Emerging Litigation Podcast

What Has Happened to Law Firms with Mark Zauderer

• Tom Hagy • Season 1 • Episode 122

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In this episode, I get to speak with Mark C. Zauderer, a long-time, highly regarded legal professional, to explore the profound changes that have reshaped the legal industry over the past five decades. From the rise of mega law firms to the shift from a profession rooted in tradition and values to a business focused on profitability, Mark offers a candid and insightful look into the substantive ways law firms have changed – in both negative and positive ways. ​ 

We discuss how the centralization of management in large firms has diminished the voice of individual partners and altered the dynamics of decision-making. ​ Mark also sheds light on the decline of mentorship and training for young lawyers, as firms prioritize cost efficiency over professional development. ​ He shares his perspective on how these changes have impacted the quality of legal services and the trust between lawyers and their clients. 

Additionally, we delve into the growing influence of political and social pressures on law firms, including the challenges posed by recent executive orders targeting diversity, equity, and inclusion (DEI) initiatives. ​ Mark examines how these external forces are shaping the priorities and values of the legal profession. 

Whether you're a legal professional, a law student, or simply curious about the inner workings of modern law firms, this conversation offers a thought-provoking glimpse into the business of law and its implications for the future of the profession. Jump in to hear Mark’s insights and reflections on what’s next for the legal industry. 

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If you have questions for Tom or would like to participate, you can reach him at Editor@LitigationConferences.com.

Ask him about creating this kind of content for your firm -- podcasts, webinars, blogs, articles, papers, and more. 

Welcome And Why This Matters

Tom Hagy

Hello and welcome to the Emerging Litigation Podcast. I'm your host, Tom Hagy. Today I get to talk to Mark Zauderer. Mark is a highly regarded trial lawyer, appellate lawyer , the whole thing. Mark has been practicing for quite a while. We're going to talk about how the law firms and the legal profession has changed over the past five decades. You often hear how it is now the business of law. And Mark, let's just say he doesn't see that's all that's all not all an upside. He sees the profession as just that. A profession, one steeped in history and with with a lot of values. You know, some people will argue with that. I happen to defend the practice quite a bit myself, but uh, where would we be without good lawyers? And but what is happening though with as you turn these into businesses and profits start to dictate what's happening, well, some things that are good about the practice of law become challenged. It talks a bit too about uh the uh the political pressures that have been put on law firms recently with regard to DEI programs and how some of those firms pushed back. So I want to get some of his thoughts on that and how that might shape uh the law going forward. So if you're a a lawyer, you're uh a law student, or you're just interested in law and law firms work, Mark has a lot of insights based on his many years practicing. And also, he's author of a book, and I want to give that a plug. It's called, let me just make sure I get the name right, Council, the Courtroom is Open, and it's published by Simon and Schuster. And uh, I'll put a link to that in the show notes, so take a look at that. This uh podcast is based on one of the chapters in that. Let me also get that correct. It's chapter 43, and it's called What Has Happened to Law Firms? It's also cool that all of the proceeds to that book are gonna go to a uh a nonprofit called Grassroots Grocery. That is a uh a food justice nonprofit founded by his son Dan, and that brings fresh produce directly into communities across New York City, communities facing food insecurity. Now, Dan is a former middle school teacher. He founded Grassroots Grocery after seeing firsthand the extent, the impact that food insecurity was having on his students' families. So under his leadership, he's grown this into a large-scale community effort, bringing thousands of pounds of fresh food weekly across New York City neighborhood. So, with that, here is my interview with his dad, Mark Zauderer, author of Council, the Courtroom is Open. Hope you enjoy it. Mark Zauderer, thank you very much for doing this today.

Mark Zauderer

My pleasure.

Tom Hagy

So uh so as I said in my intro, uh, you know, we're talking about your book, and in particular, we're we're gonna talk about chapter uh 43, which I explained. In there, you mentioned how you talked about how law firms have shifted their focus from traditional values like law firm culture and loyalty to and the you know, the the profession of law to prioritizing profitability and partner

From Profession To Profit Model

Tom Hagy

income. It's more of a business. And that's a transformation that's been going on for quite a while, but you you've watched it happen. So how would you say this has impacted the overall morale and long-term commitment of lawyers within these firms?

