If you've read my book, "Law School Labyrinth" you know that the law school model places an inordinate emphasis on first-year exam grades. Unsuspecting 1Ls arrive at law school, expecting that the same ground rules that led to their 4.2 undergraduate GPAs will apply in their legal education. Do the assigned reading, listen to the professor's every word, take copious notes, and memorize everything and you are virtually assured of an "A."
Unfortunately, the assumption that undergraduate study methods will serve you well in law school is just one more false turn in the Labyrinth. The reality is that the law school pedagogy- featuring the Socratic method, appellate opinions (called "cases"), and the concept of "precedent"- are designed to teach you to "think like a lawyer." Learning the legal reasoning process is more akin to learning a trade- you learn by doing.
Regardless, some students "get it" early on- they ace exams and finish the year with top grades. Generally, these are also the students that receive the fruits of this success- invitations to Law Review and coveted law firm clerkships. What about the others, you might ask? (especially if you happen to be one of the others). What happens to them? Can they still have satisfying careers as lawyers? Hold that thought- I'll answer that question in a minute.
It is axiomatic in college that your GPA is really only as important as your first job. Good grades get you in the door and help you land a job. After that, your real intelligence, work ethic and initiative take over, in terms of your career success. My own experience in an almost twenty-year business career was that my work ethic, above most everything else, determined my ability to climb the corporate ladder. After that first job, one's GPA rarely, if ever, comes up. Simply, your actual results speak much more loudly that an arcane artifact from college.
However, in my legal career, I have found that my academic credentials have remained with me substantially longer. It's interesting to review lawyer bios on websites and the various listings, such as Martindale-Hubbell. Lawyers who have been practicing for twenty years trumpet the fact that they were on Law Review or Moot Court. Candidly, I'm not sure I fully understand the reason behind this, because in my opinion, results are every bit as important in law practice as they are in a business career. Good lawyers who achieve the results their clients want tend to thrive.
Which brings me to the answer to the question. Can the less-than-stellar law student have a rewarding career? I think the answer to this question lies in part with the old fable, "The Tortoise and the Hare." The analogy deviates in that "Hare" law students aren't necessarily those who favor speed over results; similarly "Tortoise" law students aren't necessarily those who are always "slow and steady" but win. However, the analogy holds in that many law students who started off in law school without the proverbial clue, had rocky academic success and weren't on Law Review, can still have spectacular careers. (a parallel question is whether someone who graduates from a non-top 10 law school can enjoy a rewarding legal career).
The simply answer is "absolutely yes." One of the first lawyers I worked with was a senior partner in the firm. He was a bit of a curmdgeon, but one of the smartest lawyers I have ever met. More importantly, he understood human nature. In fact, he was a student of it. He could anticipate what the other side would do, what a client would say and what a judge might rule with incredible precision.
He confessed to me one night as we worked on a deal together that as a student, his performance had been mediocre. "I wasn't one of those bright hotshots who made Law Review," he said. " I had a 'C' average. But I was determined to make it as a lawyer. So I worked harder than anyone else." He may have underestimated his own intelligence (which I think we all tend to do); I viewed him as pretty close to brilliant. But his law school grades did not reflect his brilliance. And in my practice, I have run into many "mediocre" law students who were brilliant lawyers.
We all know the stories- Albert Einstein flunked math (well this one is actually not true- Einstein was in reality a math prodigy. But he did have poor grades early in school). Bill Gates did drop out of college to start Microsoft. Winston Churchill failed the sixth grade. Abraham Lincoln lost in a number of elections. And so on.
So, your grades in law school are important. But if you don't make top grades, it doesn't mean your career is over. The reality is that the practice of law is exactly that, a practice. And practice makes perfect. One of the greatest benefits of practicing law is that the opportunity is always there to learn more. I work periodically with one of the leading antitrust law experts in the country. And yet, occasionally when I call him, I "stump" the expert. What happens next is sheer joy. I have the opportunity to observe first hand his brilliance as he reviews facts and law, performs analyses, argues scenarios and the like. This is his "practice" in action.
