Fear and Loathing In Law School

Should fear be the primary motivator for first year law students? At PrawfsBlawg, Andrew Guthrie Ferguson argues that it’s the wrong way to go.

Even with professors who try to be nice, open, inclusive and “definitely not scary,” fear exists.  I don’t consider myself a scary teacher.  I teach soft-Socratic with plenty of humor, banter, and encouragement.  I view myself as a “coach” not a drill sergeant (or appellate judge).  But, there is still fear.  The role of standing up in front of dozens of students and commanding attention, respect, and precision with the subject matter generates a healthy fear.

And, that is my question — is fear healthy?

Ah, the good old days of Professor Kingsfield. While John Houseman only played a law professor in the movies, this was very much the law school norm back in the old days, before students decided they were consumers and demanded a tummy rub with every valued thought.

Ferguson expresses his law school experience as a product of fear.

I could be wrong, or a product of another generation, but fear of not doing well, of failing to meet expectations, or of literally failing law school was ever present.  Fear motivated me (and I believe others) which is why it was intentionally or unintentionally fostered by law professors trying to motivate mastery of the law.

Interestingly, Ferguson’s experience before teaching wasn’t as a dilettante, but in the trenches as a D.C. public defender, such that he certainly understood the pressures that would be put on lawyers once they left the womb of law school.

Prior to joining the law faculty, Professor Ferguson worked as a supervising attorney at the Public Defender Service for the District of Columbia. As a public defender for seven years, he represented adults and juveniles in serious felony cases ranging from homicide to misdemeanor offenses.

With this experience in hand, he nonetheless questions the value of fear as a pedagogical tool.

Yet, fear is not a part of other educational environments.  You don’t think of high school English class as frightening.  You don’t necessarily think of college seminar courses motivated in any way by fear.  While there are certain professors who emulate John Houseman in their lectures (a style that pre-dates The Paper Chase), much of the undergraduate experience is decidedly not Socratic. It is still stressful, but not full of fear.  One reason why students have a difficult time adjusting to “learning the law” involves a greater sense of fear.

There is much buried in this assertion, and its inherent analogy, that raises questions. It’s inapt to compare law school to “high school English class,” as that doesn’t lead directly to being responsible for another person’s life. Misquote Keats and the world will not end, though some may sneer at you. Blow an objection and some poor schmuck goes to prison for life. There’s a difference.

But is it fear? Fear is what someone feels. We tend to characterize the pressure applied by being put on the spot, called out in class to come up with the right answer, as fear, but it’s not. Some will, obviously, feel fear, but that’s on them. No one can control what another person feels as a result of their actions.

What Ferguson mistakes as a pedagogy of fear is the lesson of reacting under pressure. Sure, there is the normal law student desire to not look like the class idiot who can’t figure out the holding of a case, and this provides an incentive to study, to read the hornbooks, to brief the cases properly, to be prepared for class so should you be called on, you won’t be  the fool who stands up and admits you failed to do the work.

But there is a virtue beyond mere preparation. And this virtue isn’t learned in a class, in a clinic, in the third year, when your tummy has been adequately rubbed raw by your doting prawfs who want you to feel respected and valued. Lawyers, at least competent if not zealous ones, learn to work under pressure. We learn to face an overwhelming adversary without fear.

Having been in the trenches, one would think that Ferguson would appreciate this. After all, judges don’t give you time and a sweet word as you fumble through your thought processes and argue why your completely idiotic analysis might have some tiny bit of thought hidden between the gibberish.

So of all the possible motivational emotions, should law schools encourage fear?  Should we make a conscious effort to reduce fear in the classroom?  Should we be more consumer friendly and kind?  Should we replace fear with inspiration? Or collaboration? Or self-reflection?  Or self-reliance?

Or, is the fear that motivates being 100% prepared a life skill we want to cultivate in lawyers? Should we turn up the pressure and demand more work and stress from our students to be prepared for the always demanding practice of law?  Should every class be like an appellate argument?

