It's All About Evolving

Clarence Barry-Austin misses the in-person interactions with clients. Wayne Positan is concerned about lost opportunities for collegiality in the legal community. Jack Fersko laments the rising costs of litigation.
For our 20th anniversary issue, we spoke to six attorneys who have spent 20 consecutive years on the New Jersey Super Lawyers list. We asked them to ponder those last two decades of law: positives and negatives. Most have observed plenty of both, and learned a few lessons along the way.

What has changed in your practice over the last 20 years?

Wayne J. Positan, Lum, Drasco & Positan; Roseland; Employment Litigation: About 25 years ago, I was the editor-in-chief of the book New Jersey Labor and Employment Law, and I predicted that the biggest challenge for the next 20 years in my field would be an employee’s right to privacy. Well, social media, technology and now AI became monsters, and what’s privacy law anymore, anyway? The dramatic changes in technology have changed our practice in a lot of ways—in taking discovery, preparing for trials, and even having basic interactions such as meetings and hearings.

Karol Corbin Walker, Kaufman Dolowich & Voluck; Hackensack; Employment & Labor: Over the years, I’ve practiced in different areas, including pure environmental work, products liability, toxic tort. I’ve done business and commercial litigation. My practice now is more focused on employment defense work and commercial business litigation.

Patricia M. Barbarito, Einhorn, Barbarito, Frost & Botwinick; Denville; Family Law: The divorce practice has changed significantly. There is more alternate dispute resolution, which means that, as lawyers, we have to focus on being strategists and strategizing cases to resolve them. Twenty years ago, more cases were tried. We still need to know how to be trial lawyers, and that’s a skill that continues to have to be honed by young lawyers. When I started out, it was necessary to be in the office six days a week. But because of technology and innovation, lawyers work as hard, but they work differently. That’s taken some getting used to, but I think that’s a positive thing. Because of my generation of lawyers, I believe, the practice has evolved to permit some boundaries and some balance. And I think that’s a positive change. Nothing makes me happier than being with younger lawyers and gaining their perspective and their insight.

Clarence Barry-Austin, Law Offices of Clarence Barry-Austin; South Orange; Personal Injury General – Plaintiff: Technology has changed the way we do almost everything. There are the negative ramifications—like the fact that I rarely meet clients in person anymore, something I think is important. Now people don’t want to travel, so most of our meetings are over Zoom. On the positive side, however, online webinars have greatly increased educational opportunities and professional development for lawyers. On the legislative side, recent New Jersey legislation increased minimum automobile insurance liability limits from $15,000 per person/$30,000 per accident to $25,000 per person/$50,000 per accident. Those limits will increase further in 2026, to $35,000 per person/$70,000 per accident. Those are significant changes, because the 15/30 minimums have been in place for more than 20 years.

Jack Fersko, Greenbaum Rowe Smith & Davis; Roseland; Real Estate: It used to be you had a transaction, you sat in a room, you negotiated the deal. You may have marked up by hand an agreement and photocopied it, initialed it, signed it. Now it’s rare that you’re ever in the same room with the other side. You would sit and you would chat before the meeting, or after, and you got to know your adversaries. [Also,] I started out doing basic real estate work, and then, with the advent of what is now the Industrial Site Recovery Act, every transaction in the types of deals that I do is heavily impacted by environmental considerations that, just 20 years ago, people gave very little consideration to.

Shirley Berger Whitenack, Schenck Price Smith & King; Florham Park; Elder Law: There has been a downtick, if you will, in collegiality, and I hear that many attorneys have complained about that, but that has not been my experience. Sometimes dealing with the next generation of lawyers is somewhat of a challenge, because they are more interested in work balance than I ever had the opportunity to be. When I started out, I had two young children. I didn’t announce, “I’m going to see the school play” or “I’m going to watch my child at a game,” or “I want to work remotely.” It behooves the older generation to understand that we can’t change the mindset of millennials. We’ve just got to adapt to their way of doing things.

How have you changed in 20 years?

Barry-Austin: Well, 20 years ago, I was more driven. Now I’m a lot more relaxed. I work fewer hours; I take fewer cases. That’s not just a factor of 20-plus years in practice, but just being 20 years older. Now I place greater focus on my family and my spiritual life. I guess I’m reviewing my life and realizing that there are a lot more years behind me than ahead of me, and trying to do some more nonlegal things. For example, I picked up golf. I’m exercising a lot more. And I’m enjoying being around my grandchildren.

Walker: I’ve changed as a lawyer because of the experience I’ve garnered over the years, the cases I’ve handled, the learning I’ve acquired on how to handle myself in certain situations. I haven’t changed as a person. I see people that I grew up with and they’re like, “Oh, Karol, you’ve never changed.” I’m like, “Well, why would I?”

Fersko: I would say that I’ve become more comfortable with saying, “I don’t know.” It’s not the end of the world to not know, and in this world of immediacy, it’s OK to not have an immediate answer. I’ve also become a better listener. I think lawyers are equipped with this mentality that, as soon as the other side takes a breath, you jump in and start talking.

Positan: I’ve had to adjust to this instantaneous world of “I need answers and communication now.” I miss the levels of collegiality, and worry about those missed opportunities for lawyers, particularly new to the practice, to meet others and to observe how we used to do things. You would just walk into somebody’s office around the old water cooler and say, “Hey, I have this problem.”

