Archive for the ‘Law School’ Category

How to be a good lawyer: Keith Lee’s “The Marble and the Sculptor”

Tuesday, November 5th, 2013

The Marble and the Sculptor

Keith Lee

American Bar Association, November 2013, 180 pages, $24.95

 

I don’t like self-help books. They usually contain a single insight, repeated fifteen different ways, and padded out with anecdotes to fill a couple hundred pages. What might have made an excellent magazine article or blog post becomes a dreary monotone of “omg-check-this-out-guys!” hype.

I don’t like books on the practice of law. When they aren’t just plain foolish, written by marketing types who don’t get the concept of a learned profession, they’re banal. And I’m leery of anything written specifically for the “you are special” audience. They tend to skimp on hard truths and practical wisdom.

Keith Lee has written a self-help book for the “you are special” audience, on the practice of law. And I love it.

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Lee’s book is a primer for those just starting out in the profession. And it’s full of sound advice.

Taking his title from a quote by Nobel Prize winner Alexis Carrel — “Man cannot remake himself without suffering, for he is both the marble and the sculptor” — Lee wastes no time in making his point that becoming a good lawyer takes daily diligence, hard work, and a certain amount of self-sacrifice. Being a lawyer isn’t some job you go to, so you can live your real life after hours and on the weekends. Being a lawyer is your life. A certain amount of transformation is going to be necessary.

Fortunately, Lee has sound guidance on just what kind of transformation is necessary. Showing wisdom beyond his years, he lays out precisely the skills, habits and ways of thinking that lawyers need to have.

There is little fluff here. The chapters are short and sweet. He doesn’t repeat himself, but makes his point and moves on. He actually has a lot to say, and he seems impatient to get on to the next bit. This is a good thing.

Of course, you can’t have everything. His focus on concision means less introspection and analysis. He focuses more on the “what” than the “why,” so sometimes his assertions seem a bit conclusory, and at times I felt like I was left hanging. (In one example, for instance, he warns that the commoditization of legal services can become “overwhelming and dangerous” and then moves on, without describing those dangers. It wouldn’t hurt to include a paragraph or two explaining something like high volume efficiencies may work for routine, nonvarying services, but the second someone has a unique situation requiring creativity or thought, you’re setting yourself up for disaster — either you can’t spend the time and resources to give that client the individualized services he requires, or you do but at the expense of your other clients. Maybe in the next edition.)

But this is more than made up for by the good, sound advice that fills page after page of the book. Frankly, there are tons of books out there exploring all the reasoning behind each of his nuggets of wisdom. If you want deeper analysis, you can find it. But if you want a simple, straightforward “what do I need to know? what do I need to do?” then you can’t beat this book right here.

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As I said, the book’s chapters are short and sweet. Rarely more than a couple of pages each. They are organized into four neat sections: Law School, Fundamental Skills, Clients & Client Service, and Professional Development.

The section on law school leads off with a chapter provocatively titled “Do Not Go to Law School.” But don’t let that fool you. Lee is someone who clearly loves the law, and for all the right reasons. He wants you to go to law school, just not for the wrong reasons. The other chapters in that section are full of advice, not so much for doing well in school, but for taking advantage of those years to prepare for a rewarding career afterwards. A major theme in this section is that you probably aren’t as awesome as you think you are, because you’re too ignorant to even realize what you don’t know… so put in the effort.

The section on fundamental skills is meant to set out the rudiments of legal practice, the basic skills every lawyer must have just to do the job (and which must continue to be practiced and improved throughout one’s career). Here, Lee focuses on writing well, speaking well, and dressing well. Although I agree with all three, I probably would have chosen a more comprehensive set of necessary rudiments — Knowledge of the law itself in one’s field, the ability to do thorough research and meaningful analysis, clarity of thought, and the ability to communicate and persuade in writing and orally. These skills underlie everything lawyers do, from drafting a will to negotiating a deal to arguing in court.  I’d be the last to argue that dressing well is not important, but it is not a fundamental skill required for the practice of law. Oddly enough, I’d have preferred this section to be less detailed and more conclusory — the bits on rhetorical devices and the such are necessarily incomplete given the nature of the book, and a more simple “here’s what you need to learn, now go learn this stuff somewhere else” might have sufficed.

The section on clients and client service should be required reading for every new lawyer before being sworn in. The first chapter says it all: “The Privilege of Being a Servant.” We are here to serve our clients, first and foremost. If anything is sacred in this world, it is our duty to those who have put their lives and livelihoods in our hands. And we are honored to be given that duty. But Lee doesn’t just mouth this lofty ideal; he gets into the practicality of actually carrying it out. How the heck do you serve that client? For that matter, how do you get that client in the first place? He does so without trivializing the relationship, or turning it into a salesman’s mantra of leads and conversions. Recognizing the wisdom of others, Lee makes sure to share insights gleaned from others in the profession. (As he says elsewhere, watch others to see what works, and make it yours. He does a fine job of it here.)

The final section actually takes up the entire second half of the book, and shifts away from clients and the profession to talk about you. Your own personal fulfillment. How to succeed as a lawyer. But it’s anything but touchy-feely. The advice here is really about how to be good at what you do. What disciplines, habits, and choices are going to make you awesome — and by extension, make your life as a lawyer awesome? The chapter titles are brilliant (“To Sharpen is to Destroy,” “Personal Branding is Stupid,” “5 Basic Mistakes to Avoid in Your First Job,” etc.) and just reading the table of contents feels inspiring. The thoughts he shares follow through on that promise. Ending with “There Has Never Been a Better Time to Be a Lawyer” and the most essential truth of all “Chance Favors the Prepared,” the reader has to feel ready to run out there and be that great lawyer right away.

