Saturday, February 9, 2013

Justice Sotomayor on being a lawyer, and me one her being in "O"

I'm a member of the American Bar Association, which means that I get their weekly email updating me on events of the past week, legal wise, which rarely actually have anything much to do with the law.  They're interesting, but like most modern journals, they are also open to comments.  I sort of scan the comments, and usually wish I hadn't.

 Law office, Plymouth Massachusetts.  Not much of a place.

I'm not sure why, but the folks who comment on the ABA articles are amongst the most extreme on the planet.  This is particularly so where the topic is the occupation of practicing law.  Probably over half of the comments on any one such topic are extremely hostile to the practice itself.  A few always counter that its the greatest thing ever.  Hardly any middle of the road, reasoned, posts are ever there. A few people try, but they tend to get shouted out.  Or maybe just ignored.  The really hostile people are busy debating each other.  You get the impression that one half is practicing in a combat zone, and the other half rides unicorns to their job of dancing in daisies.  It's rather odd.

 Extremely well turned out New York City lawyer, 1914. This lawyer probably meets the public perception of a lawyer in more than one way, and probably was in the 1914 equivalent of "big law."  Note the tailored suit, bowler, walking stick and cigar.

For some reason, certain types of forums attract real extremists, while others do not.  Newspapers, for one, and general journals, such as the ABA Journal, really attract extremists.  It's odd, but true.  When I review newpaper articles online, which generally allow for direct commentary, I tend to find that the most extreme people on the planet make up about half the comments.  In the case of the local newspaper, it seems to be the same few really extreme people.  Having said that, however, New York Times articles seem to attract the same hostile, ill informed, elements.  People are hostile in their ignorance and like to shout everyone else down.  In at least one recent Casper Star Tribune example the comments were downright mean in a way that would be hard to justify, and which the paper really ought to take out.  I know the same people wouldn't express such views in public, even if they privately  harbor them.  The ABA online articles, which I'll confess I rarely actually read,  are the same way, as they attract serial hostile or extreme commentators.  It's a little weird, frankly as there seems to be a few people who are really miffed and want everyone to know that, weekly. It's pretty apparent, when you read them, that the same people post again and again, as the dueling commentators seem to recognize each other.

 Newspaper vendor yelling out the news.  Now a lot of people seem to spend time yelling in journals.

I'll note, however, that quite a few blogs and forums are not this way at all, including "Blawgs" (law blogs).  It must be something about the format, or perhaps that they're actively moderated, allowing for more intelligent and informed discussion to occur.

This topic isn't limited to lawyers by any means, but that there'd be some miffed lawyers commenting is no surprise, as the practice has really been the focus of investigation of the topic of discontent recently.  Maybe this has been the trend for awhile, but it definately has been recently.  The 2008 collapse of the economy was particularly hard on lawyers nationwide, and as a group there a group that the general public is particularly disinterested in.  People worry about assembly line workers at General Motors loosing their jobs, but they don't worry too much about lawyers loosing theirs, and a fair number of the general public laugh a bit about it.  That's not a new development, but what is a new development is that law schools had been producing record numbers of lawyers and the newly minted lawyers had unrealistic expectations about their careers and how lucrative they could expect it to be. The crash caused quite a deflation in expectations of all sorts.

 Lawyers as they actually are.  This lawyer, in 1914, is sitting in a library with papers and with a suit that's bit rumbled.  A scene pretty familiar to most courtroom lawyers who spent a lot more time in the library than the courtroom. This was the case when I first practiced, but today that same lawyer would be sitting in his office, alone, in front of his computer which would have WestLaw or Lexis up on the monitor.

Truth be known, being a lawyer is very hard work, which is why lawyers have traditionally done better than others in the economy, even though the period in which they did very well was very brief, and not the historical norm.  Any job that's somewhat difficult to obtain and has difficult working conditions pays better than others.  It's a law of supply and demand type of deal.  It used to be somewhat more difficult to become a lawyer than other things requiring a post secondary school education, if we take the approximate 1930 to 2000 time frame.  That is well known.  But what was very much less well known is that being a lawyer is really hard difficult work.

