In an insightful post, followed by even more insightful comments, lawprof Eugene Mazo questions the efficacy of his dabbling in the practice of law by handling an appeal.

Most students think professors don’t practice law. I would guess, however, that many professors try to keep some hand in practice. They sometimes argue appeals, for example, serve as expert witnesses in cases in their areas of expertise, or work on various pro bono matters. And that, of course, does not include the important work that law school clinics do, which is all of the above and much, much more.

That he deems this “keep[ing] some hand in practice” is itself disturbing.  This ain’t exactly practicing law, Gene. But that aside, let’s get to the crux of the matter.

I was back in the saddle this week. On Thursday morning, I appeared in a California courtroom to argue an appeal.

After the oral argument, the trial lawyer asked me how my job as a law professor impacted my approach to the case. Since this wasn’t a particularly difficult matter, I told him, honestly, that one thing that I felt my job allowed me to do was to take a few more liberties in the briefing than I normally would. The opening brief, for example, began with the following line: “Many things about this case smell fishy.” It then used examples of dead fish, rotten fish, and smelly fish as metaphors for the law firm’s actions.

In his reply brief:

In the reply, I quipped: “Given that Respondent is a law firm, and given the evidence in this record, its words ring hollow. This is how Shakespeare put it:

Hamlet:                             Madam, how like you this play?

Queen Gertrude:              The lady doth protest too much, methinks.

(William Shakespeare, HAMLET, Act III, Scene 2.)”

Some of my collagues [sic] in the appellate bar suggested I take out the Shakespeare reference. But a colleague on my faculty, who argued this case before the U.S. Supreme Court last year, liked it and suggested I leave it in. So I did.

Mazo opens the floor to comments about whether his position as an academic entitled him to such latitude.

Which brings me to my question. How does being a law professor change one’s perceptions of what should or should not be done in the normal practice of law? Is there something different about the briefs that law professors write, or about the advice they give?

The comments to Mazo’s post clearly make the point that being a lawprof changes nothing when it comes to putting the client’s interest ahead of the academic’s self-indulgence, which should be obvious and uncontroversial.  After that, the answers were largely “it depends.”

Assuming you were representing a client, however, it’s hard to know what to make of your claim that you can take more liberties in the briefing than you normally would. You should be doing your best to effectively represent your client, so the default should be that your briefing doesn’t change based on where you hang your shingle (assuming constancy in clients). Do you feel entitled because you are not out to secure other business, and don’t care whether you project the skills necessary to win different cases? Or because any eccentricities are more likely to be attributed to you, as a professor, and not to your client?

And by Orin Kerr:

I pretty much agree with the prior posts. Briefwriting decisions should be made based on what helps the client, and the author’s status as a prof normally won’t have any impact on that.

With that said, I think there may be some special contexts in which a client is helped by an academic briefwriter taking a more academic tone. For example, imagine you hire Larry Tribe to file a Due Process challenge in the District of Massachusetts. An academic tone in your briefs might work: It might be a good way to focus judicial and clerkial attention on the brief to make sure it gets a really close read. But I think the calculation has to be based on what helps the client. And in most cases, it shouldn’t matter at all whether the lawyer is a professor.

And by Steven Morrison, who has demonstrated both his chops in the trenches as well as the classroom:

I disagree with the posters here regarding the use of quips, clever turns of phrase, and Shakespearean passages. They can get overwrought and excessive, but if used wisely, they can succinctly sum up a complex legal argument–they give judges a recognizable and understandable reference point for nuanced legal arguments. Eugene, I don’t know if yours were appropriate, but I wouldn’t avoid them altogether.

What’s curious about all of this is that it doesn’t quite deal with the question raised by Mazo, which is a pretty good one.  Obviously, when academic plays attorney, he’s subject to the same basic demands as any lawyer: the client comes first. And that means he’s as constrained, or unconstrained, as any lawyer whose job it is to represent his client as best he can. If the quips are effective, then use them. If not, then don’t.

But does the academic bring a benefit to the mix by being a prawf?  It seems to me that he can and should.  Whether he does is a different question.

Recognizing that there is a reason they’re called “briefs” as opposed to law review articles, academics have a painful tendency to be needlessly pedantic. They drone. They grossly overwrite, using far more words than necessary to achieve that level of overwrought nuance the Academy adores.  Some profs believe it critical, because they see argument through their narrow lens. It makes readers’ eyes bleed.

But if they can get past that, they can offer something that trench lawyers cannot.  While we strive to make hard-hitting points, clearly and persuasively, to catch the court’s attention and push the client’s interest, our efforts to delve too deeply into nuance often fail.  When issues of law aren’t novel or seriously controverted, this doesn’t happen because it doesn’t matter. The law isn’t really the issue, as much as convincing a court that our view is more right than the other guy’s.

When there is a serious issue of law, of legal interpretation, of some deeply nuanced point, then the academic’s approach can be critically helpful. Judges will take more seriously the nuanced parsing of law from a prof that it would ignore from a trench lawyer.  They will tolerate a lawprof’s highly nuanced, if boring and prolix, writing in recognition that they’re deeper thinkers, more tedious writers, than trench lawyers.

From the jurisprudential perspective, the academic brings a certain amount of tolerance by the court to their more academic approach, in lieu of brevity, when it’s appropriate to the case.  It’s just another factor in the mix, to be used when it’s to the client’s advantage.  When it’s not, then like the inappropriate use of fish metaphors, it’s wrong and ineffective.

To the extent Mazo’s question is whether academics are entitled to a degree of self-indulgence that would piss off a court if done by a trench lawyer, then the best answer is that expectations of academics are somewhat different. Practicing lawyers are expected to know how to do their job well. Academics are, with a few notable exceptions like Steven Morrison, expected to be dilettantes. Judges may be more tolerant of ineffective advocacy than they would of practicing lawyers.

Ah, but I’m not done yet.  Orin adds a second comment to the mix:

Eugene writes: “Are there any other reasons that an academic would get hired over a practitioner to write a brief? ”

We’re a lot cheaper.

When Weev’s case came before the Third Circuit, Orin was the primary author of the brief and argued the case.  He did so because the primary issue was the interpretation of the Computer Fraud and Abuse Act, and nobody had given it as much thought, or written more scholarly stuff, about the CFAA than Orin.  When it came to CFAA, Orin was da man.

But then, the reversal in Weev’s case ended up on venue, not CFAA. Had Orin known that the case would be decided on venue, would he have been willing to put his time and effort on the line to help the internet’s most notorious troll?  Not likely.

This reflects another difference with academics, whose virtue comes mostly from their having some deeper credibility in the scholarly questions of law presented, as they lack the skills that would otherwise serve the client’s interest.  In other words, they may be smart scholars, but they’re lousy lawyers.

When an issue arises that meshes with their scholarship, the boring stuff that they’ve spent a thousand hours researching despite the realization that no one outside of a few fellow academics will either read or give a damn about, they can magically become very interested in getting involved.  A real world application of their academic world efforts!  Yippee, they’re in.

That’s when they’re “a lot cheaper.”  It’s not that academics are poor lawyers begging for a gig, but that they’re scholars who occasionally get a chance to put their chops to the test in the real world.  And for that, being a law professor can matter and serve a client’s interest.  Which is all this is, and has ever been, about.