Is a Law Degree a Good Idea in the 21st Century?
March 19, 2018 § Leave a comment
Philip Thomas at Mississippi Litigation Review & Commentary emphatically raises some serious questions. You can read his take at this link.
Advice for New Law Students
September 13, 2013 § 1 Comment
I found this remarkable piece on, of all places, Facebook. It’s a column penned by Cal-Davis Law School Associate Dean Vikram David Amar for Justia.com. It’s so on-target that I decided to post it here in hopes that many of our Mississippi law students would read it.
Oh, and there’s some food for thought here for some of you veteran practitioners, too.
Advice for the Law School Class of 2016: Ten Suggestions for Incoming Law Students
My biweekly column slot this week roughly coincides with the beginning of the new academic year at most law schools across the country. Even though it seems that fewer people will be starting law school this year than was the case just a handful of years ago, the group of entering first-year students about to embark on their lifelong journey of legal education still numbers in the tens of thousands. For whatever they may be worth, I offer below—based on my experience as a law student, a practicing lawyer, and someone who has taught at four law schools over the past two decades—ten pieces of modern advice (some intuitive and some less so) for incoming law students:
1. Develop a Strong Work Ethic: Done right, law school—and the practice of law thereafter—is hard work, and plenty of it. Discipline, persistence, and stamina are attributes of most successful law students and lawyers, and the sooner one makes peace with that reality, the better. At a charter middle school in San Francisco where I used to serve on the Board, there hangs a banner bearing a message law students would be well advised to internalize: “Don’t pray for a light load; pray for a strong back.”
2. Working Smart Is as Important as Working Hard: The raw number of hours spent in the library (or other place of scholarly work) is not the only, or even the best, measure of what constitutes a good effort in law school. Strategy is important in law school, just as it is in the real world, and what matters most is how—not just how much—time is spent.
After law school, almost every lawyer serves clients and customers. A lawyer’s clients or customers may include individuals, businesses, government agencies, judges, in-house counsel, or (quite often) other lawyers, such as partners, within a practice group. Successful attorneys develop an effective customer-service mindset; the best lawyers are the ones whose clients or customers walk away the most satisfied.
Although perhaps it is not apparent, law students also have clients and customers—most commonly, the law faculty, for whom students produce work product in the form of exams, papers and so on. In the same way that different customers or clients in the real world may be looking for slightly different things from the lawyers they hire, law professors might not all react to the same work product in the same way. The ability to quickly figure out what the client or customer is looking for, and to vary your style and approach accordingly, is a characteristic that the real world values, and thus is the kind of skill that should be developed from the beginning of law school.
3. Read the Materials in Casebooks Actively: It is often said that law school is not about learning or memorizing the content of particular legal rules (which may change over time and for that reason must be looked up anew in the future anyway), but rather about learning how to go about teasing legal rules and standards from ambiguous materials, analyzing how the legal rules can best be defended, how they interact with each other, which alternative legal rules might be suggested to courts and other decision-makers, and the like.
This (oversimplified but still useful) statement of the nature of legal education means, among other things, that it is not enough for you to read a case and understand what the judges said. You must also consider why they chose to say what they said, and in the particular way that they said it. A law school casebook assignment is thus more than an exercise in SAT-like reading comprehension; it is an invitation for you, the reader, to ask questions such as: How does what is said here compare to what is said elsewhere? If what is said here is correct, what also follows from this? Given what is said here, what are the kinds of questions that one would naturally expect other cases down the line to have to address? And so forth.
This kind of analysis requires a student not just to follow along in the case materials, but rather to attack them: to break them down, look at their component parts, reassemble them in different ways, and more. Although I certainly cannot say my own style would necessarily work for all or most law students, I can say that when I was in law school I found that I was not reading energetically and methodically enough if I was not scribbling down a lot of questions and comments to myself (to return to later) in the margins of the casebook as I provisionally evaluated each paragraph and what it added or was trying to add. For me—and perhaps for a good number of other students—active reading involves a fair amount of writing.