It never ceases to amaze how academics manage to conflate their purpose and wrap it up in an emotional pink bow. Even the ones who should know better. Far better.

You’re teaching survival skills, not just for the students, your “consumers,” but for the poor unfortunates whose lives and futures will depend on their ability to withstand the unrelenting pressure of an attack far, far worse than anything Prof. Kingsfield can mount. While “inspiration” sounds so warm and fuzzy, the ability to take a beating by a judge while keeping your wits about you on cross so you can still make that agent cry is what counts in the trenches.

Nobody wants a lawyer who runs from the courtroom crying when the judge fails to show their opinion the respect they feel they deserve. Much as their end-of-semester reviews may win you the Ginchiest-Professor Award, the defendant just wants his lawyer to be capable of doing his job. Who will teach this to the law student?

You’re not just teaching them law. You’re teaching them to be lawyers. If that’s not a good enough reason to teach them how to survive the pressure, then here’s a dime. Call your mother, Ferguson, and tell her there’s serious doubt about your becoming a good teacher.

60 thoughts on “Fear and Loathing In Law School

    1. SHG Post author

      He’s been away from the trenches for a while. Perhaps he’s forgotten the smell of the holding cells.

  1. Richard Kopf

    SHG,

    I second, and very strongly, your critique of Professor Ferguson musings. Indeed, I was enraged by the Professor’s insipid question.

    Using the “soft-Socratic” method he prefers, Ferguson asks: “Is fear healthy?” No, you twit, fear is not healthy, but in the practice of law, fear is a fucking mean ass reality.

    RGK

    1. SHG Post author

      Of course, the scenario would be entirely different if we changed from an adversarial system to an inquisitorial or, as I believe many academics would prefer, a cooperative system.

      That would certainly made your job easier. That said, can we talk about this unduly regular use of “mean ass,” which I take as a personal usurpation?

      1. Richard Kopf

        SHG,

        I apologize for the usurpation. There is only one true mean ass. I bow before him in awe, adoration and, most especially, fear.

        All the best.

        RGK

    2. wilbur

      Anyone who has walked into a law school classroom the first day can smell the fear. It is palpable. It is also normal.

      It’s should be stressful and anxiety-producing, because the real life practice of law is more stressful than any first year Contracts class. It takes no little insight to recognize this as a first year student and turn it to your advantage. Those who can, get to appreciate the law school experience. Those who don’t end up hating law school, even if they excel in their grades.

      I’d hate to spend three years doing something I feared and hated. And paying a barrel full of money to do so. I know a lot of lawyers who will tell you that’s how they remember it.

      1. SHG Post author

        In a way, it’s like the trauma of basic training. If you understand why, it’s not merely tolerable, but welcome.

        1. Lee

          I agree with the basic training analogy.

          No matter how much an SOB that prof (in say, Federal Criminal Procedure) was, he is not as scary as a Federal Judge threatening to hold you in contempt if you maintain your hearsay objection and the City has to prove up its documents like the Rules require.

          Trial law isn’t for wimps.

        2. Morgan O.

          Train hard, fight easy. Don’t you rebellious colonial types have a bunch of pithy sayings from illustrious personages that reflect this? Ah, but they are old dead white guys. Nevermind…

    3. David Meyer-Lindenberg

      Judge,

      to be fair, Professor Ferguson does teach at the David A. Clarke School of Law. He must be projecting his own fear of the Sheriff – and his shiny uniform – on his students.

      All the best,
      David

  2. Dan

    The legal academy is in a persistent state of denial that it is a trade school. More academic than most, to be sure, but it’s fundamentally a trade school. If they would recognize that, perhaps the silliness of some of these positions would be more evident to them.

    1. SHG Post author

      I don’t buy the trade school/philosophy dichotomy. There’s room for both, but it’s no more a philosophy of law program than refrigerator repair.