 Kansas lawyer, right, 1913.  Casual observers sometimes assume that lawyers dress formally as they're wealthy, when in fact its because its expected of them and part of their office. Goodness knows there'd be no other excuse for wearing a hat like that. 

Regarding that education, it's now not as hard to get as it once was, as there's been a shift in the concept of professional schools over time.  I also frankly wonder if many university degrees in general are just easier, in terms of content, than they once were.  The method of teaching law, which used to be focused on the Socratic method, certainly seems to have changed, which is sad in that at least in my experience, having a degree in the sciences (geology) and in law, I found the Socratic method to be very effective and engaging.  At any rate, now, professional schools view themselves as species of businesses themselves, even though many are publicly supported.  Law schools are no different.  Institutions that used to admit a very selective number of people admit a lot more than they used to.  Some law schools used to use their exclusivity as a selling point, in fact, noting that most people who attempted to get in, would not.  And their educational approach has shifted a great deal.  Land grant colleges, which are very common in the West, used to take the approach that they were educating locals for local employment.  That idea is almost completely dead, as the same professional schools now imagine themselves graduating students for a new, exciting, global practice that for most lawyers doesn't exist, and which they couldn't compete in no matter where they graduated from.  Universities like the University of Wyoming, University of Nebraska, Kansas State, and so on, used to be very focused on their immediate states, and regions beyond that.  Specialty schools, like the Colorado School of Mines, or Texas Agricultural and Mining, were the same way in their fields, albeit with more of a regional, as opposed to state, focus.  That doesn't mean that their education was bad by any means, it wasn't, but rather that the focus was geographic.  At least in some instances recently, with at least law schools, this is no longer the case and law schools imagine themselves providing new graduates  to the entire nation, a trend which, I fear, will not serve them well long term.  Indeed, it already is not, as law school applications are plummeting and there's now a great deal of discussion about some of them disappearing. At the same time, there's been some much needed focus on how law schools approach recruitment, which is long overdue.

 Medical service officers in training during World War Two, some of whom would have been lawyers in their civilian occupations.  Contrary to what people presume now, being a lawyer did not result in a direct commission for inductees during World War Two and the Army didn't bother to assign lawyers automatically to the JAG Corps at the time. The Navy didn't even have a JAG Corps.  Service lawyers were drawn to that specialty based on need, but otherwise being a lawyer didn't result in a special assignment, and an inducted lawyer was just as likely to end up as an infantry private.

That I guess takes me to the second part of this which is the perception of "lawyer discontent."  It seems like there's a massive perception that a huge percentage of lawyers are unhappy with their work, or maybe just unhappy.  There's reason to question that as statistically invalid, but before we do, why would that perception, which Justice Sotomayor was naively attempting to address, exist?

Part of that may be the flooding of the market that's still going on, as law schools are still disgorging graduates at levels above that which the econmy can absorb, and those who are finding work in some regions are now finding it well below their economic expectation.  That raises several issues.

One is that people who entered law school with a focus on money are going to normally be disappointed.  The law just doesn't pay what people think it does.  Indeed, none of the professions actually do.  Law schools are to partially to blame here for not disabusing their students of this notion.  The first thing any new student should hear, from the law school, is that if you don't want to do the job for a wage in the lower to middle, middle class, you better look for something else.  That doesn't mean that a person should hope for more, and if they do the work, receive more, but starting out at $100,000 per year is not really that common in the real world.

The ABA deserves to be criticized here too as its bizarrely focused on the wages that are made at "big law" and it goes on and on about it.  Big law is a freakish anomaly having little to do with what most lawyers actually do.  Sure, some students enter "big law" upon graduation, but most do not.  The focus on it leads to the mistaken concept that those who don't enter it are some sort of failure, which is absurd.  But if that's the expectation that exist on the part of the ABA, that's also going to be the expectation of at least some of those entering law school too.  If you review the various forums for disgruntled law students out there, there seem to be a fair number who actually believed that.  That's just crazy.  Indeed, there's a lot of commentary that if a person has gone to a "tier one" law school, they're just doomed, which is nonsense in many areas.  I don't know any lawyer who has graduated from a "tier one" law school, including any of the judges, state or federal, that I practice in front of.  Indeed, I think darned near every judge I can think of around here graduated from the same state law school that I did, something I wish the law school would keep in mind as it shifts away from a focus on the state.