If you are a "hare" and have made great grades and Law Review, I congratulate you. But don't confuse your short-term success with long-term career satisfaction.
If you have not done as well as you would have liked in law school, don't give up; don't evenbecome discouraged. View it instead as a challenge. Rise to the occasion. Keep working, keep pushing. If you do, you will prevail. You will have a rewarding and satisfying career. Remember that there are countless others who have gone before you. They made it and you can too.
Become the tortoise.
Best wishes in your legal career.
As I describe in my book "Law School Labyrinth- A Guide to Making the Most of Your Legal Education" (Kaplan Publishing, 2009), I worked for a number of years prior to law school. During that time, as an executive in an industrial business, I had the opportunity to work with lawyers on various occasions, including a very exciting initial public offering. I also worked periodically with the inside counsel of my company.
"In-House" simply means a lawyer who is employed by a company, rather than a law firm. Generally, a company will hire in-house counsel for one of two reasons. First, in many cases it is simply a matter of economics, especially for companies that regularly require legal services. It simply costs less to have a full-time lawyer on staff to handle certain matters, rather than hiring outside counsel at an hourly rate. In certain circumstances, having in-house counsel helps the company to better manage its legal expenses. Second, an in-house lawyer may ultimately be more effective in helping a company to manage its risk because the lawyer is onsite, develops the trust of the company's businesspeople and is thus better able to anticipate an manage legal risks than an outside lawyer who is typically only engaged after there is trouble.
When I was in law school because of my business background, I was frequently asked whether I planned to go in-house after graduation. My typical answer was, "Nah, I don't want to be an administrator." I suffered under the common misconception that in-house counsel generally only manage outside counsel by reviewing legal bills. A lot of people mistakenly believe this and as an in-house lawyer, I now understand that nothing could be further from the truth.
Further, a lot of people believe that going in-house is an interim step for lawyers before retirement. They believe this because they think that in-house lawyers don't have to work very hard. Everyone understands that law firm life is hard, due to the billable hour requirement, client demands and its simply the culture in many law firms that you have to work a lot of hours. Many people mistakenly believe that in-house life is easier than that in a law firm. Again, nothing could be further from the truth.
I have been in-house for just over four years. I am presently the Vice President, Legal Services for a large apparel company with close to a billion dollars in revenue. Don't let the title fool you- I am also its only lawyer. This means that whenever there is a legal issue, I am involved. And the truth is, most everything in a business either is or implicates a legal issue or issues.
And by the way, the irony of the job is that the better you do, the more work comes your way. In other words, if the businesspeople trust you and enjoy working with you, they are more likely to consult with you before signing a contract or taking action that could have implications down the road. In other words, you become a trusted advisor to the business. You become so embedded (to use popular vernacular) that you are truly a part of the business, as opposed to someone who pushes paper and rubber stamps things.
Which brings me to the "semi-retirement" claim. Sure, I engage and supervise outside counsel. But that is really only a tiny fraction of my job. The rest of my job, currently about 60-80 hours per week involves negotiating, reviewing, revising and drafting contracts (about 20 or so per week); advising businesspeople on employment, antitrust, products liability, regulatory and other matters; handling litigation (either myself in a lot of cases, or with outside counsel); responding to regulatory requests, such as tax matters; handling real estate matters; advising businesspeople on the company's rights and obligations under its various agreements; developing policies and procedures to keep our folks out of trouble; keeping an eye on the business for the same reason; and perhaps most importantly, advising management on strategic issues (just because your a lawyer doesn't mean they don't want your input on business matters- after all, most lawyers are pretty intelligent people in their own right).
So the bottom line is that I am working harder and more hours than I ever worked in a law firm. By the same token, I absolutely love the work. I enjoy the variety, the autonomy, the breadth and depth of the work, and the people I work with (okay, most of the people I work with). And after many years in the workforce, I absolutely believe that it is truly axiomatic that one must enjoy one's work. If you enjoy what you're doing, work is ceases to become "work". In that way, work does become sort of like retirement. So, come to think of it, I suppose you could argue that I am in a way, semi-retired.
