led by Josephus Daniels and the Raleigh News and Observer. Amending the Constitution marked a final step in the disenfranchisement of North Carolina blacks and the establishment of white supremacy. White decided in response to leave the state, and publicly advised that other African Americans do the same.

Understanding that White’s entire career as a lawyer until 1900 had been as one of only a handful of black practitioners in North Carolina and the country – and knowing what was to come – makes White’s observations about the role and character of lawyers compelling, if not inspiring. Speaking to Howard University law students in March, 1899, he said,

The lawyers in every community are the leading lights, the moulders of public sentiment. This is true in the common councils of the cities, and also abundantly true in the management of state affairs.

[Lawyers tend to become legislators because of their training, but also because of their desire to serve the community.  A lawyer is a] useful, intelligent and industrious citizen, [who] in order to succeed permanently, must be an honest and admirable man; must deal fairly and squarely with his clients.

Following the 1900 election, White was interviewed by the New York Times. He explained his decision to leave North Carolina and also invoked his experience as a North Carolina lawyer.

I cannot live in North Carolina and be treated as a man. In my intercourse with the bar of North Carolina in the past I was never made to feel that I was on a different plane to anyone else because I was a colored man, but I cannot feel so any longer.

It takes some digging, but how good to be able to extract from this sorry story an essentially uplifting vision of the profession.

[Quotation from George Henry White, An Even Chance in the Race of Life, Benjamin R. Justesen (LSU Press 2001), pages 50-51. Also see Eric Anderson, Race and Politics in North Carolina, 1872–1901: The Black Second (Baton Rouge: LSI Press, 1981), page 307.]

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Literacy Test Issues Central to Careers of 2 Ground Breaking NC Lawyers

In 1900, in an election characterized as “grossly fraudulent,” North Carolina’s voters ratified an amendment to the State Constitution that imposed a literacy test for voting. A grandfather clause made an exception to this requirement for persons who could not pass the test, if their fathers or grandfathers could vote before 1867.

Henry E. Frye

The explicit purpose of the amendment was to disenfranchise African Americans. It was the culminating step in the establishment of Jim Crow laws in North Carolina and it effectively eliminated blacks from North Carolina’s voting rolls. Literacy tests remained in place until the mid-1950s. Cf. Allison v. Sharp, 209 N.C. 477, 482 (1936). The literacy requirement was no longer enforced and later repealed after Henry Frye appealed from a “test” administered in Ellerbe in which Frye, a college graduate and returning military officer who later became Chief Justice of the North Carolina Supreme Court, was found not literate because he misspelled one of the names (Zachary?) of one of five U.S. presidents whose names he was required to spell in order to establish his literacy and right to vote.

George Henry White

At the time of the 1900 election, which established the literacy tests, Tarboro resident George Henry White represented North Carolina’s Second Congressional District. He was the only African American member of Congress.

Following the 1900 election, White decided that he would not run for re-election. The New York Times reported:

One of the most significant results of the race trouble in North Carolina is the announcement by Representative George Henry White of that State that he is compelled to leave the State … because the subjugation of the negro has been carried to such a point that an educated colored man can no longer remain there.

Mr. White declares that in former years he was able to practice law there without being made to feel that he belonged to an inferior race, but that things have now changed. ….

Mr. White says that the disenfranchisement of his race is merely a symptom of what is going on there, and does not merit the attention which has been bestowed  upon it. What is of real importance is the movement for the degredation and subjection of the negro, the political move being merely one aspect.

The Times quoted White directly:

I cannot live in North Carolina and be treated as a man. In my intercourse with the bar of North Carolina in the past I was never made to feel that I was on a different plane to anyone else because I was a colored man, but I cannot feel so any longer.

* * * *

I have been made the target for those who have been fighting against the Negro race in North Carolina, and nothing has been too hard to say of me.

In the next Congressional election, White was succeeded by Claude Kitchin from Scotland Neck as the Second District’s Representative. White left North Carolina, moving first to Washington, D.C., and later to Philadelphia.

[Eric Anderson, Race and Politics in North Carolina, 1872–1901: The Black Second (Baton Rouge: LSI Press, 1981), page 307.]

Tarboro Lawyer George White: Most Prominent Black Leader in America in His Day

Tarboro lawyer George Henry White was the fourth black man to represent North Carolina’s Second Congressional District. He took office on March 15, 1897.  He was the only African American in the 55th Congress.

