Throughout the public evisceration of Harriet Miers, even her critics have tended to concede one of President Bush’s main claims: Miers couldn’t have been a complete loser to rise to the top of the bar and of her law firm.
Well, to be fair, a complete loser would have had to stretch to win election as president of her local and state bar associations. And loser perhaps isn’t the word for the typical law firm managing partner back in Miers’ era.
Mediocrity—that’s a better word for it.
The point non-lawyers may miss here is that these accomplishments don’t necessarily signal astonishing professional achievement. Implicit in the president’s loving assessment of Miers’ résumé are these assumptions: that lawyers choose their leaders based on merit, and that leading a bar association or a law firm is a position of great respect and honor. So, let’s explore each notion, in the context of Texas in the late 1980s and early ‘90s, a time and place in which truly outstanding lawyers pawned off their “leadership” duties on those who wouldn’t be much missed from the billable-hours assembly line.
First, take the bar associations. They come in two flavors: voluntary and mandatory. The Dallas Bar Association and American Bar Association are voluntary. Lawyers are not required to join, and in fact many do not. Those who pay their dues get various goodies in return: dreadful magazines, decent educational seminars, schlocky trade shows, and any number of excuses to get out of the house and tip a few. It’s like that crew of thirsty Knights of Columbus on Saturday Night Live, except in pinstripes and with slightly better haircuts. Mandatory bar associations—like the State Bar of Texas—are pretty much the same deal, but in these states, lawyers have no choice about joining. They’re mandatory because they serve a dual role: licensing lawyers for the state while keeping the draft beer and Scotch flowing at lawyer parties.
Guess who seeks election to such groups. Not the busiest, in-demand lions of the bar. Instead, it’s usually the second stringers, the runners-up in the lawyer game. Real lawyers, for the most part, snicker about “bar weenies”—much as they did about the goofs in high school who ran for class president. Does David Boies spend his $800-an-hour time going to committee meetings and wrangling over the ABA’s next convention schedule? Hardly. He might deign to give a speech at a bar gathering if he can fit it into his busy trial schedule. But bar weenies—their slightly kinder name is bar junkies—are the ones holding the Town Car door open for Boies when he arrives at the hotel. And when they’re not doing that, they’re jabbering endlessly about legal-regulatory policy questions that even most lawyers find stupefying.
In fairness, it was still considered revolutionary for a woman to climb this career ladder when Miers did it in Texas. But other than that distinction, she slipped right into the customary role of the bland leading the bland. What occupied the Dallas bar’s time in those days? Not much worth remembering, except for the nativism on display in the local bar’s horrified reaction to the arrival of a big, national law firm, Jones Day, during Miers’ reign at the bar. Dallas law firms, always far smaller in size and national prominence than Houston firms, reacted with a mix of resentment and disdain to some good old competition. The bar’s steady diet of seminars back in those days might as well have been renamed “Jones Day??!! Oh, crap.”
The State Bar of Texas back then had similar aspirations to great consequence. Recall how Miers’ presidential pronouncements in the Texas Bar Journal caused recent hand-wringing about her skills as a thinker? Well, she was only doing what little was expected of her in that role—bad writing included. The rest of the nation’s legal establishment at that time was alarmed that the state of Texas was rushing convicts to execution without providing them with counsel in the latter stages of appeals. So, how did the State Bar of Texas respond? By relying on out-of-state volunteer lawyers—and grudgingly at that—to pick up the slack Texas lawyers had left by averting their eyes. Rather than impose pro bono time requirements on Texas lawyers, the state bar endlessly debated mandatory reporting of pro bono hours—in other words, we don’t care how much you volunteer, but we do want you to fill out a form telling us what you haven’t done. And if that nice Mr. Boies comes to town to save the life of a death-row inmate, please meet his Town Car at DFW Airport!
If this brand of public service is easy to ridicule, it’s even easier to diss the business savvy of a 1990s-era law-firm manager. By the 1990s, when Miers’ partners put her in charge, law firms had reluctantly concluded that they were in fact a business. Now that they were thinking outside the box, they had to figure out how to run themselves like businesses. Mostly they failed. Often it didn’t matter anyhow. As recession-proof money machines, most firms could wait for clients to seek them out. “Managing” such an enterprise meant divvying up too much money among partners, paying overworked associates just enough to keep them chained to their desks, and deciding whom to admit to the partnership—mostly those who could turn a profit and not those destined to be bar weenies.
Law partnerships, at least then, weren’t so much managed as they were administered. Certainly there were exceptions with strong leaders—typically firms still led by a founder who brought in all the business, held much of the equity, and made all the key decisions. But your average corporate firm, like Miers’, was like a university faculty—democracy run amok. The ostensible leader had a pretty short list of duties: calling meetings at which he or she could be informed of his or her failings, and making speeches.
Among the big debates of that era in law-firm management: Word vs. WordPerfect (endlessly amusing as dinner-party banter and sure to become a Harvard Business School case study). Another biggie was whether to shorten firms’ names from way too many unpronounceable surnames (e.g., Skadden, Arps, Slate, Meagher & Flom) to punchy brands like the giggle-inducing MoFo (for Morrison & Foerster).
The jig was up for this blissfully ignorant oasis in the market economy when cracks first appeared in firms exactly like Miers’—midsized, regional, full-service, ill-defined blobs that couldn’t sell themselves as distinct from other midsized, regional, full-service blobs. Because they couldn’t make as much money as their more elite, premium-billing brethren, the smarter among them saw the logical ending to this story—a death spiral.
Lacking the ability to manage their way out of a crisis, victims of this midsized crunch started mating—with each other, or with legal conglomerates that could buy local talent on the cheap. Miers’ firm chose the former strategy, merging with an identical firm five hours away on I-45 in Houston. The result? A somewhat larger full-service regional blob. This, then, is what passes in Miers’ former professional circles for the vision thing.
Law firms these days, as a whole, are much better managed. The exceptions can be found in traditional midsized enclaves, for which the day of reckoning has been extended, not eliminated. Bar associations since Miers’ day have changed little, except even fewer younger lawyers today consider them cool. To the bar’s jocks and cheerleaders, the bar weenies are Pedro in the film Napoleon Dynamite, the misfit with the flat vocal inflections running for student-council president. Napoleon Dynamite’s contribution as Pedro’s campaign manager is the archetypal bar-association slogan, “Vote for Pedro. He will make your wildest dreams come true.”
For bar weenies, seeing one of their own elevated to the coolest enclave in law has to be, like, their wildest dream come true. For Miers, it all depends now on a simple question: Is there a Napoleon lurking among her White House handlers?