Wednesday, July 18, 2012

On Law Schools, Civility, and Other Old News

During this last Bastille Day weekend, we became a soufflé. The triple-digit temps and the humidity toasted us into a torpor. We could not move. No weekend soccer for us. No bike rides or hikes. We couldn't even muster the energy to water the lawn or refill the bird feeders. All we could do was mix Arnold Palmers, add lots of ice, turn up the air-conditioner, run every air-mover in the house, including the ceiling fan and the fancy Dyson bladeless fan, plop down on the couch, and read. We weren't reading anything difficult or high-minded. No legal opinions or Hawking or Dawkins for us. Rather, we piled up the newspapers and bar journals and flipped pages, stopping only if a headline caught our attention. It was lazy, stream-of-consciousness reading.

One of the items that caught our attention was an Op Ed piece in the Sunday New York Times by Lincoln Caplan entitled, "An Existential Crisis for Law Schools." Caplan mentions that July is a stressful time for law school graduates, since that is when most of them take the bar exams. But law grad stress is not confined to studying for, taking, and awaiting the results of bar exams. The job market is now tougher than a Secured Transactions essay question. Only 55 % of 2011 law grads had legal jobs nine months after graduation. Overall, law office jobs have been on the decline since 2004. The market is reacting in all sorts of ways, some predictable and some not so predictable. The declining demand for law grads is influencing the supply side: law school enrollment is dropping. Theoretically, that should prompt a reduction in the price of law school, or at least a halt to the frenzied cost increases. But law school tuition remains frightfully high. In 1985 (an especially notable year for splendid law school graduates), the average private law school tuition was $7526. In 2009 it was $35743. As with higher education in this country generally, the price increases are running way, way ahead of the overall cost of living. There are lots of theories about why this is so, including the competition for faculty and prestige and the influence of government subsidies. Some schools are grudgingly looking at ways of reducing costs, such as installing a two-year J.D. program. It is also possible that the internet will make online education more available and will reduce costs. One can dream, anyway.

Caplan suggests that law schools should create programs tailored to students who want to work in the public sector. Perhaps schools could devise curricula that actually train students to hit the ground running and serve their clients. Clients do not want to pay for first-year associates. There is a reason for that. Maybe the public sector offers an alluring place to start one's career and acquire in-court skills. But to go work in the City Attorney's Office or some pro bono outfit, the graduate cannot be weighed down by $150k of loans. The system is broken. What would we say to the Drug and Device Law Daughter if she told us she was thinking of going to law school? We would probably have to have a very long talk with ourselves before having a talk with her.

That same section of the NYT, the Sunday Review, had an article by Theresa Brown, an oncology nurse, urging that we "Don't Get Sick in July." Law schools are not the only professional schools that celebrate Summer by unleashing graduates on a helpless populace. Medical school graduates start learning to be doctors in July. As Brown puts it, "learning means making mistakes." Brown tells of a new medical resident who possessed insufficient understanding of a dying patient's need for pain killers. The resident's inexperience produced unnecessary suffering.

Now what we are about to say might strike some of you as self-congratulatory, but we do not see this sort of thing as posing nearly as big a problem with lawyers. If young doctors follow the pattern of 'watch one, do one, teach one,' young lawyers probably watch more like 20 before they are permitted to do anything of significance, such as a deposition or client meeting, to say nothing of a trial. It can seem a tad stultifying for a new associate, but there is a reason for all that training. Young lawyers still make mistakes, but their mistakes live to see another day.

Come to think of it, that was grim imagery. More and more, we find that our reading takes a grim turn to the obituary section. We just learned of the death of Stephen Covey, the author of The Seven Habits of Highly Effective People. Covey had a way of boiling complex notions down to simple, memorable nuggets. We remember a video where Covey invited an audience member to come up to a desk and try to fill a bucket with rocks. The volunteer at first had difficulty getting all the rocks to fit. It turned out that the only way to getting everything into the bucket was to start with the biggest rocks, and then fit the smaller ones in around them. The point was "first things first." Covey talked about applying that concept to business and to life. Family, relationships, and health matter most. Attend to them, and then make the other stuff fit around them. One also needs to prioritize things at work. For what we do, we think the first things include telling the truth, working hard, and being helpful. Mastering the intricacies of preemption, Daubert, and the latest dialectical spewings of SCOTUS come later. That is what we believe, that is what we tell new lawyers, and we hope that is what we practice.