Before his election to Congress, White had been a leading educator, a religious leader in the Presbyterian Church, a successful lawyer, and successively a member of the North Carolina House of Representatives a member of the North Carolina Senate, and the District Solicitor for North Carolina’s Second Judicial District. He was the only black prosecutor in the United States when he served in that role. He was consistently acknowledged by friends and adversaries alike to be an excellent lawyer and a man of high character. (Later in his career, he was attacked and ultimately brought down for what was said to be his aggressive insistence on “social equality” for African Americans. That however, is a story for another time.)

Upon election to Congress, White became the holder of the highest national political position of any black American and “the first black superstar.”

Black newspapers [state and national] began to carry longer stories about him, emphasizing his personal charisma and exaggerating his impact on the national scene; he was the first black superstar; the political savior of his race, and nearly every word that he uttered quickly appeared on the printed pages before hundreds of eager readers, often picked up and reprinted in other black publications. … For the white community, White was generally less of a lasting phenomenon than an irritant; the less said, the sooner he might fade away.

White’s “most famous phrase,” delivered in “many iterations” was first delivered in a speech before Congress on March 7, 1898, in which he advocated for the creation of a black artillery regiment in the United States Army and, more broadly, for “the equal rights of all black citizens under law in America.”

You have two hundred and fifty years the start of us; and if you are honest, if you are fair, if you are not cowards, and of course you are not, you certainly will be willing to accord to us at this late day all the rights of American citizens enjoyed by you. An even chance in the race of life is all that we ask; and then if we cannot reach the goal, let the devil take the hindmost one.

This speech is reported to have drawn “loud and prolonged applause,” although White’s legislation was not adopted.

[Benjamin R. Justesen, George Henry White, An Even Chance in the Race of Life (LSU Press 2001), pages 223-24.]

Get Your Metaphor and Go

AT-AT walkers are those very tall, four-legged, camel-like fighting machines deployed by the Galactic Empire against the Rebel Alliance in The Empire Strikes Back.

 The All Terrain Armored Transport, or AT-AT walker, is a four-legged transport and combat vehicle used by the Imperial ground forces. Standing over 20 meters tall, these walkers are intimidating, and are used as much for psychological effect as they are for tactical effect.

An AT-AT has blast-impervious armor plating, and resembles a gigantic beast as it moves across the battlefield. An AT-AT’s head carries the main armaments, a pair of light blasters located on the walker’s “temples,” and heavier, twin laser cannons mounted on the walker’s “chin.”

The command crew pilots the AT-AT from the walker’s head, which is connected to the main body by a flexible neck. The crew consists of a commander, a gunner, and a pilot. Additional crews and troops can be carried in the walker’s main storage bay.

Remember what happened to the AT-AT walkers? One was destroyed when a Rebel Alliance Snowspeeder wrapped a tow cable around its legs; another one was taken down by Luke Skywalker, who ravaged its underbelly with his light saber.

The AT-ATs were tripped up by the spunky rebels in their small, highly maneuverable speeders.

Anybody seeing any parallels here? Those Snowspeeders, that independent/networked Rebel Alliance, against those AT-ATs, that Galactic Empire.  As Solomon Burke used to ask his audiences in his later days, “Are you with me?”

I mean MidLaw, BigLaw?  Are you sure you don’t see it?

All-terrain armored transports in service of empire, or a network of free,  independent speeders? Choose your metaphor and let’s go.

Here are links to earlier posts that, in a metaphorical sense, address the coming challenge of rebel alliances to galactic empires:

http://ow.ly/fnC0h

http://ow.ly/fnC3o

http://ow.ly/fnC6f

http://ow.ly/fnCwU

Size Is Not a Factor in the Law Firm Profit Formula

At the AltmanWeil seminar, Tom Clay had a slide under the heading Revisiting the Profit Formula that said, “Notice: Size is not a factor here.” (The formula is David Maister’s profit formula, which makes law firm economics a function of hours, rates, expenses and collection efficiencies.)

Imagine my satisfaction at seeing the leading “quants” confirming my favorite theme. In Nilofer Merchant’s magisterial phrase: “The competitive advantages of scale have been commoditized.”