  3. John Lynch

    As a night law student with a full-time day job, I did not always have time to prepare properly. I will not forget the comment of a professor when I stammered through a case recitation. He said, “Sit down, Mr. Lynch, we do not have time to mock you.”

    1. SHG Post author

      Some day, a judge may listen to you for 30 seconds and say, “denied,” and nothing more. At least your prof gave you a clue, and it was only you who suffered for it. That won’t always be the case.

  4. Allen

    Where does this come from? Just off the bat I can think of a number of occupations where I want the practitioner to have experienced relentless fear and stress at some point. Sure, everyone is looking for some happy go lucky dude in flip-flops and a Hawaiian shirt commanding a Trident missile submarine. Or maybe a cardiovascular surgeon after he opens you up and states “well I haven’t seen that before.”

    My attorney? Hey pal it’s my ass and my fortune, you had better be thinking you’re in a cage match to the death.

  5. John Lynch

    That professor’s comment occurred in the pre-“Paper Chase” years. It has survived vividly in my memory because the prof was undeniably correct to call me out. I have had my share of summary denials, but not because of slipshod preparation.

  6. Jim Tyre

    It’s inapt to compare law school to “high school English class,”

    Perhaps. But what about high school AP Physics class? After I said something snarky, the teach said “Mr. Tyre, I’m going to tell you a little about the principle of mind over matter. You see, I don’t mind and you don’t matter.” Then he threw an eraser at me.

    That was teaching.

      1. Billy Bob

        And then and there Jim decided to go into law, because…. He thought it might be easier than physics! No mind, never matter. No matter,… nevermind? Heisenberg Uncertainty-breath. A quark on all your houses! Black Holes anyone?

  7. Noxx

    On the day when those apprentices graduate to the job of standing between a hapless human, and the great machine, I would hope that fear would be a familiar old friend.

    1. SHG Post author

      I would hope they’ve overcome fear. If fear is their reaction to pressure, then the time to learn to deal with it is before they have someone’s life in their hands. Like in law school.

  8. Jeff Gamso

    The Kingsfield model (TV version – forget real life for a moment) was fear not of screwing up but of the professor whose approbation the poor students so desperately wanted. That’s altogether different, and it’s the wrong fear, but it’s the one guys like Ferguson are concerned about.

    The lawyers worth their salt aren’t afraid of the judge or his displeasure (or spittle-laced tirades and threats, for that matter). They might not seek to piss off the guy in the robe, but they know it comes with the territory. Their fear, insofar as it’s fear at all, is of fucking up and hurting the client. Same damn thing I want my ER doctor to fear.

      1. Jeff Gamso

        Ah, the good old days.

        Sitting around the Philco staring at the box and eating popcorn while Fibber McGee opened the closed and all that shit fell on him. Then came the TV dinner and those little aluminum folding trays so we could sit on the sofa and eat imitation meat loaf while we listened.

        Get the hell off my lawn.

        1. SHG Post author

          If it wasn’t for the peach cobbler in the TV dinner, I would have never gotten dessert. Leave TV dinners alone!

        2. Jim Tyre

          Good old days indeed! TV watching actually involved exercise, if one wanted to change the channel, adjust the volume, whatever. If the remote hadn’t been invented, then perhaps neither would the expression “couch potato”.

          1. SHG Post author

            Are you kidding? Remember doing the vertical hold dance? I thought I had magic powers when I got it to stop.

            1. Jim Tyre

              You did, Scott, you did. But, like most everything else, magic powers fade with disuse. Hate to tell you, but you’ve lost the magic.

            2. SHG Post author

              Actually, Jim, it wasn’t magic at all. I feel kinda bad telling you this now. And there’s no tooth fairy, either.

            3. cthulhu

              There was also adjusting the aluminum foil we wrapped around the feed from the cheap roof-mounted antenna to try and block out interference. And going out with a pipe wrench to adjust the antenna pointing to improve reception from the big city station 90 miles away, so we could get the live weather feed regarding the storms bearing down on us (living to Tornado Alley, you develop a keen appreciation for those live radar displays).

