The New Lawyer 2nd Edition - (CHAPTER 1 The Life of A Lawyer)

CHAPTER 1
The life of a lawyer

LEARNING OBJECTIVES
After studying this chapter you should be able to:

. 1.1 describe the myths and realities of being a lawyer
1.2 recall the diverse range of career opportunities available to you as a result of completing a law degree
1.3 explain the various ways to make the most of your legal education from your first year as a law student
1.4 reflect upon the meaning and importance of developing a positive professional identity as both a law
student and a future lawyer.
Copyright © 2019. Wiley. All rights reserved.
James, Nickolas. The New Lawyer, 2nd Edition, Wiley, 2019. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/adelaide/detail.action?docID=5897589.
Created from adelaide on 2023-08-16 05:03:28.
1.1 Being a lawyer: myths and realities
LEARNING OBJECTIVE 1.1 Describe the myths and realities of being a lawyer.
So, what will it be like to be a new lawyer? As a legal professional, you will advise and advocate on behalf
of individuals, businesses, organisations and governments. The problems you will be called upon to solve
will be challenging and complex. You will provide an important service to the community by assisting
people with their transactions and legal affairs, negotiating on their behalf, and advocating for their rights
and interests to be recognised and protected.
Beyond that, it is not very easy to describe exactly what a typical lawyer does on a day-to-day basis.
This is because there is no such thing as a ‘typical lawyer’. A day in the life of a criminal lawyer is
very different from a day in the life of a commercial leasing lawyer, and different again from that of
an employment lawyer. Depending on whether you are a solicitor or barrister, whether you work in
private practice or the community sector, for an international firm or for the government, you will work
with the law in different ways and experience different work environments, different levels of interaction
with clients and different levels of workload.
Before we look in more detail at some of the many career options available to lawyers and at some
examples of a typical day in the life of different types of legal professionals, we will first explore what
it means to ‘think like a lawyer’. This will help you better understand the nature of a lawyer’s thought
processes and how they impact the way that the legal profession is perceived by those outside of the law.
We will then address the most common myths about lawyers and describe some of the realities of legal
practice. There is considerable value in thinking about these things at the start of your legal studies. Having
a general insight into how a lawyer thinks, who a lawyer is and what a lawyer does can help you to make
sense of the complex rules and concepts in the substantive law that you will be learning over the next
few years.
Thinking like a lawyer

In well-known old Hollywood film The Paper Chase, the ominous Harvard professor Charles W Kingsfield
Jr proclaimed to his first-semester students that they’d arrived at law with ‘skulls of mush’ but would leave
‘thinking like lawyers’. One of the central aims of law teachers is to teach their students to think like
lawyers. But what does that actually mean? What is so special about how a lawyer thinks? Much has been
written on this topic. At this stage of your learning, it is helpful to think about the concept with reference to
the proposition that lawyers assume nothing and connect everything. We will explore the notion of thinking
like a lawyer in more detail in the chapter on thinking skills, but for now we will briefly consider the two
limbs of this proposition.
The first limb is that lawyers assume nothing. Lawyers pride themselves on resisting the temptation to
jump to conclusions. For example, a lawyer will not assume a client’s guilt just because the facts or rules are
seemingly stacked against them, because the lawyer knows that there might be other evidence or arguments
that have not yet come to light. You may have heard that a lawyer’s most common response to a question
is ‘it depends’. Lawyers strive to find every relevant fact, locate every applicable rule, determine every
possible issue and consider every conceivable argument before offering their opinion or advice. They think
as hard, if not harder, about opposing positions as they do their (or their client’s) own position. The predis-
position to a discerning and non-assumptive thought process is one of the hallmarks of legal reasoning and
impacts the way a lawyer functions in a non-legal context as much as it does in a legal context. For example,
a lawyer will often reserve judgement on a political issue being discussed in a social context unless he or
she has a degree of expertise on the issue and is aware of the justification for all relevant positions.
The second limb is that lawyers connect everything. The law is all about relationships — that is, the
connection between things. Lawyers are always striving to make connections between all manner of things:
evidence, questions, concepts, entities, people, rules, principles, arguments, policies, criteria, conclusions,
and so on. When solving legal problems specifically, lawyers are primarily concerned with the relationship
4 PART 1 Knowing
work can be challenging because it requires you to be able to empathise with clients in order to understand
their needs and concerns. It also requires you to be able to objectively analyse those needs and concerns
in order to identify the relevant legal issues that must be managed or dealt with, and to apply the relevant
law to those issues in order to develop a workable response within the confines of the law that is in the
client’s interests.
Lawyers give clear advice about complicated problems

