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Sunday, March 06, 2005
  Starting Place—What Does It Mean To Become An Attorney? : As I mentioned earlier today, I'm throwing out some ideas in an effort to get feedback from people. I want to figure out what changes I should propose for the law school curriculum. Post comments, send me a message (btlarso1 (at) wisc (dot) edu), or pull me aside and tell me what you think. This will be longer than most posts, but it's Sunday and I thought I'd start with a story.

Let us begin at the beginning: what does it mean to become an attorney?

As we meet our young hero (that's me), he's walking down King Street on a Friday evening, near the capitol, wearing a coat and tie, of all things. He's with a few companions, similarly-dressed—attorneys at the law firm where our hero is "summering" as a law clerk. They are taking our young hero to meet the rest of the firm at the Great Dane, where he will sit down with all of his colleagues for the first time.

As the group strolls across Pinckney Street on their way to the Dane, they encounter two young men standing on the corner. The two are in mid-conversation, having just bumped into each other themselves. They have no way of knowing that our hero is approaching. Here are the events that unfolded during the next few minutes, leaving an impression on our young hero that will stay with him and guide his conduct for a long time into the future...

He walked up to the two young men and greeted them warmly, to the surprise of his companions from the law firm, who played it cool. The young men, C. and D., happened to be dear old friends. They had been co-workers of our hero (during undergrad) at the Majestic movie theater (back when it was still open). Between movies, the three of them used to gather around the counter in the lobby, eating popcorn, talking about the places they'd go.

"Lookin sharp, Brian!" one of his old friends called out, eyeing our hero's costume. He smiled in response, and parted ways with them after a brief conversation. He wondered if they were surprised at the way that he was dressed or that he was now working at a law firm. C. and D. were dressed much more casually than he, and they sported scruffy beards that suited them. By contrast, our hero was new to his clothes; his face was clean-shaven, and his puffy cheecks were pinked from razor burn.

Inside the pub, he struggled to make conversation with his colleagues. Our hero had by then grown accustomed to hanging around with attorneys. He knew, for example, that at the office he should just sit and listen, when he could remember to do so. In social settings, he knew he was expected to join in a discussion but that it was best to let them take charge of its direction.

His thoughts turned to his friends outside. What must they have thought when they saw him walking down the street dressed to the nines? He felt as if they—and now everyone else—could see right through him. They could see what was obvious to him, at least in that moment: He was in over his head. It was true that after the interview season at the Law School last fall, he had warmed up to the idea of dressing for success. He felt comfortable in shirtsleeves and a tie. And his wife, Kris, was proud of him. She knew that he clung to an idealized notion of an attorney as a "counselor." She had helped to make his transition from law school to the working world more comfortable by finding a store over at Hilldale Mall where they offered custom fitting. He and Kris liked buying clothes from the elderly salespeople who worked there; they said the outfits made him look dignified. But now, as he looked down at his feet and wondered if his shoes were the right size, he just felt like a phony.

He thought of his girlfriend in high school, who had said she wanted to become a lawyer, and he had tried to talk her out of it. Why?

He thought of what his father had muttered, a few years back, when given the news that his son would be applying to law school. "Does the world really need another lawyer?" had been his father's only response.

Just then, V., the most senior attorney in the room, walked over to him. Our hero pulled himself out of his thoughts and tried to look confident. "Don't slouch," he said to himself. V. was a big, nice man. He had been with the firm for more than forty years, and had recently gone "of counsel" after a distinguished career. Without asking, V. poured beer into our hero's half-emptied glass.

"Congratulations on being hired," he said. Our hero reminded him that he was only there as a law clerk for the summer. It would be some months before the firm would decide whether or not to keep him around on a permanent basis after graduation. V. just winked, as if he knew something that our hero did not. After a long pause, he said, "You're here because you're a fine young man and you've got a knack for the law."

"Is that how you felt when you first started out?" asked our hero. He was fishing for something he wasn't going to get. As an attorney, V. had been so successful that if he had ever felt uncomfortable in the role, the feeling had long since passed. There was little chance that V. would dredge up such memories for the benefit of a young law clerk. But the question was a good one, anyway. It prompted the old, seasoned attorney to let out a number of musings about what it had been like to start in "the profession"—as he called it—back when a gentleman would have been embarrassed to walk down the street without his hat and cane.

"But I can see that you're looking around for someone to come and rescue you from these old stories about attorney pride." said V., good naturedly, after he caught our hero looking around the room.

"Not at all," said our hero. And he meant it. He had glanced over his shoulder, but only to find out who was within earshot. "I sometimes feel like they don't do a good job of teaching us about that at the law school," our hero confided in his boss.

"Son," came the reply "there are two sides to our job." V. raised his eyebrow and paused for effect. "The first side is what they teach you about at law school. The technical part. And from your grades I can tell that you're going to be skilled in those aspects of the profession."

