What's not to like?

Hit the "like" button on Facebook to be notified of mini-blog entries and new posts and columns.

Test Drive the Book!

For the Sake of Argument

A Life in the Law

Wednesday
Sep092009

Introduction

I once taped a quotation from Supreme Court Justice Oliver Wendell Holmes, Jr., to the door of my office:

... what a profession the law is!  … what other gives such scope to realize the spontaneous energy of one's soul?  In what other does one plunge so deep in the stream of life—so share its passions, its battles, its despair, its triumphs?

One of my colleagues wrote beneath the quotation, "What drugs was he taking?"

A life in the law means making the trip from Holmes's rhapsody to my colleague's cynicism and back again, sometimes several times a day. 

My legal career has been old enough to drink for several years already.  When I look back, I'm struck by the near-randomness of its course.  I mainly have my ignorance to thank for the way things turned out.  From the decision to apply to law school to the most recent decision to switch jobs, my life in the law has been a series of big choices made based on little information. 

Without a network of family or friends to pass along the wisdom of the ages, I made choices about my education and career—choices that determined my life course—based on whatever scraps of information reached my ears, fortified as necessary by unwarranted assumptions.  In writing this career memoir, my guiding principle has been to include the things I know now that I wish I'd known then.

Sunday
Sep272009

Chapter 1: Decision to Apply

My decision to apply to law school was shrouded in such ignorance about the legal profession that I find it hard to reconstruct what was going through my mind. I bought one those guide-to-the-law-schools books and remember sitting cross-legged on the floor of my bedroom in my parents' house with the oversized paperback open to an outline map of the United States decorated with a couple hundred little dots scattered over it like crumbs on a table. I'd be going to one of those dots, but my imagination refused to give me a picture of what it was going to be like.

Today's applicants have the luxury of much-better-informed ignorance. They can go online and see what the campus buildings look like in bright sunshine (even if the sun never once shines during the academic year), look at the smiling mug shots of the professors (even if they never once smile in class), and take virtual tours of the libraries. But all that information still won't tell them what it's like to attend the place.

The book was crammed with information that refused to assemble itself into any recognizable pattern. Trying to follow it was like reading a novel whose pages have been shuffled—there was a story there, but it wasn't telling itself. I learned how many volumes each school's library had. To a literature major the numbers seemed very small, in the mere hundreds of thousands—and that was a full generation before the Great Age of De-acquisition brought about by the proliferation of electronic resources, which have done to historically interesting law books roughly what synthesizers did to studio-based musicians. But knowing one law school had 400,000 volumes and another had 400,001 didn't tell me which one to apply to.

I also read numbers representing student–teacher ratios, average entrance-exam scores, percentage of applicants accepted, and tuition. (Seen in retrospect legal education was virtually free in the early 1980s, though it didn't strike any of us that way at the time.) And, above all, I read numbers representing each law school's ranking.

Or, rather, RANKING, because ranking is the single most important datum about any law school. The meaninglessness of the ranking doesn't detract from its importance. Lawyers are trained to accept arbitrariness (we'll get to the why and how), and numbers don't get much more arbitrary than the annual rankings of law schools.

Sunday
Sep272009

Chapter 2: Laid-Back U

[The Laid-Back U of the title is my hometown University of New Mexico, where I spent my first year of law school.]

Trying to read a judicial opinion for the first time isn't like reading a foreign language. It's hard, but not that hard. It's more like sitting in a theater for the first ten minutes of a Shakespeare play, or reading a random passage from Paradise Lost:

Made horrid Circles; two broad Suns their Shields
Blaz'd opposite, while expectation stood
In horror; from each hand with speed retir'd
Where erst was thickest fight, th' Angelic throng,
And left large field, unsafe within the wind

You recognize most of the words, and the sentence structure is generally familiar, and yet the meaning doesn't soak in. It floats near at hand, almost within reach, like a fluff of down pushed away by the air currents stirred up by your hand each time you reach for it.

We were taught to "brief" the cases we read. I recall feeling baffled by the very assignment. Our teachers talked about "briefing" cases as if it were self-evident what that meant, and as I glanced surreptitiously at the self-confident faces of my classmates it seemed apparent that I was the only student for whom its meaning wasn't self-evident. In retrospect, I'm not sure how I failed to register the frequency with which their sidelong glances intercepted mine—nerves, I guess.

"Brief" is another of those simple English words given an endlessly receding series of modulating meanings by lawyers. This particular usage (which is pretty much confined to law schools and paralegal studies programs) means to prepare a written summary of a case by filling in the blanks of a form. As with so many other things in the law, there was nothing difficult about the concept except the way lawyers talked about it.

But that didn't mean it was easy to learn how to brief a case. We were supposed to isolate the pertinent facts of the case, boil the legal dispute down to a one-sentence question, state how the judge answered the question, and then summarize the judge's reasoning. Only gradually did I realize that most judicial opinions follow the same four-part structure, at least roughly, which I suppose was the point of the exercise. ...

In those early weeks I would use the entire hour between classes to extract the meaning from a single case. Today it would take me just a couple of minutes to accomplish the same thing, and not because I'm any smarter now. Fluency followed from practice, depending not so much on learning the words— legal jargon, while renowned for its impenetrability, is no harder to pick up than any other slang—but the way judges have of presenting their rulings. Over the centuries judges have developed customary ways of telling the reader "now we're getting to the important part." And competent judges always make an effort to wrap up their ruling in a takeaway phrase or sentence designed to be quoted, exactly in the style of a politician's packaged sound bite. With practice one learns to spot those key phrases and ignore the rest. As with skiing, it requires only a little practice to acquire a basic facility. But, also as with skiing, the first attempts are frustrating enough to make you wonder why you ever thought it was a good idea to start.

I used the word "ruling" twice in that previous paragraph. It describes the most important thing about learning to read judicial opinions. They look like literary texts, and often they read like narratives, but they're exercises of political power. It requires an adjustment in attitude to recognize that what you're reading isn't any kind of literature but a bureaucrat's stamp translated into prose. The opinion is like the computer code responsible for the design on your monitor. What's important isn't the code but the appearance of the webpage. In the same way, the important thing about a judicial opinion isn't the thing the judge describes, but what the judge does. A working lawyer doesn't read a judge's opinion to understand the real-life dispute that was the occasion of the judge's ruling, but to understand the ruling. The judge is the important character; the parties are mere props.

