Con Law
(a Real Student's guide to Law School and the Legal Profession)
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About the Authors
Con Law

Sample Chapters

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Sample Section #10

Back in the day, the Socratic Method was used by intense faculty (who were experienced practitioners) to stimulate the minds of extremely bright students unburdened by instant messaging or Facebook. Moreover, it was a reasonable tool to get law students to “think like a lawyer.” The infamous Socratic Method is a form of “instruction” in which the professor questions the student, rather than simply spoon-feeding information to the student. The idea is that, through a process of changing facts, the student must formulate a cogent legal analysis: what rule applies in what situations, and why? Change the facts, does the answer change? If so, why? If not, why not? Change another fact, what then…?

When performed by a professor who is an expert in the law and who is also an expert in lawyering, the Socratic Method provides students with both a knowledge of the law and skills in thinking on their feet. This is what law school is supposed to be, but rarely is. Sadly, most law professors have never spent any meaningful time actually practicing law, nor learning the real-world ins-and-outs of their subject, and are thus unable to make real use of the Socratic Method. What’s worse, many students race from class to class in a fog, hardly keeping up and certainly not mastering a point of the law sufficient to engage in a learned discussion with the professor. Expecting a genuine “Socratic experience” under these conditions is, well, expecting too much.

A typical law professor has never been to court (or if so, was a second-chair briefcase courier); has never been dressed down by a partner, or faced an impatient judge; never deposed a witness; never dealt with stare-down adversarial situations; and comes with no senior-practitioner background upon which to base effective use of the Socratic Method in a classroom. Such a typical law professor engages in a half-serious, tedious, and ineffective questioning of the students that lacks direction or competence. Classes progress dreadfully slowly, and almost never with a genuine understanding of interrelated points of law that ought to be the essence of a legal education. In some cases, the professor engages in tiresome bullying, beating some poor “unprepared” student into smithereens, under the cruel belief that rather than a tool the Socratic Method is a gladiatorial competition—and one in which the victor (the law professor, of course) must make the victory complete, for all to see. If death were possible, there might be some law professors who might consider it. The professor might, for example, spend ten minutes questioning an otherwise-prepared student over the facts of a case, getting pickier and pickier, trying to trip the student up over something as ridiculous and irrelevant as whether the truck used by the defendant was a 2004 Ford F150 crew cab or a 2004 Ford F150 extended cab. The professor will continue this line of questioning until the student makes an insignificant “mistake”, at which point the professor will sniff and say something mildly insulting, such as “Perhaps you should have read the case prior to coming to class.” This despite the fact that the student clearly did read the case and prepare for class, but didn’t spend the entire week (in which a similar number of cases were assigned in her four other classes) memorizing every minute (and irrelevant) fact of every case, instead choosing to focus on learning the general legal principles the case was chosen to convey—and also despite the fact that two-thirds of the class really didn’t prepare, and wouldn’t have known “crew” versus “extended” if their very lives depended on it. The professor moves on and questions another student, continuing the pathetic game of “Gotcha!” And at the end of the class, the hour will have been spent in rehashing the facts of a case (which most of the students are familiar with), then plodding towards the minor point of law the case illustrates (which most of the students already know from reading the commercial outline). What took an hour to do badly might have been done well twelve minutes.

In a top-ranked law school, the scenario is somewhat different. The law professors, while always a mixed bag, are at the very pinnacle of the heap; thus, while their law-practice skills are absent, they almost make up for it in raw intelligence. More brilliant than the faculty, however, are the students. At a top-ranked law school, just about every student was the class valedictorian—and a fair number have won national or even international prizes. So classes (and hallways) are vibrant, intellectually stimulating, and fast-paced. In such a place the Socratic Method is used somewhat more effectively—but still hampered by distracted students who are often focusing on the wrong things, and nowhere near the image in The Paper Chase.