But not for lack of work.
Most writers tackling this subject write about specific offerings, such as the "Nutshell" series (Thomson-West) or the "Examples and Explanations" series (Aspen). Some, like fine wine connoisuers even make subtle distinctions among the various materials, claiming that one publisher is has a better offering for Contracts, while another product is optimal for your Securities Law course. Worse, some even appear to suggest that commercial outlines are a substitute for self-created outlines.
I am going to tackle the subject from a slightly different angle. As I explain repeatedly in my book, "Law School Labyrinth- A Guide to Making the Most of Your Legal Education" (Kaplan Publishing, 2009), in law school the process is infinitely more important than the output, at least as far as outlining is concerned. This means that outlining is nothing more than a means to an end- the end being comprehensive memorization of the "black letter" law. The term "black letter" refers to the actual law of a subject, especially the common law; something law professors will generally not declare. As with most things law school, you figure it out for yourself.
Certainly, outlining serves other purposes, such as helping students begin to organize their thinking about a particular subject in a lawyerly manner. However, I would like to limit this blog post to the memorization aspect because it is simply so important when things really count in law school- at exam time.
So, which commercial outlines are best suited to help law students memorize the law? The answer is (again, as with most things law school) "it depends." It depends on where you are in terms of the breadth of your knowledge on a particular subject. If you have been following the Socratic dialogue, keeping up with the reading (and following the casebook's table of contents carefully- another suggestion from my book), regularly digesting the material and recording your digestion in the form of an outline, you may not need much, if anything, in the way of a commercial outline.
On the other hand, if you simply aren't following, a good commercial outline may be exactly the roadmap you need, in order to begin to own the material. A commercial outline can also fill in the gaps that the casebook or the professor inadvertently (or intentionally) create. Finally, a commercial outline can serve the useful purpose of helping you to check your thinking and progress. So, in some cases, a very simply and high-level outline may do the trick. In other cases, a detailed outline, complete with annotations may be in order. Or, a series that is a bit more "interactive" that includes questions and practice exams may be that extra edge that enables you to "own" the material.
In any event, despite law school lore, there are no "holy grail" commercial outlines. More importantly, in law school no amount of money invested in outlines can replace the basic grinding required, in order for the student to learn and be able to work with the material in such an effective way that they write those critical "A" exams. And by the way, that's often what we lawyers do- we conduct research, we read and reread, we grind until we have sufficiently mastered a subject in order to render effective legal advice.
In "Law School Labyrinth" I describe the Pyramid Outline Method, which is a study method for law students that enables them to work effectively throughout the semester, avoid classic law student time-wasting dead ends and increase their chances of success. I truly began to understand this method only after I had successfully completed two bar exams.
So, a simple answer to a complicated question. The use and choice of commercial outlines is a very personal decision to law students, that depends upon a variety of factors. But again, a commercial outline alone will not earn you an "A". You are going to have to work extremely hard and smart, in order to master the material. A commercial outline can help. But a commercial outline can never replace good, old-fashion hard work.
As incredible as it may sound, the secret I am going to reveal to you about reading cases for law school did not occur to me until well after I graduated. After you think about it for a while, it makes perfect sense, but as with most things law school, no one explains anything to you. And after you graduate, you are so busy with things like bar exams, careers and the like, you quickly forget about the law school labyrinth. It was only because I had waited so long to finally achieve my dream of law school that I continued to fixate on the process, and especially try to make sense of it in light of my prior business experience.
Business is all about managing the various business processes. A good manager identifies a process and then proceeds to identify the variables affecting the process and finally managing and optimizing those variables. If a business's critical processes are optimized, that business will have a much greater likelihood of success than a business whose processes are out of control.
W. Edwards Deming is commonly credited as the father of statistical process control in the U.S. In the 1970's and 80's U.S. car companies were faced with the Asian competitive threat and turned to Deming, who following the decimation of Japan in World War II, was charged by General Douglas MacArthur to assist in the rebuilding of that country. Before long, the Japanese had not only rebuilt their country, but had begun to overtake the U.S. as the dominant manufacturing power, especially in the automotive market.
