The Depressing Issue of the state bar journal and institutional blindness. Patch 'em up and send 'em back into battle.

 

Some time last week the most recent issue of the state bar journal arrived.

I always read it, although it doesn't always take me long to read it.  There's usually some interesting articles in any one issue.

I usually don't read it right away either, for whatever reason.  It's one of those magazines that hang around for a few days before I get to it, usually.  I sort of wish I hadn't read this issue at all.

The magazine is usually centered around a theme, and several articles will be on that month's them.  When this issue came the cover asked if you "Can imagine a world without lawyers?"

Now, first of all I'll note that I don't like articles that take that theme as a rule, and I've seen more than one. Usually articles like that by any one person in a field they're writing about approach some state of hagiography (this one included).  And it's really a straw man argument in the first place in regards to lawyers. There's no earthly way you have a world without lawyers as every society has some sort of role that is equivalent to lawyers even if they're not called lawyers, and in the modern world they're normally called lawyers.  The Soviet Union had lawyers, for instance, and its not exactly a society that we imagine had a lot of really independent court action.  So you really can't imagine a society without lawyers as society by definition has lawyers.

Shoot, even if you've played Monopoly or something like it as a kid, somebody was some kind of lawyer. ..  the one who knew the rules.

Additionally, the article was written by the prior law school dean, whom I'm a little miffed at.  That dean ended up in a spat with the then president of the university as the president of the university took the position that UW should have a special legal focus on law in the energy sector.  In looking at things that way he was not proposing "no more tort law" or something but he was alive to the fact that smaller land grant schools, and we are one, need to be pretty concentrated on what the heck we're doing or we loose out to bigger universities.  What's special about the UW law school, in other words, that will attract people to it?  He had a concept.  There needs to be one for the academic departments of smaller land grant schools in an era when there's not exactly a shortage of universities and colleges.

This is particularly true of law schools, I'd note, as they're in real trouble (and there's a rosy article on that in this issue, more on that later) and need to have a reason to exist. Since the state boarded the barque across the River Styx by adopting the Universal Bar Exam there's nearly no reason to even have a law school in Wyoming anymore, and the president was giving it a survivable focus, maybe. The the then dean opposed it, and the students, naive to what the UBE means for them in the state, backed the Dean.  It was short sighted.

Anyhow, seeing the cover title,I figured that was what the theme of the issue was.  It clearly wasn't, however.  I'm not sure what the them was, but if there was one, it would seem to be that "things are bad for lawyers."

One article in the magazine was by a lawyer I well know, as we share a common set of relatives. We're not directly related ourselves, but we share so many cousins we might as well be.  I have a set of near relatives in town that fit that definition and if we're not quite family we're something other than simple acquaintances or friends in the conventional sense.  That article was disheartening as it dealt with her adopted daughters struggle with addiction and depression, which caught me by surprise.  I should have known that, but I didn't.  In mentioning it to my son, who was only a year or so behind that individual in high school, he was aware of it and was surprised I wasn't, which is good I suppose.  The article closed with advice to young lawyers to "love deeply", to grow from pain, and not to judge.  The advice to all lawyers was to support other lawyers who need help and to cherish our clients. All good advice, in context, I suppose.

As an aside, I'll note that the article reported that her daughters descent into depression was brought about by marijuana.  I'm not surprised by this, but I am tired of the repeated articles I see by weed fans that there's no risk to it at all.  Baloney.  It's dangerous, and can be very dangerous.

Going back towards the front of the magazine there was an article by the State Bar Counsel, who has an article in every issue. This one, however, was deeply personal and detailed that our bar counsel, who had a very long career prior to taking up that role as a practicing trial lawyer, had been back east at a conference on lawyer well being only to find out that a friend of his, a law school colleague who lived in that state and whom he was going to meet with, had killed himself just days prior to the conference.    Pretty shocking and very sad.

The article concluded with an admonition from that conference about how every lawyer needs to take a role in lawyer well being and to overcoming what the conference holder apparently asserted was denial of a problem.  The article closed with the request that we, i.e., the lawyers, get to work on this.

Well, I don't think lawyers deny there is a problem in the profession.  Indeed, I've heard some lawyers speak of it very, very openly.  But I don't think we're going to do a darned thing about it and I don't even think we can.  If reform is coming, we're not the ones who are going to do it, as it would require a massive reform of the very system itself.  We have no interest in that whatsoever and can't imagine any other system anyway.  It's not that individual lawyers don't have an interest in it, but the system that's eating practitioners alive right now developed over a long course of time and it isn't going away soon.