"I'll let you be the judge of that after I finish my first assignment," volunteered our hero, when it was apparent that he should say something. He doubted that V. actually remembered what his law-school grades were, although all of the attorneys at the firm had reviewed his transcript prior to extending him the summer offer. Our hero also doubted whether his grades would prove to be a good measure of his success (or failure) as an attorney. He was intrigued by V.'s intimation that the "second side" to the job, unlike the first, would have little to do with grades or with what he had learned in school.

V. continued. "Now, as for the other half. You're going to be serving at this job for a long time. Serving as a counselor to the people of this city. They will come to you when their lives are falling apart; or when they are giving birth to something." Measuring out his words, he squared up to our young hero and continued speaking. "It is you whom they will choose to visit at those important times. I want you to realize that it is a great responsibility, son. And it is an opportunity. An opportunity to make a difference in their lives."

Our hero smiled. He looked around the room and nodded. He pictured himself and his friends eating popcorn back at the movie theater and dreaming of the future, which had arrived. He hadn't earned his parents' approval, but it didn't seem to weigh on him as heavily as it had before. He looked down at his shoes and his feet felt comfortable in them. Meanwhile, he sensed himself sitting up higher in his stool—a little straighter than before.
To me, the relationship between the law school curriculum and what it means to be an attorney is flimsy. This is because law firms and bar prep courses don’t expect you to know anything substantive coming out of law school. And indeed, the amount of substantive law out there is so vast that you can only expect to scratch the surface, even in an in-depth course.
However, you will be expected to know the procedure: how to do legal research, how to brief a case, how to read a contract, how to gather facts, how to write well, and how to quickly sift through large amounts of facts and find what is relevant (law is, really, nothing more than a species of fact). These skills can only be obtained by practice. I don’t think there are any shortcuts. Whether these procedural skills should be the subject of separate courses (writing courses, legal process, etc) or should be ancillary to substantive courses would be interesting to delve into. I prefer the latter, personally. I could never get excited about canned memos.
In my view, because becoming an attorney (at a firm, at least) involves getting good grades, the substantive contents of the curriculum are less important than one’s individual procedure for mastering the course material. So I don’t think the curriculum much matters, as long as it is demanding and forces the student to hone the necessary procedural skills.
Your response is so very Hatch (which is a good thing, not a bad thing).

I think that what you identify as procedure is the same stuff that V., in the story above, refers to as "the technical part." And so, OK, let us agree for now that the amount of substantive law we learn in school is minuscule and serves only to provide a framework for honing our procedural skills. Why then are the grades based primarily on our knowledge of the substantive law? Based on mastering the course material, as you say? If you write well, fact-sift, etc., you'll surely do better on an exam. But substantive law is at the core of what we're tested on.

I think you've identified a major problem with the curriculum, yet you seem to be indifferent to it. That's fine. But I'd like to learn why.
The story is misleading because it suggests that law firms care about the human side of practice. The partner in the story is a just a relic and he probably does not not represent the mainstream thinking at the firm.
It is easier to have great feelings about becoming an attorney - or counselor, as it may be- at the Great Dane than it is to have those same feelings at your desk buried under an avalanche of work. But I don't want to burst your balloon or anything...
I am indifferent to the problem because the system as it is works fine. Therefore, I do not perceive it as a problem as such, but more of a dirty little secret of the legal profession.

I don't agree that grades are based on knowledge of substantive law. Of course I defer to Brian on what grades are based on, since he knows it almost better than anyone. But in my observations, grades are primarly based on the procedure of identifying issues in fact patterns and resolving those issues by 1) applying the facts to substantive law, and 2) making good policy arguments based on the facts. In some courses (Church), 2) is more important than 1). So you can know volumes of substative law and still get bad grades because you ignore the facts or suck at making policy arguments.

Now, as to the cirriculum, should we teach courses in policy arguments or applying facts? Perhaps, but the existing method of reading tons of cases, including facts, issues, courts' analysis, reasoning, and holdings act as de-facto courses on policy arguments and applying facts because that is exactly what courts and lawyers are doing at trials. That is, unless you just read commercial outlines with black letter law, in which case you are fooling yourself on a grand scale. Oh, and by reading cases, you learn a bunch of substative law too, which doesn't hurt, especially if you have to take a bar exam.

Eliminating substantive law courses would also create bunch of confused 1Ls. After all, it is "law" school, not policy school or fact school. It's confusing enough as it is, and the substantive subjects provide some sort of framework.
Hatch: I'm going to try and prod someone into refuting your substantive-law-as-a-framework-for-the-important-stuff argument. Because if that's the case then the same purpose could be served by swapping out substantive law and replacing it with all ethics courses (provided that they use the case method).

Steve: Don't depress me!

Marian: In my experience the size of the law firm--and (perhaps more importantly) who the clients are--play a big difference in the thinking at any given firm. Have you had a different experience?
I have a dwi lawyer site. It pretty much covers dwi lawyer related stuff. Check it out if you get time :-)
Life qupte that I like "I am not my sister's keeper, I am mysister. To see more of my life quotes and dish on Starting Over visit me at ##http://www.starting-over-tv.com##
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