Mark Zauderer

Sure, that's a great question. But maybe I could just give a little context which would be helpful to you, to your listeners. You know, we hear the phrase the business of law, and I think we tend to accept it as though that's a given, and that's how it it always has been. But that's not how it was, certainly when I started practicing law many decades ago. The law was thought of as a profession. Sometimes they would say a learned profession, like medicine uh or accountancy. And law was not thought of as a business, it was a profession, often serving clients in business. So there were two different things. And over the years, a number of things I think have happened in confluence to create what we now call the business of law, which has uh many implications, both for lawyers and I think for clients, and for and reflects changes in society. So among these were these, first of all, uh law firms, particularly the large ones that we know, were typically in a single city. They were homegrown affairs. Lawyers often came right out of law school, joined the firm as associates. Uh, if in the eighth or ninth year, typically they were considered for partnership. The firm knew the associate, and the associate knew the firm. Uh, the associate knew the firm culture, and there was a certain degree of cohesion, and lawyers would become partners, and many would stay their whole career uh at that firm. Beginning, I think, in the 80s, a number of phenomena emerged. Uh

Rankings And Growth By Aggregation

Mark Zauderer

we had publications uh like The American Lawyer, which suddenly uh was publishing what the profitability was of certain firms, uh caught lawyers' eyes and thought many thought, well, maybe I should practice there or go there. Um firms became multi-city firms. To do that, and they felt they many had to serve clients who were becoming international clients uh with cross-border transactions and wanted one-stop shopping from their lawyers, so the firms felt they had to expand. But when you do that, you can't do it the same way you grew your firm when you were in one city. You had to grow by aggregation, which means you would look to other lawyers from other firms or groups of lawyers and you would evaluate them through a very narrow set of criteria, like what's their profitability, how much money are they making, uh, how many hours are their lawyers billing. And, you know, if uh you could attract them, uh they would come to your firm, having left a firm where they had no loyalty often, and if their expectations were not met in your firm when they came, they'd move on to another firm. And there wasn't necessarily cohesion. Uh the actually the geographic uh separation with firms uh operating in many cities played a role because, you know, you didn't go out to lunch with your partner. I I remember when I started a major firm uh in Manhattan in in New York City, the partners had a table at a nearby restaurant. They would just go down there for lunch and talk about things. There was this degree of cohesion. We don't have that cohesion for the reasons that I've I've just uh mentioned. And then we've also had, I think, other factors that you know when I was when I got out of law school, I didn't know what an investment banker was. I'm still not sure what an investment banker is. Me either. Although I would get involved in litigation with investment banks. You know, I had never heard of it. If you'd said if I had gotten out of uh college or law school college and said you want to go into investment banking, I wouldn't have had a clue. And they have many of them make outsized earnings. And lawyers, I think, felt in many quarters a certain degree of envy. So I think that motivated people. And finally, you know, I remember back in 1987 when this was emerging, the Finley Cumbell firm was the first major firm to collapse. And I was re I represented a particular partner in that excuse me, and what that firm was doing, and later copied by other firms, uh, it was hiring high-profile partners and basically borrowing, which many lawyers did not know that the management was doing, to attract these people. There was uh remember that firm, former Senator Lexalt, the former uh mayor of New York, uh Wagner, former governor, K Hugh Carey, people like that. And they were borrowing. Actually, the firm later went went into bankruptcy. Uh, and then I thought we had learned in the profession lessons from that, only to find uh in 2012 I got a call when Dewey LaBeouf went into into uh bankruptcy.

Tom Hagy

They were borrowing money. They were borrowing money to bring these people on.

Mark Zauderer

Yep. Exactly. You know, you thought the people would have or the firm leadership would have learned the lesson from what happened decades you know before, but apparently not. So I would I've described, I think, a number of changes all of which contribute to the number to the moniker business of law. And and you know, it's not just law. You know, think about medicine. Think about the the the quality of how we uh we uh regarded the profession of medicine. You know, the I think the coin of the realm for professionals at one time, lawyers, doctors, accountants, and others, uh the coin of the realm was not money, but dignity, respect in the community. These were really important, important values.

Tom Hagy

And you had a mission. You felt not no I don't have to say a calling, but you had a you felt like this was a noble profession.

Mark Zauderer

Oh, right. And yes, and you enjoyed making a reservation at a restaurant and saying this is Dr. Jones, you know, and everything. Oh, doctor's uh or judge. So that I think really gives, I think for me, some understanding of these changes. You know, I remember uh several years ago uh watching the the Super Bowl, and there was a minute-long ad for major accounting firms. And of course, uh the these uh companies pay a lot of money for these ads, so they give them a lot of thought. And the ad was very uh, you know, very uh elaborate, all kinds of visuals, and it said boldly, we are in the business of accounting. And I thought to myself, I thought you were in the profession of accounting. So I mean that's just one illustration of how this phenomenon has played out over the years.

Tom Hagy

Yeah, I think that uh I think that that plays into a lot of professions, the profession I come from journal-old-timey j uh r reporters and journalists would always just be adamant that you don't mix advertising and journalism. You don't let the advertising drive the journalism. And now that's it's not the only driver, but I'd say it's close to 80% of the driver, right? Yeah, I see that. It's about clicks and uh certainly profits, and now you're seeing the merge, and it is a the business of journalism when you know that was a profession as well. So uh it's not it's not a great trend. I guess it's uh it's maybe one of the uh inevitable outcomes or a downside of of capitalism, I suppose. Uh I mean I believe in capitalism, but you know, anything that goes too far, I think, sometimes can can ruin uh ruin things. So so you you you talked a bit a bit about the the centralization of in your in your chapter about the centralization

Borrowing For Star Partners Gone Wrong

Tom Hagy

of management decisions and law firms and how that's reduced the individual partner's influence. Um has that has that change uh affected the dynamics of decision making within these firms?