Indeed, it will take the passing of the entire Boomer generation of lawyers and the one or two that came after them to make it pass and even then that's doubtful  The Boomer generation famously rejected materialistic pursuits, or so they claimed, in the 1960s but they took up the banner of materialism ferociously in the 1970s and have never let go.  It's that spirit that dominates the profession and that's not going to change.  The discussion isn't even about attempting to change it.  All of the discussion about the profession is instead about patching up the wounded to send them back in the battle for the bucks.

Wounded in New Guinea, World War Two.  This soldier likely didn't go home, he likely recovered and went into combat.  Whatever psychological wounds he had he likely carried for the rest of his life.

Its not just the conversion of the legal field from a profession into a materialistic pursuit that created this problem and I don't want to suggest it is, solely. That made it worse.  The very nature of American jurisprudence is very high stress and that leads to the problem of stress induced collapse of all type.  That's my point here.  State Bar programs tend to be addressed towards treating the symptoms and, when the suffering individual is sufficiently able, to send the sufferer back out into practice.  I've never seen any suggestion in any of these articles that the root cause of the problem should in any way be amended.  That is, the articles often note that being a lawyer is "high stress" but I've never seen any article, ever, ponder why the profession of law became so high stress.  Never.

Indeed every single program state bars or big bar organizations have to address what they all now acknowledge is a crisis in the field works this way.  On the occasions in which they run stories about program successes that feature testimonials they tend to be from brave lawyers who are willing to admit that they went through such a problem and went back into practice.  The only other articles we tend to see are the ones from lawyers who flamed out and met with a bad end.  We rarely see American articles from lawyers who crashed and recovered by getting their discharge from the field of combat, although I have read just such an article from a Canadian lawyer who ended up disbarred (or maybe suspended), lost his family, etc., etc., but was actually happy that his career had been terminated.

More often than that, we just deny that anything is going on, which is why nothing will change.  We accept the conditions, whether we should or not, and therefore ought to be pondering what we can do to arm people against them, rather than bemoaning the losses and suggesting that patching the victims up is the solution.

 King David of Scotland knighting a squire. This is, in a way, the way most law careers start out, in the minds of the newly minted lawyers, and in the myth of the law.  But in reality a lot of knights ended up dead, and some went rogue.  If we believe that men in the Middle Ages were like men now, no doubt some lived in horror of what they'd seen and probably some were glad when the Welsh archers found their personal mark.

A strong aspect of this is that we have an adversarial system of justice.  Only nations that have justice systems that descend from English Common Law have this system, and most haven't' taken it anywhere near as  far as we have.  The Common Law trial system itself, as I've noted before, was a substitute for trial by combat and lawyers are substitutes, in that system for Champions, who were (let's admit it) mercenaries.  I'm not criticizing lawyers today when I say that our trial system is a species of combat and lawyers are mercenaries in those battles.  That's the truth of it.  Another truth of that is, however, that being a mercenary takes a toll on the mercenary.  People admire mercenaries only if they're Soldier of Fortune fanboys or the viewers of odd movies, like The Wild Geese or The Dogs of War.  In reality, few people are really thrilled if a mercenary sits down to eat lunch with them.  Same thing is true of lawyers. And fighting for money is corrosive on your personality no matter who you are. There are lawyers who are saints, to be sure, but there are a lot more than are pretty dedicated sinners.  No wonder addiction to drugs, alcohol, gambling, pornography and vice of all types is so strong in the legal field.

 

Mercenaries in the Congo, with rebel troops, 1960s.  Lawyers have more in common with these guys than we'd care to admit and in more ways than one.

And just as patching up a mercenary and sending him back into battle is perfectly possible, just doing that really doesn't address the bigger problem and there's no way within the field to do it.  What are we going to do, as lawyers? Say, geez, this system that we've told the public is the greatest legal system on Earth really isn't?  We're not going to do that.  Most of us don't even know that this isn't the only really functional legal system and would be amazed that most Western nations don't use anything like it and yet have fair legal systems.

There are other advanced legal systems which are fair, just and not adversarial in the same fashion.  We don't know much about them and we aren't going to do anything, myself included, to suggest that adopting them or elements of them would be a good idea.  Nobody is going to stand up, for example, in the next Iowa state legislature and suggest that Iowa model its trial procedure on that of France.  Nope.  Not going to happen.

Not that I won't pitch a few ideas, mind you.

The article by the State Bar President in this issue came about due to an ostensible conversation with his young son, in which that child asked his parent what sort of law he did.  That article starts off with a joke from the President reminding the child that the family needed more doctors, but not lawyers.  I've now heard that joke too many times for me to take it as a joke and I think it reflects conversations that really take place in many households.  Indeed, one lawyer I know with young children keeps a list of other careers taped to his refrigerator for his children to view.  That taps back into another aspect of this, which is the now tired idea that we must make absolutely sure that our children are doctors or lawyers.

