When I was contacted about being an alumni blogger some time last year, I paused for a brief moment and then said yes. Like the bliss of pregnancy and the denial of eventual childbirth, blogging seemed painless. However, . . . it began to feel uncomfortable as February began to loom.

What could I possibly write about? And more . . . what can I write about that would be at all interesting to the readers, whoever they may be. I was reminded of the scene in “Planes, Trains and Automobiles” where Steve Martin’s character chides John Candy’s character as Candy blathers on and on endlessly. Martin advises Candy that when you tell a story, you should try to have a point because “it makes it so much more interesting for the listener.”

So with that in mind, I set about thinking of something with a point, something interesting. Since I (along with my dear colleague Andrea Schneider) teach one of the two sections of the Negotiation Workshop at MULS, I spend a lot of time thinking about skills related to successful negotiation, something lawyers do daily on any number of different planes. I have my own sense of what skills are important to being an effective lawyer, and certainly some of the recent criticisms of legal education present views on the skills needed to be an effective lawyer, so I decided to seek the input of my colleagues.

I sent out a very informal and un-scientific survey to my neighbors (swing a cat, hit a lawyer on my block!) and to the lawyers on my contact list (friends, colleagues and former students turned lawyers) asking each what they believed to be the most important skills to being an effective lawyer (with a maximum of five).

I got 38 responses back (thanks to all of you for taking the time) from lawyers in traditional private practice, from large and small firms and across all practice areas (IP, family, criminal, creditor’s right, employment, mental health, immigration, litigation of many types, appellate practice and estate planning to name a few); from public service lawyers (DAs, GALs, court commissioners, city attorneys, state appointees); from in-house counsel (manufacturing, real estate, sales support, medical ethics, athletics, and financial services); from ADR practitioners (mediators, trainers, RJ practitioners and conflict management consultants); and from academia (librarians, doctrinal law faculty, skills curriculum faculty).

I reviewed the responses and saw lots of agreement across practices and thought it would be most interesting to create a word map. So, I entered the responses into “Wordle”, a web tool and then this tool, created a visual collection of all the data and the relative size of a given response reflects the frequency of the data point.

From the 38 participants, the top five skills necessary to be an effective lawyer are:

1. Communication

2. Listening

3. Writing

4. Negotiation

5. Time Management

If you really think about it, this is not surprising, and interestingly, it is consistent with the critiques of legal education that we need to teach both analytical skills and skills deemed “soft” (and so somehow less meriting academic endeavor).

There are many other responses that provide insight into being an effective lawyer, and I found the responses to be simultaneously insightful and comforting. As a member of a much maligned profession, we all have had experiences that may support Shakespeare’s call to rid the world of lawyers (I am tempering his sentiment a bit!), and yet these responses showcase a different view of the effective lawyer.

If I have sufficiently piqued your curiosity, I invite you to take a look at the “map”. Simply paste this link into your Browser and enjoy.

http://www.wordle.net/show/wrdl/4811048/Effective_Lawyering_Skills

Until next time . . . Joanne Lipo Zovic

An American Bar Association committee had recommended that the law degree be called the juris doctor as early as 1906, and a small number of law schools, most notably the University of Chicago, had long called the basic law degree the J.D. However, until the late 1960s the vast majority of schools used the designation of LL.B. or B.L. which suggested that the law degree was an undergraduate degree (as it still is in most places in the world).

What is much less well known is that in an earlier era, some law schools simultaneously offered both the LL.B. and J.D. degrees. While the original law degree awarded by Marquette was the LL.B., between 1926 and 1943, Marquette offered its students the option of earning either an LL.B. degree or a J.D. degree. This innovation apparently originated with Dean Max Schoetz, but was continued after his untimely death in 1927.

Both of the two law degrees were normally earned in three years. However, to earn the J.D., a student had to (1) have already earned an undergraduate degree in a field other than law–admission to Marquette required only two years of college between 1926 and 1934 and only three after that year—(2) compile an average grade of 88 (out of 100) in all law courses (compared to 77 for LL.B. candidates); and (3) prepare an acceptable thesis on a law-related topic in his (or her) third year. (The student was also required to assign the copyright in the thesis to the law school dean.)

There was no formal advantage to the J.D. degree, at least in regard to bar admission. One did not need to have a law degree of any sort to take the Wisconsin bar examination until 1940—three years of study in or outside of a law school was all that was required. Moreover, after 1933, either degree qualified its holder for automatic admission to the Wisconsin bar under the diploma privilege, which was extended to Marquette that year. The University of Wisconsin, which had had the diploma privilege since 1870, had never awarded a J.D. degree, so there was no basis on which to distinguish between the two degrees. There was also no evidence that law firms placed any special premium on hiring graduates with the J.D. degree.

Given this lack of immediate advantage, few Marquette students appear to have even attempted the J.D. degree. In any given year, only a handful of students met the full set of qualifications, and less than 40 such degrees were awarded in the decade and a half that the option existed. The last of the original J.D.’s at Marquette were awarded in 1939, although the option remained on the books until 1943 (or perhaps a year or two longer as records for the law school for 1944 and 1945 are almost non-existent).

Our colleague Jim Ghiardi, who attended Marquette Law School from 1939 to 1942, recalls that the J.D. degree fell out of favor as students began to realize that the extra work necessary to earn the degree provided them with no real additional benefit, particularly during a Great Depression with a world war looming on the horizon.

Lois Kuenzli Collins was enrolled at the law school when the J.D. option was created, and like most of her classmates she did not qualify for the “higher” degree. However, her recollection of the distinction between the two degrees probably explains her excitement forty years later when her degree was “upgraded” from an LL.B. to a J.D.

As it turns out, there was nothing unique about Marquette’s awarding both J.D. and LL.B. degrees in the 1920s and 1930s. The practice was particularly widespread, it appears, in the Midwest.

As late as 1961, there were still 15 ABA-accredited law schools in the United States which awarded both LL.B. and J.D. degrees. The fifteen included George Washington University, Chicago-Kent, DePaul, John Marshall, Loyola of Chicago, Northwestern, Indiana, Drake, Iowa, Washburn, Michigan, Detroit College of Law, Wayne State, Ohio State, and Willamette. At least by a broad definition, all of the 15 were located in the Midwest except for George Washington (D.C.) and Willamette (Ore.).

In all of the listed schools except Northwestern and Iowa, the largest number of graduates received the LL.B. degree. (At Northwestern and Iowa, the J.D. degree was the more commonly awarded.) The practice was not exactly dying out either, as the following year both the University of North Dakota and the University of Oregon joined the list of schools awarding both degrees. Duke adopted the J.D./LL.B. distinction after 1961, and the two options were listed in the Duke Law School catalog as late as 2007, although the school apparently had not awarded an LL.B. degree since the 1960s.

As the number of law students who entered law schools with college degrees increased in the 1950s and 1960s, a number of institutions apparently used the J.D./LL.B. distinction to encourage would-be law students to complete their undergraduate degrees before beginning their legal studies. (If they failed to do so, they got the bachelor’s degree, not the doctorate.)

Presumably, the practice of awarding two different degrees was originally related to the argument that it did not make sense to award a second bachelor’s degree to someone who already had one. (A previous undergraduate degree appears to have always been a prerequisite for the pre-1960s J.D.) Unfortunately, there does not appear to be an easily accessible source that identifies when individual schools began to award the two law degrees. The practice started at Marquette in 1926 and at Chicago-Kent in 1933, but it could well predate the 1920s at other schools.

The concentration of the “two types of law degree” schools in the Midwest (and particularly in Chicago) seems likely related to the presence of the highly prestigious University of Chicago which from its founding always required its students to have college degrees, and, beginning in 1902, it always awarded it graduates the J.D. degree.

In contrast, Harvard Law School, which was the first law school to insist on a prior undergraduate degree as a prerequisite for admission, considered the possibility of awarding some sort of doctorate in law in the early 1900s but decided to stay with the LL.B. Harvard also invested heavily in the early 20th century in graduate law programs that resulted in the award of LL.M. and S.J.D. degrees. Given that this graduate degree terminology did not really fit if the first law degree was called a doctorate, Harvard retained the undergraduate designation for its law degree. Given its great prestige, whatever was done at Harvard Law School was likely to imitated at law schools across the country.

It is not clear why a few schools like Marquette and the University of Washington once awarded both LL.B. and J.D. degrees but decided to stop doing so long before the 1960s. Washington eliminated the J.D. degree in 1938 and, as mentioned above, Marquette followed in the mid-1940s. The Marquette experience suggests that the decision may have been related to a lack of student interest in the more demanding degree, as well as to a general revamping of the law school that occurred immediately after World War II under the leadership of Dean Francis Swietlik.

There were a few other variations on the J.D. degree as well. At Georgetown in the 1930s, one could earn a J.D. degree, but only after earning an LL.B. degree, which made it more in the nature of an LL.M. or an S.J.D. degree. Another variation occurred at William & Mary where, for much of the 20th century, graduates received a B.C.L. degree rather than either the LL.B. or the J.D.

By the end of the 1960s, the variations in terminology had been eliminated and the letters “JD” are now synonymous with the words “law degree”. However, we live in a time when many of the assumptions of contemporary legal education are being reexamined, and the legitimacy of much of what has been long taken for granted is being reconsidered.

Perhaps one result of the current anxiety will be a movement away from the one-size-fits-all J.D. degree of the late 1960s to something more akin to the multiple-degree model embraced by Marquette in the 1920s and 1930s.

There are so many great conversations/debates that could be started by this lawsuit:

- the merits of the billable hour system

- the long hours often worked by attorneys (i.e., work-life balance)

- the controversy over billing time in minimum increments

But before we get to that, I have to ask whether there is any truth to this lawsuit and the alleged 3,000-hour requirement in the first place.

First, let’s do the math. 3,000 hours, divided by 365 days a year, amounts to 8.2 billable hours a day. Every. Single. Day. Even with “questionable” billing practices, I’m not sure I believe that any law firm would honestly have this requirement.