Barbarito: First of all, the people I started this firm with are retired. We were three lawyers when I started—20 lawyers 20 years ago, and 40 now. Personally speaking, 20 years ago I had young children. Within that same span, my marriage ended. I raised my children without any support. My entire life changed, and I reinvented myself. If you don’t move forward, you die, right? I started a podcast after COVID to continue the reinventing: Heartbreak & Hope with Pat Barbarito.

What’s the biggest lesson you’ve learned in the last two decades?

Barbarito: I’ve learned that I have to evolve. I’ve learned that listening to others and their ideas is important, which is hard when you think you know better. I’ve learned how you make people feel really matters more than anything. And sometimes, showing compassion and strength is the most important thing you can give your clients. Twenty years ago, it was very important for me to uphold my “Christmas card life.” Since then, I’ve learned it’s OK to be vulnerable.

Fersko: Be very candid with your clients. Sometimes you need to not only tell them what you think, but also impress upon them why you think they’re doing something that’s not in their best interest.
Walker: Try to give people who may rub you the wrong way the benefit of the doubt, because you never know what people are experiencing or dealing with. When I was a young lawyer, I was more reactionary. When you mature in the law, you have a tendency, at least I do, to step back and look at the big picture.

Barry-Austin: If you work hard enough, you will be sustainable. I’m a solo guy. I worked my first eight years as in-house counsel to an insurance company, but from that point on, it’s just been me. I consider it a real accomplishment that I’ve been able to maintain my practice for so many years—and been able to do it on my own terms, and still have a good quality family life.

What do you think the next 20 years of law will look like?

Barbarito: I think we’ll see more alternate dispute resolution. I think the court system is failing us in many ways because of resources, time demands, volume.

Positan: Artificial intelligence, hands down, will be a major issue. What are you going to do in terms of researching a case, investigating a case? What’s acceptable, what’s not? How’s it going to affect hiring and who’s in the profession? What are the limits that we as a society, or we as lawyers, are willing to create in the interests of our creature comforts and the very positive things that technology has brought us, versus the intrusion on our lives that it is capable of doing? It’s also a challenge to the rules of professional conduct. My great concern is how privilege is going to be affected—and what your responsibilities are with regard to who does the work and how it’s supervised.

Fersko: I think we’re going to see people looking to commoditize the practice of law as much as possible. You’re seeing accounting firms coming in to take over doing what lawyers have traditionally done, whether it be estate planning work, litigation support, a host of areas where accountants and other consulting groups are coming in. I think artificial intelligence is going to have a significant impact, which, conceptually, is pushing toward commoditizing the practice.

Walker: When we look at where we’ve been and where we need to go, we have made progress in the law. However, there’s still so much more to be done in terms of diversity, and I hope the next 20 years brings about needed changes. Many years ago, back in the ’90s, I would say there were many more Black partners at firms. Those numbers have dwindled to an anemic amount.

Whitenack: AI is something that we’re all going to have to deal with. My firm just came up with our official AI policy, certainly something I never thought we’d have to do. We want to make it very clear that you can’t use AI, for example, to write a brief. It cannot be a replacement for legal research.

You’ve got a magic wand that can bring change in the law. What will you do to advance the next
20 years?

Walker: I would immediately rectify the salary pay gap between men and women lawyers.

Positan: I would pass legislation that requires every judicial vacancy to be filled within 90 days to solve what has become an endemic problem of the shortage of judges. This continuing problem interferes with the efficient administration of justice and the rights of our citizens to have their cases resolved.

Whitenack: I’d like to see more judges, and I’d like to see more judges who are trained in the areas that they will be presiding over. Right now, in my world, in the probate part, for example, there is a tax court judge in one county who handles guardianships via Zoom in another county.

Barry-Austin: It would be elimination of the verbal threshold law, which limits the right of a person injured in an automobile accident to recover damages for those injuries unless the injuries fall within certain defined categories. The application of the law is triggered by the injured person’s policy selection. The consequence of that policy selection is rarely explained to the policyholder at the time of purchase.  

Barbarito: If I could make one change right now, it would be to the procedural and systemic issues confronting litigants and the appointment of judges. Litigants’ access to the courts in a timely manner with experienced, capable judges has been a challenge, resulting in many divorce cases that exceed the
length of the marriage.

Fersko: I think that the cost for the ordinary person to litigate is extreme. I’d like to see the litigation process be less costly, and I would like to see the public’s perception of attorneys change along with it.

Your best advice to the attorneys who come next?

Positan: Be ethical and civil at all times. Secondly, always understand your facts in the beginning and think about how some third party sitting on a jury someday might view them. That’s how I analyze every case.

Whitenack: If people want to be partners, they need to act like partners. They need to dress like partners. They need to think about how partners act. People have to adapt the style that works best for them. They can’t just become someone else, but they should certainly seek out mentors.

Barbarito: That there is sacrifice in a long-term career. If immediate gratification is what you expect, that’s not something that this business will give you.

Fersko: It’s important, as you go through the practice of law, to give back to the practice. I do a fair amount of writing and speaking. I also think it’s important for younger lawyers to guard their reputation. Clients may push you in one direction, and if you’re not comfortable with it, it takes a lifetime to build a reputation and only a moment to destroy it.

Barry-Austin: Learn your craft early, and learn it well. In my early years, I spent a lot of time learning the court rules, learning the relevant cases, learning the rules of evidence. Also, the study of law is a lot different than the practice of law. When you’re studying in law school, that’s all abstraction. When you come out here and you’re actually practicing, you’re dealing with people, not abstractions.

Walker: Be your authentic self. But, like a former judge used to say, “Unless your authentic self is a jerk.”