Category Archives: Law School

Should Young Lawyers Specialize?

"One word . . . plastics." -The Graduate

“One word . . . plastics.”
-The Graduate

I never for a moment thought about pursuing a career as a transactional attorney. I entered law school for the wrong reasons. I knew I could think, write and argue reasonably well. I was a liberal arts major (Philosophy and Literature-Writing) and did not really appreciate how such skills could translate into success in the business world. And I did not think I would enjoy a career as an educator.

So, I did exactly what I would urge no one do today: I took the LSAT, got into law school, and went to law school, without having any particular passion about the law.

If anyone had asked back then–and I don’t think anyone did–what I planned to do with that law degree, what area I’d practice in, what I wanted to do everyday, if and how I would make a difference, I wouldn’t have had a clue. When I was interviewing and starting my career, there were vastly more jobs in litigation, so I became a litigator. I started out doing insurance defense, but not the interesting kind, and immediately grew bored with fender-benders (“Was the light red or green?”) and slip-and-fall lawsuits (“Was the banana you slipped on yellow or green?”). Fortunately, I got hired right away at a boutique firm that did more interesting work (at least from my perspective). I quickly became a “specialist” in automotive product liability litigation, specifically suits relating to the performance of automobile air bags, which was an emerging technology at that time.

I remained a “specialist” in this area, with a smattering of other kinds of cases, for about the first 10 years of my career. However, I eventually figured out that, deep down, I’m not really a gear-head, and it shouldn’t be a big surprise that the lawyers who really excel in automotive product liability litigation, and who most enjoy what they do, are those who are interested in cars. Well, duh!?!

I eventually migrated to employment law for a number of reasons. First, and most practically, it was the only area that I was able to get any early traction in terms of developing my own clients. Equally important, however, being the opposite of a gear-head, I found I enjoyed disputes that arose out of (often flawed) interpersonal relationships in the workplace. Also, I had long felt that employment law was fertile ground for building a book of business, since every, EVERY employer, particularly in California, needs an employment lawyer. If they haven’t needed one yet–they will!

I had not intended this post to be a memoir. I recognize that my career path probably makes dry reading. But I wanted to tackle a topic that I think is important for law students, recent graduates and those still in the early years of their career: should you attempt to specialize? Like most people, I’m narcissistic and can only approach a personal question by starting from my own experience.

In any event, I posed this question to someone who has a fair amount of expertise in helping lawyers make the most of their legal careers. Gideon Grunfeld, the President of Rainmaking For Lawyers, was gracious enough to provide this valuable insight:

“Too many lawyers get shortsighted advice about whether they should specialize and what that means. There are substantive areas, such as tax, ERISA, and patents, where specialization is almost a necessity. But there are many areas, such as business litigation, where specialization can be counterproductive. Rather than focusing on the substantive nature of the law and, for example, specializing in trade-secret litigation, it’s better to encourage young lawyers to identify the clients they most want to serve. Thus, for example, if someone has a passion for high-tech start-ups, they can focus on cultivating relationships in that world and position themselves to solve the full panoply of legal issues that arise for that market or audience. For most young lawyers this is a more robust not to say more fun way to practice law and build a client base.”

I tend to agree with Gideon’s advice. I like the notion of letting one’s specialty develop organically. In my case, it developed because someone close to me gave my business development efforts a big jumpstart by referring employment cases my way. I found I liked it and wanted to pursue it further. This is pretty much the opposite approach from deciding I wanted to practice entertainment law because I like to go to the movies (which I do).

What I would really caution against is remaining in a practice that never brings you any thrills. Even though I’m not a gear-head, there were parts of my products liability practice that I found compelling. I recognize that this is not the market for young lawyers to quit a job on a whim. On the other hand, there is nothing wrong with developing a mid or long-term career plan to move away from an area that brings you no joy, with the hope of finding something more fulfilling. If I was still fighting cases about people who tripped on a public sidewalk, I’d have to open a vein. But that’s just me.


American Lawyer, Eastern Mindset

MarbleandtheSculptorcover-683x1024I have long found much to admire about Keith Lee’s writing in his well-regarded Associate’s Mind blog. His voice is intelligent, but accessible. His tone is informed, but not condescending. His consistent message about the state of our profession is tough, but not without optimism.

I was pleased to find all of these qualities and more in his recently published first book, The Marble And The Sculptor.

What I particularly appreciate about Lee’s thoughts, as expressed in his words, is how they are often infused with precious pearls of Eastern wisdom. It is refreshing, at a time when the business of law threatens to eclipse what was once regarded as a noble profession, to encounter a fellow lawyer who strives to penetrate deeper into what it means to undertake a legal education, to prepare for and pass the bar examination and, finally, to carve out one’s own place within our profession. The decision to commit to this profession is a serious one, and Lee invariably addresses these issues with unflinching candor.