So get the book. Read it. Take those nuggets of wisdom and make them your own. Then go out there and be that great lawyer.

Understanding the law

Friday, March 8th, 2013

A lot of the law is extremely formulaic. True, human intelligence is required to spot issues, devise strategies, and (most importantly) persuade decisionmakers. But in its actual application, the law is often little more than a series of IF-THEN decisions. A computer could be programmed to do it. This is just as true of corporate taxation as of advanced constitutional law. A law student could outline those courses with nothing more than a flowchart and do okay on the exam.

Knowing the formula is important. It’s specialized knowledge that you usually have to go to law school to get. But it’s only knowledge. It’s not understanding.

It’s like baking a cake. If you know the recipe, you can go step by step through the process and get a decent cake on the other side. If you don’t know the recipe, you’re likely to wind up with a big mess. But knowing a recipe that works isn’t the same as knowing why it works. It’s not going to help you if your ingredients suddenly change, or something new is added into the mix, or you have to use an oven with a very different temperature. In that case, if you want to make a cake, you’re going to have to understand the chemistry of what’s going on, the effect that the ingredients and how they are combined and the heat and the time have on the final result.

Knowledge is the what. Understanding is the why.

Most students can demonstrate their knowledge on an exam, and they’re lumped together in the curve. It’s the rare students who demonstrate their understanding who get the outlier As, however.

In fact, there are professors out there who will announce to the class that the final exam is going to cover things that never came up in class. Topics that were never discussed. Issues that aren’t in any of the books. The students will have to say, based on their understanding of why the law is the way it is, what the answer in that unfamiliar area ought to be.

These are awesome professors. If you ever get one, cherish the experience. Because you’ve lucked into someone who teaches the why, as well as the what. And you are going to be so much better equipped to deal with the law as it changes.

The law does change. Whatever field you practice in, the law is going to change during your career. If you know where the law is coming from, you’ll have a pretty good idea of where it’s going. And more importantly, whichever way it goes, you’ll get why. You’ll understand it better. You’ll be able to use it better, advise your clients better, persuade a court better.

So how does get this understanding?

What you’re looking for is policy. An underlying philosophy or purpose that explains the statutes and cases. What were the lawmakers and judges trying to do? What was the point of view that drove how they did it?

You’d think this would be easy — just look at the legislative record to see all the arguments for and against, the court opinions spelling out in excruciating detail precisely where they were coming from.

But if you try doing that, you’ll soon learn it’s not easy at all. The stated reasons for statutes, regulations and caselaw are inconsistent as hell. They’re all over the map. And what’s more, people are only human. The reasons we give for our actions are rarely the same as our true, unstated motives. We may not even be fully aware ourselves of the actual policies we’re acting on — most of the time because we haven’t reflected enough to actually know what they are, and so they remain unconscious, subliminal. And our brains are wonderfully adept at justifying after the fact.

So it’s a puzzle. The narrators are not telling you the truth. They’re not lying to you, but they’re not telling you the truth. The trick is to pick out the clues from what they say, from the situations they’re reacting to, from the problems they’re trying to solve, and from (most importantly) what they actually do. It takes a fair amount of insight into one’s fellow human beings to solve this puzzle.

And this is what sets apart the merely adequate law professor from the superstar. The adequate professor makes sure you understand what the various disparate laws happen to be. The superstar gives you an insight that explains them all (or most of them, anyway).

Which way would you prefer to learn them all?

Now, there are lots of ways to explain what’s going on. How do you know which theories are best?

As with any other field of study, the simplest theory that explains the most data is best.

So for example, you might have a ton of cases that seem to be all over the place, if you just take the judges at their word. They seem to be espousing a given principle, but their decisions keep pushing the law in a different direction. That tells you that the real reason isn’t the one they’re saying. Maybe it’s emotion. Maybe it’s a desire for a certain outcome no matter what. Maybe it’s just pandering to a perceived public opinion. Maybe it’s just a backroom deal.

And those surface reasons give you a clue to the unspoken philosophy behind them. In a criminal case where the court is performing some impressive legal gymnastics, it could simply be that the desire to punish this guy is more important than any protections the law might have given him. (That’s the opposite of the rule of law, by the way. A good example of saying one thing but doing another.)

You can also watch as repeated reliance on the spoken, but incorrect, principles leads to bizarre outcomes. The exclusionary rule is a good example, where the courts keep saying it’s about deterring the police from violating your rights, when in reality it does nothing of the sort. The rule is intended not to make the police think twice but instead to ensure that violations of your rights don’t get used against you. And you can see how repeated insistence on its deterrent purpose erodes the rule — because in situation after situation the court recognizes that there is no significant deterrent effect, and so says exclusion wouldn’t matter here.

This kind of thing goes on in almost every field of the law.

The trick to understanding is actually formulaic: 1) Look at the facts and the outcome; 2) Look at the stated justifications; 3) Note any disconnects; 4) Apply your own understanding of human nature, various philosophies, history, culture, etc., determine likely explanations for the disconnects; 5) Select the explanation that explains the most data with the least complexity.

Go on, try it!