I know big-law attorneys who work their tails off, and probably do come close to billing this number of hours each year, but I do not know a single attorney with a minimum goal of 3,000 hours per year. Additionally, as an attorney, I can foresee a whole host of litigation that could arise if any firm honestly had this as their formal policy (such as this case alleges).

Secondly, let’s take a look at the complaint itself (which can be found here). I have a hard time believing, based on the writing used, that this complaint was crafted by someone who possesses both a legal education and over 30+ years of legal work experience.

What do you all think? True or bogus?

A true discussion on the merits of these articles could easily lead to hours of debate. In fact, given the current job market, employment statistics, and the cost of a legal education, it might be easy to agree with these authors. But I think there are benefits to legal education that can’t be measured in dollars and cents, and for me these articles are discouraging and devalue a hard earned legal education.

Thus, as alumni blogger of the month, and an employed professional, I want to use my first blog post to remind myself and others of the many ways my education at MULS prepared me for work in the professional world. So, below is my personal list for your consideration, feel free to add to it in the comment section.

1. Legal Writing and Research. Much to my dismay, while at MULS I was forced to take two semesters of legal writing, and one advanced legal research course. I wanted to learn legal theory and have exciting debates. I did not want to spend my time studying legal writing and honing my research skills. These courses were the bane of my law school existence. However, after five years in the professional world, I can honestly say I would not have had some of the successes I’ve had without these skills. I write daily. Emails to clients, technical memos, presentations, the list goes on. Clear, concise legal writing is essential to my job, and my ability to write well has been a instrumental part of my career successes thus far.

2. Critical Thinking and Reading. I know this one seems obvious. One could argue that it’s impossible to do well on the LSAT and get into law school unless you already possess these skills. But, spending three years surrounded by people who also excel at these skills forces you to really practice them. By the time you graduate, these skills will be sharp, and these skills are extremely valuable for any client service professional. I read daily. My job requires me to critically read statutes, treaties, and secondary documents and to interpret them and apply them to my clients’ situations. My clients depend on this ability, and it is an essential part of legal education.

3. Legal Theory. Legal theory should not be underrated. Legal theory gives you the basics. A strong foundation of legal theory means that when I’m given a research task, I have a general idea of what I’m looking for, I know where to start looking, and I know the correct terminology to make my research efficient. Legal theory is important and should not be scoffed at as impractical.

4. Opportunity. This last point might seem vague and general, but in an effort at brevity I wanted to find one word that summed up all of the benefits of a legal education. For me, that word is opportunity. The opportunity to learn from, and really get to know, some of the best minds in the legal professtion (thank you professors!). The opportunity to network and meet interesting and accomplished people through various activities and events. The opportunity to form life long friendships.The opportunity to improve myself, and the world around me, through volunteer opportunities. The opportunity to work in a job I love, that challenges me every day. The opportunity to travel the world. My legal education opened up a world of opportunities, many of which would have remained closed without it.

Yes, law school is expensive. Yes, I will still be paying off my law school loans when my daughter goes to college. If I was asked today, I would advise any would-be law students to be sure they passionately desire a legal education before undertaking the expense. But for me, law school was a fantastic three years, full of wonderful memories that I look back upon with pride. I wouldn’t trade a minute of it, and I am proud of what I have accomplished because of it.

The “location quotient” looks at the place in which the job is performed and not the jurisdiction in which the job holder is domiciled.  Hence, a lawyer who lived in Maryland, but practiced in the District of Columbia would be counted as a D.C. lawyer.

With a current “location quotient” of 0.65, Wisconsin is tied with Alabama for 40^th place among the 51 states and the District of Columbia.  The only states in which lawyers are less “common” are North Dakota (0.40); South Dakota (0.43); Iowa (0.47); Indiana (0.54); Nebraska (0.58); Tennessee (0.59); North Carolina (0.59); Wyoming (0.59); and Mississippi (0.61).

The per capita number of lawyers in Wisconsin is significantly lower than that for its neighboring states of Michigan (0.77) and Minnesota (0.88), and it pales in comparison to Illinois (1.18).

Lawyers are, not surprisingly, most common in the District of Columbia which has a location quotient of 10.05.  Next on the list are New York (1.77); Delaware (1.49); Florida (1.32); Massachusetts (1.21); New Jersey (1.20); and Illinois (1.18).

As I pointed out a number of years ago in an article published in the Wisconsin Law Review entitled “The Wisconsin Lawyer in the Gilded Age,” there is nothing new about this phenomenon.  Wisconsin had fewer lawyers, per capita than most American states in the 19^th century and the pattern has persisted into the 21^st century.  One might be tempted to think that the diploma privilege had something to do with it, but the number of lawyers per capita is lower in Iowa than it is in Wisconsin, even though Iowa did away with the diploma privilege in 1884. (Iowa had followed Wisconsin’s lead and had adopted the diploma privilege for the state university law school in 1873.)

The full set of data compiled by the Bureau of Labor Statistics can be found by clicking here.

Someone who practices as a barber or cosmetologist without a license “shall be fined not less than $100 nor more than $5,000 or imprisoned for not less than 10 days nor more than 90 days or both.”  Wis. Stat. § 454.16.  Similarly, someone who practices law without a license “shall be fined not less than $50 nor more than $500 or imprisoned not more than one year in the county jail or both, and in addition may be punished as for a contempt.”  Wis. Stat. § 757.30(1).

Granted, the penalties aren’t identical and we can scrutinize the differences.  In any case, it seems a little unsettling to me that the penalty for giving a bad haircut (assuming it’s done without a license) is pretty close to the penalty for a non-lawyer giving bad legal advice.  Let’s face it, hair will grow back, but the harm from getting legal advice from someone who isn’t properly trained can be devastating.

Humor me while I take this analogy a bit further: even if the unlicensed barber delivers the best haircut of your life (perhaps now is a good time to refer to my photograph, email me if you want my stylist’s number (he has a license, by the way)), he is still subject to sanctions under Section 454.16.  However, the Wisconsin Supreme Court has suggested that correct legal advice given by a non-lawyer, at least in relatively simple situations, is protected speech under the First Amendment.  See Hopper v. Madison, 79 Wis.2d 120, 134 (1977).

What’s more, Chapter 454 establishes a whole administrative board to deal with licensing and disciplining cosmetologists, while the unauthorized practice of law (UPL) lacks an effective enforcement mechanism.

The last several years have seen a lot of attempts by the State Bar and other advocates to find a way to effectively regulate UPL.  Unfortunately, it has been a slow process.  In the meantime, more and more people—usually among the most vulnerable—are falling victim to unlicensed practitioners.

In my practice area, I see a lot of the ugly fallout from those who get advice from notarios: non-lawyer notaries public who misuse their designation to present themselves as immigration experts.  However, the problem goes far beyond the immigrant community.

There have been increasing problems with bankruptcy petition preparers.  The bankruptcy code allows non-lawyers to help prepare petitions for debtors, subject to restrictions.  11 U.S.C. § 110.  Often, however, the preparers do not do a good job of informing their clients of what the fee they collect, about $100-$200, covers—debtors enter bankruptcy court unaware that they need to pay a filing fee to the court.  Worse, these debtors may have received poor advice from the preparer, or even thought the preparer was an attorney.  The bankruptcy court can ban deadbeat preparers, but the barred preparers tend to continue their scheme under borrowed or phony names.

Problems also have been reported with online service providers that advertise online help with anything from estate planning to family law.  These providers try to fit their users’ needs into one-size-fits-all forms—a practice that should make any decent lawyer cringe.

While the harms of UPL are serious, efforts to strengthen unauthorized practice mechanisms have been slow—you can get a sense of how things have developed by looking at the UPL policy committee page on the State Bar website here.

State Bar President James Brennan (full disclosure: Brennan is also the Executive Director of Catholic Charities of the Archdiocese of Milwaukee, my employer) wrote on the importance of combating UPL in September.  (His article is available here.)  He suggests that attorneys take pro bono cases for those who have been victimized by UPL.  The idea is that by bringing successful civil cases against unauthorized practitioners, we build a body of case law that will discourage would-be unlicensed practitioners and make future suits easier (hopefully).

The pro bono component of the president’s suggestion is important—we aren’t usually talking about a lot of money, and to create the kind of impact litigation needed, there will be costly appeals.  Still, it seems to be a pro bono investment with the potential for particularly high returns for the legal profession.  First, it helps stop UPL, which is repugnant to the profession.  Second, pro bono is always good for the profession—it looks good when attorneys work to bring justice for those who can’t afford a lawyer.

Perhaps the most appealing aspect of using civil remedies to discourage UPL is that it is something that can be done right now.  As Brennan indicates, there is pending litigation against a notorious notario in the courts now.  The money at stake in the case is small—it started in small claims court—but an outcome for the UPL victim would send a strong message.

Creating effective regulations and enforcement mechanisms is critical in the long-term fight against UPL.  Civil litigation, however, gives us a way to fight the problem today.

Does that sentence make any sense to you? If so, find Butterick’s book: you will love it.

If not, run out and get Butterick’s book: you need it.

After running a website on typography for lawyers, www.typographyforlawyers.com, Matthew Butterick last year published a book on the subject. The book seems designed to do for typography what Bryan Garner’s work has done on matters of style and usage—to convince more lawyers that this “small stuff” matters in their writing, in their approach to the practice.

Indeed, Butterick’s belief that “typography” should become part of the vocabulary and professional awareness of lawyers forms the “core principles” of his book:

1. Good typography is part of good lawyering.
2. Typography in legal documents should be held to the same standards as any professionally published material. Why? Because legal documents are professionally published material. (Corollary: much of what lawyers consider “proper” legal typography is an accumulation of bad habits and urban legends. These myths will be set aside in favor of professional typographic habits.)
3. Any lawyer can master the essentials of good typography.

To some extent, typography already is and always has been of concern to lawyers. Lawyers have always had to consider not only the words they write but the other communicative features of their documents. Legal writing professors have written articles on the subject, see, e.g., Ruth Anne Robbins, Painting with Print: Incorporating concepts of typographic and layout design into legal writing documents, 2 JALWD 108 (2004), http://works.bepress.com/ruth_anne_robbins/2/, and the Seventh Circuit Court of Appeals’ Practitioner’s Handbook, http://www.ca7.uscourts.gov/rules/handbook.pdf, which devotes an entire section to “Requirements and Suggestions for Typography in Briefs and Other Papers.”  And many lawyers have spent at least some time debating which font looks best for a printed brief, whether (when permitted to choose) one should select single- or double-spacing, and whether to leave one or two spaces at the end of every sentence.

