A decade ago, I learned that lawprofs didn’t care much for practicing lawyers. We were vulgar, harsh and intemperate (that’s a word used in moderated speech to mean we said nasty things). We had two unpleasant tendencies: we said what we meant and when we disagreed, we made our position clear.
Some academics don’t like this at all. Or to be more precise, they hate it when it’s done to them. They give themselves greater latitude when they do it to others, because they’re right so it’s justifiable. They make up rules (there seems to be a huge affinity for rules) that explain all this, inconsistent though they usually are, and only tell us after we’ve violated them.
This happens to me all the time, because I’m a terrible person. It happened on the twitters between Georgia State prawf Eric Segall and Alan Gura. The subject matter was one that isn’t particularly controversial.
Segall entered the fray to note that of the 87 people nominated by Trump to the federal bench, only one was black and one was Hispanic. Those are some damn lousy numbers, all other things being equal. Whether you approve of Trump’s nominees in general, pretty much every lawyer and prawf acknowledges that some of his picks were unqualified mutts.
At the same time, an administration is likely to choose nominees that reflect its perspective, so it’s unlikely to be miffed at a president for not calling up the other side to help with judicial selections. President Obama choose a woman for the Supreme Court who had never tried a case, with a grand total of one year’s practice experience. Under other circumstances, most knowledgeable people would say she was woefully unqualified. But hey, Obama was president, Kagan was his pick, and that was that.
So Trump prefers conservative textualists? He’s allowed. Who did you expect him to pick when he was elected? But that doesn’t mean there are no black or Hispanic lawyers out there who fit the bill. Yet, they aren’t on the list. Segall is right, that’s worthy of notice, and raises some serious questions of what great legal talent isn’t being considered for the judiciary and why.
But Gura has a point as well.
Things clients ask: will the judge like our case? will the judge be sympathetic? Will the judge be nice? Smart? Fair? Decide quickly? /1
— Alan Gura (@alangura) February 14, 2018
Like Gura, I’m brutally aware of the double-edged sword wielded in the trenches. I’ve never had a client refuse dismissal because it was granted by an old white male judge. I’ve never had a client who felt better about his sentence of life plus cancer because it was imposed by a judge who wasn’t old, white and male. In other words, when it comes time to try a case, the only thing that matters is that the judge is good (for me).
This point prompted Alan to respond to Eric:
Have you ever practiced law? Seriously, have you ever told a client, “nevermind the outcome, the judge was the right/wrong color?”
And Eric replied:
I’m going to ask you not to get personal, ok. We can disagree without casting aspersions.
And Alan sur-replied:
Aspersions? Don’t see ‘em. You say race may trump (sorry) results. I say it’s all about the bottom line. I don’t care what they look like so long as they’re smart enough to rule for my clients.
See what happened there? From the perspective of a trench lawyer (though Alan may be a bit more refined than most of us, being a big time Supreme Court winning law-talking guy), he was making a point about what practicing lawyers care about, and pointing out that the view from the ivory tower isn’t the same as the view from counsel table.
This was an aspersion to an academic, against whom lack of experience in the courtroom was used as an argument. But that’s only a piece of the puzzle. The other is that the rules of prof-speak preclude someone from calling bullshit when they think something is bullshit. It’s just rude, as far as they are concerned.
Not all practicing lawyers are blunt and clear. Many biglaw types weasel around clarity with moderated speech, avoiding any potential for offense even if it means they murder too many words and ultimately say nothing comprehensible. The only thing worse than being unclear is offending someone. God forbid. Even Josh Blackman had enough with the use of the word “interesting” as a substitute for “idiotic.”
Is this a big deal, our inability to communicate with each other without sacrificing clarity or giving offense? Well, yes. Yes it is. It’s not merely that lawprofs have some ideas worthy of discussion amongst practitioners that are inhibited by their sensibilities, but that the unwashed, from the general public to reporters, seem to take the word of academics as gospel. And too often (think Larry Tribe), it’s nonsense.
If we’re to play the moderated speech game, address some academic’s ridiculous assertion using only their approved lexicon, nobody gets the point. It’s “curious”? It’s “interesting”? That doesn’t quite convey the same message as “it’s ridiculous” or “it’s batshit crazy and completely wrong.”
Sure, we can just ignore every pedagogue spewing their pet theories on social media, making their admirers stupider by the twit, but then we are constrained to deal with sentiment that’s formed on legal gibberish. That’s not going to help anyone.
Or we can join in the discussion, argue positions using real words, clear language and, when needed, expressing the difference between the effete view and reality. But then they’re gonna be angry with us for being mean and vulgar, casting aspersions.
If the legal academy wants to talk only among itself, using the carefully-crafted language that never offends anyone, that’s fine. But if they want to play in public, express their views openly, then they don’t get to make the rules as to what words others can use, what challenges to their view others can make or how they’re allowed to do so.
Are we more offensive than the academy would prefer? You bet. But when you choose to venture outside the academy, you don’t get to tell us how we’re allowed to speak. If you don’t like it, you can ignore us, but you don’t get to make the rules.