We are living in a world that is becoming increasingly complex. From a global perspective, there is
now much more interaction between countries, their people and their laws. In Australia, on a domestic
level, the developing complexity of society has meant that the law has also become more complex and
often very technical. The legal system itself is very complicated with many different layers and a high
level of formality. Lawyers working in this complex environment need to be able to understand the
relevant law and the system in which it can be used, analyse the law in the context of the particular
problems being considered and apply the law to the client’s issues so as to resolve their problems as
effectively as possible. In addition, a lawyer needs to be able to communicate the results of these analytical
processes with the client — and often with a range of other audiences such as other lawyers, courts
and tribunals.
People come to lawyers for their expert knowledge and ability to work with the complexity of the law
and the legal system. Clients have different levels of expertise and knowledge of the law themselves. Some
clients are quite sophisticated in their understanding of the legal problems they need help with and their
legal context. Others have little understanding of, or perhaps even misunderstand, what the law prohibits or
requires. A lawyer must be able to talk with and advise the client at the appropriate level of sophistication.
If a client cannot understand their lawyer’s advice, they will be unable to make an informed choice about
how to proceed.
As a lawyer you will therefore need exceptional communication skills. Good oral communication skills
are critical for working in face-to-face contexts: talking with clients, understanding their issues and taking
their instructions. Good written communication skills are critical for communicating effectively by letter
and by email, and for writing clear legal documents. As a lawyer you will need to be able to speak and
write clearly and with precision. The most intelligent lawyer in the world would be ineffective if they
cannot communicate well with others and help them to understand what they are saying. Exceptional legal
communication — in both written and verbal forms — is an art that you will continue to develop throughout
your legal career.
Lawyers are negotiators and advocates

In addition to their exceptional communication skills, lawyers also help people by using negotiation skills
to solve legal problems and resolve legal disputes using discussion and compromise, and advocacy skills
to stand up for the client and argue on their behalf using the law. By fulfilling the roles of negotiator and
advocate as required, lawyers help their clients to get the results they want, avoid detrimental outcomes or
come to an acceptable compromise in a difficult situation.
Negotiation skills are used daily in legal practice. Lawyers negotiate with other lawyers and other
parties on behalf of their clients, they negotiate in dispute resolution environments such as mediations
and conciliations and they even assist clients to negotiate their way through the legal system itself. As
explained earlier, advocacy skills are also used in negotiation. This is because, when negotiating, a lawyer
is always representing the best interests of their clients and seeking to obtain the best outcome for them
through persuasion and advocacy. Advocacy skills are also used in more formal environments such as
courts and tribunals. It is important to remember that advocacy on behalf of a client does not always mean
being adversarial. Good lawyers are not aggressive and combative unless it is absolutely necessary to serve
the best interests of the client.
8 PART 1 Knowing
In this section we begin by explaining some of the important changes to the practice of law and the
delivery of legal services. We then examine the differences between the two traditional career paths
available to law graduates: becoming a solicitor and becoming a barrister. Finally, we describe the various
work sectors in which a law graduate may find employment: the private sector, the public sector, the
community sector, and alternative career options such as the academy. This list is certainly not exhaustive
in terms of identifying all of your options on graduation. There are many other job opportunities for
legal practitioners, and many law graduates end up using their knowledge of the law and their practical
legal skills in a range of non-legal careers including senior management, diplomacy, journalism, business
ownership and policy development.
A changing profession
The legal profession is undergoing significant change in Australia and abroad. The key drivers of change
are the internationalisation of legal practice, the increasing diversification of legal service delivery models
and the digital disruption of the legal practice.
Internationalisation is transforming the practice of law in numerous ways. The clients served by legal
practitioners are no longer restricted to the jurisdiction in which the legal practitioner happens to be
working. Lawyers and law firms advise and represent individual clients based in other countries and
organisations that themselves operate across multiple jurisdictions. Also, the transactions in which the
clients engage and the disputes in which the clients require advice and representation increasingly cross
borders and require the resolution and application of an array of different laws.
The last few years have seen the emergence of a wide range of new businesses that have identified ways
to deliver legal services in innovative new ways. These new business models are generally referred to
collectively as ‘NewLaw’, an expression intended to cover any model, process or tool that is designed to
provide legal services in a significantly different manner to the traditional means of delivery. There is no
doubt that it is an exciting time to be a lawyer for anyone with an entrepreneurial spirit!
Recent advances in technology are significantly changing the way legal information is communicated,
authenticated, gathered and analysed. The so-called ‘digital disruption’ of legal practice has become the
subject of many conferences, law classes and water cooler discussions. At present, disruptive technologies
driving the automation of repetitive tasks are creating the biggest waves. The use of artificial intelligence
(AI) to provide legal services is also a hot topic in legal circles, and many law firms are already adopting
AI technologies to boost efficiency.
All of these changes to the legal profession have prompted some people to claim that legal professionals
may in fact become redundant at some point in the future. The majority of commentators, however,
continually emphasise those aspects of legal services delivery that can’t be replicated by technology —
delivery in an empathetic, commercially realistic and ethical manner in the context of a genuine human
connection between the lawyer and the client. We encourage you as a ‘new lawyer’ to remain positive and
embrace the opportunities that flow with the changing tides.
Traditional career paths