That's not the way our high school civics teachers describe the judicial process, but it's not cynical, either. Some years after I graduated from law school I read a biography of Roger Taney, the white-supremacist Supreme Court chief justice who devoted the final years of a very long career to sabotaging Abraham Lincoln's presidency and the Union war effort. The biographer was in love with his subject, in the way typical of biographers, and ended the book by describing admiringly how Taney left behind at his death opinions declaring unconstitutional the Union's conscription and currency legislation, even though those issues had never been raised by any case before the Court. The chief justice, who publicly suggested that God had extended his life for the divine purpose of thwarting Abraham Lincoln and the Republicans, wrote his opinions first, then waited like the spider he had come to resemble for cases to come along that would give him an excuse to publish his resolutions of them.

Taney, in his shamelessness, was an extreme case, but he illustrates something first-year law students only gradually realize: resolution of the parties' dispute provides the occasion for the judge's ruling, but not its purpose.

Thursday
Oct012009

Chapter 3: The Bogs of Prestige

[After my first year of law school, I transferred to Northwestern University in Chicago (not Evanston).]

Five minutes into a Civil Procedure II class in Booth Hall, Professor Harry Reese looked down at his grade book and called out, "Mr. Jacobsen!"   Reese was a slim, straight-backed man, probably about 60 then, who invariably wore solid black ties with his black suits.  When I admitted my identify, he drew my attention to the Supreme Court's Dairy Queen case, a famous puzzler featured prominently in our textbook, and asked me to identify all of the various causes of action alleged by the plaintiffs, which was easy since the case listed them.  He wrote them on the blackboard and then asked me to classify them as legal (that is, derived ultimately from the common law developed in the courts of the King's Bench, which entitle a party to money damages and trial by jury) or equitable (derived ultimately from the maxims of medieval ecclesiastical courts; no money damages, no jury).  I had to admit I had no clue how to classify them.

But I was wrong.  I did know.  Or, rather, I knew how to arrive at the right answer.  Professor Reese didn't have to tell me.  Instead he asked me more questions, easier ones, ones I could answer.  Building on my responses he asked more questions, until by the end of 45 minutes I had correctly categorized all of the various causes of action.  I remember giggling with nerves throughout the hour, and remember even more distinctly how my inane giggling increased my nervousness, but I was deeply impressed with Reese's skill.

That was the famous Socratic method, and Reese was the first and only professor I met with the pedagogical chops to use it.  Maybe you don't, strictly speaking, need to possess the intellect of Socrates to be proficient in the Socratic method, but you do have to be intelligent and articulate; be able to listen closely to what the student is saying; be able to intuit what the student isn't saying; be patient; and be genuinely interested in the student's intellectual development.  In my experience, very few law professors get past the first requirement.

That doesn't mean other professors didn't engage in what they probably told themselves was Socratic dialogue with their students.  I'm pretty sure that's what my "clear as mud" Contracts teacher back at UNM thought he was doing.  In the hands of every professor other than Harry Reese, though, all that I ever observed was really the opposite of the Socratic method.  It deserves a reversed name: the Citarcos method.  Reese started with my "I don't know" and led me to knowledge.  In the Citarcos method, the exchange begins with the student reciting what he or she knows about a case and ends with a series of abject "I don't knows" to the professor's bullying questions.

So far as I'm concerned, the Citarcos method is a professor's confession of psychopathology.  It's a way to reveal one's need to bully and belittle those who make themselves vulnerable by seeking to learn.  In my day, Northwestern had several professors suffering from the ailment.  One of them taught first-year classes consisting of 100 students—half the incoming class, called a "section"—and required all students to be ready to be called on every class meeting.  If they weren't prepared, they were supposed to come to the front of class and sign a register of shame in front of everybody.  If called on, they were subjected to a pounding series of questions that never led anywhere but to pleas of ignorance.  This particular professor taught only first-year students, which I figured was because his predatory style depended on the students being too intimidated—or depressed—to respond in kind.

I've heard a few half-hearted defenses of this teaching style, which have this in common: they're bullshit. …

This is not to say that the Citarcos method is without purpose.  The traditional way of looking at it is as a form of hazing, with the difference being that law students aren't hazed by upperclassmen, but by their professors.  But I think a little more than that is going on.  The bullying has, at bottom, a psychological rather than pedagogical purpose.  Andrew Garcia expressed it vividly when he described the way he trained newbies: after first getting in their faces he "gave them back their self-respect a little at a time."  Garcia was a Marine Corps drill sergeant.  The Parris Island technique of disassembling and reassembling a recruit's personality goes a long way toward explaining the traditional mode of law school instruction.  It replaces the newcomer's prior identity by making membership in the new group the central fact of the student's self-conception.  It tells the student: You're no longer the person you used to be.  Now you're a lawyer.  That makes you different from others in ways they can't fully appreciate unless they're lawyers, too, and have gone through the same initiation rites.

That's a powerful message.  It makes the student feel a part of something big and important.  It also has everything to do with the dissolving sense of self experienced by so many first-year students.  That isn't just the consequence of the professorial bullying but its purpose, even if most of the professors themselves don't fully understand that.  (Most of them, I think, just see themselves as doing to others what was previously done to them.)

Thursday
Oct012009

Chapter 4: The Continental System

[I spent a year in the country then known as West Germany on a Fulbright Scholarship in law.]

In Germany, law is an undergraduate subject. …  It's just another course of study, like biology or literature, which made me wonder for the first time why American universities classify it as graduate school. There's no other American graduate degree without a parallel undergraduate major. Such "pre-law" courses as political science don't count, because a person could avoid them all—I did—and do just fine in law school, whereas an incoming medical student would be lost without a foundation in biology and chemistry. I think the only reason Americans conceive of legal studies as a graduate course of study is because law schools were originally independent trade schools. They were administratively engulfed by universities without ever being integrated into them. 