As an undergraduate student of Western philosophy, I occasionally flirted in a superficial way with Eastern thinking on issues of metaphysics, epistemology and religion. But I never let my guard down or did the work necessary to really grasp the Eastern mind. Again, when my wife and I traveled throughout Asia during our sabbatical, I was confronted and tried to learn about the Eastern religions, the teachings of the Buddha, the Hindu belief system and others, including radical Jainism. But regardless of my immersion, those teachings remained essentially foreign to my Western-bred mind.

Lee forces me to revisit the Eastern mind, but to apply that way of thinking to my own chosen profession as a lawyer attempting to practice here, in America. As the rapidly growing blawgosphere demonstrates, pretty much anybody can write about law. The difference in reading Lee is not only that he has something to say, but what he says carries a much larger, often universal import. His how-to manual for newly-minted lawyers would not require much revision to serve as a how-to manual for success in any career, or even in life. I believe it is his Eastern mindset that gives Lee’s words their added wisdom, their depth.

Much of Lee’s advice for succeeding both as a law student and a lawyer comes down to one quality: discipline. It’s not an accident that Lee came to law school, as he puts it, “a bit later in life” at twenty-seven. After college, he spent a year as a runner/project assistant/gopher at a large law firm. Yet, even after this experience cemented his certainty that he wanted to be a lawyer, he did not enter law school right away, but instead moved to Canada to train as an ichi deshi to a shihan (master) for nearly a year. He briefly describes this experience as

” . . . crazy and awesome and painful and beautiful — one of the best and most difficult experiences in my life. It’s the sort of thing that’s hard to encapsulate in words. Sleeping in a storage closet under the stairs in the basement of the dojo on a thin mat. Subsisting primarily on rice, vegetables and PB&Js (okay, and beer on occasion). Training five to eight hours a day, five to six days a week. Bleeding toes and cracked ribs. Scrubbing toilets and washing mats. Friendships gained and lost. Intense spiritual moments of training and camaraderie, intense times of loneliness and introspection. No TV, no movies, no cellphone.” (Id. at 97-98.)

Not exactly Club Med. But perfect training for the mental discipline needed to become a successful professional. Describing the training during this period, Lee writes:

“After the lecture there would be an hour or so breakdown on one technique, perhaps one movement. A pivot or a shift of hips or moving into position against your partner. A single movement could be repeated hundreds of times. Occasionally I would be told the movement was correct. Mostly I would be told that the movement was wrong.

It was aggravating. It was boring. It was difficult. Deliberate, long, tiresome, and trying. After the tenth repetition of a movement I would grow bored. At the thirtieth, my mind started to wander. At the sixtieth I was barely concentrating. At the hundredth, my mind had become still and there was only the movement.” (Id. at 98.)

This focus on discipline as the key to growth as a lawyer is echoed throughout The Marble And The Sculptor. From one’s selection of law school electives, to developing key relationships, to balancing the competing demands of family and law school and, later, law practice, he returns again and again to the notion of discipline. Lee writes:

“Every lawyer, every person you meet, was once young, naive, and ignorant as you are. It is now your personal responsibility–no one else’s–to mature and develop into a competent lawyer who is fit to be trustworthy of a client’s problems.” (Id. at 21.)

Another vein that travels throughout the book is the notion of humility, which I believe also finds its genesis in his Eastern studies. There is a tendency, after you’ve devoted years of your life and a small fortune to finish law school, excelled on law review or moot court or whatever, to take yourself pretty seriously as a brand new lawyer. Lee gently reminds readers that, as new lawyers, you don’t know shit.

But his purpose isn’t to cut baby lawyers down. Rather, Lee is interested in teaching the kind of humility that is found in Eastern thought and easily seen in the martial arts, in the interest of helping you on your path to becoming a professional. He writes:

“After obtaining my black belt, did I consider myself a master? When I received my JD and passed the Bar, did I consider myself an expert lawyer? Of course not. They’re ridiculous propositions.

Traditionally, a black belt has only meant one thing: you were now considered a serious student. Everything before was playtime. Training wheels. Getting a black belt only signifies that you have mastered the basics and are ready to begin dedicated study. The same is true with a JD. Having a JD doesn’t indicate mastery of the law. It’s merely a signifier that you are probably ready to step onto the playing field. What follows is up to you.” (Id. at 102-03 (emphasis in original).)

Readers of Lee’s blog, as well as his new book, quickly learn that his choice of title for the blog, Associate’s Mind, was no accident, but reflects this essentially Eastern attitude of humility toward our profession. He writes:

“So, during my final year of law school, I started a legal blog titled Associate’s Mind, a play on words of a concept in Zen known as shoshin, or ‘beginner’s mind.’ A ‘beginner’s mind’ refers to having an attitude of openness, eagerness, and lack of preconceptions when studying a subject, even when studying at an advanced level, just as a beginner in that subject would.

