There’s No Cravath System For Criminal Defense

Jordon Furlong’s Law21 posts are always worth reading, both for his exceptionally good writing as well as his always thoughtful topics.  If I had anything nit-picky to say, he sometimes isn’t entirely clear where he comes down on a particular issue, trying not to offend and occasional equivocating to cover his bases.  Not this time, though.

Jordon goes full bore on the “best and the brightest” claim that is supposed to bring comfort to the top law schools and top law firms, who promote a self-image that, in the trenches, has long been recognized as utterly meaningless.

Let’s start with the law schools. Everyone knows there are elite schools and non-elite schools, right? Even if you don’t read the noxious US News & World Report law school rankings or their equivalents in other countries, you “know” which are the “best” schools, especially if you graduated from one of them.

Whether it’s chalked up to an American obsession or elitism, we feel compelled to “keep score,” even if we have no clue what our score is based on.  This is where it starts, with the presumption of law school greatness, that the smartest kids go to the best law schools, and we know them to be the best because someone says so.  It’s a self-fulfilling prophesy, since the kids with the best grades and LSATs go to the best schools.  The best lawprofs want to teach at the best schools.  And they feed the great law firms with young lawyers, which brings us to step two.

And that brings me to the final aspect of the “best and brightest” phenomenon that’s so problematic: this belief  that the “top” lawyers are to be found at the “top” firms. I am not saying, not a for a nanosecond, that large well-known firms don’t count among their  ranks some of the finest lawyers the profession has produced. Of course they do. But they don’t own the exclusive monopoly on that particular asset.

But the main reason these firms are considered the best is — wait for it — they recruit only from the best law schools! The Cravath system has been around for so long that the “top” law schools and the “top” law firms now perform a little pas-de-deux, each using the other tautologically to confirm its own higher sense of self (”our graduates go to the best firms”; “we recruit only from the best schools.”)

For those who have worked hard to follow the path most acknowledged, their faith in the truth of the path is unshakable.  And they consider others who been unable to meet their achievements failure.  Those who attend the best schools and are hired by the best firms are, by definition, “the best and the brightest.”

Put aside for a moment that the phrase comes from David Halberstam’s book about those who laid claim to the title proving to have failed miserably; a ignominious title of self-aggrandizing, massive failure.  The phrase has been used for so long to signify the opposite of its original intent as to assume the nouvelle meaning.  It’s become a blanket of self-fulfillment that its adherents wrap around themselves to shield them from actual scrutiny. 

Indeed, the obsession and assumption is that law school/Biglaw answers all questions when it comes to legal greatness.  Jordon has had enough of it.  I’ve never accepted it.  Neither should you.  If this means that everything you’ve done, struggled for, fought for, achieved, amounts to nothing, tough nuggies.  The pas-de-deux is not a substitute for proving your mettle.

Recently, a commenter tried to ridicule me by point at my law school, as if the absence of HLS on my diploma proved me a loser.  He could not have missed the mark any worse.  For one thing, after 25 years of practice, I can barely remember my law school.  But more importantly, I am the product of my 25 years of cases, of clients, of causes and arguments and verdicts and decisions.  No Harvard diploma would save me from a career of lost cases.  No lack of a Harvard diploma changes the victories, successes and lives saved by my work. 

As it happens, my first civil trial was against an older lawyer, a name partner in a mid-sized New York law firm (which would be considered huge almost anywhere else).  During the preliminary jousting, my adversary announced that I, unlike him, had obviously not been an editor of the Harvard Law Review.  I responded that he was quite correct, and yet I fully expected that the decision would be a product of the law and evidence rather than my adversary’s pedigree.  The judge laughed loudly and told my adversary to move on.  The judge was an alumnus of the same law school that I attended, as it turned out.

There is some need that humans have to possess status unrelated to performance, a shorthand method of letting the world know how great we are without having to prove it.  It’s the hallmark of Biglaw, and its pas-de deux with the great law schools.  It no doubt makes those whose employment starting dates have been deferred feel better about themselves as they wonder how, having done everything right, it now feels so horribly wrong.  Of course, if they want to know what wrong feels like, just wait until they wear their butt image in the seat of the firm library while writing the same memos that their predecessors wrote for the past 5 decades.

Criminal defense lawyers present a curious contrast to the Cravath system.  By CDLs, I don’t mean the faux white collar kids, fresh out of the United States Attorneys offices, trotted out to CEOs under indictment as “insider” experts.  I mean lawyers who actually have the competency to defend those accused of crimes, regardless of the color of their collars.  While there are a few firms that try to mimic the Biglaw approach with the pretense of greatness, they are notable for their fine reputations and usually losing results.  But they have “resources”, which brings comfort to corporate types who need to believe that bigger is better.