American law schools, it must be said, provide an unpleasant environment for their students in comparison to most undergraduate degree programs. The teachers pile on a great deal more homework than the typical undergraduate professor. But there's little about the law that's conceptually difficult. The law is, in practical effect, an elaborate system of classification. It requires a great deal of mental effort to master the vast grid, but the effort involved requires memorization and the dexterous retrieval of memory, not original thought. "Legal analysis" is a matter of figuring out the best category in which to slot a legal problem. Legal analysis is different from sorting mail only in that the legal slots exist mentally rather than in the physical world, and there are many more of them than a letter carrier would find practical.

There's no reason why law can't be an undergraduate course in the United States. It could begin with the third year of college, with the law major taking two legal classes a term to cover eight foundational courses. A required fifth year could be devoted to the intensive study of specialized topics. A student who completed that program of study would be as well prepared as a typical JD but two years younger—and not so deeply in debt. That last item explains why there's no chance of such a sensible reform being introduced. American law schools are profit centers for their universities. A single law professor can instruct 100 students with no equipment but a podium and blackboard, although Internet access and a projector are useful extras. Law schools don't even have to pay graduate students to serve as teaching assistants, because no grades are assigned before the final exams and a single professor can take care of those. (B-pluses all around!) If the course of study were shortened and integrated into undergraduate school, the university would lose many tens of thousands of dollars in fees per student. The professors would feel they'd lost prestige, too.

The fact that law is an undergraduate course of study in Germany has another effect: the courses are normal. That was pretty amazing to me. The courses I took were lectures, not rituals of humiliation. ...

The year in Germany taught me far more about the American legal system than about the German one. It did that by making me see through German eyes features of the American system that, at both UNM and Northwestern, were so taken for granted they weren't even taught.

For instance, a German student once asked me at what point during law school American students decided whether to become judges. The question at first made no sense to me, as my puzzlement must have made no sense to the student with whom I was chatting. Because German judges usually hear cases in panels of three, while American trial judges work alone, there are many more judges per capita in Germany than in the United States. In Germany, becoming a judge is a career path. Promising students undergo years of training, then work their way up the career ladder. It's a rational, orderly way to choose judges.

The smaller number of American judges might suggest they would be better— the crème de la crème—but in practice it means the opposite, because competition for the jobs ensures that those with the power to fill them use that power to benefit themselves. That's why the American judiciary remains today the last part of the government still staffed by Andrew Jackson's spoils system. For ordinary government workers, the spoils system was eliminated by civil service reforms. We no longer hire paper-pushing government clerks based on their service to the party, but that's how we still choose our judges.

On another occasion a student asked about the practicum. How long did the practical training of lawyers last in America? That, too, was a somewhat embarrassing question.

In Germany, students who complete four years of legal study become eligible to take the state exam, essentially the equivalent of our bar exam. (In practice, many students spend an entire fifth year getting ready for it, paying a tutor to guide them in the necessary intense study.) Once they pass that exam, the young lawyers begin a formal internship. It lasts three years. During that time the baby lawyers work their way through a variety of legal offices, typically on a three-month rotation. Rotations might include a corporate legal department, a prosecutor's office, a public defender's office, an administrative agency, a private law firm, and an insurance company. By the time they're licensed, German lawyers have a pretty good idea of how the legal world works.

Internships served by newly minted American lawyers, by contrast, don't exist.

Then there was the time I described the typical course of study at an American law school to a fourth-year student named Andreas. We were standing in Bonn's beautiful Cathedral Square, at one end of the wonderfully labyrinthine pedestrian shopping district, not far from the Beethoven memorial. I mentioned that almost all law students take a course in Evidence. "Evidence?" Andreas asked, surprised. "What's to study about evidence? Either it's relevant or it's not."

Even as I had become generally familiar with the procedure of German courts, it somehow had never quite lodged in my mind that there were no rules of evidence. Lawyers never objected to questions, since the questions were asked by judges. Besides, what purpose would be served by limiting the judges' access to information pertinent to their decision?

The American Rules of Evidence include a definition of relevance. The definition is one sentence long, consisting of 36 words. It says what everyone knows: information that it would be a waste of time to learn is irrelevant. Perhaps as much as 15 minutes of class time could profitably be devoted to the study of relevance. The rest of the semester-long Evidence class is devoted to all of the other evidentiary rules, almost all of which are much longer than 36 words. Their point is to prevent the decision-maker—the jury—from having access to all relevant information. That's the most fundamental point about the law of evidence to which I'd devoted a semester of study, and yet somehow it was a point I had never quite grasped.

Andreas got me thinking about the peculiarity of a system for resolving disputes that depends so heavily on the filtering of pertinent facts. I thought I could discern two reasons for it. First, in the Anglo-Colonial system the questions are asked by lawyers, not judges. That builds in an obvious bias against the truth. Whichever side would be hurt by the truth will try to keep it under wraps, or at least confuse the matter sufficiently to avoid the consequences that, by law, should attend upon its disclosure. Unless restrained, therefore, some of the lawyers asking questions at a trial will predictably steer the judge's or jurors' attention away from the important point. One purpose of the Rules of Evidence is to control the lawyers who would otherwise sabotage the whole purpose of having a trial in the first place.

That word "jurors" supplies the second reason. In the Anglo-Colonial system, lawyers are trying to sway nonlawyers, the jurors. Nonlawyers can't be counted upon to look at things the way lawyers are trained to look at them. Deliberating jurors are also the only trial participants who act independently of the judge. The parties, the lawyers, the witnesses, the spectators, the bailiff, the deputies or marshals—all are subject to the summary justice of the courtroom. But once the jurors shuffle out of the courtroom into the jury room to begin their deliberations, they are entirely free of the judge's control. The judge has told them to follow his or her instructions, but if the jurors decline to do so the judge has few options other than to start the whole trial all over again ("declare a mistrial")—and often not even that.