Why Are You Here?

Saturday, February 9th, 2013

The other day, the Charleston School of Law was kind enough to invite me to speak to its student body as part of its Professionalism lecture series. My theme was, of course, professionalism in the law. But in the context of why we practice law. If you’re interested, have a look:

 

 

P.S. – If you want to skip the dean’s kind introduction, just go to the 5-minute mark.

Answering Your Most Burning Questions

Friday, December 14th, 2012

Google analytics is a great tool. Among other things, it shows the search engine queries people use to find this blog. Which is a good way of figuring out who its audience is, and what they need to know.

The queries aren’t as entertaining as they are over at Popehat, but then again neither is this blog.

Nor are they all that varied. In fact, just looking at the top 2000 searches so far this month, almost every single one is a variation on a few basic themes. These are the questions people apparently want answered right now. So I’ll address them briefly — very briefly — here.

1. Should I become a lawyer? / Do I have what it takes to be a lawyer?

To answer questions like these, you first have to understand what lawyers do. Once you know that, it should be (more…)

A PhD in Law?

Wednesday, July 11th, 2012

Yale Law School has announced that it will now offer a PhD in Law — apparently the first time a doctoral program in law has been offered in the United States. One can only ask “what for?”

Ostensibly, the purpose of a PhD is to advance human knowledge. You get that degree for figuring out something new, and proving it to the satisfaction of people who know what they’re talking about. At the end of the day, humankind gets a little smarter, and you get to call yourself a doctor of philosophy.

Looked at that way, there’s not a whole lot of room for PhD studies in the law. The law is a manmade thing, not something out there to be discovered, and an unholy number of people make it their business to know all of its various ins and outs. In other words, there’s not much “new” to the law to figure out. The exception is for research into how the law is applied, and philosophical attempts to identify the underlying policies that explain why the law is the way it is. This is what legal scholars already do. They don’t need a PhD to do it. Lowly JD candidates do it when they write notes for their law reviews. Scholars do it when they write books and law review articles. Bloggers do it when they’re not bitching about the job market or SEO. Even amateur cartoons have been known to take a stab at it. There’s just not a lot for a PhD to work with here, and it’s already being done elsewhere.

Of course, that’s looking at it the wrong way. In the real world — particularly outside the hard sciences and mathematics — the PhD is just a prerequisite for a career in academia. If you want to be a professor, you’d better get that doctorate. It’s not about advancing human knowledge; it’s about training to be a “scholar,” however your academic field defines it.

Looked at that way, Yale’s decision makes slightly more sense. The Law PhD would just be one more way of proving your bona fides as a scholar, another way to compete for a job as a tenured law professor. There are far more people who’d like to be a law professor than there are available positions, so the competition is insane. The usual “publish or perish” rules apply here as much, if not more so, than anywhere else in academia, so getting enough articles into some law review or other is one requirement (which explains the proliferation of law reviews that few bother to read — the demand is not for the finished product but for the publication service). But that’s just a starting point. To further weed out candidates, law schools require advanced academic degrees. The J.D. is an entry-level vocational degree, nothing more. They want people with an LL.M in the area of law they teach. More and more, they want people with a PhD in (as the Yale announcement says) “economics, history, philosophy, or political science.” These are what the law is about, after all (and what you should be studying in undergrad — not pre-law — if you want to be best prepared for law school). But a Law PhD is probably not being offered just as another way to prove one’s sholarly ability.

The real reason is probably just supply and demand — and not demand from tenure candidates. The demand is from law school administrators, who want more and more ways to weed out those candidates. Because there are more and more people trying to break into law school academia. There are tons of people with LL.Ms and PhDs from other disciplines. But who has a PhD in law? Nobody. If it existed, it would be a great way to tell which candidates have learned how to be academics, which ones are already “one of us.” Yale is providing schools with a way to be more demanding of professorial candidates, and thus make the school’s job easier (while giving them something more to brag about.) Just as readers aren’t who law reviews are for, the PhD candidates aren’t really who this program is for. They’re not the customer, they’re part of the product.

So let’s make the ivory tower a little higher.  Of course, that will only exclude more people who have actually practiced law. But that’s what adjuncts are for.

Dear Whiners: Shut Up.

Tuesday, November 1st, 2011

 

Hey. Gen-X lawyer here. Could those of you whining about your law schools and sucky job market please shut up? Thanks.

There’s something about the gripes of new and rising JDs that’s not unlike the same bleats we’re hearing from many “Occupy Wall Street” types: It’s the complaint that they did everything they were supposed to, and now instead of getting a living they’re getting fucked. They went to school, took out loans to pay for it, in the expectation that the payoff would be worth it. That there would be a job out there — more than a job, a lifelong career path. A secure income. But that’s not what they’re finding in the real world. The dream jobs aren’t out there — at least not for them. They’re starting their adult lives with an insane amount of debt, and no conceivable way to pay it off. They feel betrayed. They were promised all this, they did their part, and now society isn’t doing it’s part. So they rant online, some take to the streets to complain, and a few have even sued to enforce the deal they thought they’d made.

This is nothing new to those of our generation. When we graduated from college, the job market sucked big time — only the engineering students seemed to be in high demand, much to the chagrin of those of us with History (cough), Art and Philosophy majors. It was pretty bad when we graduated from law school, too — we knew many bright, talented young JDs who had to work as bartenders, online marketers, and the like before landing a lawyer job (and the ones who persisted, by the way, did wind up getting cool law jobs and are doing quite well).

