Short Take: Are We Dead Yet?

I got an email from a senior federal judge (not from Nebraska, so no, not the robed rider), which ended with something that scares the daylights out of me.

“…a dying profession.”

Is law dying? Are lawyers part of a dying profession? If so, then why am I wasting my time and energy trying to keep it from dying?

There are objective criteria that suggests the profession is dying. Bar exam pass rates are outrageous bad. Are we only getting the dumb kids going to law school?

The bastion of the old guard, the American Bar Association, has forsaken anything to do with the practice of law in favor of becoming a shining beacon of social justice. 

Academics are making dime on A2J, Access to Justice, where starving lawyers are supposed to starve some more for the sake of people who don’t want to pay for lawyers. The prawfs aren’t donating their paychecks to the Legal Aid Society.

Then there were the geniuses at #AppellateTwitter who were outraged at the notion they should put their clients ahead of their personal convenience. There were no kind word from the judiciary for them, not that they would know that the judges before whom they will argue think they’re pathetic.

There are, no doubt, judges who will share the current trend of putting sad feelings ahead of hard lawyering, who hold dear to whatever flavor of morality they find tastiest over the duty of a lawyer to represent a client. They may spout platitudes like “the client comes first,” but they believe the cause trumps all.

Is it too late? Is the profession moribund because we’ve divorced professionalism from the ticket? Are new lawyers so inadequate that they will never be capable of doing the hard work of lawyering? Is it impossible to make a decent living practicing law, to justify the three years of opportunity costs and quarter mil of tuition?

I refuse to believe we’re zombies. Am I wrong? Am I just a naive, idealistic old curmudgeon?

15 comments on “Short Take: Are We Dead Yet?

  1. InalienableWrights

    Rights trampling government monopolies like the “BAR” should die out. They should never have existed in a free society in the first place. With them NO ONE gets due process…

  2. KP

    Definately dying… from the day that Govts start to reduce the number of laws governing us!

    Until then, seeing every Govt just increases the burden, we will need more and more lawyers.

  3. Aaron Grossman

    My understanding is that the boards serve to weed out the unprepared. I’m not a lawyer, so please forgive me if this is hopelessly naive.

    To many, it seems universities are in it for the money; I understand this also is true of law schools.

    If the tested population grows while the capable students says the steady, failure rates should rise.

    In addition to rates, do we have base values? Are the number of passing students a similar proportion of the general population?

    Maybe this foretells a bursting bubble? Schools don’t want to admit they have a low pass rate – perhaps they’ll put away their hot pants in exchange for stricter acceptance policies and professors that care about the success of students? Now, I’m being naive.

    1. SHG Post author

      Please don’t do this. I don’t want to be forced to re-explain the universe from the big bang forward or tell you that you’ve made people stupider. Resist the urge. Either learn the foundations on your own or don’t comment, but don’t do this.

  4. PseudonymousKid

    Dear Papa,

    Great questions and gut punches. Who really knows what’s going to happen to the profession? It’s not unified even if it’s self-regulated. Who cares but us if the profession dies? Even if it does, something will replace it.

    That’s not to be cavalier about the whole thing, but look at the trends in addition to what you pointed out. Lawyering isn’t the same as it used to be or even as it’s imagined. The jury trial is disappearing and maybe for good reason. Arbitration is on the rise right next to settlements and mediation. Our adversarial system isn’t so adversarial even if we can still pay lip service to the historical underpinnings. If “real lawyering” died, it died a long time ago.

    With the codification of laws, argument moved to textual and grammatical disputes. The common law gets pushed to the side and lawyers get to remind everyone that “shall” means “shall” no matter how much you want it to say “may.” It’s not like the legislature who put “shall” really thought this through or are capable of fixing it in any timely manner even though one party has complete control and could pass whatever it wanted. Try to find a gap in the statute if you can, contextualize the facts to fit with the statute, negotiate a settlement or plea bargain, move on to the next. The “matter” might not even sniff a courtroom.

    Why not accept the fact that we’re closer to a civil law jurisdiction and reconstruct what it means to be a lawyer? It might be above our pay grade to even suggest such a thing, but the practice isn’t immune to change.

    Forgive the ramblings of an inadequate new lawyer scraping by on attorney fee shifting statutes, please. Your questions are big and scary and have no answer.


    1. SHG Post author

      Get arrested and you’ll find answers. You just won’t like them. They’ll miss us when we’re gone.

        1. SHG Post author

          CDLs were a rough and vulgar crowd, slinging guns and hanging with bad hombres who used nasty words that were often politically incorrect. Some drank hard. Some fought hard. All got hard at the thought of making an agent break down and cry on cross.

          I don’t think the new ones feel that way anymore. But then, they’ll probably never cross an agent anyway. And they will surely never jump on a pile of cash and tell a g-man to go fuck himself to keep the feds from grabbing it first.

  5. Tristan

    The market will eventually handle this one. As you have pointed out before, a person charged with a crime is not going to look up the lawyer who specializes in feelz. There may be a painful learning period when the new crop realizes that they don’t get a participation award for losing but then they will toughen up or give up.

    1. SHG Post author

      I used to think so, but I’m not sure. When all you can buy is vanilla, you buy vanilla and don’t miss chocolate because you’ve never tasted chocolate.

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