Following my post about the significance of future lawprofs being PhDs, moving those who teach law school ever farther away from those who practice law, I received an email from a very well regarded lawprof who, as it happens, does some serious representation as well. The email asked:
Is there some threshold of previous or recent practice experience that a law professor can satisfy to *not* be considered a pointy-headed academic?
The lawprof who asked, and who shall remain nameless unless he chooses to make his identity known, told me that despite the fact that he’s very much a full-time lawprof, and a very active author and theoretician, when he’s in court “kicking ass,” he feels like a lawyer. And from what I’ve seen of his work, he is indeed very much a lawyer.
So while the question seemed easy to answer in his case, that whatever the threshold might be, I regarded him as much a lawyer as lawprof, I have no answer that would provide a bright line test.
There are really two questions involved. First, how much “real world” experience should a person have as a lawyer before entering the Academy as a full-time lawprof to have a legitimate claim to being experienced as a lawyer. This first question breaks down into two parts, that being the length of the experience and the nature of the experience.
The second question is whether full-time lawprofs need to keep themselves in the game during their tenure in the Academy to maintain the status of having experience. If so, how much time, or what quality of practice, in the trenches is necessary?
Since being asked, I’ve given some thought to the question. My gut is that the first question is easier to answer, with a minimum period of practice of at least three years to gain what might be deemed basic experience. I have no empirical basis for this length of time, however, and it’s likely influenced by the fact that prosecutors, at least around here, make a three year commitment to the office. My experience with them is that this is enough time for them to come to grips with the basic realities of practice.
Of course, my three year stint assumes that they are actually practicing law, rather than sitting in the library of some Biglaw firm cite checking, with the occasional coffee run for a partner being the only time they break out.
I find the second question harder to answer, and one that is less a matter of hours or cases than a matter of the nature of the representation. I responded with this:
The problem with my answer is that it offers only a vague sense of what I think matters rather than a rule by which others can guide themselves. Is there a well-founded rule? Is there a consensus at least? I dunno, but I would be interested in hearing what others think.
Trench lawyers can be pretty brutal in criticizing lawprofs and the Academy for being disconnected from the practice of law and, frankly, lacking the requisite qualifications to teach students how to become lawyers. Rather than just smack them for their lack of experience, perhaps we can do something more useful this time. As Judy Tenuta used to say, it could happen.
So while the question seemed easy to answer in his case, that whatever the threshold might be, I regarded him as much a lawyer as lawprof, I have no answer that would provide a bright line test.
There are really two questions involved. First, how much “real world” experience should a person have as a lawyer before entering the Academy as a full-time lawprof to have a legitimate claim to being experienced as a lawyer. This first question breaks down into two parts, that being the length of the experience and the nature of the experience.
The second question is whether full-time lawprofs need to keep themselves in the game during their tenure in the Academy to maintain the status of having experience. If so, how much time, or what quality of practice, in the trenches is necessary?
Since being asked, I’ve given some thought to the question. My gut is that the first question is easier to answer, with a minimum period of practice of at least three years to gain what might be deemed basic experience. I have no empirical basis for this length of time, however, and it’s likely influenced by the fact that prosecutors, at least around here, make a three year commitment to the office. My experience with them is that this is enough time for them to come to grips with the basic realities of practice.
Of course, my three year stint assumes that they are actually practicing law, rather than sitting in the library of some Biglaw firm cite checking, with the occasional coffee run for a partner being the only time they break out.
I find the second question harder to answer, and one that is less a matter of hours or cases than a matter of the nature of the representation. I responded with this:
Maybe even more importantly is keeping the feeling of what it’s like to win, and especially to lose, so that it’s not an abstraction.In retrospect, I should have written what it’s like to lose when your client is innocent. There’s no understanding of what we do without knowing the feeling of being responsible when an innocent person is convicted. There’s no understanding of what the law is supposed to do, of what distinguishes platitudes from basic rights, without this sense of personal responsibility toward your clients.
The problem with my answer is that it offers only a vague sense of what I think matters rather than a rule by which others can guide themselves. Is there a well-founded rule? Is there a consensus at least? I dunno, but I would be interested in hearing what others think.
Trench lawyers can be pretty brutal in criticizing lawprofs and the Academy for being disconnected from the practice of law and, frankly, lacking the requisite qualifications to teach students how to become lawyers. Rather than just smack them for their lack of experience, perhaps we can do something more useful this time. As Judy Tenuta used to say, it could happen.
