Too Mean To Kathleen?

My post poking fun and scorn at Kathleen Sullivan for flunking the California bar exam attracted an uncommon number of posts, most of them taking me to task for being petty, an elitist anti-elitist and something of a sap for assuming the bar exam measures anything of value. Good points all, and requiring a follow-up post.

Does the bar exam have any real function? I guess I am a sap, but I think it does. It is the one time in a lawyer's life in which he or she is forced to take a more or less comprehensive look at the law's structure and function as applied to the more ordinary problems of daily living for which people hire lawyers. I favor a difficult bar examination and high standards. We play with other people's money and lives daily, and my sense is that standards for entry to the bar should be high.

Am I an elitist anti-elitist? That was a particularly interesting characterization. I may well be guilty of that, or of a related offense.

I am defintely guilty of animus toward law professors, as I believe legal theoreticians do violence to the doctrines that make dispute resolution possible. I enjoy reading law review articles and books on the law a great deal. From time to time they yield insight into how to solve a problem in a case. So do works of literature, epic poetry and other well-written nonfiction. But legal theorizing isn't helping a client in need. Law professors nurture Platonic fantasies and fallacies to justify their keep. I cannot recall the last time I saw an effective law professor in a courtroom. Sort of reminds me of the old saw: Those who can't do, teach.

Am I petty?  Well, yes I am. I have no defense to that count, and I will not plead under the Alford doctrine as I want points for acceptance of responsibility at sentencing.

I recall once writing a hostile book review of a little work written by Harvard's Alan Dershowitz called Letters to a Young Lawyer. In the review, I tweaked Dershowitz for writing pretentious twaddle. The next week, a long and impassioned defense of himself appeared in the paper in which my review had run, together with a long and glowing letter from a friend of the professor's. Dershowitz, an academic lawyer's lawyer was mobilized to protect his reputation. I found it odd, and, in a manner, confirming proof of the theme my review: Lawyers with tenure aren't practitioners, their first loyalty is not to a client, but to something else, in Dershowtiz's case, himself.

Clients drive the law. Their needs, their fears and their hopes. I am suspicious of legal theorists, professors and hot-shots whose notion of legal practice is confined to the so-called "big" issues, or who try to make law into philosophy, economics, or literary criticism.

Perhaps I was unfair to Ms. Sullivan. Perhaps I am too defensive about being a small-time lawyer with no prospects of advancement to far-flung courts or fancy academic posts. I live from fee to fee and fight like Hell whenever I can. In truth, I guess I am little jealous of the law's leisure class, the likes of whom I read about, but rarely meet.

Comments

[Mahan Atma]

I agree completely that the standards should be high (though I'm not sure the California bar exam as it exists now is the best way to set a standard.)

However, I have to disagree strongly with this:

"I cannot recall the last time I saw an effective law professor in a courtroom. Sort of reminds me of the old saw: Those who can't do, teach.

Many law schools these days have strong clinical programs. Some of my favorite professors ran the death penalty clinic at my law school; I don't believe I ever met lawyers who were so dedicated to their clients.

The school also has a human rights law clinic and a community law clinic, among others, all run by extremely talented and hard-working lawyers.

[Mike]

"I cannot recall the last time I saw an effective law professor in a courtroom. Sort of reminds me of the old saw: Those who can't do, teach.

Eh, not sure I agree with this. There a few professors who are also very effective Supreme Court advocates - Larry Tribe and Charles Fried come to mind. Now you might say those aren't "real lawyers." I'd have to disagree.

While it's almost certainly true that Tribe couldn't try a case, it is also absolutely true that most trial lawyers perform poorly when arguing before the Supreme Court; indeed, most trial lawyers can't write effective appellate briefs. It's hardly an indictment on trial lawyers to say such most: many lawyers brag that they can't write well.

There are different kind of lawyers - each suited for different aspects of legal practice. But it's all law, and it's all lawyering - the only thing that differs if the forum.

[JR]

Mahan: For what it is worth, academics don't consider clinical professors to be "real" full-blooded law professors. The clinical professors are a notch below.

[Mike]

Sullivan. Perhaps I am too defensive about being a small-time lawyer with no prospects of advancement to far-flung courts or fancy academic posts.

Spare us the hard-luck story. You know you could have been a professor if you had wanted to. You're no victim of chance. Just admit it: You like it when the high mighty are taken down a bit.

By the way, the Dershowitz letter was really funny. Some law student reader should dig it up on Lexis-Nexis' news archive. I think he wrote something like this: "My book was great. The only reason this Norm Pattis guy did not like it was because of professional jealously. After all, it was great. Only someone jealous of me would not like it." He probably called you an anti-Semite, too.

[Nuge]

This morning as I was walking down the street near the courthouse Norm is trying his gang rape case in, a big black limo pulls up at 9:15 a.m. and a guy gets out of the back seat. He had a long pony-tail and was wearing sandals. He entered the courthouse.

Norm, tell me that person who looked very similar to you, was not really you.

Nuge

[Paul Gowder]

Norm, does any bar exam actually test any knowledge that is used in the "actual practice" of law, or is it just as disconnected from practice as law profs are, but in the opposite direction?

I've passed 4 bar exams in various states, and have been practicing (intermittently) for 5 years. I can count on my fingers the number of times I've used anything that I learned from the bar exam. Those tidbits that I did use were, invariably, pieces of civil procedure.

The bar exam requires a little bit of everything. A little bit of wills, a little bit of civil procedure, a little bit of property...

Nobody practices a little bit of everything. The little bit of everything bears no relationship to competence. And lets not forget the total NonLaw of the MBE. (What if Sullivan simply failed the criminal section of the MBE?)

[Ted]

I agree with Paul. The bar exam is a worthless cartelization device and a deadweight loss to society.

[NormPattis]

Jim:

I wasn't wearing sandals today.

Mike:

I do enjoy seeing icons stumble.

Everyone else:

Thanks for reading.