I grew up in my business career during those times and as with most executives, became adept at process control. When I was faced with the apparently chaotic processes involved in legal education, I struggled to make sense of it both during and after I graduated. The net result of my struggle is my book entitled "Law School Labyrinth- A Guide to Making the Most of Your Legal Education" (Kaplan Publishing, 2009). The book not only describes my struggle, but more importantly describes the key "lessons learned" as I traversed the labyrinth, especially the lessons about dealing with the Socratic method, learning the legal reasoning methodology and digesting vast amounts of information in such a way as to perform optimally when it counts- at exam time.
Anyway, on with the secret. When you start law school, you will be assigned to read numerous lengthy and often arcane cases. You will not be given any quidance, questions, tips or anything else that will help you understand the point of even reading the cases. Instead, you will read cases, go to class and hope you don't embarrass yourself in a Socratic grilling.
Different students respond differently to this apparent paradox. Some students read and read and reread the cases, memorizing the most minute details. Other students mark, highlight and underline the cases, in the hopes of being able to recall the reading. Still other students do "briefs" using IRAC (Issue, Rule, Analysis, Conclusion). Regardless, most students go to class, are called on and in up being embarrassed anyway (dealing with the Socratic method is beyond the scope of this blog post- I'm afraid you'll have to read my book, or wait for a later post for that).
After I graduated and went to work for a law firm, I was often assigned legal research and memoranda writing in support of motions, such as a motion for summary judgment or a motion to dismiss. A brief is a persuasive document, intended to persuade the judge that you are entitled to the relief you seek (i.e. dismissal of the plaintiff's complaint). As I read these cases, I read them with a fury and intensity unlike anything I had ever done in law school. The reason for this is that I read these cases with purpose- the purpose was to sift through the opinion until I could find law in support of my facts; or conversely facts in support of my law.
What I mean is that a lawyer reads cases in order to find precedent that will convince the judge that the particular issue has already been decided. It's called stare decisis. And as with anything in life, when you do something with purpose, it becomes easy and almost automatic.
In law school, however, you do not read the cases with a purpose, other than to avoid embarassment if the professor happens to call on you. But the truth is, you can't win that battle. The professor knows the questions and the answers. If the professor wants to embarrass you, then will.
So here's the secret. When you read a case, try and imagine that you are a practicing lawyer. You are reading this case because you want to find out more about particular issues(s). As you read the case, ask yourself why the writer included a particular fact or a discussion of the law. I assure you that there really was a reason. Try an imagine how subsequent judges would interpret this particular opinion. Would it be upheld or overturned? If so why; if not, why not? In short, work the facts and work the law. Read with as much purpose as you can. The purposeful work will enable the material to stick with you much more so than an attempt at brute memorization. It will likely also make you a better lawyer.
Regardless, if a case doesn't make sense, after you have given it your best shot (and perhaps a quick read of a commercial outline- also discussed in my book), then don't sweat it. There are simply poorly edited cases, poorly chosen cases or cases that are so old that they are merely a rite of passage for every neophyte law student. If they don't make sense, it is most likely not because you lack intelligence. It's simply because they are old, arcane "classics" that every professor relishes as a rite of passage for law students. Everyone's read them; everyone has struggled with them. And yet, we all somehow remember them.