I wanted to adopt this mindset in my practice of law. The idea that an associate should be flexible and open to new ideas and processes, while being mindful of the guidance of those who have tread the road before them. ” (Id. at xii.)

I encourage you to read Lee’s new book, and to subscribe and follow Associate’s Mind. You will find there pearls of the kind of wisdom our profession desperately needs at this difficult time.


Partners: Go Easy With That Damned Red Pen

hgyI can trace four periods in my life that significantly shaped my writing.

First, I’ve always been a passionate reader. Reading the good writing of others is not only great fun, it’s indispensable for learning to write well.

Second, in college I double majored in Philosophy and Literature-Writing. These years taught me to write very quickly. In a pinch, I would often leave myself only a very few hours–sometimes only 2 or 3–to write a paper that I could have worried over for days. I didn’t realize it at the time, but this habit of procrastination–not recommended for everyone–which required me to organize my thoughts and write coherent prose very rapidly, was probably the best preparation for the writing skills I use almost everyday as a lawyer.

Third was law school. I don’t like to think that law school did much to shape my writing. I didn’t get along with the IRAC method at first. As you can imagine, philosophers and literary thinkers tend to (1) doubt anything called a “Rule,” (2) live in the realm of “Analysis,” and (3) sometimes never get to any “Conclusion.” If you’re a law student who struggles with adapting to IRAC, I feel your pain. Take refuge in the knowledge that you’ll one day grasp the beauty of the IRAC method. You’ll master it eventually, or fail the bar exam.

I did benefit from Law Review, however. The journal experience helped me get the hang of editing the writing of others. It also helped hone my citation skills and attention to detail.

Without a doubt, the biggest influence on my legal writing has been the tireless editing and revision by my longtime mentor. For the first five or so years of my career, I always dreaded getting back any first or second draft. Would it be as consumed with red ink as the one that came before?

But he persisted and his tutelage paid off. I learned to write much more crisply and economically. My legal writing became less linguistically rich, but shorter and clearer. And while there were things he did that occasionally drove me absolutely batshit, I really appreciate the time and effort he took working with me to help develop my writing and advocacy skills. I’m now flattered on those rare instances when he seeks out my input on an issue or document.

Now I am occasionally the one with the red pen marking up someone else’s work. This is a big responsibility, and should be treated as such. I came across an interesting New York Times interview of Jonathan Klein, the C.E.O. of Getty Images. Among the issues he discussed was “leadership lessons” he learned from his time at Getty Images. He said this:

“I’ve learned a lot from my executive coach. Anytime someone came to me to show me their work, I would critique it. I would almost behave like a schoolteacher–my mother was a teacher–and bring out the metaphorical red pen. And what I didn’t appreciate at the time is that before you mess around the edges, you’ve got to say to yourself, ‘Am I going to make this significantly better, or am I going to make it only 5 or 10 percent better?’ Because in fiddling over the small stuff, you take away all the empowerment. Basically it no longer becomes that person’s work. After a while, those people get into the habit of giving you incomplete work, and then you have to do it for them.”

Heavy is the hand that carries the (not-so-) metaphorical red pen, right? At least with respect to my writing, I always felt that my mentor’s revisions made the end product “significantly better.” In other words, the red ink was clearly worth his time, my attention and the attendant blow to whatever misplaced or unearned sense of “empowerment” I had as a baby lawyer. But I recognize that I don’t always revise someone else’s work either to help make them a better writer or to make the product “significantly better.” Rather, I’m just making it sound more like I wrote it. And, as Jonathan Klein points out, that’s the wrong approach. I need–we all need–to learn to go easier with that red pen.

For the benefit of readers outside law, IRAC means Issue, Rule, Analysis and Conclusion. It is how law students, lawyers and judges typically approach a set of facts. In a nutshell, one “spots” or identifies an Issue, articulates or recalls the Rule, Analyzes how the Rule should be applied under the particular facts, and reaches a Conclusion.


Law Students: Let’s Make A Deal!

PlanningI was really pleased to come across this article in the ABA Journal about Drexel University Professor Karl Okamoto, who has created a moot court-type experience dedicated to helping students hone skills needed to practice transactional law. I know the focus of this blog is generally on litigation and trial skills, but I applaud Professor Okamoto for coming up with something new and inspiring to fill the huge void for students who don’t want to litigate, or maybe just want to get a taste for what deal lawyers do. I hope similar programs become more widely available.

I probably speak for a lot of litigators who feel that they did not so much choose to go the litigation route as settle for what was available. Certainly, when I dreamt of becoming a lawyer I pictured myself in a courtroom. And I spend a fair amount of time there. But I spend an equal or greater amount of time either chained to a computer drafting motions and discovery responses or taking depositions. If I had learned something about doing deals early on, who knows . . .