Mark Zauderer

Yeah, let me uh describe that perhaps for those who don't really know the phenomenon that you're talking about. But first, thank you uh for mentioning my book. It's I'll mention it again if I may. It's it's of course the name of it, it's it it's counsel, the courtroom is open. Uh it was uh released and it's being last week and it's being widely uh distributed uh by Simon Schuster, and I'm gonna be doing some book signings from Barnes and Noble in New York on Fifth Avenue and others. If you go on, if you put that title in Google or search engine, Simon Schuster Publisher page will come up and you'll see it's available in Walmart, Target, Hudson booksellers, I think, the all the major, major retailers, but also it's a little unique in that, as it says in the book, all the author's profits are going not going to me. I'm donating them to my son's not-for-profit organization that he founded called Grassroots Grocery. And uh with volunteers, they provide hundreds of families in the South Bronx and elsewhere in New York City, food that's would otherwise go to waste that comes into New York and they distribute it in the community. I'm very, very proud of him. Should be. I'm that's great. I'm delighted to do. But some of these things that we're talking about, I think all these things are in the book. It's got 40 plus chapters, but the short chapters, it's quick reading. And I think there's a theme in many of these things, many of these cases. I mean, some of the cases are high-profile cases. I try to take the reader behind the scenes into some things that I can reveal that were not in the public domain at the time of these cases. One of them we do talk, I have a chapter called Uh, What has Happened to Law Firms? And what I was talking about a few minutes ago is sort of described there. But to get to your point about management decisions, I've most of my uh 50 plus years of practice, other than when I was a young associate or a law clerk to a judge, I've been in boutiques. I started a boutique in 1981 with four partners. One of my partners now a uh senior federal judge here in New York. Uh, I've done a lot of public things that are discussed in the book. But there were two years, 25 years ago, where I became, I decided to try something different when one of the boutiques that I had been a founding partner was, I had disbanded, people wanted to do different things, were retired. Um, I became a senior partner, well, it was the world's largest firm at the time. And um I saw, and this was I think fairly typical, there was a tight management group that was essentially self-perpetuating, and they were the firm was growing and they were acquiring groups five, ten, twenty or more lawyers at a time. And the executive committee would send out an email to I think at the time was fifteen hundred lawyers, it became three thousand lawyers. Firms have grown since then. The email would say uh the following people or this fur this group from another firm is proposed to and then uh to be brought abroad as partners, and they'd have an attachment, would do would do a very complicated financial analysis of what that would bring to the firm. But the key part, uh, when the memo would conclude, you know, unless X percent of the partners object, this will be effectuated in 48 hours. Something like that. So the only people dealing with this would be the chairman and a tends to be a hand-picked executive committee, run, you know, very much like a like a Fortune 500 corporation. Contrast that with even then, 25 years ago, there were some old-style firms where if there was a new partner or a group of partners to come in, the firm would insist that every and any partner in the firm, if it's a two-city firm, it would be first, let's say in New York and Washington, it'd be a cocktail party or a lunch, and any party who uh any partner was interested would have a chance at least to say hello and chat with the incoming group and would have a meaningful voice in the vote in whether or not the partner would, or group of prospective partners, would come to the firm. Contrast that with the other operation that I that I just described, which I think is becoming actually more common in in in the profession. Yeah, yeah, I gotcha. So what um from you know, I do like to look at kind of the next generation or the the up and up and coming generation of lawyers. So one of the things you highlighted is um the the there's less time spent training, uh training and mentoring in lawyers because of, you know, the cost that that in itself doesn't pay right away. So what what long-term effects do you think that's gonna have on the quality of legal services and the development of the profession? A very significant impact coupled with one other thing that that we should talk about, which is the increasing prevalence of remote, almost always remote work. Okay? The mentoring we're talking about uh it takes place most effectively in in-person meetings. You know, it could be going out for lunch, going out for a beer, chatting in the office in the cafeteria, stopping in somebody's office and just chatting when you know people have a break. You know, this is something I'll just expand on a little because I'm sure it will resonate with your your listeners. Remember, starting

