I have gotten 8 good years out of the new car my children’s mother and I bought in January 2005 and, the occasional cashectomy for tires and rotors aside, it runs very well with 151K miles on it. Commuting to DC for a while put some mileage on the car and with an active practice, I put substantial mileage on the car to this day. It works well; next car will probably be a Corolla as well and I’d buy from the same dealer that sold me this one.
This car has no new car smell; right now, it probably smells very vaguely of coffee and of the cherry-scented cardboard doohickey that AutoZone sold me when I bought wiper fluid.
New car smell is part of what sells cars; the manufacturers could take an effort to get rid of that vaguely comforting smell of cleaners, solvents, plastics and so-called “Corinthian leather” and make it smell like Bill Bateman’s Thai Chili chicken wings, but that’s part of the sale. We want the car to smell like the right batch of leather tannery chemicals and plastic, or so it appears and so Detroit believes.
New lawyer smell is another matter.
There are many better sources than this blog about the mis- and mal-education of attorneys in the United States. Lawyers spend three years to become law school grads, primarily so that they can sit for a bar exam that will cover only a fairly small fraction of the 6+ semesters of study that stand between matriculation and clearing the Bar exam. When I was in law school I did enjoy some of side material, but the A- I got in my course on “Women and the Law” did nothing to help a single client over the last 18 years; Professor Auerbach’s far less fabulous but more practical Civ Pro I and II and Abraham Dash’s courses on Crim Pro and Professional Responsibility. Some of what is taught in law school can and should be brought down into the undergraduate programs; if juniors in college can study nuclear physics they can study a lot of what it is in law school (and in e,g, Germany, they do study law at the undergraduate level.)
The real issue is the conversion of the law school grad into a licensed attorney who will first do no harm, and then perhaps do something good. Law schools don’t care about what their grads do; they care about gathering statistics (in whatever misleading form) to promote themselves. They care what US News says about them. They don’t care about producing competent lawyers. My own law school has asked me for money, and did send me a card a year after I graduated to self-report my earnings for their statistical presentations to future marks, er, applicants (which card I recycled.) It doesn’t care whether I am (or any other grad is) a competent, ethical attorney now, let alone whether I was the day after I was sworn in in December 1994. Law schools do want their alums to have money and the inclination to donate it to their Law School Dean’s Nephew Wrecked His Benz fund. Bar Counsel cares; the MSBA and local Bars might care minimally; my clients presumably care if they have occasion to think about it, and other members of the Bar – friends, colleagues and indeed counterparty counsel – care whether I am (i.e. we are) competent and ethical. But they aren’t really around in the era of “New Lawyer Smell” (OK Bar Counsel certainly is – more on this in a minute.)
The recent update from the Bar’s stalwarts in the City of Brotherly Love about Joseph Rakofsky’s epic antics led me to think a bit about law school as a system. The manifest function of law school is to produce a product with a particular kind of “new lawyer smell” – like a car, only with the smell enticing no one but the new lawyer herself or himself. I don’t think there’s a working lawyer of 15 years who does not, in her heart, look back to the first year in practice and recoil in horror from her early errors of law, of fact, of procedure, of “how things get done.”
Part of the problem is that law school sets us up and we let ourselves get set up. Like a car buyer, once we buy we have a psychological investment in being a buyer, in wanting our “buy” to be objectively good. We want to believe that all those damned late nights, those exams, those ridiculous law school games with tenured professors unacquainted with the actual practice of law with real money on the table, that degree and finally, that bar exam score above the arbitrary cutoff line validate us and validate our investment. We figure, dammit, the GOVERNMENT has said we are competent when it issued us the law license, so competent we must be, right? All that money, all those classes, all those IRAC games on the exams, two (three?) days of Bar exam, a character committee interview and 80-page application where we had to remember which dorm address we lived in with Hank and Jamal or Jenny and Tabitha – of course we are ready! We can read the rules and the cases; we know what we are doing!
Wrong. We have lived so long in the barn, we no longer smell the manure.
Nobody is more dangerous in a law office than a first year lawyer.
Fortunately, like injury or disease that announces itself through the blessing (?) of pain, new lawyers smell of the law school barnyard where they have played for years. By their whiff ye shall know them.
