Thursday, February 24, 2011

Do We Know About Practicing Law

My school is not alone in hearing that it's students are really not prepared to practice law. The complaints I hear are primarily about writing and research skills. I am happy to say that there seems to be a collective effort to change this.

The problem is: Do we know anything about it? How many law professors actually practiced law? Probably quite a few but how many did in the last 20 years? How many actually came from a clerkship or graduate program to law teaching? Do they really know what a beginning lawyer is expected to do? It's risky to leave the redesigning to people who have not practiced law in the last 20 years if at all.

If people have not experienced practicing law in the last 20 years there may be a tendency to imagine that students need skills they would primarily need if law were practiced the way the professor wishes it were practiced. This would be a world without zero-sum games, win-win outcomes, and high level debate about what Justice this or that meant. In that world, I doubt there are scores of boxes to go through looking for a specific piece of evidence that will assist the client or could be a land mind. I doubt it is a world in which 20 depositions must be taken in a month at places hundreds of miles apart.

I worry that third year student Zack will show up for an interview and announce his specialty is collaborative lawyering or the economic analysis of law and the interviewers will just say "next please."

Tuesday, February 22, 2011

EMail: Yes, No, Depends

The other day, I wrote to a colleague about two administrative issues. What I got back was an answer that was unresponsive. When I explained this, what came back was a pretty nasty response (ad hominen) and a demand that we speak in person or not at all.

I did not want to talk in person but could not put my finger on why. I realize that every person picks the mode of communication that he feels is likely to achieve his ends. In the past they have enjoyed either successes or failures using one mode or another and this informs future decisions. So, why did I prefer email with this person but not with most others?

Before getting into that, some other emails issues should be put aside. Email is risky and can lead to pretty embarrassing accidents. I am told that one of my colleagues once inadvertently sent a review of a job applicant's scholarship not to the appointments committee but to most of the people teaching in the area throughout the US. And, it probably is true that people are less inhibited in email but about half the time someone accuses someone else of sending a "flaming email" it is really comparable to walking out of the room and slamming the door or a garden variety personal attack. By that I mean the accusation is just as likely to mean "I have no reasoned response so I'll just say you offended me and mischaracterize what transpired." One other thought on this. Do ever wonder what immediately preceded the "flaming email?" Do you really think it was a polite thoughtful communication of some kind?

And, of course, there are the "no email" people who do not put anything in writing for fear of losing deniability. One of my most interesting experiences with this was a few years ago when a faculty committee was asked to evaluate several faculty members and rank them. The standards to be applied were tenure standards. When the process was over, a disappointed applicant asked to see the written record. There was almost none. Yes, 6 people had ranked at least 6 others including a review of scholarship, teaching, and service and had evidently done so with creating anything but the barest paper record. Email, and writing generally, is not for the gutless.

While some of that influences my own email v. in person choice, I also think it is individualized. For example, everyone has colleagues who, as soon as you begin to speak begin a nodded "no." In other words, before you finish and without knowing what you are going to say, they are preparing a negative response. I email these people when I do not avoid them altogether. I also use email when the person is known to interrupt. It's hard to interrupt when reading an email. The recipient is pretty much forced to hear you out. There is also the matter of quickness. The other day I observed someone in a conversation. She said, "If you will give me a chance to think, I believe I can respond." In other words, some people are just quicker and others need time -- the time it takes to compose an email --to respond.

Finally, and this may seem backwards, people who are naturally conciliatory (I mean really conciliatory as opposed using it as a negotiation tool.) should avoid face to face discussions. To the extent you want to be liked and to seem reasonable, you may regret what you end up agreeing to. Those who prefer face to face are often quit good through their body language and facial expressions at indicating that their opinion of you may hinge on just how agreeable you are. In fact, there is an analogy to informal dispute resolution which often disadvantages the person who just wants to "get along." Those people are better off with more formal means of dispute resolution. Email provides the same distance in person communications.

You may notice a theme here. The characteristic of those I prefer to email are those who feel they can control the conversation so it will turn out to their liking. Email means they lose some of that control. Flip it over and the question is whether the person who emails also just wants to use email in order to control the conversation. Maybe. On the other hand, maybe email is the only way to resist the control the face to face person exerts.

When the parties do not agree on the way to communicate, perhaps there is no communication at all. This favors the status quo and means if you really want change to you to acquiesce to the mode chosen by those in power. Thus, those with power get to set the rules of discourse and they set them to favor themselves.

The face to face people have one really annoying trait. Even though they will not agree to email, if they see you in the hall they are desperate to exchange hello's. But this is a show for observers and simply reflects their need to control even appearances.