It sucked, but we knew it was coming. We had no illusions about the economy. We didn’t expect Social Security to even be around any more by the time we’d reach retirement. The Baby Boom generation had spent their lives focusing on how awesome they were, and fucking things up for the rest of us, and we knew it very well. A Washington Post article from 1991 began:

Now adulthood looms, like a cookie jar that somebody else already picked clean. Will the busters [the phrase “Generation X” had yet to be coined, we were called lots of things] ever be able to match their parents’ standard of living? The cost of starting out in life — college and a first house — has been racing ahead of inflation and wages ever since they were born. Meantime, adults have rung up nearly $3 trillion in national debt in the busters’ brief lifetimes, virtually all of it on consumption for themselves. The busters will get stuck with the tab.”

Another article from the Atlantic in 1992 (calling us the “thirteeners” — the 13th generation of U.S. history) described us thus:

After graduation they’re the ones with big loans who were supposed to graduate into jobs and move out of the house but didn’t, and who seem to get poorer the longer they’ve been away from home — unlike their parents at that age, who seemed to get richer. …

In them lies much of the doubt, distress and endangered dream of late twentieth-century America. As a group they aren’t what older people ever wanted but rather what they themselves know they need to be: pragmatic, quick, sharp-eyed, able to step outside themselves and understand how the world really works. From the Thirteener vantage point, America’s greatest need these days is to clear out the underbrush of name-calling and ideology so that simple things can work again.  Others don’t yet see it, but today’s young people are beginning to realize that their upbringing has endowed them with a street sense and pragmatism their elders lack. Many admit they are a bad generation — but so, too, do they suspect that they are a necessary generation for a society in dire need of survival lessons.

When they look into the future, they see a much bleaker vision than any of today’s older generations ever saw in their own youth. Polls show that Thirteeners believe it will be much harder for them to get ahead than it was for their parents — and that they are overwhelmingly pessimistic about the long-term fate of their generation and nation. They sense that they’re the clean-up crew, that their role in history will be sacrificial — that whatever comeuppance America has to face, they’ll bear more than their share of the burden. It’s a new twist, and not a happy one, on the American Dream.”

And you know what we think when we hear Millenials whining? The children of those self-absorbed Boomers, who gave them awards just for showing up, who slathered them with praise and “self-esteem” without actually making them do anything to earn it? (more…)

The Legal Profession Needs More Bars to Entry, Not Fewer

Tuesday, October 25th, 2011

On the New York Times op-ed page today, Clifford Winston asks the question “Are Law Schools and Bar Exams Necessary?” The writer, an economist with the left-ish Brookings Institution think tank, answers with a resounding “no.” They only increase the cost of entry into the profession — and thus the cost of legal services — while doing nothing to ensure the quality, honesty and accountability of the lawyers performing said services.

His diagnosis is on the nose, but his prescription is bad. He is right that simply graduating from an ABA-accredited law school and passing the bar are not sufficient quality control. But his solution — eliminating such barriers to entry — is the exact wrong approach. If anything, the barriers to entry need to be higher.

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Law school, as experienced by most law students, is an enormous investment with little application to the actual practice of law. The first year is great for teaching how to spot issues and do the necessary legal research to answer questions, and for instilling core principles that underlie our jurisprudence. But beyond that first year, the time spent in class after class could be better spent in an apprenticeship where one learns how the law is actually practiced — and more importantly, acquiring the experience and judgment required to advise and deal with clients. Apart from the exceptional few who truly get a lot out of their continuing studies as preparation for real life — in particular, those who take advantage of clinical programs — law school after year 1 is a bit of a wasted opportunity for the run-of-the-mill students

The cost of law school is staggering, but only in part because of the requirements of maintaining ABA accreditation. These costs could be trimmed. The law library is the single greatest mandatory expense, what with the required accumulation of endless paper volumes of statutes, regulations, case law, treatises and their myriad pocket parts and updates. It’s a required expense, but not a necessary one, especially as everything’s been available digitally since forever.

Most of the cost of law school is not mandated, but the result of simple supply-and-demand. Tons of people want to go to law school, either to fulfill a calling or to make money or get status or just kill time until they find themselves. The demand drives up tuitions. Add to that the subsidy of student loans, and the price gets driven ever higher. Costs, on the other hand, remain fairly low. Staffing is not an enormous cost, considering. The ratio of students to professors is huge. When you figure 400 students in a section, each paying however many tens of thousands of dollars in tuition, the salaries of the handful of professors teaching them account for a minor fraction of it. Because of this, and the apparently endless supply of prospective students, law schools are a veritable cash cow — which is why so many have popped into existence in recent decades.

One byproduct of all these new law schools is a dilution of the quality of legal education, and thus the quality of many graduates with a JD. This is not to denigrate those with degrees from lower-tier schools, many of whom provide better services than some top-tier grads after gaining greater experience in the trenches. But whenever someone complains about “too many lawyers,” what they’re really complaining about is “too many bad lawyers.” Making it harder to get into law school, and then making it harder to actually get one of those JDs once there, would weed out many of the incompetent and misguided before they can do any damage to a real client.

