When Summer temperatures rise, our analytical ambitions drop. Torpor sets in, and it sets in hard. It is no accident that it is in July and August when our posts are most likely to contain more pop culture than precedent. (Here is one of our favorite examples.) Meanwhile, this is also the time of year when we tinker with the lesson plan for the litigation strategy class we teach each Fall at the University of Pennsylvania Law School. One of the points we've been pounding home in that class over the last thirteen years is that lawyers can learn a lot from other occupations.
Lawyers, more than other learned professionals, seem allergic to systems. But systems, routines, habits, etc. can be useful, even vital. For example, we've tried to show our students how lawyers can apply the medical profession's SOAP (subjective, objective, assessment, plan) process when advising clients. We also discuss the utility of the sorts of checklists that airline pilots go through when they climb into the cockpit. It is useful to have ready-made checklists at hand for responding to complaints, preparing deposition outlines, and putting on presentations before mediators and judges. And then there are the SWOT (strengths, weaknesses, opportunities, threats) analyses that even a wet-behind-the-ears MBA holder can deploy, while most attorneys have no clue about them. A cogent SWOT analysis can both frame a litigation strategy and guide a productive dialogue with the client.
What about chefs? Can/should lawyers adopt any of their practices? Should we start our oral arguments with an amuse bouche? Push the daily specials? There are some commonalities between the culinary and legal crafts. Both are service industries. Client satisfaction is essential to stay in business. In the last episode of the most recent (the third) season of the Hulu/FX television show, The Bear, the great chef Thomas Keller (French Laundry, Per Se) says that running a restaurant is about nurturing. There's some nurturing in the law, too, and not only with pro bono clients. Lawyers do their best to get clients through tough times. Preparing a C-suite witness for a hostile deposition involves more than a little hand-holding.
There is another commonality between lawyers and chefs: running a restaurant, like running a law firm, is a team effort. There is a division of labor. There is hierarchy. At the same time, there is plenty of room – sometimes too much – for individual expression. And, as Samuel Goldwyn bemoaned about movie studios, the key assets of law firms and restaurants go home every night. It takes only one disgruntled team member to undermine the entire effort, ruin team dynamics, or leave the rest of the team members hanging. What good is whipping up a perfect souffle if it ends up in the diner's lap?
All of which brings us to the question of whether we lawyers can learn anything from The Bear. Larry David and Jerry Seinfeld famously decreed that there would be no learning allowed in the Seinfeld sitcom. But we think it is possible to learn from almost anything, especially something as well conceived as The Bear. If you haven't seen the show, you should give it a try. One taste of it will likely have you coming back for more. We know people who binge an entire season at a time. Perhaps that is a bit gluttonous.
The Bear won the Emmy award for best Comedy, which seems like a category error, even if the show has some humorous moments. The show is about a tortured, world class chef, Carmy Berzatto (nicknamed The Bear), who inherits an Italian Beef joint in Chicago. (The details of how that inheritance happened is one of the crucial and continuing backstories in the show.) There are plenty of such casual sandwich restaurants in Chicago. Residents of the Windy City debate about which one is the best, just like people in our town choose sides over cheesesteaks. We think Italian beef sandwiches are pretty darned tasty. But Carmy has higher aims in mind. After getting the employees into shape to elevate Italian beef, he pivots to turning the place into a fine dining experience. Carmy's aim is to earn at least one Michelin star.
It reminds us of a couple of law firm leaders we worked with who were determined to elevate their firms into the top tier (measured by some combination of prestige, quality, and the inevitable profits-per-equity-partner). It takes vision. It takes commitment. It takes work. It is not easy.
Seasons one and two of The Bear gave us some of the best television episodes in recent memory. The show can be riveting and surprising. It can also be stressful. In season one, we squirmed during an episode where too many orders came in too fast via an automated system. There was too much for the staff to do in too little time. The click-a-click-a-click-a of the incoming orders became maddening. One of the themes of The Bear is that "every second counts." Time is short. Getting things right under time pressure is hard, but it is necessary.