Thursday, February 17, 2011

Law School Intervention

There is a program on one of the dozens of channels that I do not really know how to identify. Essentially cameras follow an addict around to show what his or her life is like and at the end there is a tearful intervention at which the addict is talking into going to rehab. It is hard to watch and pretty intrusive. I am not sure I have watched an entire episode. Since the intervention comes as a surprise I wonder what the addict thinks when the cameras are following him or her around for days.

Addiction is not a pretty thing and I am not equating law school addictions to the stories on the program but there are addicts on law faculties or maybe it is just people with "challenges."

For example there is "over talking." This is the person who holds forth in faculty meetings on every issue never realizing that he is keeping other from talking nor that everyone knows what he will say before he says it.

And there are the rationality challenged. They will say almost anything to avoid focusing on the actual issue. The move to ad hominen attacks or when cornered say "I am offended." It's a bit like trying to reason with your cat.

Closely related are the pathologically self-interested. By this I mean those who always take the position that advances their own interest and somehow justify it as good for the whole or especially the students. Mostly they view a law school as a means to their ends.

So, here is the idea. Someone documents the history of behavior and then one day "Boom" a bunch of people descend on the person, explain the damage they do and urge them to get treatment -- rehab, if you will.

What a great idea, right? No, wrong. In the real intervention show there are two factors at work that do not work with law faculties. First, there is a norm established and uniformly accepted that shooting up is not a good thing. On law faculties, over talking, reasoning like an cat, and obsessive self interest are accepted behaviors. Second, on the real show the intervenors really care about each other. There are good friends among law faculty but ultimate in the life long negotiation of the elites true friendships do not run nearly as deep.

Wednesday, February 16, 2011

I Don't Want to be Right . . . Comment

A reader asked this question and I think it and the answer may be of interested to some:

Q: What do your colleagues say when they see an interaction they had with you show up on your blog? Any embarrassment or self-reflection at all?

Dear Anonymous: First, in many instances they do not see themselves because the anecdote is actually not based on anyone at my school. In fact, some of the most outrageous ones did not happen here and probably 80% of the ones at my school involve the same group of repeat players.

Far more importantly, one of the rules of elites is to never confront a non elite like me. That shows you care and indicates a sign of weakness. Much of what I write is designed to provoke an encounter that would allow the issues to aired. Maybe someone will punch me, file a grievance or just yell at me. I would welcome it. It never happens because of the "show no weakness" rule. To actually want to talk about the issues I raise would mean that just maybe I have a point and that would be a concession they do not make. Remember, it is a life long negotiation.

Finally, do they reflect? It is hard for me to know this but I doubt it. I noted in the last post a recent situation in which I asked something or proposed something and the responder just more or less made up a different question and argued against that one. I attempted to point that out with zero success. In fact, what I was met with was another example. Evidently it is a bubble that you only see if you have been outside the bubble.

Tuesday, February 15, 2011

I Don't Want to Be Right But . . .

Two elitist experiences today.

1. A colleague showed up at my office to "share" something with me that would be inappropriate for email. What was it? The mildest possible questioning of a proposal by Dean.

2. In a email I asked a colleague if it would be possible to announce the availability of some fun opportunities so all those interested could apply and the best candidates selected. The answer: What I was proposing would mean picking less qualified candidates.

I covered the do not write it down rule in my last post. I neglected to mention that principles are only applied when they serve your ends and the "if you have no response, make up a different question and answer that." That, of course, was what happened in the second case.

Thursday, February 10, 2011

Elites Grading Their Kids

Years ago at my school there was a bit of a scandal because sons and daughters were registering for their father's classes. This was, to me at least, bad enough but increasingly it appeared these were average students who did much better when dad was the prof. It went on for years with complaints to the dean who used the old "it's a matter for the faculty" wimpy way to avoid the issue.

Finally, through some miracle I do not understand, the issue was put before the faculty and a rule passed that you could not have family members in your class. Of course, at that moment there were several children in the classes of a parent. So what to do? One of the elites argued it was an ex post facto rule and could not be applied to to current students. I imagine this reasoning appealed to many although I thought it was crazy. Sure we had made a new rule but wasn't there always a common sense ethical rule already in place. Didn't the fact the we had voted unanimously in favor of the new rule mean that any reasonable person would realize that having your kid in your class raised issues. Elites are not big on common sense when it does not cut in their favor.

But then the next comment made my jaw drop. A parent with a child currently in his class spoke up. He said that his child registered for the class because he was confident he would get an A from his father. If the rule were to take effect immediately, it would be unfair to his son. Back then we did not have WTF or OMG because there was no texting. But my reaction was definitely WTF or OMG. It made me think. Did slavery only become unacceptable when there was an official rule. Was raping your wife really OK until spousal rape was officially recognized. The elites live in a very special world of entitlements and it had played out as I should have expected. Those caught with their hands in the cookie jar walked.