4. Talk to Your Classmates About What You Are Learning: It is no secret that lawyers do a lot of talking (perhaps too much!). Oral presentation skills, whether deployed in front of a judge, a jury, a fellow lawyer, an outside client, the press, or a group of interested citizens, are often essential to effective legal representation. The only way to get comfortable using a new language and a (somewhat) distinct way of thinking is to try them out on other folks. And who better as a practice audience than your classmates, who are going through the same set of experiences, and who are going to make the same or similar mistakes in learning this new culture? At most good law schools, a student can learn as much—about what it means to think and act like a lawyer—from his classmates as he can from his professors.
5. Set Aside Time For Just Thinking About the Material: When I was in full-time legal practice, a wise partner and mentor lamented that the standard time sheets that lawyers use for recording how they spend their time, so that clients can receive some detail along with their bills, contained categories for many lawyerly tasks—such as researching, drafting, editing, sending emails, and participating in conferences and telephone conversations—but did not contain a standard category for what good lawyers do that justifies their high billing rates: simply sitting and spending time thinking, carefully and systematically, about what they have read or heard.
Many a law student and junior lawyer thinks that when she has finished reading her assignment, her work is done. To the contrary, when the reading is finished, some of the hardest and most important work—trying to fit all the reading into a detailed big picture that makes sense, and that can be framed so as to benefit one side or another in a dispute—is just beginning. Most areas of law contain ambiguity, a fact that many law students resent but ought to embrace; if legal questions yielded mathematically precise answers, most anyone could be a good lawyer. Playing with and shaping ambiguity is how lawyers earn their keep. But to do that, one really has to sit and reflect on how the small pieces fit together, and at which intersections there is the most room for beneficial manipulation. Law students should, early on, get into the habit of setting aside chunks of time after they are done reading or researching on a topic simply to intellectually digest all that they have just swallowed.
6. Be Cognizant of, but Do Not Obsess Over, the New Economic Realities of the Legal Profession: We all know these are stressful times to be a law student. Debt loads are high, and job prospects three years from now uncertain. In this environment, people have to think carefully before making decisions that might affect their own financial futures. They have to appreciate how what they do in school will enhance their marketability. They’ve got to begin to network – using their classmates and faculty—even while in law school. They’ve got to periodically reevaluate whether the course they are on should be changed; one example is giving serious consideration to whether attempting to transfer to another law school after the first year would make sense. No doubt they’ve got to keep track of more things than previous generations of law students had to. But they don’t have to worry about the long term every day. People who are starting their first year this month have already made the decision—hopefully after careful cost-benefit analysis—to go to law school. So they should throw themselves into the enterprise and avoid constantly revisiting whether they’ve made the right decision. If someone is really uncertain/unhappy after one year, there is the offramp of withdrawing (and at many schools a person who withdraws after having successfully completed one term or one year has a right of return for some period of time without having to reapply.) But folks shouldn’t let their student debt and employment outlook distract them from getting the most they can out of school. And freeing oneself from distraction might enable better law school performance, which in turn is one of the best ways to increase employability.
7. Make Good, But Moderate, Use of Skills Courses, Clinicals and the Like: One complaint often heard about law schools today (and it is perhaps amplified by the new economic normal for law firms) is that they don’t do enough to produce “practice-ready” graduates. Law schools (prodded in part by the ABA) have responded to this criticism by increasing the number of courses that attempt to inculcate practical skills through clinical involvement in real-world cases, simulation exercises, and externship placements in public and private organizations. This in the main has been a healthy development. But even as you partake of the increased number of practical courses, don’t forget the basic, substantive courses in traditional classroom settings that are the foundation of your legal education, and form the single most essential part of your legal training. Learning how to learn and analyze law is more important than learning the techniques of practice. Remember, you’ll likely have an entire career to hone practical modes, but the three years of law school is likely the last time you will ever be able to immerse yourself in a truly academic environment.
