“We Can Be Better Than That”

Law school is hard.  Being a lawyer is harder.  But that difficulties and responsibilities come with entering the legal profession is not something to bemoan or a cause to run away.  Nor should the difficulty of legal education and practice be sought purely as a means to financial rewards, especially since these rewards are becoming all the more elusive in today’s world.  It is an opportunity for intellectual development and experience, all lifetime benefits to embrace.

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.



This Post Has 2 Comments

  1. Peter Friedman

    Excellent advice. I would especially emphasize your last point: “[T]here 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.”

    In addition to “digging deeper,” I would encourage students to get over the expectation that the professors are there to tell you exactly what to do and how to do it. Lawyers solve problems that there aren’t pre-existing answers to. You have to get used to figuring out for yourself (so you can do it later for your clients) not only “what the law is” but also what you should do to solve the problem the legal question pertains to.

  2. Matthew Fernholz

    Huzzah, Mr. Spillane! And kudos for using the British spelling of “lustre”–that is surely one way to restore honour to our profession.

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