The Saturday Wall Street Journal contains an "Ideas Calendar," listing interesting talks all around the country. One of those talks was "Is Civility Overrated?" where a public policy dean and an economist/anthropologist (interesting combination!) would discuss whether it is better or worse for democracy if Americans act cordially or argue bitterly. Sadly, we could not make it to San Francisco for the talk, but we bet it was focused on the allegedly ever-increasing polarization of the polity. There is a lot of nastiness out there, though there also was in 18th and 19th Centuries. Maybe the internet, with its easiness and anonymity, facilitates a coarsening of the culture. Nevertheless, we'll take vigorous debate over mute, inglorious subject-avoidance anytime. Frankly, we think a little invective can be good, at least if it is clever. Our favorite example comes from a 19th Century British Parliamentary debate, where a John Wilkes predicted that his opponent, John Montague, would some day die from hanging or a loathsome disease. Montague furnished the ultimate witty riposte: "That depends, Sir, on whether I embrace your principles or your mistress." (That famous retort has also been attributed to Disraeli and Churchill. Some people are very sloppy at citation.) Even today, House of Commons debates are far more interesting and entertaining than the "My Dear Friend on the other side of the aisle" piffle that passes for "debate" on CSPAN.
But let's all agree that civility is a good thing, okay? That sentiment certainly fills our legal journals. Honestly, could most legal journals possibly manage to be more boring than they are? James McElhaney's articles in the ABA Journal and Jacob Stein's column in the Washington Lawyer are terrific must-reads. They are exceptions to the rule. Let's face it, most legal journals are dull as dishwater, filled with pictures of lawyers semi-smiling in front of bookshelves. Maybe that is what counts as an action shot in our business. The articles calling for more civility are mind-numbing. The next interesting thing they say about civility will be the first. Similarly, legal civility is often the keynote topic in speeches by bar presidents and judges. It is as if hortatory throat-clearing on civility constitutes a way of avoiding the real issues that plague our profession.

The lectures or articles on legal civility are interesting only to the extent they contain horror stories about incivility: the deposition where a lawyer physically threatens his opponent, or the email exchanges that reach a crescendo of ad hominem diatribes. After a point though, one starts to feel like a voyeur. Concrete examples are helpful, but they needn't always be negative examples. Highlighting the good examples of civility would be at least as effective. We will always be grateful to that San Francisco lawyer/opponent who returned a strategy memo inadvertently faxed by a young associate. An in-house lawyer friend was present at a deposition where the lawyer on the other side was relentlessly courteous. That in-house lawyer expressed gratitude afterwards, and is looking for a tangible, business way of rendering thanks. Many of us can probably come up with many stories where an opponent went the extra mile to be courteous and generous. We should share those stories.
Grousing about incivility brings to mind what Twain said about the weather -- everyone talks about it without doing anything about it. There are judges who like to preach the virtues of civility, but there are also judges who undermine civility when they either ignore its breaches or when they, perhaps out of exasperation, act as if such breaches must be the fault of both sides equally. A pox on both your houses, etc. They are like the refs in a football game who penalize both sides. That empty gesture of fairness incentivizes bad players to pick a fight with the other side's star, in the hope that a mutual ejection will produce an advantage. Or worse, sometimes the inciter gets away with mayhem, while only the reaction is punished. Every once in a while a judge will invest time, get the judicial hands dirty, and figure out who is really stirring up trouble. We recall a deposition where a pair of piranhas masquerading as lawyers tortured a young associate with bogus objections, instructions not to answer, and biting insults. We filed a motion to retake the deposition. At the hearing, we barely had to argue. The federal judge (he was in New Jersey, he recently retired, and by this story many of you will know who he is) was simply magnificent. He read the offending passages of the deposition out loud in open court with a beautiful, booming voice, curdling in disgust. The judge said he was not going to stand for it, and issued a clear, compelling order. He did not just talk about the weather. We're pretty sure he actually threw a couple of thunderbolts.

We recently had a settlement meeting with our Dear Friends from the plaintiffs' side of the aisle. We began by saying that we would strike hard blows in the litigation, but never foul ones (classic ex-prosecutor stuff). "Screw that," said the lead plaintiff lawyer, "we'll strike hard ones, foul ones, and filthy ones. We'll do whatever it takes to inflict pain." You've got to give him points for honesty. He was trying to send a message about how we ought to pay a lot to get out of what would become an agonizing experience for us and our clients. But here's the thing: it became clear that our big-barking opponent knew that he had real problems with his case. Call us starry-eyed dopes, but we think that most of the really bad incivility in our profession (lying, cheating, name-calling) springs from a position of weakness. That being said, we are not above applying the muscle to the other side where it makes sense. Commitment and passion are good. It is okay to ridicule an opponent's arguments, and maybe even get a little colorful about it. But there is no need to call your opponent an imbecile or a drunk. It is possible to touch gloves beforehand and act cordially afterward. Life is short.

Back to law school for a moment (the subject, we mean; not actually going back and doing it again). Law schools are required to offer a course on legal ethics. But do they teach anything about what it is really like to work as part of a team? To be responsive to clients? To deal with opponents in an honorable and effective way? We were earlier mulling over whether we would want our heirs to head off to law school. The thing that we want for our children is to end up happy and productive. Maybe it's asking too much for a $40,000 a year school to offer any instruction in that regard, but maybe it's not. Sure, we geezer-practitioners have a responsibility to teach those things to our young colleagues, both explicitly and by example. But maybe such instruction needn't arrive as a revelation. It would better if the really important values, such as civility, diligence, and a sense of priorities, seemed like old news.