Those Who Don’t, Teach (Update)

When lawyers chided the lawprofs about their alleged disconnect from the actual practice of law, the usual response is that they not only engage in their scholarly endeavors, but roll in the trenches every now and again to keep their law chops in shape.  Given Paul Lippe’s salvo across the bow of the Academy, this detail is elevated to critical status.

I held this claim to be sacred.  My heart is now broken.  Southwestern Lawprof David Fagundes has crushed my spirit.


I wrote a few weeks ago about whether lawprofs count as lawyers. There is, in my opinion, no right or wrong answer to this question, but one distinction between the two is clear: you have to be a bar member to do much of the work of a lawyer, but you don’t have to be a bar member to work as a law professor. Indeed, some law professors, such as HLS’s Duncan Kennedy and Scott Brewer, have never even taken a bar exam.

That said, I’d wager that most law professors are bar members, and I’m no exception, having been a member of the California Bar since 2003. When I was working at a firm, this was a requirement, but since I left for academia, it obviously isn’t any longer, and I’ve grown ambivalent about whether it makes sense to maintain active bar membership status (primarily because of the high cost of bar dues: $410 last time around and going up every year).

While David didn’t ask for the opinion of practicing lawyers, but rather elected to keep it within the chorus, I realize that my barging into the discussion is boorish and vulgar.  But then, I’m a lawyer.  What would you expect?

First, David, there is a “right answer” to the question of whether lawprofs count as lawyers.  You should.  Not that you do, but you should.  Here’s a secret for all the lawprofs harboring doubts as to their lawyerdom.  You’re supposed to be teaching kids to become lawyers.  That’s why the kids are paying tuition.  That’s why your employer is accredited.  That’s why you get a paycheck, modern pedagogical notions notwithstanding.  If there were no students, you would have to work for a living.  See the connection?

The obvious cliché to be inserted at this moment is “those who can do; those who can’t teach.”  I don’t buy into that joke at all.  Some of you guys are awfully smart.  Some just think brilliant thoughts.  But when brilliance looses its connection to purpose, then it ceases to matter.  Once you’ve elected to divorce yourself from the practice you’re charged to teach, you have lost your intellectual authority. 

It seems that the trend, if anything, should go in the exact opposite direction.  Certainly nobody needs another law review article that no one in a position to make or influence the course of the law will ever read, but the real world could use some more laboring oars rowing toward a more just society.  Lawprofs should not only be required, required, to be members of the bar (including the bar of the state in which they teach), but should be required to engage in the practice of law throughout the course of their teaching career.

It’s like this: Guys (and gals, since I know Ann Bartow keeps numbers on this sort of thing), having some clue about how the things you spout actually happen, whether in the courtroom, the wood-paneled office, the street or the kitchen table, is necessary for you to impart to young minds what they will spend the rest of their natural lives doing, assuming they make it out of law school, pass the bar and stay in the profession long enough.  They believe you when you tell them things.  They believe you know what you’re talking about.  They trust you.  And it’s not worth it for you to actually do, every once in a while, the thing you teach?  Aw, come on.  Even if you suck at being a lawyer, at least you will have some idea of what it means.

In reaction to challenges such as Lippe’s, lawprofs respond that they believe that law schools are doing an adequate job at turning out people capable of practicing law.  In order to credit this opinion, however, there must be a basis for the lawprofs to know what constitutes the capacity to practice law.  How does a lawprof who has never passed the bar judge such a thing?  What about the lawprof whose entire frame of reference consists of three years writing memos at Biglaw?  Or the one whose experience was limited to a United States Attorney’s office?  This isn’t the practice of law.  At best, you’re barely out of knickers.  You only get to have an opinion if you have basis in reality to form it.  That basis has to be earned, and you can’t earn it if you don’t do it.

Still don’t believe me?  How do you think Charles Nesson is doing on the Joel Tennebaum trial?  Put aside the fact that he forgot how one dresses for trial.  Do you think it’s significant that Nancy Gertner, as good a judge for Nesson as could possibly be, had her fill of him from the outset:


Indeed, on several occasions “sustained” escaped from Judge Gertner’s lips before Oppenheim even had the chance to object. Chiding Nesson on his frequently unorthodox questions, Judge Gertner at one point told the evidence professor, “I’m just trying to translate this into the Federal Rules of Evidence.” And when Nesson, reacting to a sustained objection, explained what he was trying to “say,” Gertner cut him off: “You’re not supposed to be saying anything. You’re supposed to be asking questions.”
Is Nesson brilliant?  Not if he can’t ask an unobjectionable question.  And this is someone who is supposed to teach evidence to law students?  Scholarship is no excuse for functional imcompetence. 

David Fagundes would do well to keep his bar admission active.  Not just active in terms of paying the freight, but active in reality.  If he wants credibility in the classroom, or even in the law review, there’s only one place to earn it.  It’s not the marble hallways of academia.  It’s the trenches of the courtroom.  At the absolute least, you ought to know where the local courthouse is.

The following is added for practicing lawyers only.  All lawprofs can return now to more scholarly pursuits.  Bye.

Just so you know, some of the lawprofs will come by and read this post.  Chances are slim that they will comment here, or write about it elsewhere.  They hate it when someone like me, a pedestrian lawyer, takes them on.  I get nasty emails, asking me to keep them private, lambasting me for being so mean and confrontational.  Why can’t I be more like them, collegial, and demure.

But they will read the post, if for no reason that to have yet another reason to stick a pin in their voodoo doll of me.  It’s a shame that we can’t have an honest discussion between the scholars and the trench lawyers, but they find our manner offensive and prefer to hide amongst their own where no one will ever say anything mean about them or facially challenge their facile self-deception.