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Three years sounds about right. For me I’d say five, but that’s because I’m a bit slow on the uptake.
And yes, the meeting with clients part and actually “litigating” the thing is important. Even if you’re just going to plead eventually.
And a PI case or two wouldn’t hurt. PI Plaintiffs are roughly the same status in the court system as criminal defendants – nobody really cares about them or their cases.
Along these lines, I would say experience as a prosecutor or insurance defense lawyer doesn’t count. It’s experience of a kind, certainly; but you don’t have real clients and you won’t see the frequent absurdity of the system’s pretenses as applied day to day.
In my ideal legal world, only lawyers with 3-5 years real experience in CD or PI or preferably both would be judges or law professors.
My best professor in law school, in retrospect, was a former CDL.
I’ve been reading A Surgeon’s Wife. I don’t know whether you believe that the defendant in that case was innocent, and there is no indication in the book of anything deficient in your representation of him, but regardless your feeling of being responsible for his conviction was clearly expressed in the book’s account of your conversation with him at the jail following his conviction. My admiration of you doubled when I read that. (I don’t know whether this comment is in violation of your policy against blogging about your own cases. Feel free to delete if it is, although I thought it might be okay since a whole book was written about the case with the defendant’s and your consent.)
Several months ago I had a similar post-trial jailhouse conversation with a defendant I’m convinced is innocent and was wrongly convicted. In this case, however, there was no doubt in my mind or his mind that I was ineffective at his trial. I am deeply humbled by the fact that this man, who was sentenced by the judge to 45 years, nevertheless has shown me no ill will and has even expressed the thought that I was cheated by the prosecutors and the judge as much as he was. We still have high hopes that a pointy-headed motion to dismiss I wrote pre-trial will prevail on direct appeal. If it doesn’t, and if his conviction is not overturned on direct appeal or in a petition for post-conviction relief, the fact that the defendant doesn’t hate me will be small comfort indeed.
I certainly don’t want to rehash the exchange we had earlier about justice and the role of the criminal defense attorney, and the point I’m about to make doesn’t conflict with your side of that exchange. I simply want to observe that, while ideally we represent our guilty and innocent clients with equal zeal, “what it’s like to lose when your client is innocent” can’t not be worse than what it’s like to lose when your client is guilty. Since my innocent client was convicted, I have put in many hours without pay assisting his appointed appellate counsel (and would have done so even if I had tried his case perfectly). I don’t think I would have done the same if I thought he was guilty.
I’ve never tried a case where I didn’t expect to somehow find a way to win. Thus, I’ve never lost a case where I didn’t somehow feel responsible. That’s a feeling that every lawyer, and lawprof, needs to feel.
Three years isn’t close to enough. I’d rather someone have practiced for at least 5-7, but a decade should be optimal.
There isn’t nearly enough time to learn anything in 3 years.
Maybe I’m misunderstanding the question/discussion, but in my opinion, it should be a pre-requisite for ALL professors to have practiced as lawyers for at least 5-7 years.
What would be really cool is if the law schools stopped expecting their professors to publish law review articles, which are generally worthless, and expect them to be actively of counsel to a law practice somewhere.
But you’re right… three years in biglaw won’t get you jack for experience.
I’d say to answer your anonymous commenter — it may not be easy to show where the line breaks… but its easy to point to the polar ends — to the truly qualified (Turley perhaps makes a good example) and the truly un-qualified (our favorite effete little veal calf comes to mind).
I think that if we could start by simply lopping off a fair number of the unqualified veal calves, we’d do a hell of a lot of good.
“… who shall remain nameless unless he chooses to make his identity known … “
I guess it’s okay to out myself now that I’ve been admitted to The Cool Club. Although to maintain my credibility in academic circles, please replace “kicking ass” with “attaining a strategic position in which a ruling in my favor appears increasingly likely, subject to the usual uncertainties inherent in federal or state litigation.” 😉
We were considering that as the motto for the Cool Club, but considered it too normative a pedagogical exercise. And for anybody who wonders what Orin’s done for you lately, think Lori Drew, without which we might all be indicted.
I’m not surprised to hear that it was Prof. Kerr. He should definitely have an officer position in the cool club.