Since classes are over and finals completed, the lawprofs have turned to discussions of grading.  They are naturally concerned about fairness, predictability and the ease of getting through those essays so they don’t miss the opening kickoff.  They’re only human. 

Michael O’Hear, my newest favorite crimlaw prof, explains his grading rubric, but goes on to ponder what to do about students who hit the various points on the rubric, yet don’t seem to “get it.”  I was very glad that he recognized this detail, because the “get it” part is what makes an effective lawyer. 

With some regularity, an attorney will stand up and start to speak to the court and, for some inexplicable reason, demonstrate by what he raises and what he omits, that he just doesn’t “get it.”  By definition, he passed the bar exam, so the problem isn’t that he’s not smart enough to be a lawyer (talk about a low threshold).  There’s just something wrong, missing, there.  Some synapses just don’t fire the same way as other people’s.

In my experience, there are quite a few people whose thought processes are slightly askew.  Most of them end up as our clients.  A few become are colleagues.  A few become judges, which speaks more to the process of becoming a judge than anything else.

To a large extent, these lawyers work for institutions.  Often public defenders offices, scraping for manpower willing to serve for a salary that hovers around the poverty level.  There are also a few who find themselves positions within the court system, working as backroom court attorneys where they escape individualized scrutiny by judges who have to sign their names to the decisions they come up with.  This is often the route taken for those who end up on the bench, having managed to toil for years without anyone getting angry enough, or perhaps not evening noticing their existence, until they have enough time in the system to make the list of filler candidates for judgeship.

I’ve come to the conclusion that the bar exam does nothing to weed out potential lawyers who are unable to reason in a way that serves their clients interests well.  There are just too many of them who end up with a ticket to practice.  They make bad lawyers.  They make even worse judges. 

So reading about the lawprof’s dilemma, where these very same people while in law school are noted by some professor as not quite getting it, was quite curious.  It struck me as an opportune time to ascertain who these individuals are and to do something about it.

This will probably come off as elitist, but it’s not intended that way.  The nature of our work as lawyers encompasses two things that cannot be ignored:  We need to be capable of communicating an argument to another person in an effective way, and we hold the lives of real people in our hands.  In other words, it’s not about us, but about what we can do for our clients.

Making arguments that seem to us to be perfectly reasonable, logical and persuasive, yet fail to make a dent with the judge or jury, is a waste.  Convincing ourselves that we’re brilliant is pointless.   We need to be effective with the decision-maker. 

Putting someone’s life in the hands of an ineffective person is simply wrong, particularly when they have no choice in the matter.  When an indigent defendant is assigned a lawyer, he takes what he gets.  If he gets a dud, the defendant, his spouse, his children, all suffer the consequences.  If he selects a dud, we can accept the argument that he made his bed.  When he’s given no option, then we have failed to provide him with meaningful representation.  Not from a legal standpoint, perhaps, since meeting the Strickland standard can be accomplished with a rock dressed in a suit and tie, but from a human standard.  It’s not right to relegate a human being to a loser lawyer.

This is the point where my position gets a little fuzzy.  When the law student’s essay shows signs that you’ve got a person whose thought processes are a little askew, it should raise a red flag.  This may well be a very intelligent person, but perhaps not quite right for a career in the law.  Once he or she gets past law school, there is no mechanism to weed him or her out and safeguard the unsuspecting defendant who may end up with this person as his lawyer.  The only chance to deal with this logic-challenged individual is before he’s given the opportunity to pass the bar. 

Lawprofs, you know who I’m talking about.  You know there are kids whose minds simply reason in a different way than other students.  Their reasoning just fails.  They argue zealously, but to no avail.  You explain patiently, but they just don’t get it.  I’m not saying they are bad people, or even that they don’t have great things to offer society via their unusual view of logic.  I am saying that they are not appropriate candidates to be lawyers, and that they should never hold other people’s lives in their hands.

At no other point in their budding legal careers will there be an opportunity to point them in a different direction, where their talents will be put to better use and they will be prevented from unwittingly harming others.  The challenge is to identify these individuals and divert them from the universe of the law.  I know that this may conflict with the inclusive vision of the lawyer pool, and could be subject to abuse by lawprofs with political issues, but a mechanism needs to exist to protect the client who may someday come to rely on this individual to save their lives.

You know who they are.  Can you do something about it?