Everyday vs. Fancy Lawyering
A few days ago I came across this 2011 essay of mine at the Truth on the Market blog, which I’d forgotten about. I like it, so I thought I’d refurbish it a bit and publish it here too. Let’s start with a couple of stories.
Story 1. I’m an economist, but I got a chance to run around like a real, old-fashioned, lawyer in filing an amicus brief back in 2011 (Barnes v. Indiana– see our brief).1 We had only two weeks to organize, write, and file because of an oddity of the case (a petitition for the Indiana Supreme Court to rehear after an unskillful opinion of theirs that surprised everyone with its breadth). We had legal counsel, but pro bono, without paralegal help, and by email. It came down to the wire in writing and getting final approval from amici, so he suggested that I do the physical filing. I took the brief to Kinko’s around 9 p.m., but discovered they couldn’t do the binding by 11 p.m., and I needed preserve an hour to drive to the Indianapolis Statehouse and file by midnight. (This was before electronic filing I think, at least for non-lawyers). I went to my office instead, and did simple staple binding with green cardstock, which ran out, so I used white cardstock for the back covers. I made it to the Rotunda at 11:50 p.m. Alas, our counsel shortly got a notice that the back covers needed to be green too. But the Court Clerk was merciful, and allowed us to slip in replacement briefs without a formal motion.
Story 2. The company MDCO hired the law firm WilmerHale to handle its patents. WilmerHale filed for a patent extension 62 days after a key date, missing the statutory deadline of 60 days. This was perhaps because of confusion over whether the days started being counted from the Friday night of a previous filing’s approval of the following Monday morning. The subsequent uproar led to litigation a special statutory amendment known as the “The Dog Ate My Homework Bill”, but MDCO and WilmerHale agreed in advance to settle for $214 million malpractice damages if their efforts fail to win back the patent extension. I’m confused about the eventual outcome, but as a 2014 article said,
This case illustrates both the importance of proper IP docketing practices and the duty of law firms to supervise subordinates. According to the lawsuit, Fish & Neave failed to supervise a law school clerk who was, allegedly, solely responsible for calculating the deadline for filing a critical document. It is unclear from the complaint what, if any, institutional practices or controls were in place at the IP firm to prevent the docketing error or to oversee the law clerk. Considering the importance of proper docketing in IP practice, an error of even one day can make a billion dollar difference.
I tell these two stories as examples of the importance in everyday lawyering of following arbitrary rules such as deadlines. Experience matters, and care, and even wisdom (don’t wait till the last minute or something bad might turn up unexpectedly). Maybe I didn’t have to meet the midnight deadline with the covers and all the formatting which took so much time in the last— the Clerk was forgiving, and I found the DC Circuit clerk similarly forgiving with a later amicus brief— but you need to know which deadlines are hard and which are soft, things not written down anywhere. Experience helps tremendously, but the usefulness of IQ is pretty limited.
To be sure, other defects can be fixed up by IQ. That’s what MDCO did with its litigation, where it hired my old college classmate Peter Keisler, Yale ‘81, of Sidley and Austin. (Medicines v. Kappos, 731 F.Supp.2d 470 (2010), brief here ). But everyday lawyering is not rocket science. It demands trustworthiness, experience, and wisdom, but not intelligence. That’s why big national firms hire local counsel— the big firms are wise enough to know that experience counts. In fact, local counsel might be safer— a solo lawyer wouldn’t have had law school clerks to inject handling mistakes.
Training for everyday lawyering is different from training for appellate work or for helping on fancy deals. Everyday lawyering is best learned by serving as an apprentice. There is a place for both kinds of lawyering. Fancy practice benefits from law school training. Everyday lawyering doesn’t. A lot of legal work falls in between— trial work, for example.
The current system of requiring lawyers to go to law school, then pass a bar exam, and then to stay out of big enough trouble to force disbarment proceedings, doesn’t have much effect on fancy lawyering. For something complicated, you probably want someone who went to law school anyway. Or, if you happen to come across some self-tutored legal genius, you’ll find a way to make sure of his talents, perhaps by having him serve as “assistant” to your team of licensed lawyers. It’s like requiring a PhD to be a physics professor— pretty much every good candidate will have a PhD, but it’s not a binding constraint.