Still, some not-insignificant proportion of lawyers has little patience for this kind of information, perhaps because the substance and style of most legal writing is so important, and already so challenging, in itself, to master.

To be honest, I myself did not warm to Butterick’s book right away. And although it has grown on me, I still cannot say I enjoy poring over, for instance, the “font samples” pages that make up one chapter of the book, offering the same text printed out in various similar-but-subtly-different fonts. Some of the fussier, more historical, and technical information in the book may be mostly of interest to specialists in typography.

But the same could be said about usage handbooks, like Bryan Garners’ books Modern American Usage and The Redbook: A Manual on Legal Style, and yet I still think that every lawyer should have a usage handbook on hand. In the same way, I think Typography for Lawyers does earn a place in law office libraries. The 28 “key rules” Butterick proposes are, in the end, fairly simple, and, if they were widely adopted, would certainly improve the readability of legal documents. While reading Butterick’s book, I thought of my experience reading hundreds of briefs during my year as a clerk at the Wisconsin Supreme Court. The briefs submitted by the state attorney general, unlike most other briefs, were formatted with single-spacing, double-sided pages, with wide margins. In addition to being so much lighter to carry around, the formatting of the pages (shorter line-lengths, more white space) made for more pleasant reading. In a long, hard day of reading, those typography choices did lighten the burden in a noticeable way.

So, I encourage you to review Butterick’s typography book, or at least his website. If you don’t know the difference between a serif and sans-serif font; if you don’t know the difference between mono-spaced and proportional fonts; if you don’t know why italicizing is probably better than underlining; and if you are still leaving two spaces after your sentences, inject some fresh energy into your practice (well, at least into your documents) by reading his advice and trying some of his suggestions in your own work. Take a quick look at his re-design of a caption page (http://www.typographyforlawyers.com/?page_id=1437), a resume (http://www.typographyforlawyers.com/?page_id=1655), or another legal document, and I think you will have to admit that this stuff does make a difference. Even if you wish it didn’t.

Though I am a convert on Butterick’s “rules” and his idea that lawyers should care (and know) about typography, I am not a whole-hearted fan of the book Typography for Lawyers. I think the reason Garner’s advice on style and usage in writing has become so authoritative is in large part because of his soft-sell approach on those matters. Garner persuades the reader that his judgment is worthy to be followed, rather than just assuming the position of The Authority on usage. As David Foster Wallace wrote, “A distinctive feature of ADMAU is that its author is willing to acknowledge that a usage dictionary is not a bible or even a textbook but rather just the record of one smart person’s attempts to work out answers to certain very difficult questions.”(http://instruct.westvalley.edu/lafave/DFW_present_tense.html)

Butterick’s approach is more like a traditional grammarian approach, presenting himself as The Authority for the Rules because “the rules here reflect the customs of professional typographers and the majority views of authorities on typography, filtered through my experience as a professional typographer and as a lawyer.” An example would be his response to one of the objections he has heard to the “one-space rule” for spacing after sentences. The two-space rule proponent says, “I think two spaces look better so that’s what I’m going to use.” Typography at 43. Butterick’s response? “I’m telling you the rule. If you want to put personal taste ahead of the rule, I can’t stop you. But personal taste does not neutralize the rule. It’s like saying, ‘I don’t like how the subjective tense sounds, so I’m never going to use it.’” (p. 43)

I find that exchange unhelpful. For one thing, refusing to change from one to two spaces, when most lawyers currently use two, is not really like refusing to use the subjective tense, which is part of the grammar of the English language. Instead, it’s more like the debate about whether to use the Oxford comma (see http://www.npr.org/blogs/monkeysee/2011/06/30/137525211/going-going-and-gone-no-the-oxford-comma-is-safe-for-now). That’s a question of usage, and one about which reasonable minds differ.

More importantly, even if the consensus on the one-space/two-space debate is clearer than the Oxford comma consensus, his failure to provide the reasons that the professional consensus has developed leaves the reader feeling scolded, more than persuaded. Especially when he says,

Similar objections [to the one-space/two-space objections] could be made against any rule in this book. This is the only time I will indulge them at length. These objections only serve to impede learning and preserve bad habits. If you’re afflicted by the urge to protest, suppress it. That way, you can approach the rest of these rules with an open mind. (p.44)

What I do not like is the underlying vision of the lawyer as uncurious and unqualified to enter the debate about professional typography that Butterick seems to have in mind. It’s such a contrast to the bright, persuadable lawyer audience that Garner seems to presume in his books.

Still, in any event, I did use one space after all the sentences in this post.

When I first started to think about legal mentorship, I envisioned the following:  I work at a firm or organization and my boss, who is a more experienced attorney than I, gives me useful tips and tricks that will help me get my sea legs more quickly.

As it works out, this perception of mentorship really fails to encapsulate the many dimensions of mentorship, and misses some of the greatest benefits mentorship has to offer a less experienced attorney (like me).

The breadth of knowledge I’ve learned from my mentors is striking.  Certainly I’ve gotten a lot of technical support, but I’ve also learned about living as a lawyer and even as a human being.

Since starting practice a little over a year ago, I have been fortunate to find tremendous mentors.  A lot of these relationships are informal—some of my mentors may not even know that I consider myself their mentee.  Having a formal label on the relationship isn’t what’s important—all that matters is that you have someone who’s been there and can point you in the right direction.

I think the best way I can illustrate how I’ve learned from my mentors is to describe a few of the mentors I’ve had in my brief legal career.  This list is far from complete, and I want to extend my deepest thanks to those who have guided me that practicality prohibits me from writing about.

My first legal mentor was my uncle, Prof. Gregory O’Meara.  I admit, this one was kind of handed to me.  His role as my mentor started long ago when he used to read aloud his criminal law exam fact patterns to our family at Christmas time.  This sparked my interest in the law—I wondered what the heck his students were supposed to do with a story about Paris Hilton shooting people (or dying gruesomely, I can’t recall).

Later, he would be a valuable resource as I considered attending law school.  He helped me plan which classes and professors to take, or which internships he had heard were particularly good.  He introduced me to people.  As I got closer to graduation, he helped me think about the trajectory of my career.

Much more than this career or law advice was the insight he gave me on living well.  I loved law school, but it was also a tumultuous time in my life.  I married during the summer after my 1L year only to divorce the next.  More than anything else, talking to my Uncle Greg helped me get through some of these difficult times.

I continue to turn to Uncle Greg as a lawyer.  He has brought me tremendous insight on what it means to be successful—that paycheck size or suit cut aren’t the best criteria.  We’ve talked about how life can get messy and how in some ways that messiness defines the human experience in a way that is beautiful and remarkable.  And heck, sometimes he will even help me sort through a legal ethics issue.

I have found in practice that what the law says a client is entitled to and how to get there are two very different questions.  In immigration, an area where benefits are doled out by a faraway processing center through submission of myriad forms, it is far from obvious how to turn eligibility under the Immigration and Nationality Act into a green card.

This is why my supervising attorney, Barbara Graham, has been such a wonderful mentor.  Time and again, she has patiently lent me her experience both when cases are complicated and unique, but even when the answer is easy and I just need someone to point it out.  When I’m researching something for a case, she is my last stop.  Often, even if I get the law right, she helps me find a way that’s easier, will be of greater benefit to a client, or can act as a plan B if my first course of action fails.

What really makes Attorney Graham valuable is how easy it is to talk to her.  Her door is always open.  She never makes me feel stupid for asking something, even if I’m asking a stupid question.  She’s passionate about the law, and likes to grapple with interesting questions.  She doesn’t mind if I argue with her about a point, though I admit she usually is right.

Most importantly, Attorney Graham also provides a lot of support when I’m freaking out, have made a mistake, or feel overwhelmed.  Having a reassuring voice in those times helps.

She also gives the best cooking tips—I guess graduating Le Cordon Bleu lends her some authority there.

The last mentor I’ll describe is one that is newer to me.  Last week, I had the biggest case of my brief career before the immigration court in Chicago.  Fortunately, not long before commencing the case, a retired partner from Quarles and Brady, Attorney Stuart Parsons, volunteered to do pro bono work with our office.

An experienced litigator as well a kind and engaging man, Attorney Parsons helped me prepare for the hearing.  Even more valuable, he was generous enough to accompany me to Chicago and sat as co-counsel.  He didn’t ask any questions himself, but gave me a few crucial notes when he caught something I hadn’t.  His being there made me feel more comfortable through the hearing.

A week or so after the hearing, Attorney Parsons met me at my office on Milwaukee’s south side.  He had taken extensive notes from the hearing, and was able to give me a thorough critique.  To be able to get that kind of feedback from an attorney with the experience of Mr. Parsons is an invaluable lesson.  I can’t wait to put it into practice.

Law school builds a great foundation of a legal career.  It teaches how to write, think, and conceptualize the law.  I’ve found, however, in my brief time as a practitioner, that mentors have helped me grow as an attorney in a way that the classroom cannot.

Law students:  build relationships with attorneys not only with the hope that they can help you get a job, but that they can help you learn what practice is all about.  I think you will find generous benefactors of experience and wisdom.  Experienced lawyers:  your advice and assistance are appreciated and valued, please continue to help us rookies.

To the attorneys listed above and the many others that have helped me on my way so far:  thank you, you have given me more than you know.

And just a week prior to the Pro Bono Celebration, we held a one-day Marquette Volunteer Legal Clinic (MVLC) at the second annual Project Homeless Connect.  The event, organized by Community Advocates, Inc., was hosted at Marquette’s Alumni Memorial Union, where 65 service providers set up shop for the day to reach some of Milwaukee’s homeless.  240 people attended the event and benefitted from the services that included everything from vision screening to haircuts to driver’s license recovery.  More than 10% of the attendees sat down to talk to one of the volunteer lawyers and law students at our clinic for the day.