Indeed, I know plenty of lawyers who think just this way. "Be a doctor", the advice consistently is. Funny thing is that I hear a lot of doctors complain that their profession ain't what it used to be either, and I believe it.  If there's any profession that has been taken over more by the Siren Call of Money than the law, and I doubt there is, it would probably be the medical field. Be a doctor and make a lot of money is the common theme there.

Of course just saying this makes me sound like some sort of raging radical who would have been in the Petrograd Delusional Club in 1917, which I would not be.   I am in, I suppose the Chestertonian-Beloocian Public House Meeting Society by default.  And in that, I think the evolution of the modern economy as done a huge disservice to mankind.  I'm not in the camp that would urge any child not to attend university as its clear the modern economy has evolved to where that's a practical necessity unless you are the benefactor of a being in a family that's retained some sort of business you can run without doing that, and even then I'd still counsel you to go.  It's unfortunately, to say the least, as we've developed a whole range of jobs, which if statistics are correct, most people actually dislike.  As we've said here before, 70% of Americans dislike their jobs.  Pretty shocking.

In other words, Mike Rowe has a point, but it's a point that most people don't listen to for societal reasons.

Don Quixote, knight errant, which has some analogies to the topic being discussed here today.

Which doesn't equate, I'd note, with what the bar magazine is discussing.  The articles aren't speaking about lawyer satisfaction rates, they're writing about the practice of law eating lawyers alive and urging a Quixotic effort to take that on which we aren't going to do.  Indeed, we frankly aren't even going to look at the things we could do, even those things that wouldn't require a massive overhaul of the justice system itself. Patch 'em up and send them back in. . . everything will be fine.

Indeed, we aren't going to do the one thing that would be really easy to do, which would be to limit entry into the field and attempt to make sure that those entering it know what they are getting into and appear to be psychologically and temperamentally prepared to take what is coming their way.  We don't do anything of that type whatsoever..  We should, but we're not going to. Which takes me to the comments published by the current law school dean in this issue. The dean relates how applications for entry to law schools across the nation have declined over the past few years (which is supposed to be bad) although their up a bit now, but that this is a really good time for people to apply to law school, he says, as it should be easier to get in than ever.

A fine example of how law schools are making the practice of law worse.

This isn't the only way they're doing that, I'll note.  Law school support for the Uniform Bar Exam is widespread and that's massively detrimental to actual practitioners, which most law school graduates ultimately become.  Both stem from the systemic philosophical failure of modern law schools which is the logic that; 1) we need to stay in business no matter what; which means 2) we need to keep churning out graduates at the same rate and; 3) they need to be admitted to some bar no matter how ill prepared, in every since, they are to practice real law.

 Tire production line. . . pretty much the same way law schools view their students.  Not enough demand. . . well somebody needs to buy more cars. . . .

It's a disservice to their students and a disservice to the profession.

And it need not be so.

When I was in basic training at Ft. Sill, Oklahoma, Sgt. Ronald E. Adams, one of our drill sergeants, informed us that he intended to break us down, if at all possible, both physically and psychologically.  He intended to do this, he declared, not because we were bad people if we failed, indeed he said quite the opposite, but rather because if we were going to fail, he'd rather it happen at Ft. Sill in basic training than in combat where other people could be killed when we broke down.  That logic should apply to law school.

It did basically apply to my undergraduate field of geology. 

 

Optical mineralogy lab at the University of Wyoming, circa 1986.  This was the last lab in this major a lot of students in the field would ever take, and not for a cheerful reason.

When I was a geology student at the University of Wyoming we were required to take Optical Mineralogy which was, we knew, a "weed out" class.  It was required for the major and you could only take it twice.  If you didn't get by the class with a grade of D, you were out of the program and could never get a degree with a geology major.  On the first day of class, the professor, Dr. Meyers, asked how many students were taking the class for the second time. A smattering of hands went up, including a couple of hands from graduate students that hadn't had to take Optical Mineralogy in their undergraduate programs from elsewhere (almost no graduate student in the geology department was from UW as UW didn't favor admitting its own students into the graduate program).  Dr. Meyers then noted that these were the people we had to watch as "we fail half this class".

That statement wasn't a joke. The grade in the class was curved and 50% of the class was made to fail no matter how good their grades were.  So grades of C and the like on tests were basically failing grades and even grades that were normally in the B range were barely in the D range.  The grade scale was designed to wipe out half of the enrollment in the class, more or less, considering that quite a few of the people who failed would just give up and not attempt a second chance (grad students had little choice but to attempt it).  Yes, I passed the class.