Centralized Management And Partner Power

Mark Zauderer

in 2001 when COVID hit, at a time when technology was adapted to this, we began going remote. Nobody could get together. Law firms tried to adapt. But that created uh like like a a new plant growing. It created a new phenomenon. So when the COVID or the worst of the COVID ended a year and a half later, remote work, Zoom, uh, all these services that that's that provide you know uh remote work, include courts began who had operated during the COVID period, began to operate with people remotely. Great efficiency, reduced cost, all great. But where is the mentoring? We have now, we're in 2026, five years after COVID, we have lawyers who are five years out of law school and have known nothing but a two-dimensional screen which they sit in front of in their pajamas. I mean, this has happened in a great part of the law profession. You know, the as the other phenomenon, I think which you correctly uh mention, is clients who to a certain extent are less trustful of lawyers as laws become a business and are much more at arm's length with their lawyers than feeling they're they're enjoying in a common, you know, venture together to advance the client's interest. Um they don't want to pay for the training of the lawyers on their dime that shouldn't be billed to them. And if they're not gonna pay for it, frankly, many of the lawyer law firms aren't gonna absorb the cost themselves. Uh and uh, you know, another phenomenon we've seen, it's uh a whole other topic, is what's these incidents, and there was a major one with a major law firm today in New York. It's all over the papers. But what AI has done with people, you know, uh putting citations in their briefs that uh, you know, are hallucinations, right? I don't think that that's you know, I think that's just for peeling the peeling the skin on something else that's been going on as law has become a business which is much less attention, time spent in preparing legal products like briefs, really reading the cases. I you know, I mentioned, and this is in line with your theme, uh when I started practicing over fifty years ago, if I would draft something as an associate, and there'd be a partner in charge, uh the partner would say, Give me your draft brief, but give me the cases you're citing. And the the partner would spend the time uh not only reading the draft, perhaps editing it, making suggestions, but would read the cases himself or herself to satisfy them that the cases were being properly employed as authority uh in the work product. Again, as laws become a business, uh as clients don't want to absorb learning time, uh, and they're more scrutinizing bills, a lot of that has fallen by the wayside. And I think what's happened with these instances of firms submitting things, you know, with AI hallucinations, which reflect that people didn't read the cases, I don't think that's

Mentoring Erodes With Remote Work

Mark Zauderer

new. I think that's happening, it's just not so uh so uh uh clearly come to the surface, which is probably made worse by these faults of using AI. Yeah, I do think that uh both with remote learning and with AI, or not remote learning, but remote work and AI, I think I think those things are here uh to stay. And I think now it's a matter of let's make them work properly. Like my experience with AI is you would never, you know, I do a lot of writing and I use AI for drafting, you would never turn in the first draft of anything from AI without going over it yourself, um almost like a very junior person. And um there just have to be rules like that, but it does it does speed some things up tremendously. Um, but you've got to have the checking and the oversight and the very critical eye if you look at something. Also, too, you know, you've you pract you've practiced for quite a long time, and I've I've done what I do for quite a long time. I think we're in a position too, if we use it, I don't know. I I've been an editor for 40 years. I look at something with an extremely skeptical eye, critical eye. I'm like, is that right? And um, so I don't know. I find it it it expedites some things, but you cannot, you cannot let it uh be your final editor, I don't think. Um in terms of um, you know, and some hallucinations are just crazy. If you haven't checked your your cases, yeah, that's just wrong. Now I I've started recently using LexisNexis. Um they've got a uh service protege, and what I early on learned about uh using AI is that it has to point at things that are authoritative and and Lexus does that. And my gosh, I ran a search on that and compared it to a search I did on something else. Um this isn't a plug for Lexus, but I mean the details

AI Citations And The Bigger Risk

Tom Hagy

were amazing. It showed every case and it showed the uh what's that called, um the Shepherd, the Shepherd signals. And um so it gave you the roadmap for checking everything. But I do think that people who use it irresponsibly, um, yeah. That's just not the same.

Mark Zauderer

You know, I think there's a deeper problem that we don't I've not heard talked about with AI. And let me let me give you my thought as to where this will happen. And I again Yeah. This is much deeper than hallucinations, which we're all familiar with is it's one thing to use it for fact checking, point you to things. Say you're a judge and you've heard testimony, you have a case of uh complicated facts, and the judge says, with all this, what does AI think about the result and explain it? Now AI will lay out a draft opinion, taking however it does it with all this stuff. And now it's happening, it's not a question of fact-checking. It's think it's it may be thinking as a substitute for the judge thinking. And what we expect is the judge to be doing the thinking, not an algorithm, not an AI. And I have not seen that talked about it, but I'm concerned about that. Uh and same thing if the or the judge is a law clerk. You know, let's say the law clerk sits with the judge, either re reads the briefs, it's a summary judgment motion, or there's been a trial. A law clerk has always provided, you know, their analysis uh subject to what the judge is saying, but now the law clerk's analysis like the judge is not the law clerk who's gone to uh great law school and was a great student. It's somebody else unknown to the judge. Somebody else is is is uh writing uh is is deciding what goes in that opinion, which is not simply AI responding to, well, you know, who was elected president in 1836? Fine, you know, Martin Van Buren. Okay, that comes to mind. But you know, I might want to confirm that. So uh that's really a danger that I don't think has been really talked about yet.