Much of the American legal history of the past century has consisted of judges inventing new ways to restrict the autonomy of jurors. One of their most conspicuous successes is the creation of highly technical rules of evidence that permit the judge to keep information from the jurors' ears. If we think of the jury room as the verdict factory, we can see that the judge has no control over the sausage eventually produced, but tight control over the ingredients that go into it. Today in the United States it's no exaggeration to say that in some trials, the lawyers and judge spend more time arguing about what evidence the jury will hear than the jurors spend actually hearing it.

Saturday
Oct032009

Chapter 5: Raw Recruiting

From the law student's point of view, there were two objects to be gained by going through the weird dress-up game of recruitment.  The longer-term goal was to get a summer job, which with luck would translate into a permanent job after graduation, as we'll see in the next chapter. 

The immediate goal was to get a fly-back.

A fly-back was when the firm flew you to their main office.  The firm would buy you a plane ticket to Los Angeles, or New York, or wherever, put you up in a luxury hotel for a couple of nights, and schedule a whole day of activities for you.  The activities almost invariably consisted of some sort of sales pitch about the firm itself, a tour of its offices, lunch in a fancy restaurant with some junior associates, and a long, wearying string of interviews with partners.  Then, when you were good and bleary-eyed from repeating yourself, constantly distracted by the inability to remember whether you’d previously said the same thing to this particular person—or was it the last person?—you might have a fancy dinner with a table full of strangers followed by a taxi ride back to the luxury hotel. 

It was dreadful.

One Phoenix firm put me up in the Arizona Biltmore, the first time I'd ever slept in a hotel room larger than the average two-bedroom apartment.  I remember sitting in front of the floor-to-ceiling window, eating my room-service breakfast with the strangest feeling that I was living someone else's life, as if in some horror story my brain had been transplanted into an accident victim's body.  That sense of unreality—which wasn't altogether unpleasant, given the sunshine (a welcome break from November in Chicago) and the tasty food—was much more memorable than the firm, whose name I no longer recall.

It might have been at that firm, but maybe at another one, where a partner noticed from my résumé that I'd reviewed movies and asked me who I preferred, Gene Siskel or Roger Ebert.  They were the reviewers for the Chicago Tribune and Sun-Times respectively, who were then doing a weekly half-hour TV show together.  I said I tended to agree more often with Siskel.  He immediately said, "I prefer Ebert."  So much for my job prospects at that firm.

In later years I had enough experience on the other side of the recruitment game to know that as soon as I left each interview, the partner would dictate a short memo giving his or her impression of me and recommending for or against extending an offer to me, before turning back to the serious business of billing clients. 

The luxurious meals and absurd hotel rooms felt a bit ridiculous for anyone used to the student life.  For all the money spent, it was hard not to think of them as particularly petty bribes.  The firms wanted to influence my career decision by spending a couple hundred dollars more than necessary.  What did it imply about the firms that they thought a room at the Biltmore  would make a difference to my career decisions?  What did it imply about my fellow students that it evidently worked?

The prestigious firms recruited only at the prestigious schools.  That made the students at those schools feel special, but over time I came to realize it equally made the firms feel special.  Fly-backs were a way for law students and law firms to confirm each other's desirability.  I started the process with the idea that I was the buyer, looking to obtain something of value for myself, but it quickly became apparent that the law firms thought of themselves in similar terms.  From their point of view, I was the seller.  The thing I had to offer wasn't myself; it was my status as a high-achieving student at a highly ranked law school.

For many students at Northwestern, the really big deal was to accrue the maximum number of fly-backs.  That was a status thing, too.  The more places you jetted off to, the more you proved how amazingly desirable you were.  Some people went on 25 or 30 fly-backs, visiting many firms they would never consider working for, in cities they considered backwaters, making a point of ordering the most expensive item on every menu.  And they made sure everyone back in Chicago knew it.  I couldn't keep myself from feeling a little bit of the envy they worked so hard to engender in us.

Saturday
Oct032009

Chapter 6: Initiation by Lotus-Eating

[The chapter on summer clerkships describes a now-lost world, I'm sorry to say, but doubtless the conservatism of the profession will ensure a return to lotus eating when the economy picks up.]

Summer clerkships at the big firms amount to fly-backs writ large.  The summer of undemanding work with alcohol and secretaries and social outings and a paycheck grossly disproportionate to the work performed is a bribe.  Law firms pay the bribe to students to influence their career decisions—which is to say, to alter their entire life trajectories.  Law firms persuade summer clerks to build their lives around the firm by proving an experience that has almost nothing to do with work at the firm. 

Let the clerk return to law school for that final year, study for and pass the bar exam (the big firms will pay him or her during the weeks of study), and join the firm as a regular associate.  There will be no excursions to ball games or pool tournaments or picnics at the zoo until the following June, when the new crop of summer clerks shows up—and the associates are reminded of their duty to treat the social events as part of their jobs, as recruiting, rather than as social events.  Loyalty to the firm will also be stressed. 

Once the graduate joins the firm as an associate, dalliances with the support staff are no longer summer flings but matters for the concerned attention of the executive committee.  The lazy succession of research projects is replaced by the relentless grind of billable hours.  And brand-new associates are expected to have absorbed from midair the secrets of managing clients.

The internships endured by recent graduates of medical schools are infinitely less pleasant than the summer clerkships of law students.  But a medical internship gives the baby doc exposure to patients and a chance to see what life in the profession, at least at that particular institution, really means.  Internships are followed by residencies that alert young doctors to what various practices will do to their lives.  For doctors, there's no disgrace in making a sudden change of plan after the first residency; they just do another residency in another field.  Doctors' career decisions are based on their extended experiences with reality.  Many law students, by contrast, make career decisions based on pleasant summer-long fantasies hosted by the big firms.

Saturday
Oct032009

Chapter 7: The Judge's Ghostwriter

Law students who graduate near the top of their class can apply for judicial "clerkships," which means working as a judge's legal assistant for a set term, usually one or two years, beginning in the fall after graduation. (Some federal judges now hire permanent clerks, but I'm not talking about them in this chapter.) Because I graduated midyear, I didn't fit into any clerkship schedules. The positions come open in August or September, not January. So I was never a clerk, which I rather regret. I think I would have enjoyed it.

