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A Skull Full of Mush

by: Andrew K Jacobson

 

The New York Timesrecently featured an article  on Oakland’s own Sustainable Economies Law Center, which helps prospective lawyers apprentice with a lawyer for a few years while learning the law. Every law student who suffered “the ramen noodle and Contracts casebook at 12:30 am” existence finds it tempting. My publicly funded law school, Boalt Hall, demands  nearly $50,000 a year in tuition, fees, and books for California residents; for shelter and food, tack on another $23,000. Boalt now costs only a few dollars less than what the private Stanford Law School charges. A law student can rack up over $200,000 in loans in three years – making large, well-paying law firms the only realistic option. Liberating yourself of those soul-draining costs sounds tempting. 

According to the New York Times’ article, only four states – Virginia, Vermont, Washington, and California – allow people to only read the law before taking the bar exam. Just 60 people nationwide took the bar exam after apprenticing with a lawyer, and only 17 passed. SELC’s legal apprenticeship program is designed “to train lawyers on the specific legal needs of the resilient communities movement.” SELC identifies a real problem with law schools – the cost – but ignores the benefits of a solid legal education – a boot camp for the mind.

Law school is more than just an endurance test. It is designed to change your brain the same way a boot camp changes the mind set of military recruits. Professor Kingsfield of The Paper Chase  reveals what happens in law school: “You teach yourselves the law, but I train your minds. You come in here with a skull full of mush; you leave thinking like a lawyer.” 

Most lawyers can tell you when they started thinking like a lawyer. Mine was when there was an aircraft disaster, and instead of bemoaning the tragedy, I focused on the potential liability of the airline and aircraft supplier, even if there were a supervening cause like a terrorist. Soulless? Perhaps, but what my client would expect of me, be it the airline or the family of the deceased. A good law professor shows how to patiently peel away the layers of a case as if it were an onion to understand the structure and purposes of the issues. The purpose is not to get to the right answer, but to scrupulously apply the right method, to peel yet another, finer layer off in the journey to the core.  The legal profession demands meticulous attention to the detailed needs of our clients. It is not a priesthood, with mystic chants and secret privileges, available to anyone who mumbles the magic words. 

The Socratic method in a law school classroom allows a student to benefit from the failures of himself and the other students. Naturally, it can be nerve-racking to stand up and answer the professor’s challenges, but it is excellent training to think on your feet, whether you are opposing to a motion in federal court or negotiating a neighborhood dispute. Seeking the law’s rigorous mental discipline from a single mentor-lawyer is begging for hundreds of free hours of the mentor’s time. If my clients pay me $400 an hour or more, why should those reading the law get it for free? An active lawyer would be hard-pressed to provide either a good Socratic method for an apprentice or a well-rounded attention to all the areas of the law that a good law faculty can provide.

Legal apprenticeships are less about an alternative road for those who could get into law school than a way for those who could not get in to have a shot at a being a lawyer. Those reading the law have to take the same exam after the first year of study that those who attend schools not approved by the American Bar Association, yet the little statistical evidence there is suggests that they have similar pass rates – 25 percent, or less. Legal apprenticeships are an impractical dead end. Yes, all kinds of great lawyers – Abraham Lincoln, John Adams – apprenticed to become lawyers. But they did so because they had little alternative in the decades before law schools were common. Were Lincoln or Adams alive today, he would have graduated college and had the chance to go to law school – unthinkable for a man on the frontier generations ago. 

Law school can and should be improved. The first year of required courses like criminal law, contracts, torts, real property, civil procedure, legal research and writing, and constitutional law needs few changes (other than more professors dedicated to the art of the Socratic method). Keep moot court, especially for those who want to never appear in a courtroom. Books, on the other hand, desperately need reform: paying hundreds of dollars for 10 pound books containing legal decisions in the public domain is outrageous when they can be $5 applications on tablet computers – and updated as soon as a new case appears. You will hear many praises to the heavens on the day, not far off, when a slim computer is all a law student needs for class.

The second and third years of law school need substantial reform. While focused on electives of the students’ choosing, not enough is done to prepare the would-be lawyers for the practical side of the business – every-day practice issues like deadlines, oral persuasion, writing, and research. The would-be lawyers need to know how to file a brief with a court, or negotiate an agreement. In my third year, I took a first semester trial practice class that culminated in a trial before a real judge and (fake) jury. It should have added a second semester class in which we represented low level criminal defendants in preliminary hearings, under the guidance of a seasoned public defender, with occasional lectures about every-day issues. In exchange, the aspiring lawyers would receive a modest payment, or at least not have to pay tuition. It would have given us practical experience while providing a small measure of relief for the court system. This is one area in which apprenticeships should excel. 

The law is complicated because human relations is complicated. The law is about balancing differing needs, goals, and desires, and the conflict inherent in that balancing act. It requires disciplined thinking. There are no shortcuts to emptying the brain of its mush and making it think like a lawyer.

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