Almost every transaction lawyer I know enjoys his or her practice more than the average litigator I know. The only exception to this comes from the fact that transactional law, M & A, real estate deals, private placement, public offerings and the like, seems to be a cyclical practice. At least in the past two decades, it’s been feast or famine for a lot of the deal lawyers I know, particularly at BigLaw firms. That’s not to say that litigation isn’t cyclical. In fact, I’m told we’re in a down cycle in many litigation practice areas right now.

The number of students who spend their second year summer in a BigLaw summer associate program has been shrinking. I know that neither BigLaw nor these programs are everybody’s cup of tea. On the other hand, up until now such programs have been the only opportunity most law students (and many lawyers) ever get to experience how transactional law is practiced.

Here’s how Professor Okamoto’s moot transaction program, LawMeets, works:

“[S]tudents get fact patters for a deal and play the roles of buyer, seller and client. Over a period of months, they have conferences; draft, exchange and mark up documents; and then negotiate the deal. Prominent transactional lawyers judge their documents and negotiations, as well as offer feedback. Then the students get to watch the pros haggle over the same terms. ‘That’s when we think the “ahas” begin,’ Okamoto says.”

One added benefit I can immediately see to this program is how it forces students to complete a project over several months, which is much more similar to an actual law practice, where it is necessary to sustain focus on a deal (or a case, or several cases) over a longer period of time, often punctuated by short periods of frenzied activity.

The other interesting approach is asking the judges to demonstrate how they would handle the same situation. This could influence the way trial advocacy and moot court competitions are taught, though it might make it more difficult to find judges who’ll volunteer, not only to judge the competition, but also demonstrate their skills.

Kudos to Professor Okamoto!


Legal Education: Less Is Not Necessarily More

9897_1The Wall Street Journal ran an article yesterday discussing the ongoing debate whether the traditional course of study for a law degree, which is a prerequisite in most states for admission to practice, should be reduced from three years to just two. Even President Obama, who is both the product of a traditional three-year Juris Doctor program and a former legal educator, weighed in somewhat in favor of a change. The biggest factor spurring this debate seems to be the skyrocketing costs of law school.

I approach this question with the following background. I graduated from a high second-tier law school in 1993. I paid my own way through law school, amassing about $80,000 in loans. I had accepted an offer at an insurance defense firm where I had been clerking for 2 years; my starting salary was $52,000. It took me about 11 (painful) years to pay off my student loans. I give this background to make clear that I don’t come at this issue from the perspective of the academic elite, nor did I finish school without a job.

My experience working for various small firms, mid-sized litigation firms, and now at an AmLaw 150 firm tells me that reducing the amount of training, whether it is Socratic classroom lectures or on-the-job clinical training, will not serve anyone’s interests. Beyond reducing the cost/debt of law school, it will not benefit newly-minted lawyers, who would spring from the costly but generally encouraging womb of  law school with even less to offer than at present. It will not benefit most law firms that (unlike my own) do not or cannot afford to invest in providing their lawyers with systematic, ongoing training on how to write, argue, advocate at trial or negotiate. Most importantly, it will not benefit clients who find themselves saddled with a new lawyer that was not sufficiently trained before being ejected from the nest.

The rising cost of law school, and resulting debt for students who may or may not be able to secure a job that exploits their training and compensates them accordingly is a real problem. It’s a terrible problem. But I do not believe that the solution lies in grinding future lawyers harder during their first two years, then turning them loose to commit malpractice at the expense of unsuspecting clients any sooner.

I have written here and here that law schools should increase the amount of real-world experience students receive before they graduate. If this can be done in a way that reduces the expense of the third year of school, then it would be a win-win. Even after I secured my first paying job as a law clerk, I still did some pro bono work in a law clerk capacity, both because it made me feel good and I gained experience I could include on my resume. Providing there is adequate supervision, many third year students could earn credits performing similar activities, which should both reduce their education tab and boost access to justice for the underserved.

BigLaw firms like my own have increasingly become involved in pro bono initiatives in which they “partner” with client legal staffs to tackle larger pro bono opportunities. This is clearly a win-win for the law firm, which gets to show off its lawyers’ skills, and for the beneficiaries of the pro bono projects, who enjoy enthusiastic, top drawer legal talent. Perhaps such “partnering” could be expanded to include third year law students, creating a win-win-win, as students get to interface with law firm leaders while showing off their enthusiasm and talent. Just a thought.

I applaud educators and others in the profession for trying to improve the situation for folks who want to practice law, a goal which should be pursued with boundless verve. On the other hand, snipping off that third year with no better substitute would be a regrettable choice.