As it’s becoming universally recognized that law schools, aside from its other problems, is becoming increasingly less relevant in producing competent practitioners, this discussion needs to be had.  Until lawprofs are willing to have a real discussion with those who work in the trenches about where it’s failing, nothing will change.  That conversation will not happen until the lawprofs decide to stop hiding from us.  That they can’t handle the confrontational, even vulgar, manner in which we hash things out is part of the problem.  We are lawyers,  Lawyers face challenges head on.  That they refuse to do so demonstrates why their lack of participation in the profession, as well as the discussion, imperils the future of law school.

So when you see that no lawprof respond, don’t assume they know nothing about this post.  They do.  Know that they have chosen to hide their sensitive heads in the sand and refuse to acknowledge that there is a whole bunch of practicing lawyers who aren’t impressed with how they’ve chosen to put their brilliance to use.  And that’s why law schools can’t produce functional lawyers.


I may be too hard on them, but somebody has to call them on this nonsense.

Update:  Rick Bales, a lawprof at Chase Law School, Northern Kentucky University, left this comment to David’s post:


As privileged members of a distinguished profession, I believe we are ethically obligated to provide pro bono representation to those less fortunate. It is doubly true because we serve as role models for our students. In most states, however, we cannot perform pro bono legal work without a bar license. This, I believe, is reason enough to get a bar license in the jurisdiction in which you teach.
Rick Bales is my hero.  I believe that Chase Law School has just hit Number 1 in USN&WR, and Bales is up for a Nobel Prize.  Or at least a Greenfield Prize.  I’m naming my next kid after him.  Maybe even my next two kids.  Or more.

6 thoughts on “Those Who Don’t, Teach (Update)

  1. Dr. SunWolf

    [Wobbly stance, part of one foot in the law school, foot-and-a-half as a professor/social scientist for undergrads, former surviving criminal defense attorney.

    1/ As to, “they find our manner offensive and prefer to hide amongst their own where no one will ever say anything mean about them or facially challenge their facile self-deception” I will mention that you should be a fly-on-the-wall at a law school faculty meeting. Mean things are flung about with abandon. Self-deceptions are challenged by everyone, yet persevere.

    2/ Love your [perhaps futile] attempt to refocus us on the law students. They adore having a professor from the trenches and come to any such class full of the questions they cannot ask in Remedies, Evidence, Procedure, Pleadings, Criminal Law, if that professor doesn’t know how the judge would react, what to say if, and whether X can even be said.

    3/ Sure the law schools can turn out great practicing attorneys. It remains to be seen whether this is because of or in spite of their professors.

  2. SHG

    Knowing well that you’ve earned your wings in the trenches, I appreciate your take.  I tried, in an earlier life, to engage in discussion in my most collegial, highly nuanced, way to raise issues with some lawprof friends, only to be patted on the head like a child, too ignorant and naive to understand the deep thoughts and ways of scholars.  My efforts were futile.

    Like so many aspect of the profession (and life), lawyers tend to keep hands off the Academy, as if it’s beyond their ken, or perhaps diseased and contagious.  Either way, we complain about the product but fail to engage the manufacturers in a discussion about our issues.  I’ve decided to take up arms and see if my nudging, low-brow though it be, might at least make somebody at the faculty meeting ask questions.  And I would very much like to be a fly on the wall.  It’s much harder to say what’s wrong with the sausage when I’ve never seen it made.

    [Note: I believe that I’ve mixed every metaphor possible in this comment.  If I’ve left one out, please let me know.]

  3. Dr. SunWolf

    Love metaphor salads.

    Add a dash of the circus, smoke and mirrors, crusades, holy grail-seeking, and every metaphor a good sports announcer ever used. Like a good country-western song, throw in a train wreck, broken hearts, one-trick ponies, and dogs (eating dogs, presumably).

  4. Larry Allred

    Dear Mr. Greenfield – It wasn’t Neeson whose “questions” were so obviously objectionable to Judge Gertner. Here’s what the linked article says: “Feinberg [Tenenbaum attorney Matthew Feinberg ] handled the cross-examination of Cho—hardly among the plaintiffs’ most critical or controversial witnesses—and was surprisingly hostile. He attempted to grill her on UMG’s litigation strategy (which she said she played no role in formulating), but was shut down repeatedly by Judge Gertner, who several times announced “Sustained!” even before plaintiffs’ attorney Matthew Oppenheim had the chance to object—resulting in laughter from several jurors.”

  5. SHG

    I just checked the source and you are correct.  That’s what I get for relying on Ambrogi’s (thanks Bob) quoted recap of Nesson’s cross of Wade Leak. I assume that the quote existed at some point, or I’m sure Ambrogi wouldn’t have used it, but it isn’t there now.   I thus stand corrected. 

    That said, I go to another quote from Sheffner :

    On cross, Nesson’s interest in big theoretical questions returned. “What is property?” he asked to begin his examination. “Do you have a more pointed question?” retorted Judge Gertner, as she rested her face in her hands.

    Nesson then asked Liebowitz when the music industry began to make money. Upon Liebowitz’s reference to the “Middle Ages,” Judge Gertner cut him off with, “This will be a very long trial if we’re going back to the Middle Ages.” To the relief of everyone in the courtroom, he skipped ahead to the 1970s.

    And there are others showing an unfortunate lack of skills.  Not to mention the problems Nesson had getting to this point.

  6. Larry Allred

    I picked up on that one, too, and was therefore not tying to defend Neeson. I was a criminal defense trial lawyer for over 25 years (I only do research and writing now for the FPD in New Mexico), so I know first hand that cross examination should never be entrusted to those whose knowledge of it is merely academic. To be effective takes both talent and skill, and you don’t get either from evidence class in law school.

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