8. Don’t Forget the Legal Aspect of Law School: Another development in law school curricula over the past few decades is the increasing prevalence of “law and” interdisciplinary offerings. Examples of this genre might (depending on how one defines things) include law and economics, critical race studies, law and society, law and philosophy, feminist legal theory, and law and psychology. These efforts to locate law in a larger academic context are welcome additions to the curriculum. But as with practice-oriented courses, one should make sure not to overdo things here. Law is its own discipline—a distinctive blend of textual, historical, sociological, empirical, economic and psychological analyses. It’s great to analyze legal problems from other academic and theoretical perspectives, but, to paraphrase Chief Justice John Marshall’s famous quote from the McCulloch v. Maryland case (involving the Bank of the United States), “we must never forget that it is a [law school] we are [operating].” “Law and” offerings can be great, but make sure that there is a legal connection to what is being studied. In other words, make sure that what is being talked about is truly interdisciplinary, and not simply other-disciplinary.
9. Don’t Just Play to Your Strengths: One mistake I see many law students make is that after they realize that they don’t seem to do particularly well in a particular kind of course (e.g., substantive law courses vs. practice-oriented offerings, courses that require papers rather than exams, courses involving public law vs. private law, etc.), they simply stop taking that type of class. And at most law schools, it is fairly easy to craft your second and third year schedule to avoid the kinds of courses with which you seem not to connect. But avoiding what is least comfortable is not the way to improve as a lawyer. All these different kinds of classes are important parts of the law school experience. And so if there are certain types of courses that seem especially foreign to you, that discomfort is a reason to take more, not fewer, of them, so that you may shore up your skills in areas of weakness.
10. Make the Time to Work on Writing Skills: Translating what they have read and analyzed into a written product is what many lawyers get paid for; written communication is a lawyer’s stock-in-trade. Learning to write effectively about legal topics takes time and intense engagement. Unfortunately, the other realities of law school sometimes make it challenging to devote the time that is needed to improve writing skills. To be sure, there are (often required) courses in “legal writing,” but getting (or staying) in good writing shape requires regular exercise for the rest of your career, not just for a semester or two. Writing exams (and practice exams for preparation) and seminar papers will help some, but not nearly enough. You should get in the habit of frequently writing shorter items—a paragraph at the end of your class notes distilling your thoughts about a case or a professor’s presentation of it; an email to a classmate or a professor explaining why you were confused, and posing a crisp question the answer to which should resolve the confusion; a letter to the editor or an Op Ed piece commenting on some recent legal development, etc. The more you practice your writing during law school, the better you’ll be at legal practice after you graduate.
Vikram David Amar, a Justia columnist, is the Associate Dean for Academic Affairs and Professor of Law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.
Thanks to attorney Francis Springer.
DISMISSED FOR LACK OF EVIDENCE
April 12, 2012 § 12 Comments
Evidence is no longer a required course of study at either of the law schools in Mississippi.
That may be old news to you, but I heard of it for the first time only last week. You can click on either or both law school links over there on the right and check for yourself. You’ll have to do a lot of digging to find the info; I recommend you go straight to the school catalogs in .pdf format.
I am sure the academicians have a good reason for this development. I’m guessing – I haven’t “interviewed” any deans or anyone else – that it has something to do with the bar exam, and not law school itself, being what they consider the real certification of skills.
Still, when I think of subjects at the core of being a lawyer, evidence certainly ranks right up there in the top few. A good grasp of the law of evidence requires one to bring to bear the very analytical legal skills that distinguish the legal profession from other fields of endeavor.
Moreover, the law of evidence informs much of what a lawyer does in the everyday practice of law, regardless whether that lawyer ever personally sets foot in the court room. A lawyer’s advice about the drafting of a contract is shaped by the distinct possibility that it may have to be in evidence at trial some day. Advice to clients about how to make a proper paper trail and document activities is based on evidentiary considerations. When a client asks advice about what his or her liability might be if sued, the lawyer has to evaluate the evidence, taking into account what may or may not be admissible in evidence.
