March 12, 2021

In law school, one of the first things you learn (likely after the rule about never angering court clerks) is that precedent guides our judicial system.  When making an argument to any court of law, an attorney’s strongest position will be to cite to a similar, favorable ruling which occurred sometime in the past.  Want to have a summary judgment granted? Point to a case where summary judgment was granted in similar circumstances, such as My Argument is Clearly the Best and Please Don’t Read Their Response for X Technical Reasons.  Want your opposing party’s pleadings struck? Explain to the Court how, just last year, in Doe v. Deadlines Actually Matter, that’s exactly what happened. Want to strike a claim for punitive damages?  It is very obvious that the Court needs to follow the longstanding precedent of My Client Will Definitely Fire Me If I Don’t Win This One.

The reliance on precedent is foundational to the law of the United States.  It is that foundation which makes changing the practice of law so very difficult.  We, as practitioners, tend to want to adhere to the way “it has always been”, even against our own interests.  As we were taught, it is easier to win our arguments and hold our position if we can point to like activities from the past, as “precedent.”  The reliance on the “precedents” inherent to the legal practice, unfortunately, has led our industry to ignore a trend of substance and alcohol abuse (“Because back in the day, every successful partner always had a fully stocked liquor cabinet in his office!”); refusing to accept new information regarding mental health management (“Stress is good! You just need to power through it!”); and other workplace factors that affect not just practicing attorneys, but also staff (“Look, sometimes that partner is just going to scream at you for no reason. It’s his way. It’s part of what makes him a great litigator. He reminds me of my old boss.”)

But precedents can be overturned and replaced with better precedents and practices.  We see it in the way that Foley & Mansfield and other firms, work towards better diversity, better representation of types of people in leadership, better technology, and overall, better workplaces for everyone.  And now, we take a step towards making well-being in the practice of law a priority, too, and say “I know it has always been done like that, but that’s wrong.  And we can do better.”