            4. cthulhu

              With the closest TV station was 90 miles away, rabbit ears were about as useful as a bucket of warm spit.

          2. Ross

            You had it easy. When I was young I WAS the remote control. A verbally operated remote control, that performed well due to fear of the consequences if I failed to change channels quickly enough.

            1. REvers

              My childhood was much easier than yours. We only got one channel. I was 13 years old before we got cable in our part of the world and I discovered what the tuner knob was for.

              We had the untold riches of twelve channels! One of which was the weather channel, which consisted of a camera doing a slow back-and-forth pan in front of a thermometer, a barometer, and an anemometer. A year later we got a color TV.

    1. Richard Kopf

      Jeff,

      Realizing that you were once an English professor, I am hesitant to write this rejoinder to your comment on teaching. But, I have overcome my fear, albeit it barely.

      From a law teaching perspective, the cause of law student fear makes no difference. A law student might fear the disapproval of a respected professor, fear being seen by peers as a dunce, fear most everything because of a persistent and free floating anxiety or all of the foregoing and then some.

      A good law teacher uses fear, whatever the source and particularly in the first year, to force the student to deal with it while performing at a high level. If law students are not purposely brought to the brink of stark terror, then I would assert that they are not being taught a fundamental legal skill.

      As you rightly point out, it is always about the client and never about the lawyer. Law students must be scared shitless in order that they get over themselves.

      All the best.

      Rich Kopf

      1. Jeff Gamso

        Judge,

        No need to be hesitant.

        You’re right, of course, that “the good law teacher” will use whatever fear a student might experience as both a motivator and “to force the student to deal with it.” Learning to function despite the terror is a necessary skill for those in the trenches. (And it’s damn useful for those in the literal trenches, too.)

        But using what the student feels (and fear is a feeling, after all) isn’t the same as encouraging the student to fear the wrong thing. Teaching the student to fear the professor rather than the fucking up is teaching the student to fear the judge rather than the failure to the client. The best professors work at doing that right.

        Jeff

        1. SHG Post author

          The good prof doesn’t teach the student to fear at all, but to overcome the feeling of fear. This might have gotten lost in the mix.

      2. Lex

        “A good law teacher uses fear … to force the student to deal with it while performing at a high level.” / “[Police recruits] must be scared shitless in order that they get over themselves.”

        FIFY.

        “The good prof doesn’t teach the student to fear at all, but to overcome the feeling of fear” is the truest thing SHG has ever written. The heart of the Socratic method — see Meno, Lysis, and Charmides — is humility (in a Samuel Johnson meets Dunning/Kruger sense) *on all sides.* Intentionally causing fear or humiliation in students via a “guess what I already know” set-piece hardly fosters a “I’m glad I was proven wrong today” attitude. Fear rarely helps people get over themselves.

  9. ExpatNJ

    “No one can control what another person feels as a result of their actions.”

    Oh, REALLY? If someone puts a gun to your head (knife to throat, lawsuit in court, hand on nuclear button, etc.), you will be made to feel whatever the beholder wants you to feel …

    1. SHG Post author

      Ironically, your examples proves the exact opposite of your point, though you obviously can’t see it or you wouldn’t have written this comment. People who are emotionally and intellectually weak grasp no possibility but to wallow in their feelings. Others rise above their most base emotions. That you are a pathetic emotional weakling isn’t a reflection of others. Just you. Really.

  10. David Springhetti

    Is there a story here? Fear is present everywhere in our lives from the time mom said “wait till your father gets home”. Fear osvyje bridgewood of the Republican party

  11. B. McLeod

    When I was in law school, I approached it the same as the vocational school in which I had learned welding. I never had a fear of law school, but rather, a fear of what might happen after I left law school, when I would be called upon to represent clients to a high standard of competence, and against seasoned practitioners many years my senior. That’s what all law students who plan to practice should be scared of, and if they are, nothing a professor can possibly do will even come close to that.

