Law school, and its sequelae

September 7, 2020 law, life, incidents

Law school, how it relates to the practice of law

So, I often see questions on Twitter and elsewhere about the mysteries of the experiences.

My take is based on the experience of entering law school at age 39 at King Hall School of Law, U.C. Davis, and as a 41-yo summer pet at a white-shoe law firm in San Francisco where I later became an equally odd-ball associate.

I’ll work from in media res backwards. During my summer of wine and roses (in which summer pets are lulled with the five easy pieces and copious alcohol) I was sitting with my classmate Laura. She remarked “I never knew law practice would be so boring.” I could only offer that it was fortunate that she was discovering that now, in time to cut her losses.

Ab initio, then. Most of my cohort appeared to arrive at law school as a result of a lack of imagination. As I was, they were imbued with a bad case of the whodunits. That is, we began reading cases with the mindset of a juror: What really happened? It only slowly dawned on us that those participants in a trial whose job it was to veto a simple answer to a complicated question were called “jurors,” and they made around $15/day plus parking.

This led to the realization that the purpose of the first year was not, actually, to scare you to death, but to jolt you into the tedious practice of analysis, breaking things down to its atomic components.

The paradigmatic legal analysis is common law burglary

The nocturnal breaking and entering of the dwelling of another with the intent to commit a felony therein.

This has nine so-called elements, each of which has sub-elements. What’s nocturnal? What’s breaking? And so forth.

During the first year, students will go to great lengths to search out the answers to each of the possible 512 major legal patterns1, somehow ignoring the infinitude of possible fact patterns. Their misarable grades make them sensitive to the problem in 2L, where the lesson is repeated: Break it down and work the argument: indulge every uncertainty in favor of moving on to the next question.

Assuming, however, that the dark and stormy night with a full moon nonetheless provided sufficient light to percieve a visage at arm’s length …"

In other words, make sure to touch all the bases.

For the elect (read lucky few) who got it in 1L, the law review experience gives rise to the trope that 2L works you to death. Writing on to Review entails bluebooking, a more than unusally arcane corner of the meta-law envolving picknickery of a high order touching upon niceties of punctuation and lexical order baffling to the unitiates. For polloi, the second year drives in the missed lessons of analysis from 1L.

In 3L, one is said to be bored to death. The third year’s rationale is often said to be solely to prevent the second year from being the last. Those who required 2L to get the message yawn, while those who spent 2L worked to death strive toward the more rarified brass ring of a law review Note that will put them in the stakes for a good judicial clerkship.

At the end of law school comes the Bar Exam, an experience fraught with dread. It is generally agreed that a law student’s entire future rests upon success.

That’s a head fake. Yes, a pass is needed to progress, but no, it’s not that hard. It’s just another series of law school exam questions.2

The actual purpose of law school, the bar exam and the related hoo-hah is simple: To install in the victim paranoia that they are overlooking something vital to their future well-being and financial security. It’s purely a hazing ritual, one of many others to follow.

A few law school graduates find their specialty in tax, another specialty, or in litigation. The remainder exit with little idea of anything beyond appellate law. Opportunities in tax and related fields, such as ERISA (you can look it up) exist abundantly, as do trial level litigation opportunities. Trial level litigation at the actual trial level is a holy grail of practice, and hard to come by. But ain’t no one worth working for gonna hire your sweet ass to do appelate practice unless you’ve had an appellate clerkship, preferably with SCOTUS. That leaves most graduates several cans short of a six-pack.

Unfortunately, the opportunities actually to go to trial are few and far between. Most litigation is a crushingly boring dance of procedure and counter-procedure, mostly emeshed in the swamp of discovery.

Those newbies who don’t get drawn by default into litigation or join specialities such as tax or another corner of practice such as wills and estate, may end up in the wonderful world of transactions, broadly construed.

Aside from some exposure to the securities laws,3 most transactional attorneys arrive only with Article 3 of the Uniform Commmercial Code, the law of contracts for goods. That’s not a bad foundation, but there’s much, much more.

There may be, among others, many, many aspects of the federal securities law, state securities law, obscure aspects of estate law, weird interactions with accounting rules, detours into municipal bonds and statutory and common law regarding trusts, interactions with tax, pension and other corners, etc. This is how I, among the few, the proud, the securitization lawyers, ended up in a speciality.

Mostly, hang around, kid, and you’ll figure it out was what corporate law firm training involved. Along with the fear of the Partner-in-Charge-of-Associates visit at close of business to banish you to permanent obscurity and disgrace.4

And so it goes, the practice of law is the ultimate katrushka doll, a never-ending sequence of reveals.

Great fleas have little fleas upon their backs to bite ’em,
And little fleas have lesser fleas, and so ad infinitum.
And the great fleas themselves, in turn, have greater fleas to go on;
While these again have greater still, and greater still, and so on. — Alexander de Morgan, riffing on Jonathon Smith.

All of which is to say, in a long-winded way, is that law school is a ticket to be punched5 to a Rube Goldberg business. Some find ennobling roles casting them as the most powerful, but lowest paid actor (such as Federal district court judges). Others succumb to laziness and greed and get caught and disbarred, like the guy who sat next to me in Property. Go figure.

More than than that your affiant sayeth not, as goeth the fossilized custom in New York, a while back.

  1. Lord only know how many sub-patterns.↩︎

  2. I sat down after a brief scare and drew a breath and opened the package. This is just another law school exam. I can do this!; time passes, and I have to take an abbreviated bar exam in another jurisdiction: I open up the packet and see this is just a law school question and my reaction is, after 20 years’ practice, I CAN’T DO THIS. I passed anyway.↩︎

  3. Usually perfunctory. As an example, I was hopelessly confused between the Securities Act of 1933 and the Securities Exchange Act of 1934 until I actually had to advise a broker-dealer some 15 years into my career.↩︎

  4. It happened to 21 of the class ahead of me one Friday evening, for “performance-related” reasons, aka bullshit. A couple of the survivors later made partner. In my class of 34, one made partner after 10 years, one stayed on, zombielike, as senior counsel and the others to their scattered fates went. Not that the nominal partners of my time fared much better. Some became desaparecidos, some left to spend more time with their families and some were given humiliating honorifics. The imperative of the managing partner and their second spouse’s her and his matched Mercedes S-500s dictated that fewer slices of the pie be cut. Myself, after five years, looked in the mirror and failed to see anything resembling parntership material. I cut my losses for a gig as an administrative law judge and had the satisfaction of having a former overlord forelock tugging, altogether unnecessarily, at me in my hearing room and later another supervising partner bending the knee to me as a client. I like to think that I didn’t abuse the reversals of fortune.↩︎

  5. Not always, in some jurisdictions, such as California, where you can sit for the bar ad lib, or, if necessary, as a graduate of a law school of your own devising in which you appoint yourself as dean, admit yourself and confer upon yourself a law degree. All very democratic but not a sufficient condition to allow you to pass the exam. One poor Sisyphis without a degree passed on the 23rd attempt.↩︎