Give Your Brief Headings The Marquee Treatment

tumblr_ltmd0vqgS81qbrdf3o1_500A colleague who recently passed the California Bar Examination hosted a group of us to a round of drinks and the talk turned to bar examination grading. Specifically, how little time the graders spent on each essay (I think it was a matter of seconds). Our group included a lawyer who had worked briefly as a tutor to recent (or not so recent) law school grads on how to pass the bar. I learned for the first time how much emphasis is placed by the graders on headings, or portions of exam answers that are underlined or set apart some other way. She explained that, because the graders spend such a minimal time on each essay, headings or other highlighted matter take on a special importance.

I’ve been told this is not so unlike the limited time and attention some judges and their clerks spend reading legal briefs, underscoring the importance of well-chosen and composed headings. I seem to recall hearing somewhere that some judges and clerks sometimes go no deeper in a brief than a review of the headings.

Obviously, then, headings can be particularly important in legal writing. I consulted legal writing guru Bryan Garner’s The Elements of Legal Style, and found that he offers three issues/rules to keep in mind when crafting headings and subheadings. Here’s what he says:

“1. Do not rely on headings to provide transitions. You still need to prepare the reader–perhaps with a transitional word (therefore) or sentence (That brings us to the final point).

2. Be sure that any headings you use convey a definite message to the reader. A vague or ambiguous heading defeats itself.

3. Shun generic headings, such as ‘Facts’ or ‘Background,’ ‘Analysis,’ and ‘Conclusion.’ These often falsely suggest that the facts are discrete from the analysis, or that the analysis is discrete from the conclusion. Unless you are writing in a medium that requires formulaic headings, such as the ‘Statement of Facts’ in a brief or student memorandum, such headings give the impression that the writing follows a formula. And you may even make it formulaic by failing to analyze what organization best suits your purposes. Make your headings serve your text, not vice versa.” (pp. 77-78)

“In addition,” Garner suggests, “make [headings] . . . uniformly brief.” Id. at 78. My girlfriend in law school worked as a legal secretary (in addition to her full-time law school case load). I recall asking her to show me some professionally written legal briefs from her firm. What struck me was both the brevity and informality of the headings, particularly in contrast to the formal headings we were being taught to write by our legal writing professors (some of whom, I’m thinking, had never actually filed a legal brief with a court). I was stunned by one real world opposition which featured a heading that merely said: “This Motion Is A Complete Waste Of Time.” While I don’t think any reader would find this heading compelling, it does have sense of immediacy–of getting to the point–that the lengthy, formal headings we learned to write in law school sorely lacked, but that most readers appreciate.

Perhaps when we penetrate to the farthest reaches of this era of Twittering Tweet-like communications, where brevity is not only prized, but required, there may come a time when 140 characters is all you get. Better make those headings count!


The Dumbest Thing I Did In Law School

mmkkThe path from the first day of law school to an aspiring lawyer’s first job is an increasingly precarious journey, with a shrinking margin for error. I like to think others can learn from my mistakes, which is why I am going to describe the dumbest thing I did when I was in law school. (I also continue to be inspired by Jordan Rushie’s brutally honest post on the Philly Law Blog specifically on the topic of hubris.)

Like every law school, Loyola (Los Angeles), where I attended, offered classes in Trial Advocacy. Believing I wanted to be a litigator, I took “Trial Ad,”  and had a fabulous adjunct professor (John McNicholas), who is a gifted trial lawyer and extremely successful fellow Loyola alum. I received a great education about how to try a case. The only problem is that the nuts and bolts training I received was not done in an actual courtroom, but in a posh new classroom constructed (at students’ and alumni expense) to look like a courtroom. Other members of the class served as judge and jury.

While I learned how to introduce evidence, lay a foundation, examine and cross-examine witnesses, object, respond to objections, etc., there was none of the extreme pressure, i.e., fear factor, that comes with trying to introduce evidence, examine a witness, etc. in a real court of law, in front of a real judge, with real facts, real victims, real defendants and real consequences. Plus, even though I “tried” a theoretical case during class, there were no bragging rights that came with completing my Trial Ad class; I couldn’t tell prospective employers in an interview that I had any real courtroom experience because, like most law students, I had no real courtroom experience. But imagine how impressive I could sound during an interview if I could say I’d cross-examined a witness in a preliminary hearing!

As it happens, one of the professors at Loyola (at least at that time) had created a special program in conjunction with his connections at the LA City Attorney’s office. Instead of one semester, this trial advocacy class was a full year, the first semester being classroom training much like I received, and during the second semester students would spend a day or two (I can’t remember which) “embedded” in a City Attorney’s office and acting as a prosecutor for criminal preliminary hearings. The cases weren’t all that sexy or complicated–drug possession, perhaps prostitution–but this was the perfect training ground for a future civil litigator or criminal lawyer to develop crucial skills, only with real victims, defendants, witnesses and judges. Even better, while the professor would determine students’ grades for the first semester of classroom training, it would fall to the Deputy City Attorneys to propose a participant’s grade for the second semester. (I never heard about anyone getting below a B, and As were the norm.)