In Australia, the practising legal profession has two branches: barristers and solicitors. In New South
Wales and Queensland there is a clearly ‘split’ profession, meaning that legal practitioners must practise
as either a solicitor or a barrister. In Western Australia there is a clearly ‘fused’ profession, meaning that
legal practitioners are entitled to practise as both. In other jurisdictions, including Victoria, the line is not
easily drawn, and you will find conflicting opinions on whether the profession is split or fused. Generally,
if there are separate admission requirements for the two occupational groups, it is characterised as a
split profession.
CHAPTER 1 The life of a lawyer 11
The Australian Legal Aid Office has since been abolished, and instead the Federal Government provides
funding to State legal aid commissions to be applied towards the provision of legal services in matters
involving Federal jurisdiction.
TABLE 1.1 Legal aid commissions
Jurisdiction Legal aid commission
ACT Legal Aid ACT

www.legalaidact.org.au
New South Wales Legal Aid New South Wales

www.legalaid.nsw.gov.au
Northern Territory Northern Territory Legal Aid Commission

www.legalaid.nt.gov.au
Queensland Legal Aid Queensland

www.legalaid.qld.gov.au
South Australia Legal Services Commission of South Australia

www.lsc.sa.gov.au
Tasmania Legal Aid Commission of Tasmania

www.legalaid.tas.gov.au
Victoria Victoria Legal Aid

www.legalaid.vic.gov.au
Western Australia Legal Aid Western Australia

www.legalaid.wa.gov.au
State legal aid schemes rely on State Government funding, and legal aid commissions are often
underfunded. While the provision of legal assistance to those in need can be enormously satisfying on
a personal level, the funding constraints can make legal practice in this area very frustrating.
Community sector
Many law graduates choose to work in the community sector, using their legal knowledge and skills to
help the impoverished and disadvantaged.
Community legal centres were first established in Australia in the early 1970s. The services they
provide, usually free of charge, include advice and referral, some limited representation in special cases,
research into legal problems for the purposes of law reform, and community legal education. Some provide
general advice services to people from a range of backgrounds, and others provide specialist advice
services to certain members of the community such as women, immigrants or Indigenous Australians.
Community legal centres are usually staffed by a small group of committed employees supported by
volunteer lawyers.
There is likely to be a community legal centre in your local area: visit the website of the National
Association of Community Legal Centres at www.naclc.org.au. If the centre is taking on volunteers,
consider becoming a volunteer. You will not only make a contribution to achieving access to justice, but
also have an opportunity to learn a lot about the law and legal practice from experienced practitioners.
Alternative legal careers