Beyond that, it's the case that lawyers in the private sector work really long hours routinely, and for decades.  There's a gross mis-preception that this is only something the newly minted experience, and the ABA type focus on "big law" and what "big law" pays means about as much to most lawyers as what major league baseball pays.  Yes, it pays well, but chances of the New York Yankees calling most of us up who can play baseball are about as good as most of us ending up in "big law," assuming we wanted to end up in "big law."  And the "big law" lawyers are working hard for that salary.  Those not working "big law," however, are also working pretty hard, and for a lot less. That's part of the discontent problem too, as the ABA, through its focus on this area, and the various others who are focusing on it, seem to be suggesting that the "big law" folks only work hard for a few years, at which time they cash in their chips, and everyone else is hardly working at all.  That's all complete baloney.  Law is pretty much a seven day a week job which follows you home every night.  The concept out there that you'll make a pile of cash quickly is just silly.  I see a lot of complaints about student loan debt in this context, but there that's the same story as for every other occupation.  A person investing in an education through loans needs to have a realistic expectation about economic returns.  Perhaps they now do, as law school admissions are way down nationwide, and I'd guess the debt to income ratio may have something to do with that.

As past of that, something that the money focused entrants might not appreciate is that, depending upon the field they enter, and if they're aiming for big cash there's just a very few, they'll be dealing with a lot of people in trouble.  You'd think that self evident, but I don't know that it is.  All civil court work, and 100% of criminal work, involves trouble and conflict.  People whose have a high love of money don't necessarily have a high love of distressed people.  While I haven't finished it yet, another posts in the works here involves people who were lawyers who became well known at something else, and to my surprise, a really well represented group in that category is clergymen.  It shouldn't have surprised me, however, as being a clergyman is pretty cerebral and it'd be natural, for those with high intellect but a deep love of people to move in that direction.  People with a lot of intelligence but focused on money are probably going to be unhappy instead.

Given that, it doesn't surprise me that there's discontent, but a recent statistical study by a bar of one of the southern states (I forget which one) suggested that the disconent story isn't real.  It turned out in that state bar that most practicing lawyers were not discontented.  This brings up the forum thing again, as what I really wonder is if the discontented are barking a lot louder than everyone else.  If they are, that might merely be because they're discontented.  I strongly suspect a lot of barkers on any one topic are, after all, the most extreme for one reason or another.  But I also think it might be because there's a fair number of people who went to law school for the wrong reason, aren't too happy with what they find, make that known, and then depart.  Indeed, there's a lot of attrition at the entry level.  So the entire story may be one of doubly inaccurate conceptualizations.  On the outside, a lot of people feel that all lawyers are rich, greedy rats who  don't work at all.  On the inside, the perception is developing that everyone is unhappy.  In reality, a few lawyers are rich greedy rats, but they're very few, and most lawyers probably keep on keeping on as they're not so miffed as the internet chatter would have everyone believe.

If all of this is the case, it doesn't surprise me that the topic of Sotomayor's interview received some true hostility.  But, at the same time, the interview made me wonder about Sotomayor a bit.

Justice Sotomayor has recently written a biography, which is fine and which I have no problems with (although I'm not going to read it).  So, as a result, she's making the book touring rounds.  That frankly bothers me, however, as a Supreme Court Justice isn't supposed to be a celebrity.  And it bothers me more that she appeared on Oprah.  I frankly really dislike Oprah.  Not personally, but professionally.  She strikes me as vapid.  Anything that's a current pop trend shows up there sooner or later, and without any attempt at standards.  So we get things like Tom Cruise acting like a freak after dumping his first wife and taking up with an actress barely out of diapers.  Not very dignified.  A real intellectual commentator would have taken after him for that.  It doesn't suprise me, therefore that Lance Armstrong would show up there to confess his misdeeds.  It does surprise me that Sonia Sotomayor showed up there, however.  But, by the same token, it surprised me that President Obama showed up there.  It's just very undignified and they ought not to have done it.