The catch? Of course the program was only open to a limited number of students, and a student who wanted in had to interview for a spot. You know the rest of the story, right? You’re thinking I signed up, totally choked on the interview and didn’t get invited. Or that I missed the deadline to sign up. Or I got in but was kicked out for some ghastly reason or another.

Nope. It was none of these. Instead, even though I recognized it was a great opportunity, I purposely let the time come and go to sign up and interview. Why? Because I was insulted by the fact I was required to interview. I thought it was ridiculous–a needless imposition. It seemed to me that, if I was paying the same tuition as everybody else, I should automatically be allowed to take the class.

In other words, I let some lame, unrealistic expectation stand between me and an opportunity I knew even then was a golden one. Of course my law school girlfriend signed up, interviewed and got in. And she loved it. Learned a lot and had a blast. And she got an A both semesters.

Hear this: I made this mistake so you don’t have to. Don’t do it. Whether it was immaturity, hubris, unconscious fear of rejection (or fear of success)–whatever the reason–don’t let something stupid hang you up and prevent you from seizing a golden opportunity. Don’t disappoint me; I’m watching.


Is Law School “Worth” The Money? A Reply To Dean Mitchell

bbhgggIn a November 28th editorial in the NY Times, Case Western Reserve University Law School Dean Lawrence E. Mitchell defends the investment in a law school education. He writes:

“I’m a law dean, and I’m proud. And I think it’s time to stop the nonsense. After two years of almost relentless attacks on law schools, a bit of perspective would be nice.”

The gist of Dean Mitchell’s well-crafted apology is that the strongest criticisms are wrongly premised on a prospective lawyer’s first job, i.e., whether there will be an entry-level law job available and how much a first year lawyer will earn, compared with the heavy blanket of debt lawyers will carry into their chosen careers. He argues:

“[T]he focus on first jobs is misplaced. We educate students for a career likely to span 40 to 50 years. . . . Many graduates will find that their legal educations give them the skills to find rich and rewarding lives in business, politics, government, finance, the nonprofit sector, the arts, education and more.the focus on first jobs is misplaced. We educate students for a career likely to span 40 to 50 years. The world is guaranteed to change in unpredictable ways, but that reality doesn’t keep us from planning our lives. Moreover, the career for which we educate students, done through the medium of the law, is a career in leadership and creative problem solving. Many graduates will find that their legal educations give them the skills to find rich and rewarding lives in business, politics, government, finance, the nonprofit sector, the arts, education and more.”

Mitchell makes good points, but I don’t think he goes far enough–in either direction. On the one hand, while he acknowledges that the average graduate of a private law school comes away with $125,000 in debt, I don’t get the sense that Mitchell has any clue what a mountain of debt that heavy feels like. As one who finished school and passed the bar in 1993 owing roughly $80,000, I can tell you it sucked. While I found employment, and got the opportunity to don a suit and tie, hone my skills and learn from a really terrific mentor, the loan payments dug heavily into my $57,600 first year lawyer salary. The drag of “servicing” this debt for the first 10-15 years (or more) should not be lightly brushed aside as a mere inconvenience.

On the other hand, for some (few!), our profession is truly a calling. If someone asked me to honestly answer whether law school is worth the investment of time and A LOT of money, I would answer in the way many successful artists, writers, musicians answer when asked if sacrificing everything to draw, paint, write, cook, etc. is “worth” it: if you honestly can’t imagine living out your life without the experience of practicing law–not just “applying the skills to a career in government or business”–but you literally can’t imagine doing anything else–then law school is absolutely worth it. If you come from means and an extra $50k is waiting to be put to good use, then the law school investment is absolutely worth it.

But if you are like many of us, from middle-class families, who are taking the last few classes needed for your Poli Sci or English (in my case, Philosophy) degree, and you think a career in law “is as good as anything else,” then perhaps you should save your time, (borrowed) money and psyche. Maybe do something else instead.

Dean Mitchell worries that all the “hysteria” (his term) has effectively turned off talented prospective students from law schools that really should go ahead and apply, notwithstanding the cost and dismal job market. He trots out the following example:

“Last spring we accepted an excellent student with a generous financial-aid package that left her with the need to borrow only $5,000 a year. She told us that she thought it would be “irresponsible” to borrow the money. She didn’t attend any law school. I think that was extremely shortsighted, but this prevailing attitude discourages bright students from attending law school.”

Aw, what a shame! Here’s the truth: if that “excellent student” really felt the need to be a lawyer deep enough in her bones, she would have borrowed the $5,000 a year, or panhandled or done something else and found the money. Like a musician who wants to make music–who needs to make music like she needs to breathe–bad enough to starve as a street busker* for a few years, someone who can’t imagine not practicing law will find a way–some way–to make it work.