The best episode in season two showed how a rough-around-the-edges-'cousin' discovered the meaning of service by working one week at a Michelin starred restaurant. Everything had to be perfect. Forks were polished and placed just so. (It was a real Chicago restaurant — Ever.) in another episode, the quiet, contemplative dessert chef honed his craft during a brief sojourn at Noma, the Copenhagen restaurant that often topped Best Restaurant in the World lists. And then there was the fan favorite episode when a family Feast of the Seven Fishes turned crazy and violent.
The Bear treats all of its characters with respect. But if we had to single out one obsession in the show, it is the exploration of what inspires Carmy's drive to sling excellent, astonishing, thrilling food (e.g., lemon chicken piccata, cola-braised short ribs with risotto, plum gelee, a perfect donut, and an even more perfect omelet) — and what costs are associated with such a drive. Stress is clearly a cost. We know many viewers of The Bear who reported that some episodes took their blood pressures on roller coaster rides.
Season three is more of a mixed bag. Maybe that is because it seems designed to set up season four, which was filmed simultaneously with three. In the first episode of season three, Carmy sets out his rules for the restaurant. He calls those rules "Non-Negotiables." Several critics have asserted that season three failed one of those rules: "Less is more." Or, as a tyrannical chef who trained Carmy said in one unpleasant teaching moment, "Subtract."There does seem to be a bit too muchness this season. A lot of emotional plate-spinning takes place.
The ideas of "less is more" and "subtract" can apply to the law as well. At a bench-bar conference we attended a couple of weeks ago, and which we alluded to here, plaintiff lawyers and judges poked fun at defense hacks for filing Rule 702 motions against every plaintiff expert on every ground in every case. We've also heard judges criticize legal briefs for loading up on too many arguments, as opposed to prioritizing the strongest or most important ones. And who hasn't heard a judge complain that the parties were "overtrying" a case? To be sure, the sin of too muchness is not confined to the right side of the v. We have posted on instances (here, for example) in which plaintiffs put too much in their complaints, effectively pleading themselves out of court.
So "less is more" is a good rule in the kitchen and the courtroom. Do not bury the wagyu strip under a pile of creamed corn. Do not bury your best argument under a pile of trivial or weak points.
Another of Carmy's Nonnegotiables is "Focus," which seems to be the right corrective for too muchness. The applications to the law of other Nonnegotiables such as "Pursuit of excellence," "Always improving," and "Know your s****," seem self-evident. Law firms sometimes simply assume that graduates of top-flight law schools will come on board with all those virtues in place. They are wrong. Training is needed. Do not fool yourself into thinking that throwing young lawyers into the deep end will turn them into Michael Phelps. In real life, people do occasionally drown. Carmy also insists on "Consolidation and speed" and "In and out service." He is not running a fast food outlet, so why all the insistence on celerity? The answer is that there is a lot to do in the kitchen, and customers do not like to be kept waiting. We think "In and out service" does not refer to the SoCal burger chain (splendid though it may be), but, rather, to the concept of rendering superior service during every aspect of the work. A long time ago, we heard that Joe Flom, the lawyer whose vision turned Skadden into a premier law firm, had a policy of answering his own phone and of returning every client call promptly. If Joe Flom could do that, what could possibly be our excuse for not doing it? Fast responses and the ability to produce first rate work product quickly are hallmarks of a successful law firm. We wish we could say that the key is to work smarter, not harder. The reality is that good lawyers must work smarter AND harder.
Carmy's list includes the rule that "Details matter." We remember when "attention to detail" had its own section on law firm internal evaluation forms. We want young lawyers to display analytical ability and creativity. But, at a minimum, we need young lawyers to make sure all the details are considered and handled correctly. Citing overruled cases, citing cases for basic propositions even though those same cases are adverse on more important points, ignoring Local Rules, and spelling the client's name wrong are wonderful ways to lose credibility. It's like ordering a salad with the dressing on the side, and then getting your plate with greens swimming in vinaigrette. You just know the meal is going to be subpar.