Tom Hagy

Yeah. Yeah. Well, yeah, I think you don't want it to do the thinking for you. I think just just to briefly uh add on to that, and we can I mean we can move on. But the um what I what my experience with the AI just over a few months is um if I'm writing a piece, I t I do give it my my take. I think first, I load that in. This is what I think, help me expand on it and see what it comes up with. But but I get your point. I mean, it's it comes down to using it responsibly or not. And you know, if someone just says who should win this case, okay, that's irresponsible. I mean, it can be an amusing game, but uh and and and like with remote remote work, I mean, they're just um I I just interviewed an attorney, he came from Big Law also, and he said COVID it just drove him out of out of uh the law profession because he didn't like practicing by Zoom. As you said, he got a lot out of the personal interaction and body language and everything else and side conversations, the things you can't have just looking into a camera. Um and as somebody who does now work remotely, I miss the interaction. Um so for some things I think, gosh, it's gotta be about balance because there are some days when I'm doing nothing but heads down, writing and researching, writing. I don't need to be around anybody, but there are other times when I need to hook my head up and see what other people are doing, what uh what else is going on. I do miss that interaction. So I don't know.

Mark Zauderer

Little vignette, something that occurred to me, it's consistent with what what we're talking about.

Lunch Culture And Bar Associations Fade

Mark Zauderer

I'm seeing in this day of uh I'm in many mo uh cases where there we have either a number of clients on our side, all have lawyers, or I have a client that's got three sets of attorneys. It's a major litigation, which is very common, and you have a whole group of people. And somebody's can we have a conference at one o'clock? And I frequently get that. And I actually responded lately, no, I said that's I go out for lunch. Why? So that's it's another thing. I'm not facet you know, being facetious a little, which is the work style of lawyers, particularly with remote work, and something else I want to point to. Uh when I started practice, this I'll tie this all together in 30 seconds for you. When I started practice, I think uh the profession was largely male dominated. And my in New York City, they one wager often. Uh the spouse, the female spouse would be focused, you know, at home. And there was actually the the law firms were open on Saturday half a day, even required work. And even on Saturday, the lawyers would go out with the senior partner Saturday afternoon, you know, for lunch, and then not home till dinner, close to dinner time. And uh much more is the case now where there are two workers, two professionals, two people sharing children, child responsibility. And so what is it, how has that changed practice? Lawyers, if they're in the office or on Zoom, they don't take the lunch, but they don't go out for lunch with their colleagues. They want, if they're in the office, they want to get through, finished for the day, and get out. Now, okay, that is efficient. It is a change though. So when I started practice, pretty much every day, an associate would be invited out to lunch by the partner for whom the associate was working, or a group of three, four, five, six associates, you know, would go out together pretty much every day. They may not go to the fancy restaurants, but they would get together and just, you know, I remember the conversations, who's up for partnership, what's happening, how's he doing? Oh, how is it working for Partner X? But these people were sharing information, bonding, and when you go out uh with your colleagues, maybe somewhere a year or two ahead of you, you learn from them. You know, it's like in college, you know, you're a freshman. If you go out, you know, have a beer with some seniors, you'll learn about what to expect, what for, right? Yeah, which partners to avoid, all of that stuff. So a lot of that's gone. So I say, no, no, I don't talk at one o'clock. You know, I wouldn't. No, it's you know, I say I want to be with somebody, you know, client, a colleague, uh, judge, uh, get known in the bar association meeting. Yeah. That's another thing. You know, you know what is really, I think, w one institution that suffered is the bar association. I use that collectively for all the bar associations. Their membership's down, the ABA is way down. I think the New York State Bar Association where where I am, it's an excellent organization. Uh, it's had a lot of challenges, had to you know, rethink what it's doing. Some bar associations, there was one in New York, the New York County lawyer says, had to sell its landmark building to stay in business, I think, or to to help it stay in business. Um and uh why are people not, why are bar associations on it? Because as the profession or the concept of a profession uh suffers diminution, uh people less and less see the value in bar associations, right? And you know where I think we see the same phenomenon uh in the community at large when we think about colleges. People are saying, you know, one point when I got out of college in the 1800s, um, you know, people would say, uh actually it was the 1900s, but in actually uh people would say a let it go. Yeah, it's all right. Uh people would say, you know, get a liberal arts education. Now, it is true that there are many people that would benefit from a trade specialty education because they're good at it, will make a good living. But college was not thought only to be about w uh what you're gonna do for a job. That's right. Right? Okay. It's changed a lot. People and of course, as tuition is skyrocketed, you know, way ahead of inflation. Uh I can understand that. People say it. But so if you have uh uh people uh colleges have kind of become expanded high schools in many ways, and their curriculum is a little more f shall I say, flexible for everybody. Uh but uh it's all sort of part of the same f uh uh common phenomenon, I think, which is the value of becoming a professional, academic knowledge, not every whi bit of which you're gonna use in your job has value. And coming back to the lawyer, the profession of law, look it's even affected law school curriculum. You know, we all of us went to law school some years ago, particularly the better law schools, were exposed to history. History of, you know, the common law, how we got here. You know, you have lawyers here, they might be. I I uh was doing a CLE running a panel for a group of lawyers for commercial litigation. These were people attending, had several years' experience, some much more experience. And the sub the topic I was talking about was preliminary injunctions. And if you are lit have litigators in your in your audience, you know some of the recitations that are in the pleadings when you ask for preliminary injunction. So I asked the group, I said, How many of you have been involved in preliminary injunction litigation in federal or state court? Almost all the hands in the audience would have. I said, How many of you have seen in that uh in a request for preliminary injunction, plaintiff has no adequate remedy at law? That's very common. And hands are going up, baby. How many can who can tell me why it's in there? No hands winner. No hands winner. So then I had to talk about, you know, the evolution of l of law and equity being separate courts in in England, and you go to the law courts which had very rigid pleading requirements, and they say, I can't give you relief. Go down the, get your get on your horse and buggy and go down to the different court system, the equity courts, which were filling in the interstices. So if you wanted to get into that court, they'd ask you, uh, don't you have an adequate remedy in the law courts? And another thing we see, clean hands, right? You see that. It's not just about people going, you know, going to the washroom and washing their hands. You have to, you know, be morally upright in the cause, right? To get it relief in equity. So that would be another requirement in equity. But what's this all about? It shows that the focus in what was a profession for important education, its value has been somewhat downgraded. Yeah. You mentioned uh in the context of both the remote learning and the associations uh and protecting your lunchtime. Um, all of that, those things, um, it seems like there is less opportunity for, I don't know what you call it. It's not hard work, but it's soft work of getting to know somebody else, getting to know uh random information that you you might want to learn. And it and that's where you pick that up. That's at those lunches. It's the association meetings when you get together with colleagues you haven't seen in a while. So I think that's a I think that's a key point you're hitting on there that we're getting too maybe we're getting too isolated. You know, we've talked about lunches, but sometimes I go out not only with lawyers but with staff. I want to see what they're seeing. What are they seeing in the law firm? What are they perceiving? It's it's useful to know apart from knowing them personally, you know. Yeah. Some of them tell me about a problem I didn't know about in the firm. Right. Uh, or uh any number of things.

