Guest Chapter 24

Name: William E. Foster

Current Position: Associate Professor, University of Arkansas School of Law

Legal Practice Area: Tax; Mergers & Acquisitions

Law School and Year: J.D., University of Arkansas, 2005, LL.M., New York University, 2006

Time between undergrad and law school: None

One or two books I recommend:

1.

2. Educated by Tara Westover. This stunning autobiography is essential reading for anyone pursuing higher education. The author overcomes unimaginable obstacles to even be in a position to apply to college. Many students find themselves in graduate school (including law school) more or less by inertia, merely the next step in the path to… something professional. This book reminds readers of the privilege of pursuing higher learning and can help someone struggling with motivation to clarify their goals, priorities, and purpose.

It's often difficult to persuade lawyers to read anything outside of work other than the news because, well, they read all day for a living. But reading very good fiction or literary nonfiction is incredibly helpful for finding your voice as a writer and communicator.

Short background on why I went to law school

I planned to be a lawyer early in life, probably persuaded by my parents and decent verbal scores on standardized tests. But in high school, I met a few attorneys who actively discouraged every young person they encountered from joining the profession. They were unhappy and overworked and unfulfilled professionally. Around the same time, I started gravitating toward music, and for a few years wanted to be a professional saxophonist of some ilk (music educator? studio musician? successor to Lenny Pickett on SNL??). After studying music seriously for a while, it was clear that the road to a viable music career was uncertain (to be generous). Then, in my freshman year of college, my father lost his job. So I began to truly value financial stability, independence, and the perceived dignity of a profession. I shifted through a few other majors and eventually found government, history, and politics too enticing to ignore. During my junior year, my father took his own life, and that drive to become independent and self-supporting became an urgent need, both financially and psychologically. From that point on, I brought an earnest intensity and seriousness to my coursework, knowing that it was a lifeline.

While weighing graduate school in political science and law school, I received a letter of admission and generous scholarship offer to attend the University of Arkansas, signed by Associate Dean Jim Miller. A that moment, I believed the stars had aligned for me in law.

What frustrated me most about coming out of law school and/or what frustrates me with regards to people I work with or hire who are newly out of law school

Coming out of law school, I felt sickeningly unprepared to draft documents.

With new lawyers, you sometimes see an unfortunate degree of casualness about work quality and even getting the right answer on the law. Particularly at larger law firms, I think new lawyers tend to rely on the safety net of the senior attorneys and send unfinished work product upstream before it's ready. Almost everything I saw in practice would have benefited substantially from another read and round of edits.

How have you used (or not) the core concepts of lawyering as this book proposes: Empathy, Listening First, Asking Questions, and Giving Advice?

I wholeheartedly agree that empathy is the most important trait for being an effective attorney. In any practice setting, a lawyer needs to be able to efficiently convey ideas and rapidly process input, and understanding your audience is essential in both tasks. Whether trying to persuade an opposing party to move on their offer or convincing a client that their goals will best be served by shifting course, it is essential to understand how they perceive the stakes. To have a reasonable chance of success, the lawyer must be able to see the situation from the other person's point of view. It's common for lawyers to fall into the trap of trying to game out the scenarios guessing what the other party might do solely from a strategic standpoint. But human beings are complex, and their motivations are often nuanced.

When I was in my twenties, I felt like I could read people very well, and I began most interactions loaded with assumptions about the other person. Because it often took several exchanges to reset my understanding, I squandered countless opportunities to make connections with people who could have been friends, advocates, and professional resources. Most emerging professionals now understand the baggage they bring to their interactions and are better equipped to navigate that environment. But starting with a (relatively) blank slate is only the first step. Empathy takes a sincere investment in understanding someone else, and the more one is motivated by finding leverage or weakness, the more difficult it will be to pick up on the nuances in their perspective that complete the picture. I promise it is always worth the time and energy to set aside ego and take a genuine interest in other people—clients, law partners, support staff, opposing counsel, everyone—to better understand your role and how to achieve your objectives.

Biggest mistake(s) you made while in law school

I honestly believe I got about as much as possible out of my J.D. experience. But in the LL.M. program at NYU, I did not take full advantage of the opportunities in that vibrant community. I approached that program like a trade school and tried to get what I needed out of it for practice and didn't engage much beyond the classroom. Looking back, I would have spent more time researching the professors and then trying to build relationships with them. Now in an academic career, I often read and admire the work of professors who were just down the hall from me for nine months, but of whom I was shamefully unaware at the time.

What class(es) did I wish I had taken while in law school? In or outside the school? What about today?

I wish I had taken Administrative Law in the J.D. program. That course was not on my radar, and as a tax lawyer, it's more relevant to me than Civil Procedure. I also would have narrowed my coursework, particularly in the graduate tax program. I took a very generalist approach, and got a sampler platter of tax classes, but relatively little depth. I would have benefited from taking additional classes in pass-through entity taxation and international taxation. Even though I'm generally in favor of students taking a wide swath of classes, I would have felt more comfortable having much deeper exposure to some areas.

Most useful classes in law school

Contracts and Debtor-Creditor Relations (Secured Transactions) were incredibly valuable for me. These classes were most useful because the professor taught us to approach a problem in a systematic way. There was a method, driven by the statute, to determine who had what interest and where they fell on the priority ladder. No matter how complex the fact pattern became, and no matter how many parties or transactions you added to the mix, if you were methodical in your approach and analysis, you would get a clear answer every time.

How did you decide what to do post-law school? With hindsight, how good of a job did you do?