In this section we briefly describe some of the more non-traditional areas of legal practice, including some
that you may never have considered.
18 PART 1 Knowing
Learn effectively
Traditional approaches to legal education tended to conceptualise teaching as the transmission of detailed
legal doctrine to law students who were passive and empty receptacles waiting to receive that knowledge
from the law teacher. Contemporary education scholarship, however, insists that this model of teaching is
impractical, unrealistic and ineffective. Instead, teaching should be the facilitation of effective learning.
As Paul Ramsden, an Australian tertiary education expert, told law teachers in Australia:
Teaching means more than instructing and performing and extends more broadly to providing a context
in which students engage productively with subject matter. There is now a widespread view in academic
development circles, derived directly from the student learning research, that we should concentrate on
learning, on what the learner does and why the learner thinks he or she is doing it, rather than what the
teacher does.10
This means that, while your law teachers will be focusing on providing the materials and the conditions
necessary to facilitate your learning, at the end of the day it is your responsibility to take the steps necessary
to make your own learning as effective as possible. This can be as simple as having the discipline to attend
all of your classes, taking advantage of additional learning opportunities (such as information retrieval and
legal research workshops run through your law library) and knowing your way around the online resources
for each of the law subjects you are studying.
Effective learners adopt a ‘deep’ approach to learning. They work hard to achieve a meaningful level
of understanding, examine arguments critically, question the assumptions on which they are based and
relate them to previous knowledge and understanding.11 Deep learners can be contrasted with students
10 Paul Ramsden, ‘Improving the Quality of Higher Education: Lessons from Research on Student Learning and Educational
Leadership’ (1995) 6 Legal Education Review 3, 4.
11 Ference Marton and Roger Säljö, ‘On Qualitative Differences in Learning — 2: Outcomes as a Function of the Learner’s
Conception of the Risk’ (1976) 46 British Journal of Educational Psychology 115.
• Use the resources that are provided. Law teachers spend a lot of time designing their subjects to support
your learning. Take advantage of all the work that has been done for you by accessing those materials
and resources. In addition, there are a lot of resources and support services provided centrally by your
university that can help you to learn effectively by freeing you from worrying about other issues and
allowing you to focus on your learning. For example, every university has counselling and financial
services, equity and disability services, and tertiary learning support services.
• Do not cut corners. To graduate with a law degree represents a high level of achievement. Efficient
learning is not learning that just scrapes through. Although some people will tell you that 51 per cent
in a subject represents 1 per cent of wasted and unnecessary effort, this is simply not true. Make sure
that you put as much effort as possible into your legal studies and achieve the highest results you can.
You deserve to have your ability recognised, but standards are high at law school and you need to put
effort in to get good results. This means you need to maximise your study time in the context of all your
other commitments. Consider all the things you can do to improve your academic performance. Can you
come onto campus an hour before classes start and spend time in the library doing independent study?
Can you get together after class with a group of fellow students to go over the subject content for the
week and do some practice exam questions together? Think about using the PowerPoint slides put up
by your lecturers as a start to writing your own notes and a summary of the subject; these notes will help
with tutorial preparation and studying for the exam.
• Take care of yourself. Your learning will be ineffective and inefficient if you do not look after your
own wellbeing. It can be as simple as making sure that you exercise, that you eat properly, that you get
enough sleep and that you look after your relationships with people who matter to you.
• Develop good habits. The process of developing positive and effective habits is central to becoming
an efficient learner. Much has been written about the power of habit. The development of good habits
comes down to being consistent and persistent. Once you have decided on a habit that you would like to
develop, you must resolve to persist in the relevant new behaviour until it is so automatic that you do not
need to think about it and you actually feel uncomfortable if you do not perform the task. A useful way
to start practising habit development is to set up a productive morning routine that you carry out every
weekday. The routine should involve a sequence of positive tasks, such as a ritualistic wake-up method
(e.g. face wash or shower), 30 minutes of exercise, 15 minutes of reading current affairs, a nutritious
breakfast and 10 minutes of casual meditation or quiet time. The most effective way to ensure a habit
becomes second nature is to ‘attach’ it to another habit. For example, when you complete your morning
walk (first habit), then you immediately do 10 minutes of stretching (second habit). After ‘attaching’
the second habit to the first habit a few times, you will find that completing the former triggers the latter
and it becomes automatic.
• Stay organised and stick to a schedule. Organisation is one of the most important keys to success at law
school. It is essential to stay organised if you are to effectively balance your competing priorities. The
best way to stay organised is to prepare a detailed written weekly schedule. Resolve to stick to the
schedule unless a departure is absolutely necessary and update the contents as your obligations
change (e.g. in assignment and exam periods). An important tip is to undertake your study for each
subject (which will predominantly involve completing prescribed reading and preparing for tutorials)
at the same time each week. This will ensure that you give a consistent and equal amount of time and
attention to each subject (assuming all of your subjects are comparable in terms of difficulty). You should
be aiming to dedicate at least 8 hours (including contact hours) of focused time to each of your subjects.
An example of a simple weekly schedule (weekdays only) for a law student is provided in figure 1.8.
KEY TERMS
adjudication A form of dispute resolution (generally confined to construction and engineering disputes)
in which an independent third party expert investigates and resolves a dispute.
administrative law The law that regulates the administrative activities of the government, allows
citizens to hold administrative bodies such as local governments and government departments
accountable for their actions, and gives citizens the right to seek judicial review of administrative
decisions.
advocacy The act of pleading or arguing in favour of a particular position.
alternative dispute resolution (ADR) A range of non-litigious methods for resolving disputes,
including mediation, arbitration and conciliation.
arbitration A form of dispute resolution where an independent and expert third party (an arbitrator)
resolves the dispute.
barrister A type of lawyer; one who specialises in the representation of clients before courts and
tribunals, as well as the provision of specialised legal advice.
Bloom’s taxonomy A hierarchical learning model (created in 1956 and named after Dr Benjamin
Bloom) that classifies thinking according to six cognitive levels of complexity and is frequently used
to structure curriculum learning objectives, activities and assessments.
chambers Offices used by a barrister or group of barristers.
community legal centre A community centre that provides, usually free of charge, legal advice and
referral, some limited representation in special cases, research into legal problems for the purposes of
law reform, and community legal education.
conciliation A form of dispute resolution where an independent and expert third party (a conciliator)
actively assists the parties to resolve the dispute.
contract law The law regulating agreements and promises.
criminal law The set of legal rules and procedures that facilitate the prosecution by the state of those
accused of having committed a crime.
doctrinalism An approach to teaching law that emphasises legal doctrine (derived from cases
and legislation).
equity The category of case law rules and remedies based on fairness and justice, developed to
supplement the common law.
in-house counsel A lawyer who is employed by a large organisation to provide legal advice and
representation within the organisation and to liaise with law firms and barristers engaged by
the organisation.
judge The person responsible for adjudicating a trial, including ensuring that the rules of evidence and
procedure are followed, deciding any questions of law, and (in the absence of a jury) deciding any
questions of fact.
judge’s associate A recent law graduate serving as a judge’s administrative and research assistant.
judiciary The arm of government responsible for interpreting the law; in Australia the judiciary takes
the form of the various court systems.
large firm A law firm of generally more than 20 partners.
lawyer A person with legal qualifications.