The solution is not to abolish law school, but to make it harder and more relevant. Change the accreditation standards away from expense for its own sake (which, like several other such ABA standards like those for evening students, are actually holdovers from an earlier time when they existed to discourage minorities and those who needed to work for a living from joining the profession), and instead make the accreditation turn on selectivity of admissions and the quality of education provided. Require clinical courses (another astronomical expense, but one which makes sense). Require a uniform grade curve, so that performance can be measured accurately across multiple schools. Require practical courses alongside the general and theoretical, especially in the second and third years. Require more rigorous training in practical ethics, not just the bare-minimum survey everyone’s been doing since the ’70s.

Don’t eliminate the barrier; make it meaningful.

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With respect to the bar exam, as we’ve said before, nobody in their right mind believes (more…)

You’re Smart Enough to Graduate Law School, Are You Stupid Enough to Sue It?

Friday, August 12th, 2011

Courthouse News reports that “a $200 million class action claims the New York Law School misrepresents post-graduate opportunities for lawyers and subjects ‘the overwhelming majority’ of its graduates to ‘years of indentured servitude’ after ‘saddling them with tens of thousands of dollars in crushing, non-dischargeable debt that will take literally decades to pay off.’ ”  The plaintiffs accuse their school of “a systemic, ongoing fraud that is ubiquitous in the legal education industry and threatens to leave a generation of law students in dire financial straits.”

Oh, for crying out loud.  This again?

Look.  Nobody forced you to go to law school; it was your own choice.  Nobody forced you to go to that particular school; it was your own choice.  Nobody forced you to take on more debt than you could reasonably afford; it was your own choice.  After your first year, and it became clear that someone with your grades from your school wasn’t likely to be making the big bucks, nobody forced you to keep going and to take on even more crippling debt.  It was your own choice.  You were a college graduate, an adult, presumably capable of making your own life decisions.

The school did not “saddle” you with debt.  You did it to yourself.  And now you regret it.  Frantically trying to blame anybody besides yourself for your own foolish decisions only makes you look… well… foolish, at best.  At worst, it’s almost like the girl who regrets her drunken orgy and accuses her fellow partiers of gang rape.  Either way, you certainly don’t come off as someone with the requisite judgment and brainpower to make it as a lawyer.  Are you sure it’s the school’s fault you’re not making it on the outside?

Here’s some more from the complaint:

[The] school consigns the overwhelming majority of them to years of indentured servitude, saddling them with tens of thousands of dollars in crushing, non-dischargeable debt that will take literally decades to pay off. New York Law has done this while blatantly misrepresenting and manipulating its employment statistics to prospective students, employing the type of ‘Enron-style’ accounting techniques that would leave most for-profit companies facing the long barrel of a government investigation and the prospect of paying a substantial civil fine. These deceptions are perpetuated so as to prevent prospective students from realizing the obvious – that attending NYLS and forking over nearly $150,000 in tuition payments is a terrible investment which makes little economic sense and, most likely, will never pay off.

Specifically, NYLS, through both its print and internet marketing materials, commits two basic written, uniform misrepresentations. First, the school during the class period claims that the overwhelming majority of its graduates – roughly between 90 and 95 percent – secure employment within nine months of graduation. However, the reality of the situation is that these seemingly robust numbers include any type of employment, including jobs that have absolutely nothing to do with the legal industry, do not require a JD degree or are temporary or part-time in nature….

Second, NYLS grossly inflates its graduates’ reported mean salaries, by calculating them based on a small, mostly self-selected subset of graduates who actually submit their salary information….

There are so many things wrong with this.

The biggest problem is that, if you really were defrauded, then you had to be basing your decision on whether to go to this particular law school based in large part on how much money its graduates make.  If that’s not true, then none of this is material enough to be fraudulent.  Fraud basically means that, but for the misrepresentation, you wouldn’t have spent the cash.  If that is true, then you have no business being a lawyer in the first place.  You’re in it for the money, and don’t belong here.  You selected this law school not because you thought it would help prepare you for a life of service, but because you thought you’d be able to get “a job” and make “good money.”  Those are the wrong reasons, entirely.

Even if one were to concede that these were material considerations to the plaintiffs in this case, it is hard to imagine that anyone would have thought they really were all that material.  Would law schools really think their students are so mercenary that the main reason why they chose one school over another was the average alumnus salary?  That’s absurd on its face.  But it’s a prerequisite of the complaint.

And where is the deception, in the first place?  The complaint does not say that the school made up numbers out of thin air.  They only allege that the school honestly reported information which the plaintiffs then misconstrued.  Perhaps one could throw the plaintiffs a bone and say post-graduation employment figures would reasonably be expected to refer to legal employment.  But the salary information was what was reported.  There is no deception in reporting the numbers they got.  The school did not “inflate its graduates’ reported mean salaries” — it simply revealed them.

From what’s been reported — here and elsewhere — there just doesn’t seem to be any merit to this case.  We don’t see how it could possibly survive a motion for summary judgment.

As a work of chutzpah, however, it’s pretty good.  It’s not the same as killing your parents then seeking mercy because you’re an orphan, but saying your school owes you a fortune because you shouldn’t have chosen to go there?  It’s up there.

On the Usefulness of Law Reviews

Friday, August 12th, 2011

Okay, see that XKCD cartoon up there?

That’s not how law-school academia works.