Tom Hagy

That takes a lot of trust, doesn't it though?

Mark Zauderer

It it does. Yeah. Well, you try to you develop that. Somebody has to trust you. But that you you're not gonna get that talking on Zoom.

Tom Hagy

No, no, you will not, especially if it's recorded. Yeah, right. So that's good.

Political Pressure On DEI And Pro Bono

Tom Hagy

Um, okay. Well, we talked about the professional law, so we we can skip that. Um, but you also you touched on the impact of recent uh political events, presidential executive orders uh on law firms. I and that's just such a huge story, and I'm just riveted by it to see how it comes out. But it was particularly regarding uh the DEI policies and pro bono work. Um how do you think these are going to shape future priorities and values of major law firms? And uh how do you think this is going to play out? Well, let's start with what we saw. We saw somewhat of a divide in the community between those that hustled to really comply with what the administration was asking and others who fought back. I guess nobody would know on day one, you know, whether the courts would protect uh what law firms wanted to do and not comply or be told by the government what to do in their policies. So that's still playing out to an extent. I do think there was a certain irony about uh in that certain firms that comply readily, again, for acknowledged, quote, business reasons, right? Uncle talk about the business of law, uh were we're were leadership was put in a difficult position. Uh because uh many of these firms grew and achieved great financial success, uh particularly litigation firms by taking on business business lawyers. You know, I think litig when this I think some of your audience, your legal audience will appreciate it. You know, firms that just did litigation, I think made a calculus that I we can't be stopped and go to the courts. The judges have opened it. But if you were a lawyer serving businesses in deals, mergers, acquisitions, we know those firms have to have to uh get the the good graces of government. They're dealing often with government agencies that they have to meet with and now they're being banned from the buildings if they don't comply. Uh they can't advocate for the clients or get their mergers approved or anti- you know, all of that. So I think that the the increased dominance of that aspect of of uh the firm of business lawyers uh ha had a role, I think, in many cases in determining, you know, how a law firm would respond to the demands. Right. Uh but you know, I don't want to get into the politics of it on side of the server, uh, so to speak. I do think it's ironic that some of the firms uh boosted their PR, handled their PR by both by advertising their DEI very proudly and then overnight it disappeared. Or in some cases, there were actual resumes of their of their lawyers, you know, on the on their websites. And sometimes it people want to, of course, put their achievements in their bio. Some of them would say, I worked on the Mueller investigation or something like that. Yeah, right. That's gone. I mean it's like stripped from the resume in some some firms. But I understand firm leadership was in a I do, you know, in in fairness, were put in a very different uh different question. And they wanted they had legitimate concerns for their firm and the people whose lives depended on the firm income and all of that, no question. Yeah. It was a gamble. Um, you know, it could certainly put a firm under. And um, I think you know, in a couple of years it'll be interesting to see how how it played out for each of these firms. You know, you mentioned some things that are happening where people adjust their websites and their bios and things like that. And I know that I need to confirm this. I'm fairly sure there is one major client that left one of the uh capitulating firms and went to a firm that uh that stood up. I've got to confirm that, but I'm pretty sure that's that's the case, that that's one case, who knows? Yeah, um but yeah, I don't know. To me, in my mind, I was thinking, you know, because I dream like what what would be the perfect uh response that would have been if all firms in the country said no, you know, then what do you do? But uh that's a dr um I'm being a dreamer. Um so so do you see anything positive uh about uh the way things are going today, or do you think it's all kind of like just not great the way things are changing with law firms?