Sotomayor's personal history is interesting, and it should make for an itneresting read.  The fact that I'm not going to read it doesn't mean it would be bad, I'm just not interested in reading it.  I haven't read any of Justice Thomas' books either.  I guess, as a practicing lawyer, the biographies of justices don't appeal to me much.  They may very well appeal to others.

As a total aside, I should note here that while she fits into a category of lawyer, and judge, that's highly unique demographically, in that she's a woman of Puerto Rican extraction, the somewhat common assumption that most lawyers were white (or rather white males) up until quite recently is incorrect.  Most lawyers were men up until at least the 1990s, although there's been women lawyers in the US for a century or longer, depending upon the state.  Barring women from admission to the bar was pretty common in many localities, globally, up until just about a century ago, but membership in the bar on the part of minorities was not uncommon.  Indeed, the law has been one of the professions that has tended to be open to minorities, making it a bit unique.  Black lawyers have existed for a very long time, and other disadvantaged groups, such as the Irish at one point, always had members of their group who were lawyers.  In part, that reflects a need and a ready market.  Black lawyers, for example, could depend upon having black clients in an era when it might be difficult for a black person to find representation otherwise, or at least representation that they could fully trust.

African American lawyer, early 1940s.  Again, note that he's in a law library.

At any rate, however, I found her comment that the discontented group should go back to the origins of their becoming a lawyer to be a rather naive, but highly Oprah like comment.  Sotomayor herself came from pretty desperate straights but managed to go to Yale, meaning that she was going to be a success no matter what. That's to her credit. She also went right into real work, very much to her credit, and practices as a bonafide real world lawyer for twelve years.  She's been on the bench since 1991.  I can't find anything there to find fault with at all, and the critics who go after her for not knowing what real practice may be are completely off base.  She must, as she's done it.  I think, therefore, that the comment she made was a bit of an Oprah inspired platititude.  I hope so anyhow.

The reason that I hope so has more to do with her other observation, about pracitcing law being "a gift," than her comment about going back to the origins of practice. The reason I feel that is that the gift comment makes more sense.  I suspect, knowing something of Sotomayor's background,that the gift observation is correct and that the inspiration, probably, for her career was escaping her deprived background.  She did that, and no doubt made a very good lawyer too.  But that inspiration, if I'm right, is probably more common in some ways than supposed, or at least admitted. The idea that most who enter the practice of law are inspired by some grand and glorious ideal is probably pretty much off the mark, and she should know that too. That does describe some people, but probably not very many.  And, historically, I suspect the number of people like that are a pretty tiny miniority.

Which isn't to say that some people weren't inspired by such goals, or perhaps (at one time) by romantic literary depictions of lawyers, now a rarity, such as that of Atticus Finch in To Kill A Mockingbird.  Indeed, I've heard of people being inspired to enter the law by the portrayal of Finch.  If that's the case, at least that portrayal is much more accurate in some ways than modern portrayals in such things as Suits or LA Law.  Indeed, the portrayal of Finch should give wannabe lawyers pause, although few probably are inspired by it now, as he's a small town lawyer in the Lee's book and not really doing all that well.  He takes produce in for payment, and the couple of trials mentioned in the book are lost.  

As an aside, I will note that recently a father of a young man who is considering law school spoke to me and noted that Suits was the inspiration for his son's contemplation of law school, and of the father's support of it.  That does concern me.  I haven't watched Suits, and I'm not going to, but I can tell merely from the advertisements that Suits has about as much to do with the practice of law as playing Call of Duty has to do with actual ground combat in Afghanistan.  Not much.

