Wednesday, November 01, 2006
the perils of bar membership
Thank you to Dan Markel for inviting me to guest this month. For those of you who don't know me (which, I assume, will be most of you, as I keep a profile low enough to be classified as "horizontal"), I am a recovering public defender turned visiting law professor at the University of South Carolina, where I tell curious students that the law school from which I am visiting is called "practice."
Yesterday, I found out that I am evidently "visiting" in the modern sense where one is reachable at any moment via cell phone while in line for Space Mountain at Disneyworld. I came home after my last class to eat lunch; I should have just read my People, but I made the mistake of opening the day's actual mail. I found a letter appointing me to represent a juvenile in family court on a shoplifting charge. This would not have concerned me -- when I left practice, I left behind clients many clients charged with killing many people -- but the letter provided me with notice of a court date. October 31st, 2006. 1:30 PM. That left me fifteen minutes to get to court, meet with my client, speak with her mother, read the case file, locate the prosecutor, and figure out which, if any, rights my client might actually want to invoke.
I was torn about whether or not to relate my experience (absent, of course, any identifying details about the case) to my students; I teach an upper-level Criminal Adjudication elective (known colloquially as "bail to jail"), and the course is populated largely by aspiring prosecutors and criminal defense attorneys. Do I relate the realities of criminal practice, which is that you may be helping your client make the most important decisions of his or her young life in a corner of a conference room on a half-hour's notice? Is that honestly what the Constitution contemplates when it insists on the assistance of counsel? My students would nearly always rather hear war stories from the trenches than my latest musings about Booker, and I think my students understand "competence to stand trial" much better when I talk about my homeless, drug-addicted, schizophrenic, 55-IQ client whom my psychiatrist found to be "competent to stand trial for armed robbery, but probably not to stand trial for murder," but as colorful as my former life might have been, I do worry about scaring my students off of criminal work or causing them to become overly cynical about the law.
I know from faithful readership that I am not the only person who once practiced what they now preach. How do other recovering practitioners incorporate practice experience?
Posted by Deb Ahrens on November 1, 2006 at 07:45 PM | Permalink
TrackBack URL for this entry:
Listed below are links to weblogs that reference the perils of bar membership:
IMHO, as someone who practiced for a longer time than most law profs, you have to navigate between two shoals.
On one hand, of course we should integrate tales from practice. Many (most?) students come to law school without any clear idea of what lawyers actually do, and they rightly want to know what life in various practice areas and firm types is like. Also, telling war stories can get teachers early in their careers some useful credibility with the students. More importantly, stories about actual practice can be used to illustrate how law "really" works in the agencies, courts, and firms in ways that cases and casebooks sometimes don't. At least in my area (labor and employment) there are lots of conventions, practices, tricks, and strategies I wouldn't understand or in some cases even know about if I hadn't practiced.
On the other hand, just as obviously, teaching requires a more rigorous, organized, thorough, and theoretical approach than just saying, "I had a case like this once, and let me tell you ...." Even in areas where a prof had a lot of experience practicing, there will be all sorts of stuff the prof didn't do but must teach. And how "practice really works" can vary much more from jurisdiction to jurisdiction, firm to firm, etc. than most students or even practitioners realize. Finally, the longer one is in teaching, the more "war stories" can become problematically dated.
These are, of course, two extremes. Fortunately, I think there is lots of room in the middle for profs to use war stories successfully.
The "scaring people off" problem probably arises more in criminal law than in my field. I don't think you should hide the less fun/comfortable side of your practice, but could you balance those stories with some illustrations of times when you thought your practice was valuable/rewarding?
Posted by: Joseph Slater | Nov 2, 2006 11:04:18 AM
I deal with civil rather than criminal litigation, but like you, I worry about whether relating the harsh realities of practice will make students overly cynical. In my Complex Litigation class yesterday, as we discussed the significance of fee incentives on class counsel and the reality of entrepreneurial litigation, I was aware of the risk that some students might take my point more cynically than I intended. Your half-hour prep story creates the same risk, but I think you have to share it (presumably not with a shrug of indifference, but with a sigh of exasperation that reality isn't better than this). On the one hand, there's the intoxicating prospect that as teachers we can bring reality slightly closer to professional ideals by norming future lawyers to a prettier version of law practice. On the other hand, there's the risk that if we try to fool our students into thinking that all's well with the world of law practice, either they won't believe us and we'll lose credibility, or worse, they will believe us, and then when they reach practice they won't have the tools to understand the issues they face in the context of a harsh reality. So I think you've got it exactly right in worrying that you'll make students "overly" cynical, implying that there's some "just right" level of cynicism. As law teachers, shouldn't we try to avoid giving our students either too much cynicism or too little?
Posted by: Howard Erichson | Nov 2, 2006 1:51:01 PM