A judicial clerkship is a traditional transition period between law school and the cold world of legal practice.  ...

For a newly minted lawyer, nothing is greater than being a clerk of the Supreme Court. It is a distinction the clerk will wear like a badge throughout his or (much less frequently) her entire professional career. A former Supreme Court clerk can teach at any law school and get hired at any big law firm, so long as he manages to avoid getting disbarred or arrested. Actual skill in either teaching or practicing law is (as they say in want ads) desirable but not required. The clerk, in short, will spend the rest of his life as a seller of prestige, and buyers will always be willing to line up.

If your ambition is to become a Supreme Court clerk, you would be well advised to go to a law school ranked in the top 5 percent for tuition, though one of three public universities will do in a pinch: Michigan, Virginia, and California-Berkeley. Once you're there, you need to get straight A's, become an editor of the law review, and also assiduously cultivate the professor who has a tradition of "feeding" students to a federal appeals court judge who in turn has a reputation for "feeding" clerks to the Supreme Court. Many years of goal-directed ass-kissing are required, and even then the odds are heavily against you, since there are never more than 36 clerks in a year. But if you win the lottery, the payoff is huge.

On the downside, it means that you reach the peak of your legal career before you begin it. Everything else is downhill for the ex–Supreme Court clerk, unless he goes on to win the next lottery and becomes a justice himself.

Saturday
Oct032009

Chapter 8. Crossing the Bar

The precise format of the bar exam varies from state to state and over time. But almost all states use the Multistate Bar Examination, one of those standardized multiple-choice exams, like the SAT and ACT, where you use a number-2 pencil to fill in the oval on a separate sheet. The exam consists of legal problems and asks the applicant to commit professional malpractice by making an off-the-cuff analysis, taking no more than a minute or two to study and think about a problem that inevitably has many dimensions. The correct answer to every question on the Multistate is "Let me do some research and get back to you," but that's never an option.

Not only is the applicant required to spout off irresponsibly, but he or she is often not given the option to choose the correct answer. The four options typically include two obviously wrong answers and two that are arguably right, but often both of the latter are a little too simplistic to be altogether correct, or a little off-topic. So the applicant has to choose between an answer that's about 75 percent correct and one that's about 65 percent correct. That's a more significant conceptual problem than it might at first seem, because the object of a lawyer's advocacy isn't to be right but to make the best available argument on behalf of the client. For three years we're trained to see all the possible alternative ways of analyzing a problem, and then we're tested on our ability to see only one. The Multistate tests the applicant's ability to function more like a judge than an advocate, but uses that to grade the applicant's capability as an advocate.

On the plus side, the Multistate exam can be graded by machine.

Saturday
Oct032009

Chapter 9: Roll dem Bones

[This chapter describes the more-or-less random way recent graduates find themselves working at big law firms.  The firm I joined wasn't nearly as big, or even a fraction as bad, as the ones described in this excerpt.  The really colossal firms are distinguished by firm cultures very similar to those of the old investment banks as described by Michael Lewis.]

In 1983 James B. Stewart published The Partners: Inside America's Most Powerful Law Firms, which explained with devastating clarity the pyramidal structure of the big law firms of the day. The main difference today is that the biggest firms are much bigger. As Stewart explained, a group of, say, 100 partners sit at the top of the pyramid, with 300 or more associates below them. The associates are paid a flat salary. The partners both draw a much larger salary and share profits. All of the associates are brought on board with the promise that if they work hard enough, they can become partners after seven or so years. But out of a cohort of 30 law school graduates hired in a given year, no more than one or two ever actually "make" partner. The rest are fired if they don't leave quietly. The partners let the associates know that their chance to make partner depends on how many hours they bill to clients, making "billable hours" a competition among the associates.

The billable hour is the defining feature of an associate's life at a big firm. A person who works a 40-hour week, with two weeks’ vacation and the equivalent of another two weeks in holidays (the United States recognizes ten federal holidays a year), will put in 1,920 hours at the job during the course of a year. Of course, it's not possible for any lawyer to bill every hour of the day to a client—there are firm meetings to attend, continuing education credits that must be accrued to keep one's license, bills to prepare, job-seekers to interview, extramarital affairs to conduct, and so on. All told, a lawyer who works a relatively normal workday at constant peak efficiency, without ever getting sick or going to the gym or having to take time off to deal with an injury or emergency, can hope to bill a maximum of about 1,800 hours per year.

Many of the biggest firms demand far in excess of 2,000 hours per year, sometimes as much as 2,400 hours—16 months of work per calendar year. There are only two ways for the associates to make quotas like that: (a) work insanely hard, and (b) defraud one's clients, for instance by "double-billing" (charging two clients for the same hours) or simply inflating the number of hours worked. There are many stories of lawyers billing more than 24 hours of their time in a single day

Most of the big law firms require their associates to do both (a) and (b). Naturally, only the first is talked about openly, although "bragged" is perhaps the better term. There are strong echoes of Marine Corps macho in the way big-firm lawyers talk about their days as associates. (One old-timer said to me, "After awhile, they start to believe they really worked that much.")  Those few associates who successfully climb over the corpses of their colleagues to the upper courses of the pyramid naturally feel they've earned the rewards of their superior merit, and since they had to go through it they can't see any reason for exempting the next generation of associates from the abuse.

Saturday
Oct032009

Chapter 10: The Prestige Trap

[My first job had me doing commercial litigation at one of the state's more prestigious firms.]

I took two weeks off for my honeymoon and was told (gently— it wasn't a dressing-down) that I needed to do a better job of clearing off my desk before going away so long, and should also make a point of checking in regularly with the office.  I wasn't permitted to be off the leash. 

A minimum of 150 billable hours was expected every month, and I tried to stay comfortably above the minimum.  I worked many evenings and on about half of the weekends.  In some ways, working on the weekend was pleasant.  I could wear jeans, and there was a sense of camaraderie with the other associates in their jeans.  The only distractions were our chatting, but since the other associates were all good company the distractions were welcome.  We also socialized some away from the office, going out for lunch or for drinks in the evening.

