What is meant by the phrase “practice of law”? A plumber may become a journeyman, but no one who works as a plumber calls it the “practice of plumbing.” So what is a “practice” and what makes being a lawyer a “practice”?
In his profoundly influential book “After Virtue”, Alasdair MacIntyre provides an excellent description of what distinguishes a practice from a skill. MacIntyre’s analysis of what constitutes a practice stems from his theories pertaining to ethics. According to MacIntyre, virtue as the basis for ethics was largely abandoned during the enlightenment period. Despite centuries of searching for a universal replacement basis for ethics e.g., utilitarianism), all such replacement efforts have failed. This failure has led many people today to believe that, religion aside, there is no basis for ethical behavior.
MacIntyre argues that a basis for ethical behavior does exist, but it requires us to revisit virtue. Is such a return possible?
To make a return to virtue based ethics plausible, MacIntyre first defined a virtue. MacIntyre argues that a virtue is what enables us to achieve excellence in a practice. The game of baseball is a simple example of a practice, but throwing, hitting or catching a baseball are not. A professional baseball player certainly earns lots of external goods by playing baseball, such as money and perhaps fame. But what makes it a practice, according to MacIntyre, is that it involves internal goods. Internal goods are those acquired in the course of trying to achieve excellence in the practice. A baseball player must have the fortitude to forget failure (striking out, batting slumps, errors) and remain positive to help him and his team succeed. By listening to coaches who praise and encourage such fortitude and by watching older players who act with fortitude, young players develop the character, or virtue, that will enable them to be successful at the practice of baseball.
What does all this have to do with the practice of law? Quite a bit. The practice of law is not a collection of tasks, such as writing, arguing, negotiating. The “practice of law” begins with the pursuit of the excellence in the legal profession, which is obtained through acquiring and exercising certain virtues that are necessary to achieve that excellence. Certainly courage and fortitude are such virtues, but there are several others that are involved in the pursuit of achieving excellence in the law. What separates the great law firms from the pack is the degree and manner in which they focus on the internal goods that are part of the practice of law, rather than the external goods, such as billable hours. Billable hours keep the doors open, but excessive focus on the bottom line encourages attorneys to cut corners and lose focus on the virtues that underpin the practice of law. This is why the culture of a law firm is crucial not only to the development of attorneys, but to the ability of those attorneys to deliver results for their clients.