I've recently run into a lot of people who have suddenly become either nervous about going to law school, or alternatively, embittered because they did go to law school (and can't find a job). I've had tweets from folks who claim that they would have been better off learning to become plumbers- they reason that they would at least be able to find a job. Further, they wouldn't have hundreds of thousands of dollars in student debt. With law firms withdrawing offers, cancelling recruiting programs and laying off young lawyers, you might wonder whether it's a good time to consider alternative career plans. I think the answer to that question depends upon the reason you decided to go to law school in the first place. If you want to be a lawyer because you think you'll make a lot of money, this might very well be a good time to consider other alternatives. A decent plumber or other tradesman can earn fifty dollars per hour or more. You'll likely have a lot less stress and probably won't have to work many nights. On the other hand, if you want to be a lawyer because the law and its workings are interesting (and perhaps even fascinating to you), in my opinion, it's as good a time as any to begin the practice of law. Here's why: 1. The entire economy is presently in the tank. It will likely not remain so. Pretty much all disciplines, including plumbers, are presently having a hard time finding a job. There really are few bright spots, in terms of companies that are still hiring like they were a few years ago. About the only sectors that are growing at present are health care, education and government (that said, if those areas interest you more than the practice of law, then you should go for it. Other than a medical degree, almost any other educational path you choose will probably be less costly than a law degree.) However, as far as the rest of the economy goes, in the long term, a law degree will probably enable you to find a decent job when your peers with other educations may still struggle. This is because the training that you will receive as a JD has many other applications besides the practice of law. The reading, reasoning, research and analytical skills that you will develop have applications in a variety of jobs. This versatility is why JDs become newscasters, editors, managers, executives and can engage in many other non-law related occupations. Howard Cosell, Ben Stein, Mahatmas Ghandi, Fred Thompson, Geraldo Rivera and something like 40% of our Congress can't be wrong. A law degree is one of the few post-graduate curricula that provides a general, as well as specialized education. As a lawyer you can practice law. But you can also do many other things. However, non-lawyers (e.g. doctors, plumbers, accountants and the like) cannot practice law without a law degree and license. 2. You may actually want to become a lawyer. You enjoy reading, thinking, analyzing, researching and all the other indicia of law practice. In short, the study and practice of law are interesting to you and as a result, you will likely find reward as a lawyer. Not to personalize this, but I worked almost twenty years in jobs that I didn't really enjoy. I have yet to have a day as a lawyer that I have not enjoyed. The work is interesting, stimulating and I find that it fulfills my need to solve problems and help people. Does it make sense to make a long-term decision in light of short-term economic conditions? If you want to be a lawyer, then become one. Depending upon the length of the current downturn, you may have to work for less than you planned or in a job with less prestige, but anything you do will accrue to your skillset as a lawyer. Spend this time developing your craft and gaining the experience that will pay dividends down the road. Which brings me to my next point: 3. Rather than rethink your decision to become a lawyer, maybe now is a good time to rethink your school choice. Traditional wisdom is that law students "should go to the best law school they can get into." This is because an Ivy League education, especially for those who do well academically, have historically been a guarantee of a high-paying large firm job. In my opinion, this phenomenon has also created a strange paradox: to get those high paying jobs requires a law degree that costs a great deal of money. As first year associates' salaries have skyrocketed, so have law school tuitions. You make more, but then you have to because you owe so much on your law student loans. However, there are plenty of decent state schools out there, where you will receive a great education, pass the bar, get licensed and go to work as a lawyer. Further, there are part-time programs where you can work and earn your law degree. In other words, you don't necessarily have to go into infinite debt to become a lawyer. You may be asking yourself whether you can get a job with a "Local U" law degree. The simple answer is: "absolutely." After all, these schools have been minting lawyers for decades; many if not most end up working as lawyers. Will you get a job with a top Wall Street firm? Maybe not. But if you do very well at "Local U" you will likely end up with good job opportunites. Plenty of people before you have. And don't get me wrong. An Ivy League law school education is a very desirable accomplishment. My point, however, is that you may not need one in order to have the career satisfaction you seek. And if you add the risk presented to the new lawyer by a great deal of debt, compounded by potential unemployment, it make make more sense to consider a lower cost school (I should add at this point, that many schools, including Ivy League schools also offer loan forgiveness programs for graduates engaging in certain kinds of public service/interest law. This could very well make the economic stress faced by new graduates more palatable.) If legal employers can help new lawyers move past the "Ivy League Paradox", we very well could see a paradigm shift in the employment opportunities for new lawyers. A graduate from "Local U" may not need to make $180,000/ year in order to survive. And further, with associates starting their own firms and developing creative ways of practicing law, we may be on the verge of that paradigm shift. Will it be as easy to find a job when you graduate in three years as it was for graduates three years ago? Who knows. But I would never give up on a dream because I feared short-term job prospects. The real question you should ask yourself is: "Do I really want to be a lawyer." As I've said repeatedly in these posts, if you want it bad enough, you will become a lawyer. You just will. And while you're at it, pick up a copy of my book, Law School Labyrinth- A Guide to Making the Most of Your Legal Education (Kaplan Publishing, March 31, 2009).