Now we’re looking forward to our upcoming celebration for Lori Zahorodny, Program Assistant for the MVLC.  She will be recognized at the Wisconsin Law Journal’s Unsung Heroes event on November 18^th for her outstanding contribution, critical support, and vision for the MVLC.  It’s hard to imagine someone more deserving of this honor than Lori.

This coming year will be filled with reflection and visioning as we celebrate the MLVC’s tenth anniversary.  Within this past decade of providing free legal services, we’ve spread our clinics to multiple points in the community and have watched student interest in pro bono work steadily rise.  We now greet attorney volunteers at the clinics who were once student volunteers, giving us no doubt that this culture of pro bono helps shape the Marquette Lawyer.  Now that’s something to celebrate.

John was a man of diminutive stature, some attributing that to poor nutrition as a child.  But he was strong, sinewy, and lithe — physical attributes he proudly put to good use working his day job as a sanitation engineer (garbage man) for the City of Gordo, Alabama.

As John drove into town he had no reason to suspect the fate he was about to face.  As was his regular practice, John and his coworker rode on the back of the Gordo garbage truck doing their regular route.  They hopped off at each house to empty the trash and then get back onto the truck to ride to the next block.

As the truck rumbled down the uneven streets of Gordo, the unexpected happened and John’s number was called. 

The rear Eaton axle of the Ford garbage truck suddenly split, sending the rear wheels cascading wildly down the street.  The back of the truck hit the street with such force that John was catapulted high into the air, landing on the side of the truck on his way down.  The force of the impact was so great that it broke John’s ribs, one of which pierced his heart, killing him instantly.

Although neither John Luther nor Grace Bryant were married or had any children, they had a large passel of nieces and nephews who suddenly remembered their deep and abiding affection for Uncle John and Aunt Grace.  Indeed, more relatives than they ever knew they had came forth grieving and mourning poor old John’s tragic demise.

They soon made their way to a big-city lawyer in Birmingham who immediately saw the value of bringing a product liability wrongful death suit.  The mourners began to feel better and their affection for Miss Grace, the plaintiff-executrix of John’s estate grew each day.

Although John was killed instantly and therefore had no conscious pain and suffering and was at an age nearing retirement with only meager wages and no real future loss of income, the lawyer for the grieving relatives recalled that Alabama law allows only punitive damages for wrongful death cases on the theory that life is too precious to be measured by mere compensation.  Therefore, the question was not how much John Luther Bryant suffered or what his earning capacity might be, but rather, how much money defendants had and how much of their net worth would be enough to punish them for taking John’s life.

After all, many Alabama wrongful death cases had produced multimillion dollar verdicts.  With those statistics firmly in mind, the Bryant family lawyer set about to evaluate the case, and decide whom to sue.  He settled on my clients, Ford Motor Company and Eaton Corporation, and also CSX (formerly known as U.S. Steel Corporation), who made the steel for the axle which split apart, along with a few local repair facilities to prevent removal based on diversity.

To prove his case, the plaintiff’s lawyer retained a trial-tested forensic metallurgist from Auburn University, who carefully examined the steel and (to no one’s surprise) found that it was defective.  However, he opined at several depositions that the cause of the failure was “trashy steel,” thereby implicating its manufacturer, CSX which had failed to manufacture it to Eaton’s specifications.  He also opined that Eaton and Ford may not have been diligent in fully inspecting the steel and not warning about the potential that this axle, like any product, could fail.

The lawsuit was filed and, after discovery and some motions, was set for trial in Carrollton, Alabama, the seat of Pickens County.  Carrollton is a quaint small town nestled in rolling hills about 40 miles west of Tuscaloosa (home of the University of Alabama) and near the Mississippi state line.  It is a town which seems frozen in time.  Carrollton is famous for its courthouse and also for being the home of the then-manager of the Boston Red Sox, Butch Hobson, who had been the starting third baseman and quarterback for the Alabama Crimson Tide and played many years for the Red Sox.  Butch had two sets of wives and kids in Carrollton, where he was kept very busy devoting himself energetically to his two families and local causes during the few months of the year when he was home.  But it was the courthouse that caught my attention because of the haunting legend I had heard about “The Face in The Window.”

To learn more about this famous legend, I checked local records, talked to Alabama lawyers, and did some research on the history of what is probably the best-known courthouse in the State of Alabama.  A comparatively small structure of Italianate architecture popular in the late 1800’s, the courthouse, like so many wonderful old courthouses, sits in the center of the town square, where people gather to stroll and sit on benches enjoying snacks, playing checkers, and just taking in the scene.

I retained local lawyer W.O. “Buddy” Kirk Jr., one of only five lawyers in Pickens County.  I quickly learned from Lawyer Kirk the story behind the “Face,” which I thought was an interesting tale, but likely one that was embellished over time.

To put the story in perspective, it is important to understand some Pickens County history.  The County came into existence by an act of the Alabama Legislature in 1820.  There is apparently some confusion and debate concerning who the County is named for.  Some claim that it honors Israel Pickens, the second elected governor of Alabama, who served from 1821 to 1825.  There is some doubt about that since his service actually started after the County was created.  Other historians say the County was named for General Andrew Pickens of South Carolina, based in part on the fact that many people from South Carolina migrated to the Pickens County area in the early 1800’s.

It is not clear when the first courthouse in the County came into existence, although some early history seems to indicate that there was a “little log courthouse” which was located in a town then called “Pickens Courthouse.”  It was later changed to Pickens and then became known in 1835 as Pickensville.  The Town of Pickensville, Alabama, still exists today, but the courthouse is located, as previously pointed out, in the town of Carrollton.

Carrollton is named for Charles Carroll of Carrollton, Maryland.  Carroll, who died in 1832, was famous for being the last surviving signer of the Declaration of Independence.  He was a proud patriot who always insisted on signing his name “Charles Carroll of Carrollton” so that the British would not confuse him with any other person with the then common last name of “Carroll.”

Although there are not any viable records to determine the date when the first courthouse was constructed, its destruction is well documented.  Now we return to the topic of my first two blogs, the Civil War.

On April 4, 1865, just days before General Lee surrendered at Appomattox Court House, Union Army General John T. Croxton marched through Alabama into the City of Tuscaloosa where his troops burned the University of Alabama to the ground, leaving only a solitary chapel which stands on the campus to this day.  A detachment of Croxton’s army under the command of Captain William A. Sutherland marched 40 miles to Pickens County to gather information, as well as to serve as a decoy for Croxton, whose main purpose was to destroy the railroad between Demopolis, Alabama and Meridian, Mississippi.

Union Forces succeeded in capturing nine Confederate scouts in Carrollton and then proceeded, for reasons never made clear, to burn the commissary depot and the courthouse.  To this day the good people of Pickens County claim, with compelling logic, that burning their cherished courthouse served no useful military purpose.

But the resilient citizenry rallied and despite the financial woes of the post-war Reconstruction era managed to raise $20,000 to build a new courthouse.  People were enormously proud of this accomplishment and took great pride in their new courthouse.  Then tragedy struck.

On the night of November 16, 1876, the courthouse caught on fire and burned again.  Arson was strongly suspected, but there were no witnesses and no real evidence.

Once again the people of Pickens County stepped up to the challenge and dug deep to rebuild the courthouse.  The cornerstone was laid on July 4, 1877, but trials did not begin until March, 1878.  The courthouse was a three-story structure that had no jail, but did have an attic or garret on the third floor.

In January 1878, before trials or hearings were held, somebody uncovered information about a fugitive who confessed to a number of crimes in Pickens County, including burglaries and arsons.  In his confession he implicated an African-American named Henry Wells as being responsible for burning the courthouse.  Deputies were sent to arrest Wells and wounded him at least twice in the process.  He was returned to Carrollton on January 29, 1878.  The next day, he allegedly signed a confession of questionable validity, given the fact that he obviously was illiterate and just placed his “mark” for his signature.  He did admit to being in the courthouse, but never specifically said that he had set any fires.

Emotions ran high and once townsfolk learned that Wells had been captured and was being held by the local sheriff, a lynch mob formed.  Since there was no jail, the sheriff put the wounded Wells upstairs in the attic for his own protection.

As the mob formed on the street below, legend has it that as the traumatized Wells was looking out the window of the attic a lightening bolt from a massive thunderstorm struck the courthouse and etched Wells’ anguished face on the window pane.

It is not clear whether Wells ultimately was hung or died at the hands of the lynch mob or from his wounds.  It is known however, that in February 1878 the County paid $5 for a coffin for Wells and another $2 to dig a grave.  Wells was gone but his legacy has lived on haunting the courthouse to this day.

Since that date, local historians point out that all the other windows in the courthouse, except the one with Wells’ face, have been broken during tornadoes or violent hail storms.  Engineers from the University of Alabama, Auburn, and other places have sought to remove the image by using soap, gasoline, and all manner of other solvents, all without success.

And so, armed with that colorful history, I arrived in Carrollton in March 1992 and made my way to Lawyer Kirk’s office.  Before parking, I drove around the square and looked at the courthouse from all different angles without being able to see the fabled image, an effort which confirmed my skepticism.

When I entered the office of my affable and talented local counsel, I told him of my unsuccessful efforts.  Buddy nodded knowingly and then instructed me that in order to see the face I would need to go stand under the tree where the lynch mob was forming and look up.  I followed his instructions and, sure enough, there on the third floor was a large arrow pointing at a window pane.  The sun was not shining on it, clouds or shade had darkened that side of the courthouse.  An anguished African-American face was indeed clearly visible on the window pane.

The trial took place beginning on March 24, 1992.  The jury we picked was racially mixed.  Some wore bib overalls and simple home-spun cotton dresses.  The courtroom evoked memories of Spencer Tracy as Clarence Darrow in “Inherit the Wind” and Gregory Peck playing Atticus Finch in “To Kill a Mockingbird.”