That wasn't the only geology department class that was a "weed out" class, however.  We had electives in the program we could take, but no matter what we took, at least one additional class would be a tough weed out class.  In my case, it was Invertebrate Paleontology, which I liked a great deal but which had a lab that was a nightmare.  Others took similar classes.  The point was that the geology department wanted to make sure that the students who came through the program stood up to academic rigor before they went out in the field or on to graduate school.

Law schools do nothing like that.

Contrary to what people tend to think, the hardest thing about modern law school has just been getting in, and even that isn't that hard.  The hurdle of getting over the baby steps of the LSAT are regarded as horrors by most law students who have never been through a more rigorous program.  Taking the LSAT twice in order to improve a score is very common when it should be the rule that you get one shot and one shot only.  The LSAT only tests logical thought, that's it, and if you have to actually study for that, you have no business in law school.

For that matter, law schools are a shadow of what they once were in terms of academic rigor and that's been followed up on as state after state has reduced the rigor of their bar exam with many now doing what Wyoming has done and having adopted the Uniform Bar Exam with no state test.

The concept that law school is really tough is common, but it's a breeze.  It can be really interesting, as the law can be really interesting, but  it is not hard, and its less tough now than ever.  At one time students had to worry about the long walk in law schools.  Not much anymore.

The long walk is something that also had an analogy to basic training and the geology department.  They had their own long walks.  In basic training, the long walk was an actual long walk.  When I went through basic training we had three long marches.  The first one was about seven miles, not bad. The next one after that was around fifteen, which is quite a hike with full pack and rifle. But the last one was thirty, which is a really grueling long march.  It started off early in the morning, like about 3:00 a.m., and ended up around 17:00 or so.  If you fell out of the march, you were done for good, discharged or recycled to a basic training unit that hadn't gotten to that step yet.  The concept was to see if you were physically able to endure the physical punishment of being a soldier.

In the geology department the same treatment was meeting out during Summer Field Class.  In that class we worked outdoors on various projects every day, making maps at night.  Part of the class involved following around Dr. Boyd, the same professor who taught paleontology, as he walked at high speed.  He was not a young man at the time, in his seventies if I recall correctly, but he could walk people in their twenties into the ground.  You didn't dare not keep up with him, let along because you needed to be wherever he was when he stopped to lecture.  A certain walk up a hill in the class was legendary and had acquired the nickname, in years prior to when I took it, of "the Bataan Death March", recalling that horrible event from World War Two.  While much of that was simply because Dr. Boyd was incredibly spry for a man of his (or younger) age, it was also to make the point that geology was an outdoor profession and you had to be able to endure the outdoors in order to work in it.

Law school, as noted, has nothing like this.  It should. And at one time, as also noted, it sort of did.

Law school is taught by the Socratic method, which basically means that its taught by debate. AT least it was when I was in law school, but I'm told now that this is increasingly rare and often professors just lecture, which would be incredibly dull.  At one time, students who were not prepared to engage in a debate with a professor were made to march out of the classroom, which was universally regarded as embarrassing.  By the time I was in law school, however, this was extremely rare, although I can recall it occurring at least once.

When I was in law school, however, it was still the case that a student had to be prepared to debate a professor and defined his own views of a case.  And there was sort of a weed out class in the form of some required classes that students took their first year in law school.  Only one of those classes, Contracts, was really hard, but that was only partially be design. The other reason was that the professor was awful.  At any rate, I'm told that today, the lecture style is just that, a lecture.

How boring. . .and ineffective in more than one way.

Okay, so what am I getting at?

We're starting to see a lot of articles about how the problems some lawyers develop later in practice can be traced all the way back to law school.  If law schools exist to train lawyers and prepare them to practice law, they ought to also exist to keep those who should note be doing that from doing it.  But instead they pitch to prospective students with absurd "you can do anything with a law degree arguments, allow a testing entry procedure in which applicants can defeat the test which they take to gain entry by taking it multiple times, encourage applications when they know that the number of jobs are down, and encourage the dilution of bar admission standards by arguing for the UBE.  In short, law schools are graduating students who have no business being lawyers, temperamentally, and they really don't care.

Law schools are not going to self reform any more than lawyers are going to demand a reform to the system of law we are trained in and work in.  If anyone could do this, it would have to be state bars, but they are headed in the opposite direction, drinking the Koolaide of  UBE.  If state bar entrance committees got a clue (not likely) and wanted to act on this problem, they could.