I was working with a group of people I liked.  I was paid well.  In my first years of practice I got to handle some of my own cases, and while they were all stupid and one was a disaster, I was learning the ropes.  Most of my time was spent on complex litigation work that was, in a legal sense, relatively sophisticated.  I was beginning to acquire some confidence in my abilities.  What was there to complain about?

And yet the sensation I first experienced in the Arizona Biltmore kept recurring. I felt as though I was living someone else's life.  Some people pulled back from the brink of death describe out-of-body experiences.  This was the opposite—an inside-the-body experience, in which I found myself filling up a body that somehow wasn't me.  And it was becoming a chronic condition, not a déjà vu–like episode.  I kept trying to talk myself into being happy: where are you going to find a better job?  But when my best friends from college visited me at the office, I felt like the world's biggest phony in my necktie.  I was clumsy and tongue-tied around the people who really knew me.

Saturday
Oct032009

Chapter 11: Impersonating a Lawyer

All young lawyers are haunted by the feeling that they're only impersonating a lawyer and someone is going to find out.  The first time I found myself saying to a judge, "I move the admission of Exhibit 1," I felt ridiculous, as if I were reciting a line from a B movie, as indeed I was. 

At least law school and the movies had taught me the line.  Unfortunately, neither had showed me how to "manage clients"—the slightly supercilious term lawyers use to describe the complex dance steps necessary to keep clients happy while reducing their expectations to the reasonable and dissuading them from foolishness.  Clients don't always want to be managed.  Once I was given the task of advising mid-level bank officials about options for repossessing equipment after the borrower's default.  I began, in what I thought was a jocular manner, by saying, "Well, we have three legal options and one illegal one."  I explained the three.  Then one of the officials said, perfectly seriously, "Tell us the other alternative."

I'd already been in the practice for a couple of years before I finally received some concrete practical advice about communicating with clients.  A wise partner told me that I should always make a point of underestimating the chance of success.  That way, if you fail, the client understands you did the best you could against daunting odds.  And if you win, you look like a genius.

Saturday
Oct032009

Chapter 12: Discovering Discovery

[Lawyers in civil practice spend an amazing amount of their time fighting over "discovery," much of it tedious almost beyond belief, and almost all of it pointless - but you never know in advance which part isn't pointless.]

Discovery is the phase of litigation during which the parties figure out how much a case is "worth"—the appropriate settlement figure.  It's a period of pretrial jousting that allows the parties to sound out the other side, calculating their odds of prevailing at trial and estimating the seriousness of failure.  By multiplying the estimated odds of victory against the projected dollar range of a verdict, the lawyers can come up with a ballpark figure for a settlement.  Discovery, in practical terms, is a highly stylized form of negotiation.  It's kabuki negotiation, in which the lawyers put on masks and make stereotyped gestures. ...

Another function of discovery is to give the parties something to file motions about.  If one party thinks the responses it received to its document requests, interrogatories, or deposition questions were excessively evasive, it files a motion to compel discovery.  If the party thinks the other side's requests, et cetera, are too broad, it files a motion for protective order.  Regardless of how the matter is presented, judges are strongly inclined to "split the baby"— rather more like Shlomo in Joseph Heller's God Knows, who was really ready to cut the baby with a sword, than the King Solomon of legendary wisdom.  So usually the parties have to go through a supplementary or substitute round of discovery in response to the judge's orders, which opens up the possibility for a second round of motions. 

In this way, discovery means that instead of going to court to resolve the parties' dispute at trial, as in the old days, lawyers go to court to resolve their own disputes in a series of pretrial hearings.  Discovery has grown into a way to deal with a big legal dispute by surrounding it with lots and lots of little ones, all of which must be addressed first.  It's like sending out dozens of tugboats to guide an ocean liner into port, then requiring the liner to wait in the bay as all the tugs are docked.

Saturday
Oct032009

Chapter 13: A Taxonomy of Bad Judges

[In law school we're taught that a judge's rulings are based on The Law, an external body of rules and precedents that judges discern and apply through a rigorous process of reasoning faithfully documented in their opinions.  The earnest young lawyer's efforts are geared toward influencing that process.  This chapter breaks the news that sometimes a judge's decisions are reached through an entirely different process.  Sometimes, the judge's decisions say more about the judge's interior life than about the law.]

The hometowning judge is common as dirt, as he's only one variety of bad judge.  There are many others.  It's entirely predictable that young lawyers will encounter every variety, but law schools don't prepare their students for any of them.

[The categories included in this chapter are: The Lush; The Cliche Master; The Lazybones; The Bully; The Retiree; The Federal Magistrate (all-too-often a sub-category of the retired-in-place judge; see Judging Crimes, post 393); The Old Fool; The Control Freak; The Genius.  See Judging Crimes, post 317, for more about The Genius.]

Saturday
Oct032009

Chapter 14: Personality Tests

Lawyers are of two minds about what a lawyer's choice of field says about the lawyer's beliefs.  On the one hand, lawyers are mere mouthpieces, representing their clients as best they can without necessarily believing anything their clients have told them.  Much less do they necessarily believe in anything their clients stand for.  Law students in trial practice classes are trained to represent both sides with equal facility and faux-conviction.

On the other hand, every lawyer knows that lawyers sort themselves into fields of practice.  Entrepreneurial trial lawyers and peas-in-a-pod insurance defense lawyers offer only the most vivid contrast.  If they were put into a lineup, I don't think other lawyers would have much difficulty sorting them.  A lawyer who goes to work in the wrong field will be miserable, often without quite understanding why.

Lawyers know that representing a certain client means nothing; they also know that it means a great deal.  Both propositions are true, but they're true for different purposes...

Saturday
Oct032009

Chapter 15: Situational Ethics

The ethical rules prohibit a lawyer from representing a client while suffering from a "concurrent conflict of interest" ...