Each day during the trial, Lawyer Kirk’s wife would come to his office to set the table in the conference room and serve us a wonderful lunch.  When we would leave the office in the morning for court and return again in the afternoon, there would be a line of local citizens, carrying baskets of eggs, dressed chickens, vegetables, fruit, and other produce offered in payment for Lawyer Kirk’s services.  Each of them bowed reverently as they made their offerings to their beloved “Lawyer Kirk.”  Although there are many advantages to practicing in a big city law firm, I get goose bumps whenever I think about those simple country people and reflect on what a great privilege it is to be a lawyer.

One day, as we returned to court following our sumptuous noon repast, we were intercepted by the plaintiff’s lawyer, who reported that he had settled with our co-defendant, CSX, and that (surprise, surprise) the expert he was presenting that afternoon had now changed his opinion and was going to testify that the sole proximate cause of the failure was Eaton’s negligent design.

Despite the peaceful surroundings of the courthouse and the comfortable lunch I had enjoyed, I was, to put it mildly, not happy.  I asked to see the judge and proceeded to unleash my volatile Irish temper, which I had masterfully held in check up to this moment.  I argued with a mixture of passion and outrage, creating a heat which the judge said probably had not been seen since the courthouse burned down for the second time.

In those portions of my presentation which were moderately coherent I reminded the court that I had deposed this despicable hired gun expert not once, but on four separate occasions.  I picked up each of the four deposition transcripts, one at a time, slamming them on the table.  The court reporter had to ask me to slow down because she was not used to “the way you Yankees talk like Gatling guns.”  I apologized as best I could given my extreme state of hyperventilation and admitted how upset I was.

Judge Clatus Junkin nodded his head and said “Ok, I can sure see that, and I understand how y’all feel.”  He then asked me if I had any motions as opposed to emotions.  I accepted his invitation and moved to preclude the expert from testifying on the grounds that it was too late for him to change his opinion and to allow him to do so at the 11th hour would be an outrageous miscarriage of justice.  After some further argument the judge urged the plaintiff’s counsel to consider accepting the $30,000 settlement offer which was still on the table.  Plaintiff’s counsel said his bottom line was $5 million”  Judge Junkin then granted my motion.

He then asked if I had any more motions.  I did — and said: “Since Your Honor has now excluded this witness from giving any opinion that would support a finding of liability against my clients, I move that he not be allowed to testify at all since he cannot provide any helpful or probative evidence.”  Judge Junkin granted that motion as well and told plaintiff’s counsel to call his next witness.

The stunned plaintiff’s lawyer was then forced to call all of his remaining witnesses over the next two days of trial.  One of them was Miss Grace Bryant herself, now in her late 80’s.  She squinted out from her wheelchair at the large crowd of nieces and nephews and newly proclaimed relatives and answered questions on direct examination in slow halting tones.

On cross-examination I decided to kneel down on one knee next to her wheelchair.  I asked her a few questions from this position and the following colloquy occurred:

Q. “Miss Grace, do you remember from your deposition that you told us that y’all had never been to Court?

A. Yes.

Q. And y’all told me that your daddy had given you some good advice, didn’t you?

A. Yes.

Q. What advice did he give you way back when you were just a little girl?

A. He told me whatever y’all do, don’t ever go to the courthouse.

Q. Now as you go on into your 80’s, what do you think your daddy would say if he saw you testifying here in this courthouse today?

A. I suspect he’d say I’m a damn fool.

Q. Thank you Miss Grace, I have no further questions for you.”

Plaintiff’s counsel was not a happy man.  He wore a khaki suit and in the warmth of a late March day in an un-airconditioned room. His perspiration stained through his suit, running all the way down from his armpits to halfway above his waist.  When he would raise his hands in objection or to make a point, I would move the court that to protect the lawyers, jurors, and spectators, he should instruct the lawyer to keep his arms at his side!

That motion was denied, but the next one I made wasn’t.  I moved at the close of plaintiff’s case for a directed verdict, and it was granted.

After a wonderful dinner in a delightful restaurant in Aliceville, Alabama, I posed for pictures with my trial team in front of the “Haunted Courthouse” the next day (see below) and then headed for the Birmingham airport.

I have not been back to beautiful Carrollton in the almost 20 years that have passed, but that experience is etched indelibly in my memory just as the face is etched on the window.  I think about it often, especially when I stop at the chapel on the University of Alabama campus and then drive out of town chanting “Roll Tide Roll!”

[Editor's Note: This month faculty members share their favorite brief writing or oral argument tip. This is the first entry in the series.]

When people ask me about the most helpful tip I can give for writing a brief and appearing in front of the Wisconsin Supreme Court, my answer is always “preparation, preparation, preparation.” The most effective appellate lawyers have spent an incredible amount of time knowing and understanding their cases and the applicable and relevant law in the area. They have “mooted” their oral arguments a number of times in front of different lawyers or retired judges. Of course, appellate books and training programs tell you to do that as well.

I believe it is perhaps more helpful for me to write about a significant mistake I have seen very well prepared lawyers make. The biggest error by counsel appearing before the Court is to get too close to the case. They know how they want the case to turn out (although occasionally we had an attorney appear who could not exactly explain what he or she believed the mandate line should say if there is a reversal). We all understand that counsel’s objective (rightfully so) is to win it for the client.

However, some attorneys so strongly advocate for what they characterize as the righteous position of their clients, that they forget the role of the Court is to clarify, affirm, distinguish, create, redo, or change the law on one or more specific issues. The Court took the case to do just that. It is a big challenge for the justices to write an opinion that clearly, concisely describes what they believe is the appropriate law while not also creating unintended complications in other kinds of cases.

A good lawyer, in his or her brief and in preparation for the oral argument, has stepped back from the case and specifically is able to articulate what “the ripple” effect of any given decision might be. The attorney should be able to describe what the whole opinion should (and should not say). I can tell you from personal experience that the justices will listen to tapes of oral arguments several times over in hopes that there is a question and answer on the impact of a particular decision on an unrelated area of law. Nothing is more frustrating than to listen to the tape, to hear a justice ask the question, and for someone to have interrupted without the lawyer having answered. Unfortunately that does often happen.

That is why it is also critical to address those kinds of issues in the submitted briefs. A party’s counsel should serve as a tour guide for the justices, helping them understand the benefits of his or her position and the risks of the opposing party’s position. That ability is a sign of a highly skilled and prepared appellate attorney.

Prior to opening my mediation firm, I interviewed with several potential employers as potential fits for continuing my private practice.  I was warned that this article may make me look like a bitter unemployed attorney. Please note that I have had job offers through this process that I have turned down.  It was after turning down bad fits that I decided to open my practice and I am very happy with my practice.  Additionally, I have many attorney friends who are/were seeking new employment opportunities.  These stories are collections of my experiences and those of other attorneys.

“We will be in touch.”

When you specifically make statements that you will do something, it is important that you follow through on those promises.  When an attorney interviews with your firm and you make an affirmative statement that you will be in touch, you should do so.

It is important to note that I practice in the Green Bay-Fox Valley area, which is notably different from the big city practice in Milwaukee, Madison, and other large cities around the country.  In a somewhat smaller legal community (although it still happens in larger legal communities), it is extremely likely that you will see repeat players.

Assume that you do not follow through on your statement and fail to contact that attorney again.  This will be remembered.  They will find another job and you are likely to run into them again.  What happens when you go to them for a simple discovery deadline extension?  Or more troublesome, when you ask them to take you at your word about some portion of your case?

Best practice would be to be in touch with the candidate even without the promise of contact, but if you choose not to follow the best practice, at least do not make the affirmative statement that you will contact them and then fail to do so.

You are setting up potential enemies, for no reason other than the cost of a stamp.

“We don’t have anything available, but we could not pass up interviewing you.”

Really, there may be nothing wrong with this statement and it can be a nice ego boost to the attorney interviewing.  However, the problem lies in when this revelation is made.  Getting a resume and asking for an interview within 48-hours sends a strong signal of potential need.  Waiting to drop the “we have nothing” until 10 minutes into that swiftly scheduled interview seems to be a big misdirection and calls into question the veracity of the statement.

If you really had nothing, why did you bring them in, and so quickly?  If you really had nothing, wouldn’t you tell them over the phone?  Did the interviewee do/say something in this interview that so offended you that the job would be pulled before the end of the interview?

In reality, this may be a simple situation of “we made an offer that we were not sure would be accepted and just found out it was accepted before your interview started” but the entire situation calls this into question.

“This is a long process.” 

Hiring should not be done on a whim.  The process should take time.  And in large, multi-office firms the candidate should expect the process to take significant time.  Office needs to be discussed, candidates considered, and office politics to be played in order to create a position.

When the process takes more than a standard amount of time, let the applicants know.  I remember applying for one position and receiving a letter from the firm a month later stating that their process was going to be 4 months.  That is long, but the fact that that firm took the time to send me the letter (a “this is where we are in the process” letter) made me respect that firm even more.

The alternative can be very frustrating.  Great resume, fit with the posted position (my next point), excited to apply to the organization . . . and nothing.  For months.  Sometimes ever.

“I’m sorry we are actually looking for someone with a background in X.”

Job post says a firm is looking for someone with a background in commercial and real estate law.  Send in the resume; get a call for an interview.  Show up at the interview and are told, “We are actually looking for an attorney with a tax background.”  Well, had that been stated in your job posting, I would not have bothered applying.  Now I am here, you have all cleared your schedules and I feel like I must go through with a pointless interview (in order for you not to hate me and not give me the discovery extension next time).

Having a stock job description ready to post is a very time-conscious way of seeking new employees.  However, make sure that you are posting the right job description.  Failure to do so makes you look sloppy and unprofessional.

“You are the weakest applicant, good bye.” 

I was told of a pair of attorneys who applied for a single opening.  They both were called in for a screening interview with HR.  Both were called back for an interview with the managing attorney.  Only one received a final interview.  However, the firm did not bother to tell the other attorney that he was no longer being considered.  The only reason he knew of this was because he was friends with the attorney who got asked back for the final interview.

The non-interviewed attorney was vigilant with his follow ups, despite his other knowledge.   Only after the firm ultimately decided not to hire anyone was the non-interviewed attorney told that the posted position was cancelled.  In fact, the non-interviewed attorney was told before the one who had the final interview (more in the next section).