“Size,” we are told, “only matters to a professional services firm in three situations.” (Go read what George Beaton says at the link.) In part he says, that size matters

  • To ensure that your firm has sufficient depth to survive the loss of a partner or major client,
  • To meet the needs of core clients for depth, range of services and locations, and
  • Where the cost of the service falls with the volume of services delivered.

I understand Merchant to say that these three imperatives will pretty much come off the table in time. They can be satisfied other ways.

In current lingo, scale or size can be networked, outsourced, or algorithmed. With every year that passes, in-firm scale or size will claim less and less of a premium.

By the way, I find this vision of the cloudy future (size-doesn’t-matter — or, better, size-need-not-matter) confirmed in Jordan Furlong’s recent discussion of The evolution of the legal services market: Stage 3

Well, there a few reasons still,  for practicing law in firms instead of dead solo. They are to be found in earlier posts and one day soon, I’ll draw them together in one place. In the meantime though, remember: “size is not a factor in the profit formula” and “the competitive advantages of scale have been commoditized.”

Mid-Sized Firms Are the Only Hope for the Future of the Legal Profession

Recently Jordan Furlong made the point that the successful lawyers in the future will be the ones that provide “counsel, wisdom, advocacy and preventive law services.” This is a thought that has been advanced by Richard Susskind, Bruce MacEwen and many others; and most recently, in the current issue of ABA’s Law Practice Magazine. (It got going with Susskind, I think.) Everybody says that lawyers who merely provide knowledge of the law, or who merely administer routine processes, will sooner or later be outsourced or networked or replaced by machines.

The further question then is: Where will the successful lawyers come from – that is, the ones who will provide the wisdom? Where will they come from? Who will prepare them? How will they do it?

Do law schools have courses: Judgment 101, Wisdom 201?  The answer of course is “No.” Law schools can help, but what’s needed to produce wise professionals is practice, experience, models and mentors – and the opportunity of trial and error. Things you can’t get in school.

Where can aspiring lawyers get those things? From being an associate in a large, departmentalized law firm? Do you really think so? Well, how about from being an associate in a large firm that invests in professional development training programs? Nope.

What’s wanted cannot come from training. It cannot come from a classroom or a lecture series. And, it cannot come from the experience of working on small pieces of large projects.

There is no substitute for holistic practice – the experience of trial and error, augmented and inspired by models and mentoring.

At one time, lawyers got that experience (if they did) by reading law with an established lawyer, then beginning to practice little by little in a coherent, local legal community. That can’t happen anymore. (Lots of reasons.)

When you think about it, do you see any way to develop lawyers with the kinds of skills that Susskind and that lot say are needed, on a predictable basis EXCEPT in the context of small or mid-sized firms with strong cultures of practice excellence and where there are opportunities to trip and stumble before you walk?

David Shenk, author of The Genius in All of Us (Anchor 2010) 53-57, says that

 truly outstanding skill in any domain is rarely achieved in less than ten thousand hours of practice over ten years’ time (which comes to an average of three hours per day).

He makes the further point, quoting K. Anders Ericsson, that “practice” necessarily entails experiencing and learning from failures:

 [T]he notion of deliberate practice went far beyond the simple idea of hard work. It conveyed a method of continual skill improvement. ‘Deliberate practice is a very special form of activity that differs from mere experience and mindless drill,’ explains Ericsson. ‘Unlike playful engagement with peers, deliberate practice is not inherently enjoyable. It … does not involve a mere execution or repetition of already attained skills but repeated attempts to reach beyond one’s current level which is associated with frequent failures.’ …

“[This type of practice] requires a constant self-critique, a pathological restlessness, a passion to aim consistently just beyond one’s capability so that daily disappointment and failure is actually desired, and a never-ending resolve to dust oneself off and try again and again and again. …

The complexity of contemporary law practice places the opportunity of getting this kind of experience beyond the reach of most small firms, and outside the business models of most large firms.

Is it too much to suggest that the only hope for the future of the American legal system is mid-sized law firms (and, actually, only the well managed ones of those)?

The ONLY hope.

The only hope for the future of the American legal system lies with mid-sized law firms. You heard it first here.

African American Lawyers in 19th Century North Carolina – Benchmarks

In 1873, there were three African American lawyers in North Carolina. They were George L. Mabson of Wilmington, John S. Leary from Fayetteville and James O’Hara in Enfield. The first two had graduated from Howard University’s new law school. The third had studied there, then read law with a white lawyer in Halifax.