Throughout my first two years of law school, I was open to just about any non-criminal practice. I was particularly drawn to medical malpractice defense and employment litigation. But in my summer experiences, I found that I didn't enjoy drafting motions and briefs as much as I loved working with contracts and any kind of transactional issues. When interviewing for associate positions, almost every firm asked me if I had any interest in tax (perhaps because I wore glasses?). At first, I said no, preferring to focus on business and transactions more generally. But there was clearly a need in the region, and after the fourth or fifth time I was asked about tax, I decided to look into graduate tax programs.

From the graduate tax program, I faced a difficult decision of whether to go back to Arkansas and practice in a more general transactional and tax practice or to stay in New York and focus exclusively on tax in M&A transactions. I chose to return to Arkansas, and although there were many very positive aspects to my practice experience there, I regret not working in a major market for at least a few years. In smaller markets, it's often nearly impossible to focus exclusively on tax issues, or even to narrow the scope of tax work you do (e.g., corporate tax vs. estate planning). Many others, including most of my students, would prefer the variety in the smaller market. For me though, I would have benefited from the ability to focus my attention more narrowly.

Biggest mistake you made while at your first job

I was not good at communicating with the senior associates and partners at the firm. I tried to be extremely responsive, produce excellent drafts, and to make it easy to work with me. But I should have been more proactive at times by asking to get involved in the projects and deals that particularly interested me, and I should have kept at least one senior lawyer consistently updated on my workload. That lack of information flow contributed to a lot of inconsistency from month to month on my billing and project load.

Best advice you received or have given for those coming out of law school

My favorite law professor, Robert Laurence, often told us we had to develop a patience with partial understanding. In other words, there are a lot of concepts you are not going to understand perfectly the first time you encounter them. And it almost always takes a lot of reading and research to put any particular legal issue into context. It takes patience and a recognition that you will often have to invest significant time and deep thought to develop an understanding sufficient to give decent advice.

Worst advice you received or have given for those coming out of law school

It was common advice in the mid-2000s to buy as much house as you could possibly afford as soon as possible. Hopefully after 2008, people have backed off those suggestions.

How have remained happy in your profession? Have there been times when you were not? If so, what did you do to improve your situation?

I definitely had tense moments in practice and times when I felt incredibly insecure. My saving grace was having a friend at another law firm, out of state, with whom I spoke regularly. That friend understood the players and personalities at my firm but did not have to operate in the same market, so she could provide candid advice. She would also let me know when I needed to deescalate and take a step back from a situation before making it worse. Everyone should have a friend outside of the law firm they can turn to for advice, venting, and honest guidance.

If you could go back in time and tell your younger self something about making the transition from law school to the real world, what would it be?

A friend's father once advised a group of recent law graduates to save half of their money from every paycheck, starting with the first one. Although that may not be feasible for grads carrying a ton of student loan debt or those with high costs of living big cities, there's a lot of truth to the sentiment. Law graduates often have a great deal of delayed financial gratification, but they can start building long-term security by refraining from taking on large financial commitments for several years and by stockpiling cash as soon as possible. With financial security comes options.¹⁰ Notes

1 Hague Institute for Innovation of Law and Institute for the Advancement of the American Legal System. (2021). Justice Needs and Satisfaction in the United States of America. https://iaals.du.edu/projects/us-justice-needs.

2 American Bar Association. (2021). Profile of the Legal Profession. “Growth of the Legal Profession.” https://www.abalegalprofile.com/demographics.

3 During World War II, Japanese Americans were falsely regarded as untrustworthy, which allowed for their internment. Coloradans are proud that our governor (and lawyer) Ralph L. Carr took a principled position against the internment camps. See Schrager, Adam. (2008). The Principled Politician: The Ralph Carr Story. Golden, CO: Fulcrum Publishing.

4 I serve on the Board of Advisors for the Institute for the Advancement of the American Legal System. IALLS Foundations for Practice is ground-breaking work that seeks to identify the foundations that entry-level lawyers need to succeed in the practice of law. See IAALS. (2021). Foundations for Practice. https://iaals.du.edu/projects/foundations-practice.

5 You will take an Oath of Admission that is (or will be similar to) the following Colorado Attorney Oath of Admission, which states in part:

I will treat all persons whom I encounter through my practice of law with fairness, courtesy, respect, and honesty;

I will use my knowledge of the law for the betterment of society and the improvement of the legal system;

I will never reject, from any consideration personal to myself, the cause of the defenseless or oppressed;

….

Colorado Supreme Court Office of Attorney Regulation Counsel, Oath of Admission. https://coloradosupremecourt.com/Current%20Lawyers/Oath.asp. Always remember your Oath.

6 Extensively research the relevant issues. One of my early mentors analogized legal research to a tree. The issue is the tree trunk, but you must also follow the branches to fully understand the issue. And when you present the issue in your legal briefs, fairly present relevant cases (favorable and unfavorable) and the other side's arguments.

7 Hoagland, D.W. 1995. “Community Service Makes Better Lawyers.” Katzmann, R. (ed.). The Law Firm and the Public Good. Washington, DC: The Brookings Institution.

8 Kawanabe, K. (November 2005). “One Refugee: A Commercial Litigator's Pro Bono Experience with Immigration Law.” The Colorado Lawyer 34 (85).

9 Note that all of these skills are obtained over several years, with increasing degrees of difficulty in each of these categories.

10 As one of my undergraduate professors so eloquently put it, “Life is like a shit sandwich. The more bread you have, the less shit you have to eat.”