Law school academia is more like this:

It’s not exactly news that law review articles don’t carry the same weight in their relevant field as, say, scientific papers published in a peer-reviewed journal.  Ask any practicing lawyer how many law reviews he subscribes to, and the answer is likely to be “zero.”  Ask any practicing lawyer how often he cites law review articles in his motions or briefs, and you are likely to hear either “seldom” or “never.”  Ask any practicing lawyer the effect that law review articles have on the practice of law and the advancement of jurisprudence, and he is likely to laugh condescendingly.

It’s not exactly news, but it’s something people have been talking about this summer, after Chief Justice Roberts disparaged the usefulness of legal scholarship at this year’s Fourth Circuit Judicial Conference.

Pick up a copy of any law review that you see, and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th Century Bulgaria, or something, which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar.

Law professors, of course, rushed to defend the relevance of their articles.  But pointing out that occasionally a law review article might actually get cited in a footnote, to support an argument that was already being made, isn’t quite the strongest defense of relevance.

And it’s foolish for legal academics to make such a defense.  Nobody expects them to believe their articles are relevant to actual legal practice any more than one would expect a postmodernist paper in an academic literature journal to be relevant to the publishing industry.  Academia and the real life it studies are rarely the same thing.

And it’s foolish for legal academics to even imply that their writings ought to be useful to practicing lawyers.  There are only two kinds of law review articles that are of any use whatsoever to lawyers and judges:  One is the summary or survey of an area of law as it actually is right now this very moment.  The American Criminal Law Review‘s annual survey on white-collar crime is a good example, and there are a fair number of brief summaries of more discrete areas of law as well.  The most useful of these are the ones that deal with areas of law that are in flux, describing recent changes, which can help the practitioner or judge test the wind to see which way things are trending.

The second kind of useful law review article is the kind that doesn’t so much restate the law as explain why it is the way it is.  These are more rare, but can be very valuable for those trying to make a policy-based argument.  A well-done article of this kind takes all the disparate decisions out there and tries to provide an underlying policy that explains most of them.  Such a thesis is useful when dealing with an area of the law that is changing, or that one is arguing ought to change.

These useful articles are not useful as something one would cite as part of one’s primary argument.  If cited at all, it would be in a footnote.  Their value is not as an authority to be cited, but as a guide to help focus or expand one’s own thoughts.

But such articles are few and far between.  The overwhelming bulk of law review publications are of little to no use to anyone besides the author.

This is because law review publication does not serve the same purpose as other kinds of academic publication.

-=-=-=-=-

Law reviews serve two purposes: One is to provide an outlet for career academics to publish something — anything — in order to achieve tenure.  It’s a pointless exercise, as the quality of one’s articles is of no importance; it is the fact of publication that is important.  Having been published often, and recently, is all that is needed to put a check mark in the right box.

The fact of publication is itself no guarantee of the quality of scholarship, that’s for sure.  That’s because of purpose number two: To give better law students a way to further distinguish themselves.  We do that by having law students pretty much run the show.  Students select which articles are published.  Students do the fact-checking, making sure the cited sources actually say what the author claims.  Students check the grammar, spelling and bluebooking.  It’s a lot of work, and shows that one has the ability to juggle responsibilities beyond one’s caseload, and shows an aptitude for the kind of work often assigned to young associates, so it’s fairly prestigious and rightly so.  But it is not peer review, and it is no guarantee that the articles themselves are any good.  Grammar and cite-checking are not the same as substance.

Neither of these purposes is to provide a useful product for practicing lawyers and judges.  So because it is not their purpose, it doesn’t really make sense to knock them when they fail to do it.

-=-=-=-=-

Still, wouldn’t it be nice?  You know, if legal scholars were given tenure based on actually contributing something to our jurisprudence?  If it was the rule, rather than the exception, for law-review articles to be useful summaries of the law or explanations of the unnoticed policies that explain why the law is and where it is likely to go?  Then perhaps one might see them being cited a little more often.  Being read by someone not involved in the publication process.  Making a difference.

Don’t you want to make a difference?

Answering Your Most Pressing Questions

Saturday, July 16th, 2011
Real nice, Google.

Because we were bored out of our skull this afternoon, we checked this blog’s stats on Google Analytics.  Browsing through the various keywords people have used to find this blog over the past year, all we can say is “The hell is wrong with you people?”

Leaving aside the freaks and weirdos (and possibly some of their clients), however, it seems that most people find this blog by asking Google the same handful of questions.  The number one search engine query that get people here, every month this year, is something along the lines of “why become a lawyer.”  Number two includes variations on a theme of “can a cop lie about whether he’s a cop.”  The top five are rounded out by queries about what crimes Goldman Sachs may have committed, connections between Adam Smith and insider trading, and what one should say to a judge at sentencing.

We’re not sure that we’ve actually discussed all of these topics here.  Then again, we might have, and just forgot it (which is a distinct possibility — these posts are all written in a single pass, without any real editing, and usually are not given another thought once they’re posted.  If you ever wondered what “ephemera” meant, you’re looking at it right now.)

Still, in the interests of alleviating our boredom public service, here are some quick answers to our readers’ most pressing questions:

1. Why Should You Become a Lawyer?

Because you feel a calling to serve others.  Because you want to make a difference in the lives of others.  Because you are genuinely interested in the rules by which human society functions, why people behave the way they do, and the policies and interests underlying it all.  If those are your reasons, then you belong.

Not because you want to (more…)

Where will all the extra lawyers go?

