March 17, 2004

Fool: Lessons Learned (Or Not) In School

by Guest Contributor

The Fool has been a consistently great commenter at the former En Banc blog and now it appears at De Novo, as well as maintaining the Fool's Blog. -Ed.

If I may: Having now been out of law school long enough to have garnered a true flavor for the actual practice of law (I have worked as an independent contractor, a law firm attorney and in-house counsel), but not so long that I have forgotten my law school experience, I take the liberty of offering some thoughts on what law school does well, not so well and the differences between law school and the practice of law.

With regard to law school, I believe that it provides an excellent historical perspective of the law. However, that historical perspective is not particularly helpful in the “real” world. While interesting (if you will not be tested on it), it contributes little to one’s abilities and effectiveness as a practicing attorney. I assure you that the matters you will handle you will likely never have to cite Pierson v. Post. International Shoe is another story – especially with the proliferation of the Internet and online business!

While I certainly am not advocating the wholesale striking of history from law school classes, I believe that much more practical “real” world courses would prove infinitely more useful to those who will ultimately practice law. I believe it would make for more competent and effective attorneys. I compare it to medical school whereby every student must satisfactorily complete a qualified residency program before becoming a licensed physician.

Even if not in the form of a residency, in my opinion, the legal profession would benefit immensely from such practical, “hands on” type of classes. Thus, moot court-style classes should be required, contract negotiation classes should be required, etc. A moot court exercise for each required course would give students a flavor for how torts/contracts/trusts & estates, intellectual property law plays out in actual practice. Moreover, it would expose all students to this type of experience, not just those fortunate enough to make the moot court team.

This learning format also ties into Chris’s comments about objectivity. It would force students to take one side of the dispute. And, by doing so, you are forced to consider your opponent’s position and likely arguments. That being said, a certain effort at objectivity remains vital in the practice of law. When clients seek your advice, you cannot simply give them the “best case” scenario (like summary judgment, reviewing all facts in the light most favorable to your client). You must make every effort at analyzing the facts objectively in order to properly advise your clients. This is frequently done in associate-to-partner style academic writing assignments. This remains important for a couple reasons. As indicated above, you must be able to give your client appropriate advice taking into account all of the weakness of his position. This helps you devise an appropriate and effective subjective strategy on your client’s behalf. Also, as a practicing lawyer, you will find yourself in the position of representing a client with whose case (or position) you may not personally agree. In order to represent that client appropriately, you must put aside subjective judgments [about the client] to analyze the matter for your client – for whose benefit you are working. Again, thereafter, you argue subjectively, putting forward your best case, distinguishing weaknesses in your case, and discounting your opponent’s stronger points. In short, a valiant attempt at objectivity is required to make subjective, winning arguments.

Objectivity, in some ways, is an illusion; however, it is a necessary illusion. If the law were cut-and-dry objective, our court rooms would not currently be jam-packed with litigants and cases – each party believing she is subjectively (or objectively) right. Thus, in the practice of law, both objectivity and subjectivity remain vitally important to being a good attorney. Objectively cannot be discarded.

Briefly, I agree with Chris that the more you put into law school, the more you will get from it. This point need not be belabored.

And, finally, on a more practical level, the thing that can be most disappointing practicing law is being constrained by clients’ and employers’ budgets. Often clients and companies are not willing to spend the money pursuing the “interesting” cases. The practice of law is governed by money – whether it is your billable hours, your corporate productivity, or the client’s purse strings. Thus, if there is one naïve expectation that I carried with me through and beyond law school, it was that the “close call” interesting cases and fact patterns encountered in law school would forever continue in the “real” world. Oftentimes, they do not. They exist, but you are not always able to pursue them for a number of valid reasons. However, when you do get to pursue such a case, it is rewarding.

Thus, one of the things I enjoy about the blogosphere is the ability to read about, think about and comment on many of the cases and national and global events with which I am not directly involved. It affords me – and, I think, other practitioners – the ability to exercise those theoretical, academic mental muscles.

Having read this, I am not sure it is on point. However, I hope someone finds it interesting.

March 17, 2004 02:47 PM | TrackBack
Sitting in Review
Armen (e-mail) #
PG (e-mail) #
Dave (e-mail) #
Craig (e-mail) #
About Us
Senior Status
Chris Geidner #
Jeremy Blachman #
Nick Morgan #
Wings & Vodka #
Recent Opinions
Persuasive Authority
De Novo Reporter

Powered by
Movable Type 3.21