As I see it, law school has three primary functions: (1) to teach the law; (2) to teach how to find the law when one is not sure what the applicable law might be; (3) and to analyze the problem like a lawyer so as to bring (1) and (2) to bear.
Of the many areas of study that might be required, I nominate evidence as one that may be unparalleled in its ability to teach law students how to think like a lawyer. Now, I am not an academician. I am a mere trial court judge toiling away in an obscure corner of Mississippi, so my opinion, I am sure, carries little weight on this subject. But based on 33 years of practicing law and 5 years on the bench, I have to say from a purely nuts-and-bolts standpoint that a solid grasp of evidence would be in my top 3 of essential subjects to have if you expect to succeed as a lawyer (FYI, I nominate contracts, civil procedure and evidence).
And yet, by making evidence an elective, the subject has been assigned the same academic weight as other elective courses, which include Venture Capital, Law and Literature, and Legislation at MC; and Gaming Law, Bioethics, and Legal History of Slavery at OM. Not to say that any of those courses are not worthy of being included in a proper curriculum, but are they as essential to the core function of a lawyer as is Evidence?
It seems that the function of law schools has shifted from my era, when we were admitted to practice by diploma privilege after completing a rigorous, mostly required curriculum, to the current, when completion of law school is merely the gateway to admission to the bar exam, and it is up to the students to select (with a few exceptions) what he or she prefers to study.
In 1980, or thereabouts, Mississippi abolished “reading for the bar,” under which an aspiring lawyer would study the law on his or her own under the tutelage and supervision of a lawyer in good standing. After the prescribed period of study, with a certificate of the tutorial lawyer in hand, one applied to take the bar exam. Wisely, under that system, the experienced lawyer directed his tutee’s attention to the things that mattered, which included a hefty dose of Wigmore.
Now one must pay a law school – handsomely – for the same experience, sans the same dose of practicality.
I shiver at the thought of lawyers setting foot in my court room who have no grasp of the nuances of the best evidence rule, parol evidence, hearsay, or even how to get a document into evidence. I shiver for myself and for their poor clients. Some point out that the MRE is so much easier to understand and apply than the old mix of statutes and case law. True. But having a set of rules and understanding them enough to use them properly and effectively are entirely different things. Rules only take you so far. There are cases interpreting those rules that one must learn about. And the rules are neither crystal clear nor do they address everything one needs to know. Cite me a rule, for example, on what objection applies in any given situation. Or tell me how MRE 803(3) pertaining to wills applies in a will contest? Or when does past recollection recorded apply instead of refreshed recollection, and vice versa? Some elucidation is required for even the most astute student.
But, you say, prospective lawyers still have to pass evidence on the bar exam. Yes, but I would be more comfortable knowing that the student who was certified by the law school as being ready to take the bar exam had actually studied and passed evidence courses rather than merely mastered enough of an outline to pass the bar exam.
In the UK there is a two-tiered system: solicitors, who sit in their offices, advise clients, draft wills and other papers, do property work; and barristers, who are certified to have the skills to do litigation.
Maybe we could adopt a similar dichotomy here. I propose that our two-tiered system would be divided along the lines of who has not studied evidence and who has. Those who have not, we could call “shopkeepers” or “legal retailers.” And those who have studied evidence we would call “Lawyers.”
BACK IN THE DAY WHEN LAW SCHOOL WAS REALLY TOUGH
November 3, 2011 § 2 Comments
Law school ground you down, eh? Con Law especially rugged? Took you a while to get back on your feet?
Well, you only thought you had it tough. Take a look at this sad tale of an overzealous law student from the Chicago Tribune’s June 8, 1900, edition.
“CONSTITUTIONAL LAW!” he shouted. Indeed. If that had been me, I would have yelled “REAL PROPERTY” and swooned dead away.
Thanks to The Law Life.