  12. Marc R

    The power of the State is a scary thing. Your clients are justifiably afraid. Fear shouldn’t paralyze a lawyer but motivate them to make every word count for their clients’ interests. Either you get scared into shape in law school or you can see the fear in your clients’ eyes at your incompetence. Hopefully three years of “fear” makes you comfortable to operate in an adversarial system where your feelings of fear are nothing compared to those facing death or life in a cage.

  13. NickM

    Or this fear isn’t specific to law school, but is felt by students in any field when classes really challenge them. The brighter the student, the more years of schooling it generally takes before this happens.

    1. SHG Post author

      Perhaps (though I doubt it), but then, that’s not who or what this is about, so that’s the end of that rabbit hole.

  14. Matthew S Wideman

    Some of the best times in law school were when I got grilled or when a friend of mine did. The 20 year old part of me hated it, but the grown up in me realized the professors were training us for the real world. Many of my professors had real careers with actual accomplishments. It would be hard for me, as a snot nosed kid, to say….”hey be nice to me. I used to work at Best Buy”.

    Here is the obligatory law school story…. My legal writing professor put my brief on the overhead projector. She said I wrote my papers like a “passive voice old lady”. Suffice to say…. I fixed my subsequent papers.

  15. Bruce Godfrey

    One can study military history with the intent to write books, and many do. Law can be studied similarly, from a liberal arts/humanistic standpoint, and many do (under whatever department/interdiscplinary program as may come.)

    But if you want leaders who can keep a supply line cleared in bad weather and with creaky gear, rather than who narrate and footnote the aftermath of the failure to do so, you send in khaki and camo, not the legion of tweed patches. Law is somewhat analogous.

    Query: would the practice of law benefit from military-style ranking? In the former Sovier bloc., espionage was considered military not civilian; our CIA/NSA get paid and ranked by GS scales while the East German spies held military rank. It sounds crazy but military culture in law school (“law cadet”) would have the added benefit of “epater les s;ackoisie” and their tenured coddlers, and would drive home the point that it’s not a tweed patch hobby.

    1. B. McLeod

      Bruce, in the dawning, and at the dusk, a soldier is different from a fighter. One is subject to Byzantine bureaucracy and woodenly-dictated command decisions, while the other is not.

      If I am ever accused of a crime, give me the CDL who is a fighter, not a soldier.

      1. Billy Bob

        Thoughtful, but how do law schools make fighters out of slackoisie students? Is it their role to do so?
        What about those individuals who may be disinclined to fight by nature? Should they be excluded from legal education and the bar?
        Having sat at the defense table, I can assure you a fighter is preferable to a mere soldier who follows orders.

  16. Andrew Ferguson

    An interesting blog post and commentary. I am glad I could stir the pot. As both a trial lawyer and professor, I certainly agree with the value of precision, preparation, and handling pressure. But, I think you conflate the education of a trial lawyer with the education of a lawyer. Most law students are not going to end up in a criminal court (or any court). And, even if you were teaching only to criminal lawyers, I am still not convinced fear is the best motivator (although to be precise, the blog makes no argument one way or the other).

    Yes, many judges are bullies, preparation wins cases, and the liberty of fellow human beings demands the highest level of precision, but you do not have use fear to get to that level of preparation. I trained at the best public defender office in the country, and they didn’t use fear to teach us. They inspired us. They motivated us to work for our clients. I never feared my training director, but worked really hard. I have argued before courts of appeal, and before those arguments mooted with colleagues. Those moots (which were always more difficult than the actual argument) were intense, tough, but never scary. Demanding standards and fear are not the same thing. You can teach one, without using the other.

    The macho posturing in the comments is like most macho posturing simplistic and usually cover for something lacking. I have walked the walk in court – I get it, but I also know that toughness does not necessarily equate with being a good lawyer. All of the talented lawyers who follow this blog know that they are not good lawyers just because their professor was tough on them.