Tuesday, June 28th, 2011

 

The New York Times had an interesting data crunch yesterday called “The Lawyer Surplus, State by State.”  Economic consultants EMSI estimated how many new jobs for lawyers there are going to be each year, in the near future, in each state.  Then they used the actual number of bar exam passers each state had in 2009 to figure out how many new lawyers would be competing for those jobs.  The results were worthy of remark.  Every single state except for Nebraska and Wisconsin is projected to produce more new lawyers than lawyer jobs.  (D.C.’s data was included, but isn’t comparable, as most simply waive in there.)

The results are worthy of remark, but they are hardly surprising.  Back when we were in law school in the mid-’90s, it was “common knowledge” (if uncited) that America had “more law students than lawyers.”  We recall reading that there was a surplus of lawyers back in the ’80s.  We wouldn’t be surprised if the same things were said in the ’70s and even before we were born.  And we’d expect to keep hearing such things for as long as the profession endures.

The number of lawyers at any one time, however, is probably just about right.  It’s simple supply and demand.  A practicing lawyer is only practicing because his services are demanded by someone.  If there is no demand for all the lawyers out there, market forces will ensure that the excess supply finds themselves pursuing other careers — whether they want to or not.  When people say there are “too many lawyers,” they usually mean “too many bad lawyers.”  (Which leads us to wonder how come you never hear that about other professions or occupations?  Nobody ever says there are too many doctors, or too many electricians, though surely there must be too many bad ones out there.)

But “too many lawyers” has a different meaning when spoken by law students and freshly-minted lawyers.  It means there are not enough jobs out there for everyone who’s going to be passing the bar.  Again, it’s a refrain we’ve heard before.  When we graduated from law school, just before the dot-com boom, we knew plenty of smart capable young lawyers who had a real hard time finding a job.  Everyone was bitching and moaning that people were racking up all this debt with no means in sight to pay it off.  Ditto a few years later when that bubble burst.  And now some years later when the finance bubble burst.  The only difference we can see between then and now is that these days the students and graduates are trying to blame everyone (except themselves) for their bad luck.  As we discussed a couple of posts ago, all that happened was a long-term shift in the demand curve, to which the profession reacted late and to which the law student population has yet to react.

Because young adults continue to flood into law school.  There’s been a bit of a dip here and there this year, but the numbers are still strong.  So it makes us wonder what’s going to happen to all of them as they enter a market that has no room for them.

The EMSI numbers seem reasonable.  They predict a nationwide surplus of more than 27,000 young lawyers each year for the foreseeable future.  We’re not talking about people who didn’t make the cut, people who went to law school but washed out.  We’re talking abotu JDs who actually passed the bar, and still won’t have a job waiting for them.

What are 27,000 surplus lawyers going to do each year?

Some of them will hang out their own shingle and (more…)

Is Law School Right for You? Ask Yourself 5 Simple Questions.

Wednesday, May 25th, 2011

 

The law is an amazing profession, but it’s not for everyone.  In fact, it’s not for the vast majority of people.  And when it’s not a good fit, the downside is awful.  Mismatched lawyers are miserable.  Their lives can really suck.  They may be very good at what they do, but it’s not particularly fulfilling.  Or it’s too time-consuming, preventing them from doing the other stuff that would be fulfilling.  Maybe they can’t stand dealing with other lawyers.  And if they’re not very good at what they do, their clients can suffer far far worse.

But for those who belong here, the law is a wonderful place to be.  It challenges the intellect, inspires ideas, and gives you a chance to really make a difference.  And that is huge.  It doesn’t matter what kind of law you practice; you’re dealing with real people, with real lives, and you’re helping them with a real need.  A life in the law is deeply fulfilling, and a life well spent.

Unfortunately, most mismatched lawyers don’t figure it out (if ever) until far too late, when they’re already practicing.  Some cut their losses and start a new career.  But most don’t.  Maybe they’re in a large law firm and just hate it, but can’t leave the paycheck.  Maybe they feel they’ve invested too much of their lives in law school and advancing through the profession, and so are unwilling to chuck it all and start over doing something else.  Maybe they sincerely can’t think of anything else to do.  And they wind up getting more and more miserable.  It’s no wonder that alcoholism, depression and divorce are rampant among lawyers.

The best time to figure it out, of course, is before going to law school.  Some people wisely drop out (or, thankfully, wash out), but that’s rare.  No, once a mismatched lawyer is admitted to law school, the odds are they’re going to stick it out and become a sinkhole of misery.  Far better to have turned away and pursued a more fulfilling life before ever going to law school in the first place.

But how can you tell if the law’s going to be a good fit for you?  It’s tough, if you haven’t tried it out first.  Whether you’d be happy or not is all hypothetical until you start working.

Fortunately, you know yourself pretty well.  Nothing hypothetical there.  If you’re honest with yourself, you know what traits you have and don’t have.

And fortunately, we’ve known plenty of other happy lawyers, and had the chance to observe what traits we all seem to share.

So if you’re wondering whether you ought to go to law school, you might want to ask yourself a few very simple questions:

-=-=-=-=-

1.  Do you want to be a lawyer?

If the answer is no, then you shouldn’t go to law school.  Sure, lots of people say it prepares you for other kinds of work, and trains your brain to do marvelous things.  But if that’s all you want out of it, go take some continuing ed courses in History, Philosophy and Economics.  A rigorous study of History will give you the same issue-spotting, researching and detail-checking that you’d get from law school — probably better.  Philosophy will certainly give you a better grounding in logic, analysis, and reasoned argument.  And Economics, along with the other two, will give you enough grounding in how people actually work, and why they do what they do.  There is nothing else that law school teaches if you’re not planning to be a lawyer.

