Law Student and Lawyer Stories

At the outset of today’s post, I would like to thank Prof. Larry Krieger for taking the time to visit my blog and to provide me with additional resources to better understand the movement to humanize legal education.  As I delve into the subject in more depth, be sure to check out the comprehensive set of links and resources on the blog roll to the right.

Today’s post marks the inauguration of a new type of discussion on the blog: “Law Student and Lawyer Stories.”  As I read the literature underlying and related to the movement to humanize legal education, I continually have moments of recognition in experiences I myself have had.  Things that I thought were wrong at the time but where I couldn’t articulate exactly what was bothering me about them.  These are the types of stories I want to collect here.

I will get the ball rolling with the story below, but my hope is that this is a category in which I can encourage students and others to contribute their own posts, as well as comments.

I am in the midst of reviewing and commenting on Elizabeth Mertz’s study of the intellectual and personal transformation students undergo in their first year of law school, reported in her book, “The language of Law School.”  One of Mertz’s primary observations from her systematic study of the language used in first-year contracts classes is that students are taught to focus not on content and morality, but on form and authority.  (Mertz at 4)  Thus, learning to think like a lawyer means no longer asking “what’s fair” but asking “what the law says you can or can’t do.”  (Mertz at 10)

Notice the shift between intrinsic values (your internal moral compass) to extrinsic authority (an external guide over which you have no influence or control).  The shift deprives you of agency but also relieves you of accountability.  How many times do lawyers or judges concede, “I know it’s not fair but that’s what the law says.”

As if “the law” were a disembodied voice residing somewhere above the sphere of human activities.  As if the law weren’t really something we created and we can change.  This would be a democratic and empowering view of the law—precisely the type of view that Mertz finds is discouraged when we learn to “think like a lawyer.”  In a sense, we learn not only that our clients are powerless before the law, but that we are as well.

This dynamic—of referring not to our own moral sense but to an external authority to resolve human conflict—perfectly describes the first (but certainly not the last) time I earned the reputation in my law firm as being someone who was “difficult to work with.”

The occasion was a Summer Associate training session at one of Denver’s pre-eminent law firms.  I was, at the time, a summer associate.  The subject of the training was sexual harassment.  Having been involved in different types of organizations over the years with all manner of personnel training, I thought I knew pretty much what to expect.  But this training was different.

Instead of discussing the respect we should show our co-workers, what behavior was OK and not OK, how to be sensitive to power dynamics, or who we should talk to if we felt we were being harassed by a more sernior attorney, the presenters—partners in the law firm’s Employment group—explained in detail the state of federal sexual harassment case law, which amounted to a description of what you can get away with before your conduct is actionable.

I was stunned.  During the session I asked, “Shouldn’t our standard for how we treat each other be higher than what the law permits?”  In response I received blank stares of non-recognition.  It reminded me so much of law school—the perplexed expression I would see on my professors’ faces when I asked about how these legal rules affected human dignity.  The utter lack of intellectual connection because my questions were so far outside the relevance of what we were discussing.  Questions of fairness were naive and irrelevant—two of the greatest sins of legal discourse.

Now, as a law professor, I try to at once accurately describe the rigidity of legal thought, while acknowledging questions of fairness and the human impact of the law.  But ultimately, with the passage of time and experiences, I have learned to think like a lawyer.  I’m not convinced that I do a great job of escaping my training, which was, after all, hard-sought.


3 responses to “Law Student and Lawyer Stories

  1. I became so disillusioned with the lack of humanity in law that, after my first year, I took some time away from law school to reflect upon if I ever wanted to be associated with lawyers.

    My B.A. is in Molecular Biology and I always thought I would go into the health fields until I realized how difficult the application process would be compared to going to law school. Wanting some stability in my life, I took the easy way out and came to law school. It took me two weeks of classes to realize I had made a mistake.

    There were many reasons I decided I did not want to be a lawyer, at least not yet. I have a hard time grasping that the rules gleaned from the cases were intended to be taken as governing fact. As someone who studied science, I think of rules as things that can be mathematically proven and that can be tested repeatedly while yielding the same results. You can’t easily argue with scientific rules, but you can debate legal rules, and legal rules can be changed on a whim.

    I also decided I needed some time away from law school because I find helping people to be very satisfying and I never saw how the law helped people during my first year. I read the cases with a sense of horror; how much of these plaintiff’s and defendant’s lives had been wasted litigating issues that probably could’ve been resolved if both parties had been willing to give and take a little? While I realize the law has an important place in establishing order in the country, among other things, the law seems like a waste of time to me in many ways. Americans love being able to blame someone else, the law facilitates this, and I did not want to be a part of the vicious cycle.

    • susannahpollvogt

      You raise some excellent points, and I am certain many others—law students and lawyers alike—share your feeling of frustration.

  2. Charlene Madrid

    I have found the law and following the law to be refreshing. It allows for some sort of stability in this chaotic world. While it is not a perfect system, it is the best system I can think of. I agree that we should humanize the law and strive for higher standards, but there must be a floor in place for us to reach for the ceiling.

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