legal aid A government-funded system for the provision of legal services to those who cannot afford to
pay for them.
mediation A form of dispute resolution where a third party (a mediator) assists the parties to settle
the dispute.
medium-sized firm A law firm of generally 5 to 20 partners.
moot A mock trial.
negotiation A dialogue with the objective of resolving a dispute or reaching an understanding or
agreement of fact.
paralegal A person employed by a law firm or a barrister to undertake basic legal and administrative
work such as routine legal searches and drafting of simple documents. Also known as a law clerk.
plagiarism The act of using of another person’s work without appropriate acknowledgement.
Priestley 11 The list of 11 areas of substantive knowledge that must be covered by law students before
they can be admitted to practise law.
private practice The practice of law as either a solicitor for a law firm or a self-employed barrister.
property law The law regulating property rights in things (personal property) and land (real property).
small firm A law firm generally owned by a single lawyer or by a partnership of up to five lawyers.
solicitor A type of lawyer; one who provides legal advice and representation to members of the public.
summer clerkship A brief period of employment where a law student gains experience working for a
law firm themselves.
Threshold Learning Outcomes (TLOs) What a graduate is expected ‘to know, understand and be able
to do as a result of learning’.
tort law The law that provides a remedy for those harmed by the acts or omissions of another.
vocationalism An approach to teaching law that emphasises the practice of law.
EXERCISES
1.1 Articulate in as much detail as possible what sort of legal work you would like to do as a lawyer and
why you are drawn to this work.
1.2 Review the features and content of the law degree in which you are presently enrolled. What will be
the likely impact upon the curriculum if compliance with the Threshold Learning Outcomes for Law
is made mandatory for all law schools?
1.3 Conduct some online research and identify the differences between the way law is taught in Australia
and the way it is taught in: (a) the UK, and (b) the US.
1.4 Explain the notion of ‘academic integrity’ and how it can form the ethical foundations for your future
as a legal professional.
1.5 Design a poster ‘selling’ the legal profession as a career and describing both the benefits of being a
lawyer and the range of possible job options.
ACKNOWLEDGEMENTS
Photo: © wavebreakmedia / Shutterstock.com
Photo: © SpeedKingz / Shutterstock.com
Photo: © Monkey Business Images / Shutterstock.com
Photo: © mervas / Shutterstock.com
Figure 1.4: © Department of Education and Training
Activity 1.10: © Margareta Olsson
42 PART 1 Knowing

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CHAPTER 1

The life of a lawyer

After studying this chapter you should be able to:

Thinking like a lawyer

Lawyers give clear advice about complicated problems

Lawyers are negotiators and advocates

Traditional career paths

CHAPTER 1 The life of a lawyer 11

TABLE 1.1 Legal aid commissions

Jurisdiction Legal aid commission

ACT Legal Aid ACT

New South Wales Legal Aid New South Wales

Northern Territory Northern Territory Legal Aid Commission

Queensland Legal Aid Queensland

South Australia Legal Services Commission of South Australia

Tasmania Legal Aid Commission of Tasmania

Victoria Victoria Legal Aid

Western Australia Legal Aid Western Australia

Alternative legal careers

CHAPTER 1 The life of a lawyer 29

CHAPTER 1 The life of a lawyer 33

lawyer A person with legal qualifications.

CHAPTER 1 The life of a lawyer 41

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