When I started law school, the first question people I met would ask me is "What type of law do you plan to practice?" I always suspected that these people hoped I would answer either "criminal law" or "I plan to be a plaintiff's lawyer." Unfortunately, I invariably disappointed these folks by answering "I will probably be a corporate lawyer. I hate to throw away almost twenty years of business experience." Even if my answer was a disappointment, the person in question would quickly recover with the follow-up, "Well, I could never defend a guilty person." My instinct, at least early in my legal studies would be to quickly agree. After all, who would admit to wanting to defend, say, a serial killer or other similarly horrific criminal. However, as I began to mature in my legal studies, I learned something that every law student knows: there are two sides to every story. Facts can be interpreted in different ways. Circumstances which appear to be simple are often, in reality,complicated and convoluted. People that appear to be guilty sometimes aren't. And this, by the way, is one of the core skills of any lawyer- the ability to identify in any given situation, the "on the one hand" and "on the other hand" arguments. Authors Jeremy Paul and Richard Michael Fischel, in their best-selling legal studies book, "Getting to Maybe- How to Excel on Law School Exams, describe this "arguing in the alternative" in effective detail. Essentially, an lawyer should always be ability identify and articulate both sides of the law, and both sides of the facts, in order to anticipate the other side's arguments and effectively represent a client. The failure to anticipate both sides of any given situation is called, in the vernacular, "jumping to a conclusion." One generally so "jumps" when one makes assumptions, which in reality, should be identified and dissected before reaching any conclusion. I describe this phenomenon in my book "Law School Labyrinth". As an example, a client seeking a divorce mentions to her lawyer that she has three children. The lawyer concludes that child custody will be a pivotal matter in the proceeding. However, in reality,the three children are ages 27, 24 and 33, respectively. Clearly, the lawyer has jumped to the conclusion that the youthful-appearing client had referred to minor children. Which brings me back to the "I could never represent a guilty person." A guilty person isn't "guilty" until a judge or jury decides that they are guilty. Until that point, under the U.S. legal system precepts, the person is innocent and deserves adequate representation. If I decide that person is guilty before judgment, I have "jumped to a conclusion". I realize that there are "smoking gun" cases where the defendant is caught in the act red-handed. But again, there are two sides to every story. This is why what we call "affirmative defenses" evolved- insanity, self-defense, duress and the like. Even if the defendant is caught with the murder weapon in hand, with the victim lying dead at the defendant's feet, there may be an alternative explanation. A good lawyer is relentless in the sifting of facts, sorting through each one, in order to properly analyze the matter and represent the client. This is the point of our legal system- to get to the truth and achieve justice in any given matter. And lawyers are the means to that end. You may be asking yourself, "What about a situation where the defendant himself admits his guilt?" Again, there may be applicable defenses. That said, as any lawyer knows, a licensed attorney is subject to ethical rules (such as candor before a tribunal and the prohibition against the presentation of evidence the lawyer knows to be false). A lawyer cannot breach these rules without subjecting himself to discipline and possibly, the loss of his license to practice law. The reality is that these ethical rules help ensure the administration of justice. So, the response to the seemingly simple and inarguably assertion that "I could never represent a guilty person," is not so simple. But the analysis involved in reaching resolution is exactly what drew me to law practice in the first place. Things are never as simple as they seem (except perhaps to simpletons). The role of the lawyer is to identify the ambiguity in facts and law, but at the same to engage in their work such that they are participants and not detriments in the administration of justice. And if you are thinking about law school, be sure and pick up a copy of my book, Law School Labyrinth- A Guide to Making the Most of Your Legal Education (Kaplan Publishing, March 31, 2009).
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