The current system does have an effect on everyday lawyering, to be sure, but not a good one. First, it forces all lawyers to go to law school. Thus, three years after starting their legal training, lawyers still aren’t ready to practice law, especially everyday law. To be sure, after a month’s supplemental training in a bar review course many of them have acquired all the book-learning they need to practice in a particular jurisdiction. But imagine the comparison between someone aged 21 who spent three years in law school and someone aged 21 who had spent three years working in a law office. Who would you rather have file your patent extension?
And, of course, teaching Marbury v. Madison, Chevron, and Hadley v. Baxendale to prepare someone for everyday lawyering is a waste of time. It’s part of their heritage, and part of a liberal education in the law, but it won’t help you do divorce cases.
A bar exam might be a good idea. I would certainly like to know whether a lawyer I find in the yellow pages has passed a bar exam somewhere in the world or not, though I’m not sure I’d insist on the Indiana exam. More important than that, I’d like to know his score, truly useful information. If he passed the Indiana exam 20 years ago, what he learned may well be obsolete, but if he was in the 8th percentile of those passing, I’d for sure want to pass him by.
Having disbarment be the penalty for bad conduct is definitely a good idea. Just as someone who has been convicted of child molesting shouldn’t be allowed to start a daycare center, so someone who has been convicted of embezzlement shouldn’t be allowed to practice law. This shouldn’t be left up to whether someone has a conviction for embezzling or not. It takes a long time to obtain a criminal conviction, and “beyond a reasonable doubt” is a tough standard to meet. I’d prefer a speedy tribunal with a preponderance of evidence standard, with the possibility of the guilty lawyer appealing to the courts afterwards for reversal.
Let’s also have more public information about incompetence in everyday lawyering. Mistakes there are easy to verify, unlike mistakes in appellate argument. So let’s have a bulletin board which publishes bloopers. In teaching Story 2 to my undergrads, I’d like to know the names of the patent lawyers who blew it, and the story of what happened to them. With a bulletin board, it would be easy. And how can they complain if all it does is tell the truth?
Thus, let’s get rid of the requirement that lawyers go to law school, but keep the bar exam and disbarment. Let’s even make the bar exam and disbarment more important, by disclosing more information to the public and by speeding up how they work.
If you liked this essay, you might like “Equities Should Have Been Balanced in the 2023 Abortion-Drug Litigation: A Civil Procedure Post” or “An Amicus Brief on Preliminary Injunctions, in the Context of the Abortion Case at the Indiana Supreme Court, with the Story of Its Writing”.
A curious thing about this brief is how little we amici had in common except a desire to see justice done in this case. John Wesley Hall was the Arkansas author of the treatise Search and Seizure and a former President of the National Association of Criminal Defense Lawyers. K. Babe Howell was Associate Professor, CUNY School of Law interested in the impact the policing of minor offenses and gang affiliation on the criminal justice system’s legitimacy in communities of color. Eric Rasmusen (me) was a rightwing economist. Cherokee Steve Russell was Associate Professor Emeritus of Criminal Justice, Indiana University and a Texas trial court judge. Ronald Sullivan was a leftwing Clinical Professor of Law at Harvard Law School and Director of the Harvard Criminal Justice Institute. We were assembled by signing up whoever was around and interested, basically, but it made for a nice mix. The photos below (which include counsel Eric Bohnet) were made using a Design feature of Powerpoint which I’d never seen before but which popped up somehow with suggested formatting.
A combination is generally needed. In economics, the PhD is 2 years of courses and 4 years of being a teaching assistant and trying to your your own research, which in some cases means a joint project with a professor. In science, it is more like apprenticeship, with the professor as boss, not just co-author.
We don't know what jobs undergraduates are going to taek, and we shouldn't, so there the summer internship and the first year of your new job are the apprenticeship.
I suspect that nothing beats apprentice-type training plus experience in many different fields, which makes it a shame that everyone expects to gain competence by going to college.