When a firm whittles down the pool, send the letter to the applicant to inform them that they are no longer in consideration.  Otherwise you make people wait and wait with false hope.  Even worse is when they know and you just have not told them yet.

“The best laid plans . . .”

Things happen.  Whether caused by poor planning, other internal changes, or even Mother Nature, things happen.  The best practice is to be up-front and honest with the candidates.  However, too often the information gets around anyway and makes your firm look like it was ill-prepared and trying to cover it up.

Small, three-attorney firm has one attorney leave.  They seek candidates and those go through the screening stated above.  After the final interviews the managing attorney goes on a 3 week vacation that had been planned prior to the third attorney’s departure, leaving only the junior attorney in the office.  After the vacation it was realized that “if one attorney can keep us afloat for 3 weeks, why do we really need 3 attorneys?”  This is a good business decision – but the rationale should be stated to the candidates (at a minimum the final interview candidates).  Instead all candidates received a “the position will not be filled” call from the HR representative.  Months later the truth came out when talking to other people knowledgeable about the firm.   The truth will come out, be the one perpetuating the truth.

Alternatively, a medium sized firm that has a transactional partner seeking a transactional associate.  After several interviews and lots of communication, all communication stops from the firm.  Almost a month later the associate candidate finally gets an email from the partner explaining that after a massive heart attack and multiple-bypass surgery she has returned to the office and has a mountain of work to get out.  While not necessarily prompt, the honesty of the response gave the associate candidate even more respect for the partner.

Conclusion for firms

Whether in a large market or a small one, attorneys will see each other again.  If not, they will at least ask their friends and colleagues about this new firm they are going against in a case.  In this age of social media and networking – a single bad review can be disseminated to hundreds of potential employees, and maybe more importantly to potential clients, in seconds.

By perpetuating the non-businesslike hiring behavior exhibited by many firms, those firms are asking for bad-will and even vengeful responses from those spurned in the hiring process.  If firms would take a little more time to act in a businesslike manner in that process, they would garner and perpetuate good-will throughout the legal community.

Conclusion for job seekers

Be ready for anything.  Sure you can get asked tough questions and even silly questions at an interview, but you need to be ready for anything during the entire process.  Continue to act in a businesslike manner (especially if the firm is not doing the same) and remember that if a firm is not businesslike when they are hiring – they may not be businesslike when they are working.

“When a butterfly struggles to free itself from its cocoon, it causes fluid to be pumped back into its wings. This independent act of vigilance, determination, and extreme effort is what allows the butterfly to take flight. This fact has inspired me as I enter the next phase of my life, and has shaped my perception of law school’s purpose. I enter the ‘cocoon’ of law school well-prepared and with the knowledge that with conviction and a lot of hard work, after three years I too will take flight.”

The above paragraph, while admittedly a bit hokey, was the opening to my personal statement.  It reminds me of a fact that Father O’Meara shares with the entering 1L class each year: it is common knowledge in biology “that growth occurs along places where there is tension, stimulation, or irritation.”  His point is that tension is necessary for both development and learning. These statements illustrate the personal growth I, and I’m assuming most other students, experience during law school.  Law school is structured in such a way that it pushes students to their physical, emotional, spiritual and intellectual boundaries.  It forces you as both a future professional and a human being to look inward and outward for answers or solutions to life’s most difficult questions . . . oftentimes leaving you bewildered, confused, and experiencing extreme bouts of self-doubt.  There will be tears.  There will likely be anger.  It will try your personal relationships and drastically alter your perspective in many ways.  You will feel yourself changing and sometimes not understand it, or perhaps not like it.  I encourage you to push through it.  Take moments of self-reflection.  Don’t be afraid to be honest with yourself.  In the end you will achieve a peace and contentment that comes with self-awareness—even if it’s a sense of being aware about how little you know and how much you still have to learn.  Struggle, for it is the only way you can flex your wings.

“I believe in the ‘butterfly effect,’ the idea that there exists the propensity of a system to be sensitive to initial conditions. As a lawyer, I will be the causal factor of the initial conditions which, over time, will help change our legal system, the local community in which it resides, and the society of which that community is a part.”

These lines concluded my personal statement and have particular meaning now that I prepare to exit law school and enter the next phase of my professional career.  While law school will change you in many ways, this is a reminder to stay true to yourself and your goals, as idealistic and altruistic as they may be.  You have the unique opportunity of attending Marquette, a school that prides itself on educating the whole person and not producing only good lawyers, but good people.  Through education comes power.  You will know and understand far more about our society than most and that knowledge and understanding will give you the ability to make a difference.  Understand that this difference may not be as large or overwhelming as you initially thought, but most major developments and improvements throughout history started with something small.  Remember the Allegory of the Starfish:

A man was walking along the beach where hundreds of starfish had washed ashore at high tide and were slowly perishing in the hot sun. The man saw a boy picking up the starfish one at a time and throwing them back into the ocean. He approached the boy and asked him why he was doing that.  There were hundreds of miles of beach and he couldn’t possibly make a difference. The boy slowly leaned down, picked up a starfish, and hurled it back into the ocean. He looked at the man and said, “It made a difference to that one.”

One client, one case, one ethical decision at a time you will have the power and ability to make a difference in people’s lives and, over time, within broader society. Do not take that power lightly or for granted.  With that power comes responsibility.  As an attorney you will have the responsibility to protect some of the things your clients hold most dear: their property, their family, their secrets, their liberty and freedom. You have a responsibility not to let them down, to “zealously advocate” for them. You have a responsibility to the bar to do so in an ethical manner. And you have a responsibility to yourself to stay true to your moral code or risk not being able to look at yourself in the mirror.

The Chinese use two brush strokes to write the word “crisis.” The first stands for “danger;” the second for “opportunity.” In crisis, be aware of the danger but recognize the opportunity.  There will be many times throughout your law school, and likely also your professional career, where you will be faced with a crisis—whether your client’s or your own.  Take the tools you have acquired through your legal education, and the strong sense of self that will develop if you take your education seriously, and use them to face the danger and seize the opportunity.  Law school is not easy, neither I guess is being a lawyer, but in my limited experience its been well worth the challenge.

1. Organization

Lawyers, judges, clients — pretty much everyone who is not reading while sitting on a beach — are busy people. They have limited time. Very limited time. It’s crucial that you give them some sort of sense immediately (1) why you are writing to them, and (2) what your message is. This applies to memos, letters, briefs, complaints, law review articles, essay exams, letters to the editor, even (or most especially) emails. Business documents often do this with an “executive summary,” but most of the executive summaries I see are mealy-mouthed mush. Be clear and concise; time is most definitely not on your side. You do not want your reader to get to the second paragraph and be wondering, “Who is this idiot and what is he/she prattling on about?”

This means that you must get to the point immediately. A MEMO/BRIEF/EXAM IS NOT A MYSTERY NOVEL. You are not writing in a genre in which the reader is willing to be strung along, tantalized by sporadic clues, until all is revealed in the last paragraph. Briefs written like that fail to persuade. Papers written like that typically fail to contain any analysis. Memos written like that are impenetrable.

Instead, you want to reveal all up front, as quickly as you can. If you’re worried about the reader concluding that you are making unsupported assertions, you can flag your more complete explanation with phrases like “as explained further below.” But your ultimate conclusion must be disclosed right away. Think newspaper article, not mystery novel. (Although don’t write in the objective, descriptive style of most newspaper articles — see below. You will typically be doing advocacy or analysis, neither of which is mere description of the facts.) Your first paragraph of any document–brief, paper, letter, email–is the lede. Look at the lede paragraph of almost any newspaper article, and see how it tries to suck you in by giving you the basics of the story, leaving you wanting more in the way of detail. Here’s a random example from a recent New York Times article:

Hip Implant Complaints Surge, Even as the Dangers Are Studied

The federal government has received a surge in complaints in recent months about failed hip replacements, suggesting that serious problems persist with some types of artificial hips even as researchers scramble to evaluate the health dangers.

A brief or paper should start off the same way. Not only does this indicate to the reader where you are headed, so that he or she can establish a framework for understanding everything that follows, but perhaps more importantly, it indicates to you where you will be headed. Everything in the document should serve that initial statement of your thesis. This goes not only for the beginning of your document, but also the beginning of each section, the beginning of each subsection, on down to the first sentence of every paragraph. Each section should start off with a paragraph indicating what the argument or point of the section is. Each subsection should begin with a paragraph that indicates what that subsection will do. Each paragraph should begin with a sentence that states the point of the paragraph. Writing structure scales: at each scale, from paragraph to book, the structure looks similar.

Organized in this way, the entire document argues for the ultimate conclusion you are trying to get the reader to reach with you: that you are correct about whatever it is you said in the introduction. Here are some warning signs that you may instead be writing a mystery novel: an introduction that says that you will “discuss,” “review,” “examine,” or “consider” cases, statutes, or other legal developments. Unless you are writing a piece of legal journalism, try to avoid those words. You should not be discussing or examining anything, except as a short prelude to the main attraction: your thesis, which should be a declarative statement of a conclusion that you have reached about the material that you have read. Again, this goes for each section and subsection. Even if you need to explain what a court did or what a statute says to critique it or use it as support, that explanation should be done with an eye on the key features that support your argument.

Other warning signs that you are describing and not arguing or analyzing:

• You write a conclusion to a document or section that makes an argument that you have not made anywhere in the document previously. It’s endings like that that gave deus ex machina a bad name.
• You write a section or an exam answer that says, “Some courts have held X; but other courts have held Y,” and then ends.
• You write a page that cites the same source, over and over again, resulting in a string of “id.s,” and it is not the decision below or the central focus of your paper.

I’ll talk a bit about the basic unit of writing, the paragraph, in the next installment.

Enjoy!

The difficulty starts from the moment we study for the LSAT.  In our first years, we are tasked with reading and processing and cogently articulating concepts gleaned (or pulled like teeth) from ancient cases about barrels falling out of windows, churches burning down, and smoke balls that supposedly cured every minor ailment under the sun.  Come second year, we may find ourselves toiling in the law review cite-check room as staffers or coming out of our shells as we practice oral argument for Appellate Writing & Advocacy, along with even more copious amounts of reading, this time on topics like criminal process, agency and corporate law, taxation, postmortem property transfers, and intellectual property.  Then you will get the taste of working as an attorney, whether in a summer associate position at a large firm or clerking for a mid-size or smaller firm, in which your legal studies for the first time become “real.”  When third year arrives, you will have the chance to take workshops on pretrial practice and contract drafting among others, and (you guessed it) more reading.  In sum, as Justice Stephen Breyer was right to tell his children, “[I]f you do your homework really well, . . . you can do homework the rest of your life!”