New lawyers use words like “burden of production” and “burden of persuasion.” They carefully explain Miranda to District Court judges because, despite being drawn largely from the criminal prosecution and public defender bars, these judges need a fresher from a newbie. They say things like “I’d like to get into defamation law as a solo” not knowing that the successful defamation law suit is rarer practically than a valid check from a Nigerian aristocrat’s inheritance fund. They act like the stupidest of no-wisdom clients who read a summary of one case or think about something that their cousin – an insurance broker 5 states away – said at the Christmas dinner or over the Seder and use that as a basis for making a life- or career-altering legal choice. They don’t fear; neither do the deer staring at night into the headlights of the SUVs that kill them.
They do things like get arrogant at prosecutors who insult them, as I did in a domestic violence case in 1997. In my arrogance and irritation at a prosecutor who was acting obnoxiously but within the normal range of prosecutorial obnoxious, I allowed my rhetoric on behalf of my client to run wild, leading a judge to conclude that I was actually claiming that the target of the alleged violence, a pregnant woman, “had it coming” (not my words.) The judge actually continued the disposition to a new date because the judge had doubts, essentially, about the Court’s ability to be fair to my client in light of my incendiary rhetoric. Religious liturgical Christians can go to confession but there’s no “confessional” for lawyers who commit that kind of professional “hamartia.”
Part of what makes new lawyers smell is that they don’t have professional introspection. They cannot look at themselves, even sideways, to determine when their instincts are off, when their emotional stress level is exacting a toll on their judgment and perceptual faculties. In my own case in ’97, it took place very soon after my and my parents’ home burned essentially to the ground. At a minimum, I should have had the insight to say “gee, you have no home and most of your stuff is just gone; your phone just melted. Maybe you need to step back and assess whether you are able to exercise sound professional judgment in your work in light of the severe stress and, if you have doubts, call a mentor.” Clinical social workers and counselors sometimes use “outside counseling” – a term of art for independent review of the social worker’s own counseling work by a senior social workers/psychologist, etc. We need it less as we grow in experience but when we are new, we figure that the definition of professionalism is never needing it, rather than getting promptly what our duties mandate that we have and get.
Old lawyers view new cases with mild trepidation. Not with fear – outright fear makes you stupid and probably not competent. But with hesitation. Old lawyers talk about deadlines and deposition transcript costs. We recall the cautionary tales of acquaintances and classmates who had law licenses and lost them through their own aggressive stupidity. We recall how hard collecting a judgment can actually be. We know that the elements of a “good case” aren’t “duty breach causation and damages” but more like “breach, some outrageous facts that give the case lift, controlling legal authority in THIS JURISDICTION and a very large pocket.” We know that law school didn’t prepare us, just as it didn’t prepare our predecessor/mentors or successors/mentees. We don’t live in the barnyard; we can smell what manure smells like now. We don’t talk like law students, and generally find them irritating.
Old lawyers know that career services office do little that could not be done by Google apps more efficiently. You want the latest bulletins from the “Human Rights Council unpaid internship in Ticktock, Oregon”? Google it; no need to press the elevator button for the career services office. They do conduct/supervise certain on-campus interviews, but the dedication of an entire office with staff for that function has more to do with ABA certification than with the actual desires of the employers. More useful than career services is actual facetime with actual attorneys in firms big or small; this requires that the law student attempt to mitigate his law school barnyard smell and that the attorney take it upon herself to forbear what the student cannot mask. Ditto the new attorney.
Old lawyers care what judges and prominent practitioners think, not what some tenured professor per se thinks (unless those happily are the same). Some professors have a lot to offer; some are useless to law students who want to become actual lawyers rather than academic spouters on the students’ (and, often, taxpayers’) dimes. If the ABA wants to help, it should require that all (or 95% of) faculty in its accredited schools be licensed to practice law where they teach and that every law professor have practiced law as that term is defined by that state’s laws for at least 2 years. The current model of tenured article writers as the dukes and actual practitioners in the Bar as the adjunct peasants needs to end; that change alone would rid the barnyard of some of its smell.
Having been harsh on new lawyers, I will note that I have been an informal mentor to about 5-6 lawyers this past year and being a mentor has been most enjoyable. The young lawyers I have mentored have either exhibited wise caution or been open to cautious advice; all have taken their ethical obligations seriously, and recognize that practicing law is no law school joke. Don’t take it too personally, folks.