But many conflicts of interest are accepted as so completely normal within the profession that, I suspect, the committee responsible for drafting the ABA's Model Rules didn't even perceive them as conflicts of interest. For instance, beginning with his reelection in 1998, New Mexico's governor Gary Johnson became the nation's most prominent proponent of drug decriminalization. New Mexico's drug laws are severe, on paper. When I began work as a prosecutor, selling a single rock of cocaine was punished as severely as child abuse resulting in death. The penalty for killing a child has since been increased, but a second conviction for selling even a tiny amount of cocaine will still result in a sentence longer than that prescribed for second-degree murder. In practice, drug defendants in the northern part of the state never receive the maximum sentence while those in the southern and eastern parts always do, which adds imbalance to the disproportion.

In New Mexico, the state's criminal defense attorneys are a very active and influential lobbying group, far more politically powerful than the prosecutors. During the years the governor was jetting around the country arguing the libertarian case for drug decriminalization, criminal defense attorneys dominated legislative committees with jurisdiction over criminal laws. But the defense lawyers never made a push to rationalize the state's drug laws. Why not? Because drug dealers are people who have access to large amounts of ready cash. The threat of severe consequences provides them with an incentive to transfer that cash to their lawyers.  Better yet, forfeiture laws allow the government to seize all proceeds from drug sales as well as property bought with such proceeds, with a single exception—money earmarked for attorneys' fees. That provides another incentive for dealers to make over their estates to their attorneys. You can give your money and fancy car to me, your last remaining friend, or you can let the cops have it. The biggest beneficiaries of draconian drug laws aren't the police or prosecutors but criminal defense lawyers.

[A second example is insurance defense lawyers.  Recognition of a new cause of action, or a mega-bucks punitive damages award, means businesses must buy more insurance, and insurance companies have more incentive to pay big fees.  The demand for insurance defense lawyers' services increases with each case they lose.]

Saturday
Oct032009

Chapter 19:  Do-Gooding

The conclusion of any legal dispute should, in theory, be pre-ordained—literally, because it's ordained by the law. Legal analysis, ideally, is a mechanical process. It makes use of only a very narrow range of human perception and intelligence.

Almost all legal argument is just a dispute about the proper category in which to slot a case. The lawyers on the opposite sides of the case are in the position of two apple sorters arguing across the conveyor belt at the packaging plant: "Fancy!" "No, Extra-Fancy!" Just as an apple's grade implies nothing about its taste or crispness, legal sorting doesn't necessarily imply anything about morality, or even justice, but only technical correctness.

A lawyer's role is amoral. That's not bad, but it's also not good. That's the point— it's value-free. The civil cases I worked on, with the exception of the media cases, were also generally value-free. One party may have broken the contract, but unless fraud was involved, the breach of a business contract is almost always a financial rather than moral matter. In practical terms our cases were all about what the legal system should do to replace a defunct contract. For no one not directly involved, it didn't matter. Business litigation generally served no larger purpose—not even that of economic efficiency, since the lawyers were barnacles on the streamlined hull of commerce.

All that neutrality got to me. It was like living one's entire life inside a beige room. There's nothing wrong with beige. Beige has much to recommend it. But it's ... beige. It wasn't that I felt superior to the work. If anything, the opposite was true. I felt there was something not quite right with me. Why didn't I share the apparent contentment of the lawyers I most respected? 

Thinking it through with the analytical tools of a lawyer was useless because legal analysis proceeds from first principles, and the first principles I had absorbed in law school and at [my first] firm were: more prestigious is better; higher-paying is better; civil law is both more prestigious and higher-paying than criminal law. That led to the conclusion that I was happy, which somehow didn't convince me. ...

[I switched to doing criminal law as an appeals specialist with the state Attorney General's office.]

By the conventional standards of the profession, there's no doubt I was climbing down the career ladder when I joined the Attorney General's office. "Climbing" isn't quite the right verb. It was more like a fireman's pole. I was taking a big (more than 20 percent) cut in pay and sharply limiting my future earnings potential. I was going to work for the government, with all that implied about stodgy bureaucracy and shabby offices. (And, indeed, some of the furniture in my windowless L-shaped new office came from prison woodworking shops, although I kind of liked the yard-sale funkiness of the look and didn't mind the bookshelf's slight lean.) I was giving up sophisticated civil law for the disreputable criminal law. I was assuming a job title, assistant attorney general, traditionally bestowed upon baby lawyers for their first job out of law school. Being an AAG was the sort of thing an upwardly mobile lawyer might do for a year or two to make contacts before launching his or her career proper. In short, I was being unprestigious.

But I was also doing something that was socially useful.  The satisfaction that comes from meaningful legal work is, in fact, one of the things that makes it unprestigious. Employers don't have to bribe people with high salaries to get them to do things they care about. In the legal world, where prestige usually correlates to high pay and the highest-paying jobs are those no one would do for less, prestige is generally a marker of meaningless work. New Mexico is an extraordinarily violent place, perennially among the most dangerous states for women and children. Growing up in the state from age 11, it had long seemed obvious to me that the violence had a chicken-and-egg relationship to the state's chronic poverty. Not only does uncontrolled violence discourage economic activity at the macro level, but individual victims of violent crime—a category that includes witnesses and everybody living in violent neighborhoods—suffer physically and psychologically in ways that hold them down. Abused poor children, for instance, drop out of school at roughly twice the rate of non-abused poor children—and New Mexico, like other particularly violent states, has a very high dropout rate.  In rankings of the states, New Mexico has spent the past half-century becoming relatively more violent and relatively poorer. I didn't have any delusions that by becoming a prosecutor I could break the self-reinforcing cycle of violence and poverty, but I was strongly attracted to the prospect of doing something to help, leaving behind my old feelings of parasitism. I wanted, in short, to do good—which, to a lawyer, feels strangely like a confession.

The greatest attraction of the new job wasn't the opportunity to specialize in what I was best at, but the opportunity to get out of the beige room. Judith Herman, in the afterword to her classic Trauma and Recovery: The Aftermath of Violence—from Domestic Abuse to Political Terror, wrote: "moral neutrality in the conflict between victim and perpetrator is not an option." When I began to work on cases involving criminal violence, I left moral neutrality behind. I entered a world of vivid and sometimes disturbing color.