Civility Pledges And Lawyer Advertising

Mark Zauderer

You know, there's a saying, you know, two things to work can be true at the same time. Yeah. So yeah. Um I think the profession itself uh has tried sometimes successfully to address some of the things that were affecting us beginning of the 90s. Talk about civility, right? That you know, the the it was observed, you know, that beginning in the 80s that the morals or the norms of conduct had changed. People, the way lawyers in a litigation would act to each other sometimes get very crude, and there have been examples in the case law that have made this very stark. But perhaps not wanting regulation from outside, many of the bar associations and and uh related entities like the courts uh have taken steps to educate the pu the the profession about proper conduct and the fact that we are a learned profession, so to speak, and the best of that give example. I know California, I think some other states now when lawyers come into the bar, they have to take a civility pledge. Uh that's a requirement. And we have in New York the Bar Association that I was a leader of years ago developed a uh uh a code of civility, which the state authorities then adopted, which is kind of precatory to adv educate lawyers as to how they should conduct themselves in court litigations, not as a basis of sanctions, but as guidance. Uh and increasingly in our literature, our judicial literature, these guidelines are being cited as models, you know, when there are uh problems with lawyer conduct. So I think they've had a salutary effect. You ask what's positive. I think that's positive in the profession. Um what I don't think is so is positive is the unfortunate Supreme Court decision some years ago that allowed virtually unfettered lawyer advertising. So any of us who have ridden on a New York subway or bus looks up and sees an advertisement for a law firm, we see them on billboards on America's highways, and they say the biggest thing you see is the number a hundred million dollars or a billion dollars in verdicts. Right with a little somewhere on the bottom, which is past performance is not a guarantee of future results. Right. Um, you know, I think that has diminished the profession. You know, the thinking of that was was, I think, very good at one point. And I understand in in the in the Supreme Court decision, because uh what they were trying to achieve was to create competition and ultimately lower prices for consumers, which is always a good thing. Uh bar associations were had suggested or required prices that the members would charge. They remember lawyers for particular services, doing a will, uh, you know, a real estate transaction. So when lawyers could outphise, you know, they would and it would perhaps lower the prices. You know, you know what it reminds me of? In 1978, uh the airline industry went off uh regulation on pricing. Used to buy an airplane, the prices were high. It created competition. Some of these airlines, I remember Laker at Freddie Lakers Airway, it was cheap. We have a budget. There were a couple thousand airlines in the 80s. Yeah, it's all one today seeking a rescue from the government or they're gonna go bankrupt. So you know, you want to you know, is it good, is it bad? One time anybody who had a ticket on an airline, if you look at the pictures from the 1950s, everybody's if they're a man, they're wearing a suit and tie and a hat. They look like you. Now they're dealing with yeah. Right. I've had this on for many years. So right now, right now, you know, they're debating whether they should allow passengers on in pajamas.

Tom Hagy

I don't know why I find it so funny, but I just think I think people are funny that they think that that's uh I don't know, they're comfortable. I would take my girls uh on vacations and things when they were teenagers and yep, pajamas and a pillow um for long flights. But I was But no, I I know what you're saying. I know what you're saying. Um but yeah, no, with airlines, that's another uh yeah, that's another issue where they've they've they've merged so much. I just looked this up the other day and I don't have the right numbers in the eight yeah, in the eighties there were several thousand law firms, I mean not law firms, airlines, and now there's like uh there's like four big ones and then a few dozen uh smaller ones.

Mark Zauderer

But well, you know, before deregulation in 78, you pay a high price for a ticket. If you went to the counter and you had a ticket on American Airlines and you looked around, it was delayed or it wasn't for a while, another airline Delta was going to the same place. You'd walk to the Delta counter and they take the American Airlines ticket. Oh, really? All the same high price. Oh, okay. I gotcha. Remember that I do.

Tom Hagy

Yeah, that's well, no, I wasn't traveling much then, but uh no, that's that's wild to see how that has transformed. But you're right. You look at old movies of the flight attendants formerly known as stewardesses and um and then uh the way people dressed, you're right. But you could just walk up to an airport and get a ticket and go somewhere. Yeah. Nobody's checking. I don't think there was when was security. I don't know when security started to happen.