Once you begin practicing in the real world, you will have even more difficult homework, and the stakes are even higher. 

In law school, students learn in something of an incubator largely separated from the real world consequences of failure.  True, there are the harsh realities and long-term consequences of poor exam performance.  Furthermore, if you come to class unprepared, you might draw the ire of your professors and a few arrogant snickers from your class gunners.  But in the grand scheme of things, the only one acutely suffering from sloth in law school is the student.  If that same indolence creeps into your work post-graduation, then others feel the sting.  Most immediately suffering are your clients, the very people and organizations you are charged with providing educated and prudent counseling and zealous advocacy.  If you choose to litigate, you are also stunting the growth of the law.  Judges heavily rely on effective advocacy from lawyers in reaching their decisions; they do so out of necessity, given their overflowing dockets and calendars filled to capacity.  These consequences demand the very best from us.

Amid the seemingly infinite obstacles without guarantee of rewards awaiting us at the end, some choose to run from even more difficulty.  For them, the thought of striving to be the best feels like simply too much effort or even a delusion of grandeur.  As Bryan Garner scolded readers in a recent article for the ABA’s Student Lawyer magazine, some yearn for the weekend and getting away from it all, at the expense of working toward excellence.  Other students gravitate toward what Justice Scalia last September called “law and ice cream” classes while foregoing courses covering more challenging material.  I have especially noticed as much when I have advised people take Dean Kearney’s and Professor Shriner’s litigation-based courses, many shuddering at the amount of reading those classes require.  And even the ABA Model Rules of Professional Conduct speak largely to how not to be a bad lawyer, with few official statements that express aspirations about what the best among us should do.  Being the best is repeatedly passed up for being just good enough.  In fact, I remember voicing these gripes about this focus in legal ethics to Professor O’Meara early last spring semester.  He responded, as if to finish my thought, “And we can be better than that.”

That we can.  Before the economic and professional realities of the real world hit, legal education provides a focused opportunity to hone your skills and learn self-discipline.  To do well, you must constantly push yourself and raise your own personal expectations.  Take useful and difficult classes like Administrative Law, Advanced Civil Procedure, Business Associations, Creditor-Debtor Law, Criminal Process, Federal Courts, Insurance, Remedies, Secured Transactions, and Taxation.  Find those professors who constantly challenge you and work you hard enough that you know that they respect your competence.  Sign up for judicial internships, especially those that get you writing and learning to write well.  In fact, seize every opportunity you can handle to write, whether it is on this faculty blog, your own law blog, or trying to get a law review article published. And, again, do it well.  If you are on a law review, write a comment that will meaningfully add to an area of law’s growing body of knowledge.  Stay current on developments in subject areas that interest you, because you may just have to practice in a world where those new developments matter, regardless of whether or not your professors choose to cover it in class.  Based on advice given to me by Professor Fallone, Dean Kearney, and Professor Shriner, “collect judges” and find “heroes in the law.”  In other words, keep your eyes open for members of academia, the bench, and the bar that you look up to, and emulate their best characteristics, whether the ways they speak, write, or generally conduct themselves.

Shunning the easier paths and looking for the harder ones is draining and (yes) hard, but there are benefits to be had.  Some of the classes of which I have my most fond memories in undergrad and law school are those that were the hardest.  If anything, they make for good war stories and a feeling of true accomplishment.  After all, as my father would tell me before and during and after law school, “If it was easy, everyone would do it.”  That idea came from a book he read, a book called The Dip by Seth Godin, the same book that partly inspired this blog post.  One oft-used concept from The Dip is a simple one: difficulty weeds out those willing to quit, which in turn creates scarcity among those persons that do make it through adversity.  And, most importantly, “scarcity creates value.”  Seth Godin, The Dip: A Little Book that Teaches You When to Quit (And When to Stick) 36 (2007).  As such, difficulty works to your benefit.  Id. at 26, 41-42.

Instead, there are too many people asking their professors just to tell them “what the law is” rather than digging deeper and debating the purpose and continuing relevance of the rules today.  One cannot have a truly rich education experience without closely examining the how and why, as opposed to pursuing the what single-mindedly. There is too little pride and too much cynicism bleeding into self-hatred in the legal profession, and with the profession’s already tarnished reputation, we should do everything in our power to restore its lustre.  And as I noted before, there are too many people willing to settle for being just average, which is simply not acceptable anymore in today’s legal market.  I say we can be better than that.

We can be much better than that.

Reunions of lawyers are like other reunions in that they connect or reconnect those that life has flung to places, close and far, from where the original connection took place. But lawyers are sui generis, and I use that term thinking of Justice Hugo Black who, I am told, did not use Latin in his opinions. Our uniqueness comes from our training and what we do. Over the years I have used examples of my “job” such as this past weekend’s match between Nadal and Federer. For every stroke of one, the other quickly and frequently with devastating accuracy counters with a stroke intended to thwart or defeat the other. Not unlike a wide receiver trying to run a post pattern or Dirk trying to stop our beloved D Wade, the lawyer is constantly countered by defenses offered by another lawyer. Unlike athletes, we seldom have throngs cheering our moves. Frequently the cause we advocate is unpopular

What we have done over the years has formed what we have become.  

Law students would be surprised to learn how little of my work over the past ten years involves reading a case or statute. I seek a  solution for a client; it has always been about the client. I am no longer a law review editor. I have not taken neutral positions. I advocate for a client. That may be in a court or in negotiating a transaction or in fashioning an estate plan. (Okay, I’m unqualified to prepare one.)

I thought about what we do as opposed to how we prepared to do it as I stood at the Harley Museum or the MAC talking to classmates. Of course, Judge Jim Kieffer must know the law as he goes about his judicial duties, but I suspect so much of what he does is trying to find the right solution. I am not, in the immortal words of Spike Lee, trying to do the right thing. I will leave that to Judge Kieffer. I will advocate for my client.

Lawyers are not immune from the harshness of life, and a thirty-fifth reunion certainly reminds one of that. Death, divorce, and dependencies appear to have touched us too frequently. I may be imagining it, but despite the daily traumas which life dishes out, my lawyer friends, partially due to training and the stance taken regularly in the face of adversity, have succeeded. They may not have prevailed – every case has at least one loser – and I am not speaking of material success, but the success that comes with being knocked down and somehow finding a way to stand back up and put one foot in front of the other. It was a joy to see Mark with Liza and see newfound happiness.

Some place along the line, I saw that Marquette chose to define itself with the four words “Excellence, Faith, Leadership, Service.” It may be hokey, but for me it resonated, and I wrote it down. I made the words goals. One does not achieve any of those four goals without many failures or without connections. While at Marquette Law I did not hear much about our Jesuit identity. Ironically, it took a Jew who became our Dean to make me think about that connection. I suspect Father Schmidt would approve of the four words, and the S. J. connects him to Marquette Law.

My classmates, in so many examples, embody those four words. For a few hours we reconnected. With Mark, Eric, Barb, Pat, Paul, and others I laughed, traded stories, and  marveled at the new law school. It is fantastic in so many ways I will not begin to catalogue them. The tour Tom, Sam, and I took was led by Lindsay Ruch.  Five to ten percent of my law school class was made up of women; today almost fifty percent of students are women. I was struck by how she reminded me of friends such as Barb Maier or Mary Pat Koesterer.  They defined feminine as intelligent, forceful, and confident. As wonderful as the new brick and mortar is, my tour guide, personifying the men and women of Marquette, will continue to define the Law School in ways more important than any soaring atrium ever will. Because of the physical plant, the academic standing of admitted students will rise, but without the people skills of the brilliant Gary Williams of my class, they will not succeed as lawyers.

While in law school, none of us would have believed the fact patterns which have presented themselves to us over the years. We have learned and relearned that truth is stranger than fiction. Ultimately, with all the looking back, we laughed.   As for spouses of the lawyer, they seem to laugh even more. That may be a trick they learned in order to survive being married to their Nadal.

It was a wonderful reunion weekend, and I will close by stealing a quote from my son’s blog on bookselling and good books: “friends that connect friends through food and books and anything else are certainly a blessing.”  http://www.micawbers.blogspot.com/ For all the blessings of this past weekend, the hospitality of friends, the review of sad events, and the glories of family and practice, I thank all of you.

There are so few times in our lives when we can truly immerse ourselves in the science of our profession.  The years in law school expose us to intellectual experiences that may never be found in a private practice.  The law school faculty is best equipped to challenge the law student’s mind in the most thought-provoking and critical ways.  In law school, we learn how to write clearly, concisely, and persuasively.  Law schools offer opportunities to study and understand fundamental legal rights that serve as the foundation for most legal disputes that arise within the practice.  Learning about and discussing, in a critical and theoretical manner, constitutional rights or contract rights or procedural options instills a preliminary basis for everything we do as lawyers.

The best way to run a well-respected law practice is to demonstrate strong skills as a lawyer.  You can’t do that unless you have obtained a good education – one that offers the type of critical legal analysis and knowledge that is acquired in school.

Don’t get me wrong.  There are many pieces that need to fit together properly to run a successful law practice.  I submit that a solid legal education is the first and arguably largest piece in the cog.  A commitment to an ethical method of practice with a high level of integrity will naturally lead to the acquisition of the other pieces necessary to operate the machine we call a law practice.

It’s not a bad idea to reflect upon our work as lawyers with an eye toward positive change. That change may be in the way we relate to our co-workers. That change may be in a new commitment to volunteer in the legal community. That change may be a commitment to incorporate a greater level of organization into our practice. That change may be a new routine to stay informed about recent developments in the law. That change may be taking time to become a better listener. That change may be setting aside time to appreciate how rewarding and stimulating our work is. It doesn’t really matter what the change is. The important thing is that we take this opportunity to reassess how we, like new graduates, can take affirmative action that will provide us with a new and fulfilling future.