    And, as to my mother, she went to Harvard Law School (one of only a handful of trail-blazing women in 1966) and thought the teaching methods were counter-productive and bullying. She also knows I am a good teacher.

    Best,

    Andrew

    1. SHG Post author

      Nice of you to stop by. Many of the points you raise have been discussed here before, so forgive me if I appear to be a bit cursory. Lawyers are admitted to the bar as generalists, each of whom is just as theoretically qualified to try a case as draft a will. Until we separate licenses and functions, lawyers need to be as capable of walking into court as sitting in an office chair. And just because some 2L kid thinks he’ll never be in court doesn’t mean that’s what the future holds for him. Life is funny that way.

      So what about the poor client who believes his lawyer is capable of doing the work for which he was retained because he’s admitted to practice, only to watch him cry the first time a judge cuts him short and says “denied”? Worry more for the client than the sad student. They’re why we exist, not to make the tuition payers happy. Preparation certainly matters, but so too does the toughness to take a kick and keep your head together and continue the fight effectively.

      As for calling judges “bullies,” or characterizing the people who stand up when everybody in the courtroom is trying to kick them in the nuts as macho is just a wee bit disingenuous. Asserting “you do not have to use fear to get to that level of preparation” is both circular and moves the goal post. Being able to handle the stress and preparation are different things. You need both to be effective. I’ve made clear it’s not about using fear (which is the students’ to feel, nor yours to instill), but they’re being able to deal with stress. If fear is what they feel, then it’s overcoming fear.

      As for the “talented lawyers” who read SJ, they know what it’s like to have some kid co-counsel who can’t handle the stress and fails their client because they were taught in law school by “good teachers” that they were entitled to tummy rubs and to be shown the “respect” they believe, in their reinforced but misguided entitlement, they deserve. These talented lawyers, the macho ones, then fill in the gap so the poor clients of the unduly entitled don’t get screwed and spend their lives in prison while their young lawyers are out in the hallway crying about how mean the judge and prosecutor were and how unfair it is.

      You enjoy the rarefied atmosphere of academia, where the inmates have taken over the asylum. We’re just trench lawyers saving people’s lives. Every time you send out a student who can’t deal with the stress of the trenches, a client pays for it. But the kids think you’re wonderful.

      That said, I do appreciate your stirring the pot, and for that, I thank you.

    2. Miles

      Yeah, we’re all just Macho posturing to cover for something lacking. Nothing like some pussy resorting to ad hominem when he gets called out for being a tummy rubbing enabler.

  17. Andrew Ferguson

    So we agree. Stress = good. Fear = bad. Preparation is important, and being tough enough to stand up to attacks in court, in a classroom, or in a public blog debate = important.

    I have been in the trenches. I respect those in the trenches. Most importantly, I appreciate those who put clients first in those trench battles. That “client first” priority is paramount and often not taught in law school. I do it, but mostly because it was my clients, and not some sense of fear that motivated me in court. Thanks again for engaging the original post.

    Andrew

    1. SHG Post author

      So we agree. Stress = good. Fear = bad.

      Not exactly what I said. They need to be capable of high functioning in the trenches. If putting the screws to them causes them fear, then that’s their reaction. How stress manifests isn’t your call, and if it happens to be fear, then it’s better than than comfort, from which the learn nothing.

      Some people respond well to fear/stress/pressure, up their game, focus, excel. Others crumble. As lawyers, we don’t have that option. If we can’t handle the stress, we don’t deserve to be entrusted with other people’s lives or fortunes.

      Students will respond to pressure as they will, be it fear or something else. Whatever it is they feel, that’s what they need to overcome. In the courtroom, who gives a damn about their feelings? It’s not about them, but the client. That said, it’s good to hear that you teach them it’s all about the client given how they’ve spent their entire lives being told they’re special and it’s all about them.

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