For everyone else, me included, there’s no harm in doing what Dean Mitchell’s “excellent student” actually did (turns out she was pretty smart): rationally weigh the costs and benefits of borrowing $15,000, or $125,000 and spending 3 years of your life pursuing a dream that might not be the rosy path to success it once was.

I’m glad I struggled through law school and struggled through paying off my law school loans. I’m doing pretty okay now, and I generally like what I do (some parts MUCH MORE than others). But, if you can rationally weigh the alternatives, and can reasonably picture spending the next 30-40 years doing something other than practicing law, then don’t be too quick to rush in. Go ahead, take some time, weigh the alternatives.

*Joe Strummer, for example, who was a street busker for years before he found fame and fortune.


Some Thoughts on The Scalia “Bread and Butter Courses” Dust-Up

The blawg world was all abuzz recently about comments Justice Scalia made to students at a local law school in Laramie, Wyoming.  When asked about the “best piece of advice” he could give to law students, he advised them not to waste time taking “frill courses.”  More specifically, he said:

“The only time you’re going to have an opportunity to study a whole area of the law systematically is in law school . . . You should not waste that opportunity. Take bread and butter courses.  Do not take, ‘law and women,’ do not take ‘law and poverty,’ do not take ‘law and anything.”

Some excellent posts have sprung from Scalia’s remarks.  Professor Jonathan Turley, for example, pointed out that:

“My students will be better lawyers but [sic] not only learning about the practice but the philosophy of law.  It is both possible and, in my view, essential to get both in your training.  I am distinctly proud of my student’s [sic] in their ability to move seamlessly from the theoretical to the doctrinal in class.”

Simple Justice blogger Scott H. Greenfield contributed at least two valid points on both sides of the controversy.  On the one hand, using the example of a hypothetical class on “Law and Potted Plants,” he writes, “Within the Law and Potted Plants course, there may be contracts, or property, or even criminal law (it could happen).  There is no independent body of law that relates solely to potted plants, divorced from the more rudimentary practice areas.”

On the other hand, Greenfield seems to side with Scalia that “Theory, doctrine and practice can all be taught simultaneously in more rudimentary law courses, and for those scholars who desperately want to push their personal hobbies, example of law and women abound in discussions of property law and contracts.  There are no shortage of pet opportunities.”

While I think these are some great points, the question for me is whether students are really choosing “Law And . . . ” classes at the expense of bread and butter courses.  In other words, is Scalia’s advice misplaced, not because “Law And . . . ” courses are valuable learning opportunities that should not be disparaged, but rather because students are not choosing between, say, a course in Evidence or Civil Procedure and “Law And Potted Plants?”

Unless things have changed in the 20 year interval since I was a law student, most of the “bread and butter” classes are completed half-way through the second year.  This leaves a year and a half to take courses that, hopefully, take the rudimentary skills learned in the first year, and apply them in ways that further cements that learning.  For me, it was Trial Advocacy and Appellate Advocacy.  These required me to use information and skills I previously studied in Evidence and Legal Research and Writing.  Somehow, though, I still had time to take other elective classes in Legal History and Employment Discrimination, which gave me perspective on our profession and spawned my interest in employment law.

So are students who are interested in “Law and Women” or “Law and Poverty” really taking these “Professor’s Hobby” courses (Scalia’s term, not mine) at the expense of courses that address core competencies?  I tend to think not.

The issue I struggle with, and have written about, has to do with the dearth of practical training many students receive before they are released into a legal marketplace that suffers from declining mentoring and training opportunities.  As I said here, brand new graduates who would have received practical guidance from their first law firm or government employer are increasingly left with few alternatives to opening their own law practice out of a local Starbucks just to make their student loan payments.  I’ve read that at least some schools are responding to this need with more practical, clinic-oriented course offerings.

Because nobody respects a fence-sitter, I’m going to come out against Scalia’s remarks.  I think that courses on Law and Women and Law and Poverty are a worthy way to spend expensive law school hours.  Unlike potted plants, these subjects are topical, timely and impact the majority of the world’s population.  I expect they also require students to build upon core competencies, such as research, writing, oral and written argument, in ways that ultimately produce better, more thoughtful and world-changing lawyers.

I’m not holding my breath that anyone is going to ask my best advice to law students.  If they did, however, I would highly recommend intern and externships.  Oh, and keep in touch with every person you meet in school!


