Lawyer Apocalypse

Some students like to talk in class.  Some don’t.  There seems to be little correlation between talking in class and performance in class.  But I suspect there’s a correlation between talking in class and succeeding in law practice, as I noted yesterday.

My own method for getting student participation in the 1L Contracts class is to use a problem-based approach in which we work through eight problems in the basic 100-minute class session.  Three students are assigned in advance to represent the plaintiff in each problem, three are assigned to represent the defendant, and three are assigned to be judges.  The assigned students must come down to the front of the class, stand up, say “May it please the court,” introduce themselves, and then make their arguments.  There’s no grade component to this, but students seem to take it very seriously.  Given the basic 70-80 students in the 1L course, students find themselves having to do an oral argument about half a dozen times during the semester.

This year’s Contracts class took their final yesterday morning, and I invited them for beers across the street to Shula’s.  I was struck by the number of unsolicited comments from students about the process.  This suggests to me that Yale students aren’t alone in feeling that the professor’s job is to push them to participate.

Students at Yale Law School have a new report out on gender at America’s most exclusive law school.  It’s called Speak Up about Gender: Ten Years Later.  One of its findings is that adjusted for the relative populations, women at Yale speak up in class less often (43%) than do men (57%).  I don’t know much about the inner workings of elite law schools and am not competent to judge the statistical methodology in the study.  Others (Lior Strahilevitz, Jeff Lipshaw, Bill Henderson) have more substance to add.  Just a couple of points.

First, I was struck by the comment of one commentator, Vivia Chen of The Careerist, who said, “[Y]ou can’t help but feel there’s a correlation between being vocal—maybe even cocky—and success.”  This seems so obviously true that the slightly doubtful tone is puzzling.  This is a society (and a profession) in which those who speak get more attention than those who remain silent.  Quiet excellence can be well rewarded in the legal profession, but it is rarely as well rewarded as loud excellence.  (The converse is true.  Quiet incompetence is usually better rewarded thatn loud incompetence.)  The most successful products are those which are very good and very well marketed.  Staying silent and relying on word of mouth is not usually the most successful marketing strategy.

Second, I was struck by the study’s conclusion that students overwhelming want more cold-calling in class rather than less.  This apparently includes even the venerable Socratic Method.  There is no doubt that cold-calling forces students who would otherwise be quiet to speak up, which is obviously (for one who is going to be a lawyer) a good thing.  What’s strange is that the law students themselves seem to understand this.

My 1L Contracts exam is over, so grading now begins.

I was in the law school faculty/staff staff kitchen the other day, making a cup of coffee and overhearing a conversation.  Seems some anonymous person on some blog or other called the school that employs me “the worst law school in five states.”  Given that every business on earth has someone out there saying how lousy they are (ever visit Walmartsucks? WholeFoodsSucks? IHateStarbucks?) I was surprised at how offended people were.  We’re not used to nasty anonymous attacks at law schools, but we’re going to see a lot more of them.

On the merits, it’s hard to tell what “worst law school” means.  If you look at our student credentials, they stack up pretty well compared to most fourth-tier and many third-tier law schools.  If you look at our bar passage rate, we do pretty well.  Our bar passage rate averages about ten or fifteen points below test takers from top 10 law schools.  But when you realize the strong correlation between bar performance and LSAT/UGPA credentials, and realize also that it’s doubtful that any of our students could even have been admitted at one of those schools, you’ve got to assume that we’re doing a pretty good job of actually training students for practice.  Given that 80 percent of my students will likely pass the bar, it’s almost impossible to believe that anyone at at a school whose average LSAT score is more than two standard deviations higher than ours could possibly fail if they got even a decent amount of instruction.

Since I’ve neither taught nor attended any of the other 19 or so law schools in the five-state area. I obviously can’t say that we’re not the worst.  Somebody obviously has to be, right?  (Think Texas Tech in basketball.)  Certainly we’re the newest and almost certainly the least prestigious, so for prestige-driven students we’re a bad choice.  If you’re planning on relying on the reputation of your degree-granting institution as the primary proof of how good a lawyer you are, and don’t care how much money you pay for the degree, by all means go somewhere else.  I’ve heard that everyone at the top ten law schools gets a great high-paying job these days, and for every 10 places in the USNews rankings the expected salary of graduates goes up by $7,500 a year.

One of the few law school deans who has some sense of the coming Apocalypse is stepping down.  Jim Chen of Louisville is calling it quits after five years.

With any luck, he’ll have time now to do more of the innovative thinking that his fans have come to expect.

“If you want law school to be practical, and you want it to do more than train litigators (whose orientation is the enforcement or opposition of legal rights and duties – and where some practitioners get to be appropriately tunnel-visioned), and you want lawyers to be “practice-ready” when they get out, and you don’t want a lot of interdisciplinary theory, what do you do?”

Jeff Lipshaw asks the question over at The Legal Whiteboard.  It’s a good question.  I’m not as anti-litigator as most transactional types, since the one things lawyers bring to transactions that other professionals don’t is their sense of potential legal liabilities, a sense that is well-honed by training in litigation.  Any good MBA can tell you if the deal is good or bad.  Only a lawyer can tell you what the litigation risks are.

In my view, training lawyers ought to be thought of in the same way as training soldiers or surgeons.  A great military commander obviously must possess a great many skills apart from a thorough understanding of small unit tactics and how to keep a rifle in good working order.  A great surgeon must have qualities apart from his or her ability to stitch up an incision correctly.  But the newly minted second lieutenant or surgical resident cannot be expected to have developed those kinds of skills.  At the point they emerge, it is enough that they know how to lay down suppressive fire at a given target or sew a straight seam.

In his post Jeff raises several points about how, in real life, decisions about whether to do a deal, whether to break off a contract, and whether to sue are not usually made on the basis of relative legal rights.  But that’s the same with soldiers in the international world.  Most of the time the United States will work out its differences with other countries amicably.  Even when things get testy, most of the time we will work things out peacefully or at least adopt some sort of live-and-let-live policy.  But this does not mean that having armed forces is unnecessary.  It is the very presence of the armed forces and a perceived willingness to use them when necessary that helps us reach peaceful solutions.  Similarly, the presence of the ”law” as the ultimate endgame ploy provides the background for all commercial dealings.  This means that just as soldiers must be trained heavily for the one percent of the time they will be called on to kill people, lawyers must be trained heavily for the one percent of the time they will be called on to resort to legal remedies.

So I feel about putting more emphasis on “business thinking” in law school pretty much the way I assume an MBA schools would feel about putting more “thinking like a lawyer” into their marketing program.  Not necessarily opposed, but rather dubious.  I try to teach my students enough business so they (1) understand what a given transaction is about, and (b) communicate with their clients.  I’ll be doing a new class this year where we take it a step further, and teach students how to find the facts that will become the basis of their legal arguments.  But I will almost certainly continue to have them focus on drafting simple contracts and pleadings rather than focusing on strategic business thinking.

Besides, I don’t know how many people there are like Jeff, whom I would trust to teach my students “real world” stuff.  Very few of my colleagues in the academy have anything like Jeff’s background.  It’s difficult to take seriously “real world” advice from someone who practiced law as a junior associate for a year and a half during the Nixon administration.  I simply don’t know how many of us have the kind of breadth of practice experience that we could actually add value.  I’m fairly confident I couldn’t, and I have a lot more higher-level practice experience than most of us.