Law school serves a single function: it is a (more…)

Why Become a Lawyer?

Monday, December 13th, 2010

In today’s environment, where law schools are churning out way more lawyers than the market really wants, plenty of law students and recent grads are wondering if it’s really worth it.

We’re asked this question, in various forms, all the time.  And we see it asked every day on various internet fora.

Our answer is always a resounding YES! …if you’re going into law for the right reasons.  It’s worth it.  Oh yes, it surely is worth it.

Now, if you’re going into law just for a nice paycheck and some prestige, you’re doing it for the wrong reasons.  And it’s probably not worth it unless you’re so smart and accomplished that you can be hired by a big firm (and yet not quite bright enough to figure out that, except for a few awesome firms, doing so is essentially trading your life for a living, and putting off any further accomplishments for the next several years).  If you’re not already a superstar at what you’ve been doing with your life thus far, odds are you’re not going to morph into one during law school.

And if you’re doing it because you can’t think of anything else to do, it’s so obvious that you’re doing it for the wrong reasons that it’s a waste of space to even explain it here.

So what are the right reasons?

It’s going to be different for each person, because the right reasons are always personal.  It’s something about you, who you are, what purpose you want your life to have.  But if you’re doing it for the right reasons, you don’t have to be the smartest person in the room.  You don’t have to graduate in the top third of your class at a top-tier school.  All you need to do is bust your ass in school to master the material and learn how to think like a lawyer, then bust your ass once you’ve got that JD and make sure you goddamn well fulfill your purpose.

Again, the reasons are going to be different for each person.  We can’t describe what the right reasons for you might be.  But we can tell you what our reasons were.  Maybe that will help illustrate what we’re talking about.

-=-=-=-=-

Why did we go to law school?

Two words: Frank Johnson.

Most of you have never heard of the guy.  He’s not in the (more…)

The Law Students’ Lament

Monday, November 15th, 2010

For a while there, it seemed like not a day went by without us reading of some firm or other laying off a mess of lawyers.  Things have changed.  Now, it seems as if not a day goes by without us reading of some law student getting upset at the dearth of law jobs out there.  It was bad enough hearing about the lawyers losing their jobs, but the students’ complaints are somehow more upsetting.  And not for the reasons they probably think.

Reading about the firm layoffs, day after day and month after month, evoked some real sympathy for our (mostly) transactional colleagues whose niche was no longer in so much demand.  But it wasn’t all that distressing.  The positions being eliminated had been created to satisfy the needs of a ballooning financial industry, and when the balloon popped, the elimination of those jobs was a rational correction.  Not pleasant, but not distressing.

What is distressing is reading the law students’ lament that there are no jobs waiting for them, that the jobs out there don’t pay enough, that they got saddled with all this debt with no way to pay it off, that the lives of young lawyers are miserable, and somebody (besides the students themselves, of course) must be to blame.  It’s upsetting — not to hear how bad they have it — but to think that so many of these people are getting ready to enter our profession.

To put it bluntly: they are not wanted here.  It only takes a moment’s thought to realize that, if they were wanted, then there would be a place for them.  But the ones complaining loudest seem to be the one who did the least research before deciding on law school, so perhaps they haven’t done this bit of thinking either.

They are not wanted here, because there is no (more…)

The Rules of the Game

Friday, September 17th, 2010

 

Note to incoming first-year law students:  The law itself is not terribly difficult.

We lecture to schoolkids from time to time, and they seem to get the concept pretty easily when we explain that the law is nothing more than the rulebook for how to play the game of real life.  It’s not much different from the rules of Monopoly or Sorry or Candyland — there’s just more of them.  Rules can sometimes be stupid or unfair, but they’re still there, and you still have to play the right way.  To learn the law adequately, all one needs to do is learn the rules for a given subset of human behavior, and that’s pretty much it.  If you want to learn the law really well, you also learn the policies behind the rules, so you can  better understand what a given rule is trying to do, and better predict how the rules might change.  The role of a good law professor is not only to teach you what the law is right now, but why it is that way, and what policy seems to explain all those seemingly varying cases out there.

And though the law can be an ass, for the most part it’s straightforward common sense.  Don’t hurt someone else for no good reason.  If you want to drive a car, you have to have some basic abilities before you’re allowed on the public roads.  If you want an enforceable security interest, you need to do the civilized thing and file your lien so the rest of us know about it.  It really is basic.

And most of the time, the policies behind the law are the same ones we learned from our parents.  Take self defense — our folks taught us the same lesson that generations of parents have taught their kids about what to do if a big kid’s trying to hurt you:  First, tell the kid to knock it off.  If that doesn’t work, leave.  If that doesn’t work, get a grownup.  If nothing works, however, hit the kid back… and don’t stop hitting till he can’t hit you any more.  None of our forebears had any legal training, but that’s pretty much what the law says too.  It’s just common sense.  Don’t make a bad situation worse if you can avoid the situation in the first place, but you’re allowed to protect yourself and eliminate the threat if it can’t be avoided.

So the law isn’t very difficult.  It can be complex, and it can be voluminous, but that only makes learning it time-consuming.  Time-consuming is not the same as hard.

We noticed this in law school.  The students who did best were not necessarily the brightest, but were instead (more…)