Anyhow, Sotomayor's inspiration for entering law, no matter what her retrospective view of that topic may be, probably was to get solid employment that would lift her out of poverty. That worked.  It's a noble inspiration, but just doesn't read very dramatically.  It might work, I suppose, as a revived inspiration for flagging lawyers, but probably a lot, indeed, most, of those folks didn't come from poverty so their frame of reference might not really fit it.  Looking back, however, isn't a bad idea (the whole blog here is about it) but a person probably ought to be realistic about that.  I've met a lot of current lawyers when they were quite new and knew what inspired a few of them, but only with a very few was the inspiration something so grand.  Some just had a taste for practicing law, but with quite a few it was a career path open to them that appeared to be interesting and which also had the appearance of at least being able to provide a decent wage.  Indeed, I'm always very skeptical when somebody tells me that they "always dreamed of being a lawyer" or that that they "always knew that they wanted to be a lawyer."  In fact, the only person I've ever known well, who had that declaration, recently quit being a lawyer, and that person isn't even 50 years old, and probably isn't even 45 years old.  So they likely ceased that occupation without even two decades in it, granted two decades is a long time.

 Courtroom lawyers in "domestic" case, 1902.  Probably no rich men here.

This isn't to say that the original goals weren't entirely worthwhile.  I think they are, they're just mixed, in all likelihood, and more mundane than grand.  At some point something about the law attracted them, and it looked like it would work for a living.  That's a fine goal really.  If people now are dissatisfied in general, that may tell us something about their goals being unrealistic.  Or it might not.  But I think it somewhat does.  The public portrayal of lawyers has gone form Atticus Finch, or the defense lawyer in Anatomy of  a Murder, or even the defense lawyer in A Few Good Men, to the icky portrayals of the overly wealthy suits in Suits, LA Law, or Boston Legal.  That sort of portrayal shouldn't inspire anyone, but it does seem to reflect the yammering of the ABA, which seems to think that everyone wants to practice law in a a super sized firm in a super sized city, and it isn't helped by the fact that law schools approach their task from a market prospective but aren't always honest with their charges about what a law degree actually means..  And, by extension, the discontent reflects the crying in their Perrier view of a lot of recent law grads on the net, who seem to think that's where the real law is.

Truth be known, the real law isn't there and never has been.  A lot of the really fine acute lawyers are out in the trenches and are graduates of third tier schools.  Gerry Spence, I'd note, who some regards as the nation's premier trial attorney, was a graduate of the University of Wyoming before practicing law in Riverton, Casper, and the Jackson, Wyoming.  I myself have tried a lot of cases, so many that I had to laugh at an ABA interview of a California lawyer who thought she'd tried a lot of them as, by career's end, she'd tried 13 (as if that's a lot, what a joke), against many fine lawyers, but not one of them was in a "big law" firm and the best of them were UW grads.  What that tells a person, I think, is that a law degree basically entitles a person to take the bar, and if they pass that, it entitles them to work at the profession. That's about it.  In terms of expectations, economically, that doesn't mean that they've won the lottery and it shouldn't.  An evolution in legal business thinking in the 1970s and 1980s, when the entire culture became very money focused, may have coincided with a bubble that meant that people were making more money, on average, than they did in earlier eras, but things like that tend to correct, and that's no longer so much the case.  If people coming into the practice now expect it to be, if they they came in some time ago and are disappointed that the reality doesn't match the perception, that's not reality's fault.

I suspect also that this is more common society wide than lawyers suspect, and tat perhaps that's missed as vocalization is a trait that lawyers are trained in.  The reason I suspect this, however, is that up until at least 1945, people did not go on to university as a rule, and the economic class that did was usually quite well off.  The professions were an exception to this, but overall what this meant is that people pursuing a university degree of any kind, if they were not WASPs, were pretty focused from the onset.  Now attending university has almost become an extension of high school, a mere expectation. For that matter, graduating from high school prior to 1945 was much less common. The GI Bill started a change in all of this, and it wasn't a bad change as it boosted the economic fortune of generations, but like all such things widespread college attendance may have run its course awhile ago.  Now, a lot of people are obtaining degrees, even advanced degrees, whose motives are not the same as earlier generations, and whose exposure to a world without such degrees is not as keen.  In other words, I suspect that law school grads, medical school grads, engineering grads, etc., etc., of 1923, or 1953, looked at the world quite a bit differently than some grads do today.  I've met some university graduates, even law school graduates, who came away with their degrees with a "well now what?" kind of view of the world, which isn't, I suspect what very many earlier graduates, unless they were members of the idle rich, would have had.

