How To Succeed In Law School. Maybe

Paul Horowitz, with whom I rarely disagree, urges law students to be themselves rather than “package” themselves to appeal to individual professors, in this post at PrawfsBlawg.  In other words, don’t try to game the system.

A little of this advice is useful to some extent: if your professor says, for instance, that she wants you to cover all the issues on an exam rather than delve into a few at great detail, you’d do well to listen.  But students who think this approach is the best or most efficient way to yield good grades are, I think, quite mistaken.  This approach yields few long-term benefits and only uncertain short-term benefits.

These students are not trying to suit the preferences of Professor X or Professor Y; they are simply trying to be good lawyers (or at least good law students).  They develop a skill set that gets them far better results, and with less duplication of effort, than if they had tried to game the system by figuring out each individual professor’s pecadilloes.

While this advice would meet with Pollyanna’s approval, and the suggestion that students would do better to strive to learn how to be a “good lawyer,” it reflects one of the fundamental errors of legal pedagogy as opposed to practical efficacy.  Good lawyers win cases.  Good lawyers figure out what they have to do to win cases.  Good lawyers, amongst other things, learn about their judge, find out what arguments appeal to the specific individual who will be making decisions in their case, and hone their arguments to suit the person in the robe.

The difference in opinion here goes to the difference in function.  A scholar may view the law as he would want it to be, as he will argue it should be. regardless of whether it will produce the desired outcome or not.  It’s a conceptual approach rather than concrete.  Lawyers don’t have this luxury.  No matter how brilliant our analysis and argument, at least in our own minds, the bottom line is that we’ve either prevailed for our client or not.  No defendant goes happily to prison because we’ve taken the high intellectual road.

Gaming the system, while not the way I would explain it, is a skill that practicing lawyers must develop if they hope to serve their clients.  In a comment to Horwitz’s post, Orin Kerr (who, by the way, has added his name to the caboose of the LaFave, Israel, King, and Kerr Criminal Justice hornbook) makes this point:

Telling professors what they want to hear is not only of significant help in getting high grades, it also teaches an essential skill of lawyering: The student who learns how to tailor a message to Professor X to get an A becomes the lawyer who knows how to tailor a legal argument to Judge Y to win summary judgment.

Of course, the trick is actually knowing what the Professor wants to hear: With some professors that means matching their ideology, but with some professors it means something else. Therein lies the difficulty.
It would be wonderful if practicing lawyers could ignore the vicissitudes of judges and focus instead on the loftier purposes of the law, secure in the knowledge that the judge will ignore his perspective and prejudice, recognize a well-conceived and intellectually honest position and rule in its favor.  But for those lawyers who will practice on earth, serving the client in the face of bone-headed judge comes first.  Our job is not to be right, but to win.

What a great way to teach law students this very pragmatic, and very important, lesson.  Don’t pass it up.

2 comments on “How To Succeed In Law School. Maybe

  1. John R.

    The problem I have with this whole idea is the notion that there is, in fact, some argument that can be discovered that will motivate a judge to decide in favor of a criminal defendant, or a plaintiff against an insurance company. There isn’t any such argument, other than in some exceptional case for some exceptional reason, which will usually be obvious, or is known to the judge anyway. In either case this will not depend on any argument a lawyer makes.

    Judges side with the establishment litigant against the weaker litigant, for the simple reason that it is in their interest to do so. It is a terminal and unalterable condition. It’s the reason we have juries: we know that for the most part judges are incapable of being fair minded, or at least acting as a fair minded person would act.

    It’s not as sinister as I may be making it sound, either. It’s just intellectual laziness, for the most part. The system has its momentum and provides its incentives, we’ve all seen it, and 95% of the time this just carries everyone along.

    You can try to get something into the other 5% box, but you had better pick your battles carefully, because it isn’t just “hard work”. It’s like climbing Mount Everest barefoot; like building the pyramids with a crew of 3; like swimming the English channel; building the Brooklyn Bridge. I might be exaggerating – but just barely.

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