The relevance of other Nonnegotiables is a bit more obscure. The first Nonnegotiable on Carmy's list is "of the place." Huh? We are not even sure what that means in terms of food preparation. Maybe it refers to local ingredients. More than once, characters in the show say that "what grows together goes together." The best we can do in terms of a legal analogy is the importance of understanding the rules in specific jurisdictions. There are lots of local traps for the unwary out there, so don't be unwary. For example, we found out that how one argues for exclusion of experts in Illinois state court (they are called Frye motions, not Daubert motions there) is very specific and very different from other courts, including other courts that purport to apply the Frye standard. Also, before you defend a deposition, make sure you know what the local rule is as to whether you can confer with the witness during breaks. (Luckily for you, we have some posts on precisely that issue.)
We do not agree with every one of Carmy's rules. He forbids repeat ingredients and wants a new menu every day. For the legal profession, we need to repeat arguments. It is hard to ask a judge to do something that has never been done before. Then again, we should never develop arguments simply by rote. There is room for innovation. But innovation for the sake of innovation might just be showing off, and that is counterproductive. In The Bear, Carmy's insistence on never repeating menu items creates problems. The Chicago Tribune sent a photographer to the restaurant to take pictures that would accompany an upcoming review. The photographer wanted to snap a picture of a duck dish that the reviewer had tried. Guess what? Duck was off the menu the day the photographer was on site. Not good.
In real life, we complain when we see the same menu month after month, and year after year. At the same time, customers hear about superb dishes and want to try them. When we went to Paul Bocuse's restaurant many years ago, we were salivating at the prospect of trying his famous fish-in-pastry recipe. It did not disappoint. If it was not available, we would have felt cheated.
Our favorite Nonnegotiable is "vibrant collaboration." The beauty of The Bear is that we come to admire and care about all the employees at the restaurant. They each get their moments to shine. They are motivated by Carmy's vision. But does Carmy practice what he preaches? He is too often dismissive of suggestions by his sous chef, Sydney. That dismissiveness, plus Carmy's monomania, might result in his loss of his most important coworker — and he does not have a clue that her departure is in motion. Carmy also does a lot of yelling, and he chases away his only shot at a love interest. After a point, the viewer wonders whether Carmy is the hero of the show. Or is he the latest in the line of "difficult men" who populate prestige television (Tony Soprano, Don Draper, Jimmy McNulty)?
How did Carmy get the way he is – so talented, so wounded? Carmy had several chef mentors throughout his career. We mentioned Thomas Keller above. Carmy also worked with Daniel Boulud, one of New York's finest chefs. He also worked with another, fictional chef, played by Olivia Colman. Keller, Boulud, and Colman are all shown in flashbacks to be gentle, supportive, albeit firm, teachers. But the chef who seems to have made the biggest mark on Carmy is a fictional chef played by Joel McHale. McHale's method of instruction is harsh and demeaning. He might have been "vibrant," but there does not appear to have been much collaboration. In the finale of season three, Carmy confronts McHale to gripe about past cruelties. McHale smugly says, "You're welcome." McHale tells Carmy that Carmy got great at what he does because McHale set such high, unforgiving standards. Maybe that is so, but the cost seems too high. Carmy apparently gets no satisfaction from his wonderful cooking, and manages to repel colleagues and loved ones.
It used to be well accepted that law students and young lawyers had to run a gauntlet of brutality. Law professors eviscerated students with the Socratic method of guess-what-I'm-thinking. First and second year associates pulled all-nighters and were berated for any shortcomings. We blogged a couple of years ago about a lawyer who made us better – a better researcher, better writer, and better thinker – by setting expectations in the stratosphere and then verbally blasting us if we fell short of such expectations. Thank goodness we had the opportunity to work with him, but also thank goodness he wasn't the only mentor we had. One can certainly learn from a tough, taskmaster boss. But one wouldn't want to spend one's entire career at the mercy of a shouter. And we wouldn't want to be that shouter. "Vibrant collaboration" must consist of more kindness than cruelty.
We suspect that in season four of The Bear Carmy will come to understand what vibrant collaboration means. The chef played by Olivia Colman says that customers at a restaurant end up remembering more about how well they were treated and less about the particulars of the food. People matter more than things. That's a lesson we all can learn, whether we dish out Beef Wellington or preemption arguments. And then perhaps we will achieve another one of Carmy's Nonnegotiables — "joy."
This article is presented for informational purposes only and is not intended to constitute legal advice.