I recently read a great quote from Mark Twain: “Twenty years from now you will be more disappointed by the things you didn’t do than the ones you did.”  This is the type of statement hundreds of graduates will hear over the next few weeks. It’s time for all of us, new graduates and seasoned practitioners, to embrace this time of new beginnings.

Sure his story is remarkable.  He is one of the “White House Plumbers” who created and authorized one of the most infamous covert operations ever.  His actions resulted in a criminal conviction, a six-month prison sentence, and later disbarment from the practice of law.   This is where his story becomes important to me.

His time in prison and subsequent reflections on his years in the White House allows him to share a perspective about the importance of good and sound decision-making with a sense of integrity.  Notwithstanding his actions in the early 1970’s, he is now able to lead by example and talk about how the pressure of our work, our relationships with co-workers, our need to address client demands, and our internal pressure to succeed can interfere with our need to maintain both personal and professional integrity.

He talks about the legal profession with a level of respect and, candidly, enthusiasm that is infectious and truly inspirational.  He has lived through some tough life experiences that are certainly unique to him.  Nonetheless, his message resonates with all of us.  Thank you, Mr. Krogh, for sharing with us your recipe for how to make the right choices.

Personally, this news forces me to step aside from the day-to-day pressures of my law practice and think about how to make sure there is value in what we do. The practice of law is extremely rewarding. The work we do impacts people in ways that we can’t really imagine. The words we use to communicate, the guidance we provide, and the way we treat people in our professional and personal life should reflect an appreciation for goodness in what we experience, empathy about the news we receive, and joy for the happy moments we share with one another.

This is tough work, and we have a responsibility to own our behavior and understand its impact on others. We can allow all of these horrible events to drag us down or we can reflect upon all that is happening around us and find ways to encourage those who we work with and those we represent to deal with challenges with higher levels of empathy, grace and compassion. This does not mean we give up on strong advocacy. It means that we give more thought to how our message is delivered and its impact on those who receive it. Take the personal challenge of changing the environment around you by your words and your actions.

Once I got clued-in, I began seeing the link everywhere. The Veteran Affairs Hospitals and clinical ethics programs are doing wonderful things (too lengthy to describe) and creating evidence. You see, high-level health-care people like evidence and measures and metrics, which has always been an area where clinical ethics has traditionally had problems producing. I love the VA because it has lots of potential, and does really good work: it’s actually very hard not to like and sets the standard in the field. The call now is for everyone else to catch-up, or even better yet, to innovate. That’s what my team has been working hard on, though we at times look back on what’s come before for inspiration.

I guess the link-in for up-and-coming JDs would be QI that exists in legal fields. Looking at QI as a meta-analysis by practitioners (at my hospital, most QI analysts are RNs) to improve the delivery of service, are there opportunities in this field for lawyers (I am sure there are) that can be taken advantage of? The underlying point I suppose I am making is that this is one approach to finding fulfilling work.

[I]n reviewing the motion the Court was more than somewhat surprised to read that “Plaintiffs have refused to agree to continue the trial setting and have indicated that they intend to oppose this Motion.”

Well, every party is entitled to file an opposition to a motion, and hoping that perhaps Defendants’ had mis-characterized the vigor of Plaintiffs’ opposition, we have eagerly awaited Plaintiffs defense of its opposition.  The Memorandum in Opposition arrived yesterday, and it was, sadly, as advertised.

The order goes on to shoot down the plaintiff’s attorneys’ arguments opposing the continuance, and ends with the suggestion that the opposing lawyer’s life priorities are out of whack:

Certainly this judge is convinced of the importance of federal court, but he has always tried not to confuse what he does with who he is, nor to distort the priorities of his day job with his life’s role.  Counsel are encouraged to order their priorities similarly.

It’s an interesting opinion (and charmingly written), and I forwarded it to my first-year legal writing students, because it is consistent with the approach to professionalism that I was trying to get across to them when we discussed ethics and advocacy. It is of course pleasant, and especially dramatic, that the order was written in the context of the joy of expecting a new child into the world. But most impressive to me is Judge Melgren’s weariness and disdain for the commitment to conflict that the opposition to the continuance seemed to illustrate:

“He who is his own lawyer has a fool for a client” is one of every lawyer’s favorite proverbs. Among the several reasons why this is undoubtedly true, is that lawyers are trained to handle disputes skillfully but without the emotional rancor that will mask the actual parties’ reason and good sense. [footnote omitted]  Regrettably, many attorneys lose sight of their role as professionals, and personalize the dispute; converting the parties’ disagreement into a lawyers’ spat.  This is unfortunate, and unprofessional, but sadly not uncommon.

Maybe I’m remembering myself speaking more than I actually did.  Or maybe I was an anomaly.  A female law student quoted in a recent National Jurist postsaid that “it feels like men do most of the talking during class discussions.” And indeed they might.  Data from the 2010 Law School Survey of Student Engagement (LSSSE) suggest that women do not speak up as much as men in law school classes.  The National Jurist reports that according to the LSSSE, which for 2010 surveyed 25,000 law students at 77 law schools, 47% of women students frequently ask questions in class, while 56% of male students do.  This, LSSSE notes, is an area “that needs attention.”

What isn’t clear from the LSSSE results (at least not the overview of the results to which I link above) is whether “class” means large classes, small classes and seminars, or both.  It also isn’t clear how “frequently” would be defined:  Would it mean every class?  Several times per week?  It may be that the law students who completed the survey supplied their own definitions, which makes the results a bit harder to interpret.  Even so, the results are not surprising.  Many studies over the past two decades have documented similar findings.  What’s surprising, and bothersome, is that despite women’s increasing presence in law schools to the point of being roughly half of all law students, we are still documenting their relative silence.

Nearly every study I’ve read on women and law school – from Taunya Lovell Banks’ 1988 article Gender Bias in the Classroom (38 J. Legal Educ. 137) to Lani Guinier, Michelle Fine, and Jane Balin’s 1994 classic Becoming Gentlemen:  Women’s Experiences at One Ivy League Law School (143 U. Pa. L. Rev. 1) to Sari Bashi and Maryana Iskander’s more recent Why Legal Education is Failing Women (18 Yale L.J. & Feminism 389 (2006)) – has uniformly concluded that there is lower class participation for women.  Whether the evidence is statistical or anecdotal, men participate more and speak for longer periods of time in class.  For example, Bashi and Iskander found at Yale Law School men were 40% more likely than women to volunteer in class.  Guinier, Fine, and Balin found that at Penn women were “significantly” more likely not to ask questions or volunteer in class.  Joan Krauskopf found in her study of nine Ohio law schools that men reported volunteering or asking questions twice as often as women.  (Joan M. Krauskopf,Touching the Elephant:  Perceptions of Gender Issues in Nine Law Schools, 44 J. Legal Educ. 311, 325 (1994)).

Law school’s signature pedagogy – the Socratic method – is particularly silencing for women.  In Professor Elizabeth Mertz’s comprehensive study of law school classrooms where the Socratic method was used, she found a gender imbalance in favor of men.  Mertz’s study is based on in-class observations of first-year contracts classes at eight different law schools.  Classes were tape recorded and coded by coders with graduate degrees in anthropology, linguistics, or sociology.  Some data suggest that women will speak more frequently in smaller, less Socratic-type classes, like seminars.  Professor Cheryl Hanna, from Vermont Law School, is quoted in the National Jurist offering a similar view:  “[A]s the curriculum evolves from the hypercompetitive individualistic Socratic method to more collaborative projects, skill-based work, the gender difference are [sic] less of an issue.”  As well, Professor Mertz found a gender imbalance in favor of women when the class was structured around shorter, more informal conversations.  Mertz, The Language of Law School: Learning to “Think Like a Lawyer,” 193-94.

Many reasons have emerged for the reasons behind women’s silence in the classroom.  Women may participate less in class because they are called on less.  Bashi and Iskander note that at Yale men were cold-called in class 17% more than women.  18 Yale L.J. & Feminism at 407.  I think most professors employ a variety of techniques to make sure they call on each student in the class and many are mindful of the need to balance the discussion between men and women, a point presented in the National Jurist post.  However, where a professor relies on volunteers or where the professor answers in-class student questions, those volunteers and those students who ask the questions may well be predominantly male, something that professors may not consciously notice.

Women may participate less because the Socratic method and the style of dialogue is often confrontational, a style that many women (indeed, perhaps many men) do not prefer.  But, notes Lindsay Watkins, LSSSE’s project manager, in the National Jurist post, “Female students are less likely to place themselves in situations they perceive to be risky.”  Finally, women may also be choosing silence over participation in what they deem to be an oppressive learning environment; that is, silence may be a form of resistance.

The most recent LSSSE results provide some new information on the reasons for women’s silence.  This year’s LSSSE collected data from 4,626 students at 22 law schools on student motivation:  what brought students to law school and what keeps them working hard after they are there.  The results indicate that motivation for working hard in law school varies along gender lines.  Women are more likely than men to be motivated by fear of failure and avoiding embarrassment in front of peers, two kinds of motivation that may drive women to silence in the classroom.  On the other hand, LSSSE results show that women are also more likely than men to be motivated to perform to the best of their abilities and to have an inherent interest in the material.  These intrinsic motivators bode well for women’s performance and, in my view, suggest that women want to engage with the material; however, perhaps those powerful extrinsic motivators – fear of failure and embarrassment – prevent them from doing so.

While some might think that not speaking in class is a plus, when the class grade depends in part on participation, women are at a disadvantage.  Also, lack of class participation means it’s easier to become less engaged in learning.  Nonparticipation in class means women’s voices are not heard, which affects women’s self-esteem, but also sends a message about the legal profession in general.  As Professor Mertz says, “[L]aw school classrooms in which discourse is largely dominated by white men teach a subtle lesson about the social dimensions of discourse norms in this new arena [the legal profession], about entitlement and whose views matter.” Mertz, supra, at 175.

Women, we need to be hearing from you more in class!

(Cross-posted from Ms. JD.)