Mark Zauderer

No. And you didn't have to show nine forms of identification.

Tom Hagy

No, no, no. And uh and I've gotten caught up in that because my full name is William Thomas Hagy, and I am William T on many documents, and I have been stopped and have to explain. You know, I'm Tom, but you know, my dad wanted me, you know, it's just uh uh and they said, well, next time we're turning you away if you don't have the right. Like, okay. Well I travel with my birth certificate now.

Mark Zauderer

Yeah. Next time I buy a ticket, I'm gonna take your name. It's a lot easier than mine, and uh you know, I have to repeat it several times.

Tom Hagy

You uh okay. Um so one last thing.

Advice For Future Lawyers

Tom Hagy

Uh what about uh so we're talking about the future a little bit. What you've got people looking at should I go to law school? I want to go to law school. What would you say to either people entertaining the idea of getting into the profession that's now a business, um, or you know, newer associates? Uh what would you what advice would you give them?

Mark Zauderer

I'm high on law on the law profession. For some of the reasons that I've I've expressed, my view, it's a profession. Uh it's intellectually interesting. Uh there's variety in it. Uh you deal with people, uh, you get the satisfaction of helping people in in difficult situations because of Your knowledge of substance of law and over time the procedures, you tend to get better at it, which is very satisfying, you know, from experience. You know, when you come out of law school, even though you have substantive knowledge, you don't know how to handle a litigation. Even if you took a course, you don't have the judgment, you don't have the experience. You learn that and that's very satisfying. Uh it can't I think if you like what you do and you work in an area, you do it well, the m the compensation will follow. I never thought about money when I I I when I started. My job as a law clerk was the greatest thing. I was thrilled to get it. Sure. Ninety five hundred dollars a year. Senior law clerk made eleven thousand, so I was a little envious. Uh yeah. So you know, the m the money will follow, but the satisfaction is what's what's critical to me. And feeling also you're doing something useful. You're helping people or helping a cause. That's an add added benefit. And it gives you the opportunity, which I spent a lot of time on, a lot of things that are totally uncompensated. Whether Bar Association work I have been privileged to head various commissions in New York. One that looked, examined New York's jury system, the commission on the jury. It was a blue-river panel. We've had uh hearings at 140 witnesses to think what's going right or not right in jury, the jury system in New York, where 60,000 people are called every year to jury service. So as a lawyer, you have the opportunity to do it. And I like private practice. In my case, you know, I like small through a boutique practice, but there are many, or you can enjoy being in-house and working in a corporation, or doing legal aid work, or doing criminal law. There's so many opportunities, which I think only really come to your it only you only have the ability to make those choices after you're in law school and you've had some experience or even out of law school, you try a particular job and you don't like it, you move in a different direction. All of that is available to somebody who takes a chance and spends the money. I recognize it's expensive, but you know, if you work at it in many uh and do decently academically, there are very large uh academic scholarships, very significant ones available. I know I've created two scholarships at a law school that's not a first-year lawsuit because I think they needed it. They're helping people in the community become lawyers who have worked at uh jobs, you know, uh and want to advance themselves. So I'm all for advising people to enter the profession.

Tom Hagy

Okay. I'll just piggyback slightly on that. Some people that are in com started off in law and they ended up with fascinating careers where the law was applied, but they became a CEO, uh, they became a journalist, um, all kinds of fascinating things. So uh yeah, I'm I'm still a big fan. And even though I didn't go to law school, I was a horrible student. Uh I think by the time I was 30, I could have gone, but I spent my whole life studying it. And to your point about it being intellectually interesting, that's what's kept me doing it for 40 years. I think it's like it's like philosophy, except at the end there's a real impact on somebody's life. It's very cool. Well, Mark Zauderer, thank you very much for talking with me about this, and I'll make sure everybody knows about the book and where the proceeds will go. Uh, that's all good work. So thank you very much.

Mark Zauderer

Thank you. My pleasure. Uh good to be with you.

Closing And How To Support

Tom Hagy

That concludes this episode of the Emerging Litigation Podcast with Tom Hagy. The program is produced by HB Litigation News, a brand of critical legal content, provider of writing and multimedia services for boutique law firms and specialized legal service providers. If you would like to reach us, send an email to editor at litigationconferences.com. And if you like what you hear, please share this episode with colleagues and give us a rating. Tom operates under the assumption that that helps, and let's face it, he's always looking for validation. I don't know why he needs it. I think you will agree that he is an amazing professional. Yes, he told me to say that. Anyway, thanks for listening. It warms our cockles and gives Tom a reason to get out of bed in the morning. Oh wait, hold on. What's that? Sure, but we already ended the episode. Fine. Okay. I said okay. Sorry. Me again. Tom wanted you to know that he's playing bongos on the theme music. Are you happy now? Like I said, validation, constant validation. Now we really are at the end of the episode. And I am about at the end of my rope with this guy. Goodbye for now.