Saturday
Oct032009

Chapter 20:  Do-Badding

I've always seen my work in the terms outlined by Judith Herman: I take sides in the conflict between victim and perpetrator.  But that's not how judges, or most lawyers, see the criminal law.  They're used to thinking in courtroom terms.  Inside the courtroom, the two parties are the government and the individual defendant.  That sure looks like a tort case, which similarly involves an individual against a monolithic institution, the insurance company.  In the conventional legal scheme of things (and lawyers are nothing if not conventional), criminal defense work and tort plaintiff work go hand-in-glove.  When a judge is described as "liberal," it means that he or she is biased in favor of victims in tort cases and in favor of victimizers in criminal cases.  Describing a judge as "conservative" implies the opposite pair of biases.

Good judges strive to eliminate bias from their rulings, of course.  In one of the most frequently cited phrases from any Supreme Court opinion, Justice Robert Jackson, one of the few modern justices with a clear understanding of the day-to-day practice of law (Sandra Day O'Connor was another), wrote that judges should be "neutral and detached" when they rule in criminal cases.   Inside the courtroom, that means the good judge strives to be neutral as between the parties—the government and the defendant.

But more is at stake in a criminal prosecution than the fortunes of the two parties.  The prosecutor's client is an abstraction.  "The state" or "the United States" means the people who elected the representatives who enacted the laws to protect the people from criminal violence—and to provide justice for those among them whom the government failed to protect.  Judges aren't detached from the government, which they embody.  Nor are they detached from the people, whose consent is the source of their power.  But they can be neutral as between violence and safety, crime and law, injustice and justice, perpetrator and victim.  They strive for this.

So I'm afraid Judith Herman is wrong.  Moral neutrality between victim and perpetrator is an option.  It's the option chosen by our government, or rather by those government workers put in charge of our society's attempt to protect its members from death, injury, degradation, and abuse.



I THOUGHT OF the criminal law as society's response to criminal violence.  How much violence is too much?  Who gets to decide, the people or their judges?  The people have passed laws that say things like killing another person without justification or excuse is a crime that should be punished.  When, if ever, should judges refuse to enforce such laws?

But I found myself appearing before judges who thought of the criminal law in much different terms, as a series of courtroom contests between mismatched contestants.  I saw myself as representing (though not in the technical legal sense) the victim of the particular crime, and the future victims of the perpetrator, should he be released to repeat his crime, and also all the people whose lives are shaped by violent victimization or the fear of it.  The judges perceived me as representing the victimizer.  I was the courtroom bully, picking on the helpless defendant.  Almost all developments in the criminal law since 1961 involve identifying new ways in which an accused criminal can be considered the victim of the government.  In almost every appeal I've ever done, I've had to defend police officers and prosecutors against accusations that they obtained a fair and just verdict by despicable means.

Saturday
Oct032009

Chapter 21: On the Public Dime

As I see it, working for the government offers four advantages over private practice. Autonomy proved particularly important for me. I didn't know how important until I acquired it.

Second, the cases I've worked on since leaving private practice have all been interesting. That's true of the drug cases, too. It's even true of the one speeding case I did: an ex-cop who taunted a former colleague in plainclothes by conspicuously zooming past him on the highway, relying on a state statute that permits officers to issue traffic tickets only when wearing uniforms. Only someone with a real ax to grind would have taken a speeding ticket all the way to the Court of Appeals, but he ground away mightily. The stories of the criminal cases are interesting, and sometimes deeply affecting. Even more than that, they're meaningful. They have meaning for people other than those directly involved in the courtroom proceeding. Often they have more meaning than anybody should have to bear. ...

Third, I'm expected to work a 40-hour week, which is a lot less than big-firm lawyers are expected to bill although it's still just a little too much for anyone. (Who doesn't respond to greetings on Monday morning with some variation of "Good, but too short"?) Some of my colleagues have the discipline to arrive at 8:00, go home for lunch at noon, return at 1:00, and knock off at 5:00. I tend to be the sort who gets into a groove and wants to keep working until everything in my head is transferred to paper, which sometimes makes me the last to leave the office at night, which then (naturally) tends to make me the last to arrive the following day, until it feels like I'm living in a different time zone than the rest of the office. My eccentricity is tolerated, for which I'm grateful. But from my point of view, the most important thing is that the work dictates my hours rather than vice versa.

Fourth, I can retire after 24 years with a pension that pays 75 percent of my salary. If I hadn't wasted those first five years, I'd be planning to retire shortly after I turn 51.

But there is a downside. It's easily stated: $. My salary today, adjusted for inflation, is a little bit lower than my last salary at [the firm where I started my career], which I left 19 years ago.

Saturday
Oct032009

Chapter 23: The Laugh Barrier

Imagine that on a humid morning in June you're taking in the sights of Washington, D.C.  Just as you're admiring the elegant proportions of Maryland Avenue as it radiates northeastward from the Capitol to Stanton Park, an old man wearing a dress approaches you.  The man's dress is black, floor-length, with a high neckline.  Grabbing your arm, he shouts: "The Constitution changed today! That which was, is no more! The fundamental organization of our government is altered!"

Suddenly four more dress-wearing old men materialize out of the heat haze and surround you, all chanting the same unintelligibly apocalyptic things. I think you might justifiably conclude that the time for polite murmurs and discreet sidling had passed and the time to run away had arrived.

And yet, when five [actually, six -- oops] dress-wearing old men made just that pronouncement on June 19, 1961—admittedly, less pithily, and while they were inside the mausoleum-shaped building on the corner of First Street and Maryland Avenue rather than on the sidewalk outside it—they were taken completely seriously by ... well, by everyone. The idea of not taking the Supreme Court completely seriously doesn't exist in American political life.

TV comedians are pitilessly funny about politicians who put themselves before the voters and tell us something of what they plan to do once they get power in their hands. But political appointees who refuse to tell us in advance what they have planned for us, who violate the first amendment by refusing to allow cameras inside their public buildings and penalizing criticism of themselves, and who institutionalize pomposity—somehow they're immune from ridicule (except for African-American justices' sexual proclivities and Italian justices' overly expressive hand gestures, stereotypes that prove the rule).  Not even priests and the English royal family are too precious for jokes anymore. In America, only judges reside beyond the laugh barrier.