In 1879, there were four others: Charles B. Warrick, John H. Smyth, John Henry Collins (from Enfield), and George T. Wassom (Goldsboro).

On January 6, 1879, George Henry White, then a resident of New Bern, was licensed.

By 1890, there were 14 black lawyers in North Carolina.

Those are numbers I had not seen before. Gives me a handle on the story of African American lawyers in North Carolina.

George H. White has the highest profile today. He was one of North Carolina’s most notable 19th Century lawyers and among its most remarkable citizens. For a brief moment he was the leading spokesman for African Americans in the country.

These names and numbers come from George Henry White, An Even Chance in the Race of Life, Benjamin R. Justesen (LSU Press 2001), page 50.

The Computers Are Coming

Twice in the last two weeks commentators on the legal profession have said that the computers are coming for us. One said we’re maybe ten years away from computers completely replacing lawyers. Another, that one of IBM’s Watsons (the computer that plays chess) will be able to replace 500 law firm associates.

I’m going to get me one.

The New Leverage

Both for the reasons just suggested  (fewer hours, lower rates) and for other reasons as well (less work, too many lawyers, competition from non-lawyers) the traditional law firm consultants’ nostrum, “leverage”, is losing its punch and tanking the law firm “business model”.

What’s a law firm to do? One suggestion: “the new leverage.” Instead of leveraging associates, they say, leverage technology (especially, knowledge management); leverage non-lawyer staff.

Well, OK.  But in law firms what leveraging does is identify standardizable and replicable domains of work and push them down to a cheaper level, then take a profit – which is to say, that technology and paralegals can lever knowledge and process work, but not so much counseling or advocacy work. And knowledge and process are not at the core of what lawyers do.

Leverage is the juice of hierarchical, departmentalized firms – the ones that slice and dice legal work into separated tasks (document review, title searches, etc.) and hand them down. In the good old days of the Bubble, you’d get more work, hire more associates and raise the rates. That’s what I call a business model.

And it is a good business to be in as long as you have the work. In low-tech times that model may have been about the only way to achieve scale, manage complexity and spread expenses. But now, scalable work is headed to Asia, to networks and to computers.

If you can still sustain the leverage model: go for it. It is a socially desirable thing to do.

But that is not what lawyers are for. Lawyers are to solve problems in the context of change, ambiguity and uncertainty. They are to bring experience, creativity and judgment to parlous circumstances. They are to make connections and span the divides between adverse interests.

We are entering upon an era in which the leveraged-law-firm model can no longer be sustained (except in a few contexts). Scale is a commodity. Replicable work can be networked and outsourced and performed by machines.

Many fewer law firms will make their money by bringing size or scale to projects. Ultimately, almost none. You won’t need law firms for that anymore. Firms will foster and manage connections and networks and enable lawyers to do what lawyers do.

The core of what law firms are for, by the way, is to identify, develop and enable lawyers who can do the core lawyer work.

The new leverage is no leverage.

The Changing Law Firm Business Model

Last week I attended AltmanWeil’s Excellence in Law Firm Leadership seminar in Washington, D.C. AltmanWeil principal and Greensboro native Tom Clay and his colleague Jim Cotterman did a good job.

The promise in the promotional materials that had hooked me was a segment entitled “The Changing Law Firm Business Model.” Here’s part of what I heard.

Older lawyers (Baby Boomers) are working fewer hours than they did in the past – because they have become older lawyers. Younger lawyers are working fewer hours than the older ones did in the past – because they are younger lawyers and younger lawyers have different attitudes about work.

Not only are lawyers working fewer hours, there’s less work to do overall, and clients are resisting rate increases.

This cocktail – fewer hours and lower rate increases – in the context of even moderately rising expenses, they say, is “changing the business model.”

Give me a second here. … I’ve never been real good at arithmetic. … Wait …. Oh, I see.

This could be a problem, if we don’t manage it.

OK. I will come clean: I knew this even before I had cleared the parking deck in Greensboro headed to DC. I even knew it was a national trend. But sometimes you need to face these things down and try to figure out the right response. So, off to Washington I went.

Tom and Jim provided context and perspective and offered some ideas. More on this later.