Another Reason to be Concerned About Reduced Hiring of New Lawyers

I was talking the other day with a young lawyer about, guess what,  the challenges facing new graduates.  This lawyer had just started a new job and I was telling him how fortunate he will be to get some first class mentoring during his early years of practice.  The conversation got me thinking about what the downstream impact could be of the drastically reduced hiring of brand new lawyers.  I’m talking now about lawyers who in another time and a different economy would get a job with a law firm or government entity for at least the first couple years of practice.  It seems like the news reminds us daily how this has changed and the market for newly minted lawyers is dismal.  Others remind us that this is not just a consequence of the recession, but a more permanent trend resulting from a change in our clients’ collective attitude about paying–even reduced rates–for neophyte lawyers to learn their trade. 

I don’t begrudge this change in client thinking–how could I? But I do think this shift in philosophy, which is changing hiring practices, not just for AmLaw100 firms and their triple digit first year “classes,” but also small partnerships that still occasionally hired a first or second year lawyer, will impact our profession in ways for which we are not prepared. 

This is because the training and experience we receive in the first years are pretty important in our development as a lawyer.  Law schools do a decent job of helping us learn to think lawyers, read cases and adopt an IRAC-centric* style of analysis and writing.  But, with the exception of a few “skills” classes or the optional clinic, law school does not prepare students to immediately enter the marketplace, take on clients and effectively practice law.  I know there are respected bloggers who would take issue with this assertion.  And I’ll admit that there is plenty of hardware, software and other “products” on the market which make it logistically much easier to open and run a law office right out of school with a cell phone and a laptop. 

I’m not talking about the ability or experience conducting legal research.  Most law school graduates can open the right book or access Lexis and figure out the elements of a cause of action or defense.  What’s missing, I believe, is a measure of judgment that is crucially important to a law practice, but generally takes at least a couple of years of supervised training and experience to gain.  I’m referring to judgment about when to take a case and when to say no.  Judgment about how long to keep working a case you know is a loser, just to avoid the difficult conversation you know you need to have with that client who took a chance on you.  Judgment about how to shape and deal with clients’ expectations.  Judgment about how to manage a client who is persistently untruthful about the facts.  Importantly, judgment about when a question or case calls for the kind of special knowledge or training that just cannot be gleaned from reading cases or a practice guide. 

It could be argued that very experienced lawyers–lawyers who should know better–demonstrate terrible judgment all the time!  This is true and, while unfortunate, helps ensure that legal malpractice will thrive as a practice area.  But the fact that experienced lawyers make lots of mistakes in judgment does not mean that brand new lawyers who enter the marketplace armed only with a law degree and maybe some moot court experience–without at least a year or two of supervised training at a firm, a government agency or even with a more experienced solo–won’t make more mistakes, more often.   

What will be the impact to our practice and profession from this training vacuum? It could be significant.  For starters, inexperienced new lawyers who are hungry enough will likely take anything–literally anything–that comes in the door.  Our shrinking, already overstressed courts will become a repository for even more meritless cases.  I’m not talking as a defense lawyer–but as a litigator interested in reducing, or at least controlling, the growing judicial log jam.  Putting my defense lawyer hat on for a moment, when manufacturers and employers are forced to defend, not borderline, but absolutely spurious cases, it negatively impacts the economy through higher prices and reduced hiring.  

The real victims, though, could be clients.  Clients who are misled, overencouraged, underwarned or led down the wrong path.  Clients who, had they visited a different lawyer, would have been told early on they have no case or needed to consult with an eminent domain (or tax, or probate) specialist.  Or at least told that the odds of winning don’t look too good.

Enough.  I tend to dislike writers who do nothing but diagnose a problem.  A proposal for a solution, even something half-baked, is the least a writer should do. 

Here, I put the responsiblity for filling this void of practical training back onto law schools and bar associations.  As I’ve said before, law schools should, in exchange for the privilege of collecting tuition, strive to do a better job of enabling their graduates to join the legal marketplace upon graduation.  If paid, new lawyer apprenticeships are no longer the norm in the legal marketplace, law schools need to pick up the slack.  If economics dictate that tuition needs to increase to make this additional training possible, so be it. 

Local, county, state and national bar associations should also help fill the void.  There is no shortage of continuing legal education programs, at least in those states which require it.  But as these tend to be lecture format, they are not interactive and probably ineffective as a training tool for brand new lawyers.  I’m thinking more along the lines of the type of clinics, internships and externships that are typically only available to law school students.   Perhaps these programs could be coordinated with pro bono opportunities.  I’m just thinking out loud . . .

 I’ve always felt fortunate that, although I didn’t earn an AmLaw100 salary right out of school, I did have an opportunity to work with and learn from some really great lawyers.  It’s interesting, but also scary, to think about some of the mistakes I could have made if I had not received that early training.  Not just sloppy lawyering or calendaring mistakes, but errors in judgment.  I think it’s something everyone in the profession needs to consider, as the path from law school into the legal marketplace changes.

*IRAC = Issue, Rule, Analysis & Conclusion (but you know that already).


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