A real CDLs law school or firm reputation means nothing.  We prove our worth one case at a time, one client at a time.  What we did yesterday, or for the other guy, means nothing to the human being we stand next to today.  Our wall of parchment doesn’t buy a single vote on the jury.  No comfort is taken by wearing our rep tie to court, as if the government machine will quiver when they get a whiff of our importance. 

Jordon points out that there is no correlation between the tests that open the doors to the great law schools, and hence the great law firms, and the skills that make a great lawyer.  This truth is painfully, no brutally, clear in the trenches.  Whether you’re 10 minutes or ten years out of Harvard, it’s meaningless.  Either you can cross-examine a federal agent to tears or you can’t. 

Unlike Jordon, however, I believe that the Cravath system is largely a fraud.  I’ve seen lawyers from the bottom of the barrel law school beat the crap out of a witness.  They don’t teach you how to do that at Harvard, and my experience is that the best and the brightest don’t have the killer instinct that a lawyer who has had to fight and claw his way possesses.  I’ve seen lawyers who aren’t brilliant, perhaps even not particularly smart, demonstrate unbelievable skills in the courtroom.  I’ve asserted that brilliance is often a handicap for lawyers, taking up that space in the brain that might otherwise be filled with an understanding of human nature.  Gut instinct means a whole lot more at trial than a working knowledge of case citations or the evidentiary rule numbers.

This makes me a heretic.  So what?  When a lawyer stands in the trenches questioning a witness, arguing a summation to the jury, no one cares what law school he went to.  Not every lawyer from a Tier 39 law school turns out well.  Not every lawyer from a Cravath does either.  But if I had to pick one to stand next to me, I wouldn’t ask what law school he went to.  And I wouldn’t pick the partner from Cravath who has tried 3 cases when I could get a real lawyer who has tried 300 and proven that he’s got the chops.

8 comments on “There’s No Cravath System For Criminal Defense

  1. Shaula

    Scott, we love you for being a heretic. Run with your strong suit!

    My husband likes to tell the joke:
    Q. What do you call a guy who graduates dead last in his med school class?
    A. Doctor.


  2. Shaula

    Thanks! I’m not only still around, I’ve just spent several days in the Northern portion of your fair state, on my way up to Ottawa and Montreal.

    We’ll get to the city one of the days…I’ll give you lots of notice so you can try to clear out room for a drink on your social calendar. 🙂

  3. Matt Kaiser

    I love your post, and I agree with just about 95% of what you’ve written. Anyone with any time in the practice of law has met some very good lawyers who went to third tier schools, and some very bad lawyers who went to top schools.

    And, of course, you’re right that what a client should care about is ability, and ability is more reliably predicted by experience than by the rank of a lawyer’s school or even his GPA while there.

    Where I part company is that looking at a lawyer’s school does matter to some clients. Perhaps it shouldn’t, and it certainly shouldn’t be determinative, but your average criminal defendant caught up in some stuff that he’s got no experience with and no real knowledge about, needs some kind of a way to figure out who has the ability to represent him in his case. Law school rank may not be the best thing, but its at least something.

    Again, as you point out, obviously you want someone with experience, and that can be figured out easily enough (by asking, for example, how long a lawyer has been practicing), but if experience doesn’t completely answer the question, it strikes me as not crazy for a client to let law school rank count as a consideration worth some weight.

    And, for what it’s worth, experience doesn’t strike me as a perfect guide either. I’ve seen plenty of horrible lawyers who have scores of trials under their belts. Particularly if the bulk of those trials were as a prosecutor.

  4. SHG

    I agree with your issues about experience, and particularly prosecutorial experience, but they been discussed at length in other posts.  As for a client asking about what law school I attended, it hasn’t happened in more than 25 years.  Not once.  Of course, your mileage may differ.

  5. rumpole

    Matt wrote: “Law school rank may not be the best thing, but its at least something.”

    Did you choose your doctors based on which medical school they attended. Do you even know where they went to school. Csn you even name the top 10 medical schools.

  6. John Cowan

    You’re absolutely right. What is more, this whole business of ranking law schools is nonsense. If you take a look at which law professors show up in highly regarded law reviews, are they all professors from top schools? Not really — they are all over the lot, which is evidence that the legal education you get in all law schools is pretty much interchangeable.

    Harvard turns out highly qualified lawyers because they take in only highly qualified undergraduates. When my father (1904-1993) attended, they would take anyone with a high-school diploma, a vaccination certificate, and money for tuition and fees — and a third of the freshman class flunked out.

    After six degrees of various kinds (in the Depression, education was cheap and jobs were scarce), my dad did a little work on Schechter for DoJ, and spent the rest of his career as a first-rate law professor at state university law schools (Nebraska, Louisiana, Rutgers), where he happily to taught torts, turning civilians into lawyers, and jurisprudence, turning lawyers into thinkers.

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