In noting that, I'm not really criticizing people, but I may be criticizing institutions.  It seems that our economy has moved to the point where the young, unless they are born into a viable business, must attend university or they will be doomed to a life at the bottom end of the service economy.  Indeed, with university degrees becoming so widespread, its' now the case that even a university degree may not always result in the opposite.  I see a lot of wedding announcements in our local paper in which both parties have university degrees but are working at jobs that shouldn't require them and which are more than "starter" or temporary jobs. Those folks have basically spent four years in university for no good reason, other than that our economy is now somewhat warped.

It's frightening to think that a Juris Doctorate may be on the verge of becoming such a degree, and I don't think it is yet.  But there is a very high initial attrition of new lawyers, and a lot of discontent at the entry level.  Part of that, I suspect, may be for the same reasons.  I suspect that some of these folks are just wondering into a really hard working profession.  They probably sort of meandered through their undergraduate, had no place else to go, bought into the law school and ABA propaganda, and found themselves in something they didn't naturally like but which requires massive dedication.  I'm scared to think that their may physicians who meet this description as well.  Anyhow, those folks probably would have been happier as machinists, or something, but who ended up as lawyers as there was basically no place else for them to go.  We can't expect them to be too cheerful.  And Justice Sotomayor's advice won't help them, as they never really thought out what they were doing from the onset.  Or at least that's my observational guess.

I also worry a little about the potential lack of diverse intellect that such an evolution in the law students may herald.  Lawyers tend to be polymaths, at least the goods ones are, and if people are wondering into it because they are supposed to have a college degree and couldn't think of any other degrees to get, that's not necessarily a good thing.  Better lawyers are curious people, and they often tend to have a lot of highly diverse, but sometimes intense, interests.  That doesn't mean that there aren't a lot of really good lawyers who basically ended up there simply because the are polymaths and their interests were in everything, but there is a certain dullness of character for people just mushing their way through university, even if that mushing takes them to and advance degree. 

Okay, so what on earth does that have to do with the focus of the blog?  Well, maybe not much  But it does sort of relate to one of the characters I'm trying to develop, novel wise, and it is a topic that comes up a lot, in one way or another, on the Today In Wyoming's History blog.  It wouldn't be fair to say by any means that all the significant early, let's say pre World War Two, figures in Wyoming's political history were lawyers, but a lot of them sure were.  I've actually been surprised by the number.  Many of the early governors were, and many of the early Senators and Congressmen were.  And, and of course it would stand to reason, most of these men were graduates from out of state schools. The early ones had to be, or they had to have "read the law," as UW's College of Law didn't come about until, I think, 1920.  But I haven't really ran across much about them individually.  That is, why did they enter the law?  And why did they take their practice to Wyoming?  I note that a lot of them came to the state very soon after graduating from law school, and then pretty quickly entered politics or professional office. That has to lead me to believe that they were pretty opportunistic as a rule.  Later ones seem to have sometimes been mixed in careers, i.e., lawyers and ranchers, or lawyers and correspondents, and the like.  That probably reflects something else, and it reflects something that used to be fairly common here, but no longer really is.

 Lawyer from a western state, 1926.  He's basically turned out as expected, except for his hat, which isn't a bowler, rather obviously.

So what can we take away from all of this?  Well, I'd propose the following:

1.  Comments in general journals, the ABA Journal or the local newspaper, or even the New York Times, probably aren't worth much as the folks who comment are likely to be extremists.

2.  Comments on moderated forums and blogs mean more, probably.

3.  A person has to be careful about statistics, no matter what they're on, as statistics without analysis, or without careful science behind them, can be misleading.

4.  I wish serious people, like Sotomayor, would give interviews to interviewers I could take more seriously, rather than Oprah.  I really do.

5.  Are universities and professional schools failing people?  There sure seem to be a lot of people entering work that wouldn't require a BA or BS, and it's odd to think of people getting post graduate degrees and then finding them unsatisfactory, or does that just take us back to #3?

6.  What's it say about our economy that so many people now must obtain a university degree, even though they seemingly may not be suited for what they're studying?

7.  What were those early Wyoming lawyers like?

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