There is little in law school that teaches the student how to “think like a lawyer,” which, presumably, is pretty important. Perhaps this is because law school professors themselves have never had to actually think as real lawyers do. Perhaps it is because we all think that lawyers spend their days arguing with opposing counsel or facing hard questioning from a judge, all with a rapier wit and all with happy endings in less than an hour, just like on television. In reality, lawyers don’t spend all day arguing, nor is there much “thinking on one’s feet” in modern legal practice. In fact, the only time a lawyer might face anything akin to Socratic questioning is in an appellate practice, a tiny niche practice occupied by a select few senior practitioners, nearly all grads of the finest law schools. Even clerks on appeals courts—the peak of “appellate practice”—don’t engage in Socratic Dialogue as much as in voluminous research and memoranda-writing. For the lawyer, there will be years of at best semi-contentious transactional work; or years of almost “no surprises” litigation. The skills—if any—learned in the law school classroom have no place in the modern law office. Law schools often claim that they are designed to teach the student how to “think like a lawyer” (as if the secrets of being an effective lawyer are those they can teach). At best this is a mistaken belief, and at worst, an outright lie.

There are two parts to “thinking like a lawyer,” and most college graduates have already spent a significant amount of time honing these skills. The first part is to be able to see both sides of a story. Simple. The second part is to be able to take one side of the story and argue for it. Again, simple. Not always easy, but, in breaking that side down into its component parts, simple. Every freshman English language class in the United States will give the student as much training in “thinking like a lawyer” as does law school. The challenge comes in the details: how, exactly, to craft a five-paragraph paper? How, exactly, to argue that the plaintiff should be awarded damages based on intentional infliction of emotional distress? A tenured, full-time professor will encourage vacillating answers, using the term “it depends” almost lovingly. While it is true that a lawyer needs to examine both sides of an argument or issue, that is not the end of the legal thought process when practicing law in the real world. To the full-time academic professor, who has never advised a real client, nor worked a real case, nor managed a real transaction, there is nothing beyond looking at both sides of the argument or issue and dithering between the two like an imbecile, never giving a solid answer.

Nobody ever goes to a lawyer to hear the advice, “it depends.” Lawyers quickly realize that “it depends” is worthless legal advice, and reaching the “it depends” answer is not “thinking like a lawyer” as so many full-time academic professors seem to believe; it is merely lazy. The job of a lawyer—the key to “thinking” like a lawyer—is understand all of the “it depends,” and then to transcend those: to apply the right facts to the right law to achieve a position favorable to the client, addressing each “…on what” with the relevant fact and law. That is “thinking like a lawyer.”

Clients go to lawyers for a solution. They need, want, and deserve a definite answer on how to proceed. If the answer is “No,” then you’d better be prepared to tell them why, exactly. They don’t want an hour of dissembling—especially not when they’re paying a lot of money for it. Moreover, as law professors never seem to convey, a real lawyer doesn’t need to dissemble, because they actually know the answer. Why? Because they can think like, well, a lawyer. While the answer a client seeks may be qualified with a description of the risks of choosing that particular course of action, the client really wants to be advised which way to go and how to proceed. If there are qualifiers (and there almost always are), the lawyer must be precise and detailed in laying out just what those are, and how they are likely to impact the client’s situation or decision.

Just seeing both sides of the client’s legal problem is only the first step; providing the client with concrete advice is the second step to which law professors seem oblivious. “Thinking like a lawyer” involves examining the issue fully, which means breaking down every possible aspect of that issue into the maximum number of relevant sub-issues; then formulating a set of workable plans of action; analyzing the risks of each plan; presenting these plans to the client in a concise, understandable way; and involving the client in the real-world decision-making process to ensure they are taking the right steps, or if not, how that might change any of the above. Academic law professors have no experience in any part of this except the “seeing both sides of an issue,” yet as even a junior associate knows, this is just the bare minimum needed not to get laughed (or tossed) out of the partner’s office.


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