They could do that by requiring, first of all, that only graduates of ABA accredited law schools could apply for admission to the bar of their state, something our bar already does. But beyond that they could have real state specific bar exams that were rigorous and on the law of their states. There's no reason whatsoever that the passage of those exams should be much above 50% and there's no reason that an applicant should get to take it more than twice. . . ever.  And there's no reason to have reciprocity with other states.  That would reduce the number of lawyers to be sure, but (and we'll get to that) that would be a good thing.

That would basically reverse things to the way they were as recently as ten or fifteen years ago in most states, but going beyond that an applicant should have an undergraduate degree in some real academic field and something like "general pre law" or some undergraduate degree with "law" in the title doesn't cut it. Those degrees serve only to get a person into law school and are otherwise fairly worthless if the student fails to gain admission or later seeks to get out of law or must get out.

Likewise, the flood of bogus degrees with no application, including anything that has "[fill in blank here] Studies] is not useful.  How to sort these out is would be chore but a group of smart people like lawyers (assuming that's still the case, and given the flood of applicants and ease of application over the past couple of decades that is not necessarily true) ought to be able to figure that out.  Science degrees, engineering degrees, the classic liberal arts (history, English) etc. would count.  Weight out to be given in application to the hardest undergraduate degrees, say a 10% boost by implication in your LSAT scores.

And, and here's a real kicker, at least 10% of the faculty of any law school from which a student seeks admission from should have practiced law within the past five years.  Law schools tend to be a refuge from the practice of law and are packed with people who don't really know what practicing law is like.  Law school professors should be licensed in the state in which they're teaching, under the criteria noted above.

Finally, in my view, a lot of law schools can just go if they are just churning out graduates. For state land grant colleges like our own, if they aren't serving a need for the state, they can go. And I'm saying that about a school I graduated from.  I'm not saying it isn't serving the needs of the state, but right now I have very real doubts about it.

Would that cure the Lawyer Blues problem?  Probably not entirely.  But a much more rigorous academic program, more difficulty in getting in, and more difficulty getting admitted, would serve a lot of the same purpose that basic training does in the military.  It's a lot better to have students weeded out or broken down while they're at Square State College than it is to admit them and have them melt down while representing clients.  And I've seen that.

Will this occur.  No.  I wouldn't be surprised at this point to see a law school dean argue for admission for everyone who graduates from "Ol Big Square", along with a state provided comfort cat and a box of Twinkies to go with it.

And so, while I"m using on the problem, what else could we realistically do, but we're not?  That is, if we, the lawyers, are watching this train wreck, and we're urged by our state bar to do something, what else could we do, assuming that we're not going to argue for a change in the system of law itself, which we are not going to do (indeed, we're going to do nothing at all, but that's somewhat besides the hypothetical point).

One thing we could also do is require a readmission to the bar at some point.

Now, I'm not suggesting that lawyers retake the exam after a period of time, or at least not the full exam. But I am suggesting that perhaps after a decade or so, and then repeating every decade after that, something be done.  Perhaps a lawyer should have to honestly readmit and with certain representations.  Has he suffered a bar discipline and why?  Has he been having medical or psychological, or legal, troubles?  Is he/she actually practicing law?

Truck drivers and pilots have to have medical certificates to do their jobs.  What about lawyers?  That might be a good idea as well.

Policemen do with most agencies anymore, and they have to undergo, quite often a type of psychological examination.  I know, for instance, that applicants to be game wardens in Wyoming must sit through an interview with a psychologist.  If that's the case for game wardens, why isn't it for lawyers on a decadal basis.  Indeed, why isn't it at the point of admission.

Our state bar doesn't even have applicant interviews anymore, which used to be the final stage of admission.  But ti was deemed to serve no purpose and was long ago omitted. Omitted, I'll note, before the state specific test was omitted.  That probably ought to be brought back. And with it, why not require an interview with a psychologist?  If game wardens and policemen have to do it, why not lawyers?

Well, because we're a self policing bar, that's why, just like most others. And so we will not subject ourselves to that.

And indeed, over time, we've gone to a system that's basically designed to get people omitted, no matter what, after they've gone through a school training ground that's designed to churn them out and keep them in.

And then we wonder why things go wrong?

We recruit them to a field that's very high stress and a species of substituted combat based on lies that a person with a law degree is qualified to do something else, fail to test of their suitable, in any fashion, for the combat we're throwing them into, and fail to check up on them after they're engaged in it. When some fail, we patch them up and throw them back in. 

And we wonder why things go wrong?

Maybe, instead of congratulating ourselves on our wonderfulness on imagining how horrible the world would be without lawyers, we ought to wonder why we put so many of those wonderful lawyers into conditions that a lot of them, just as wonderful people, can't endure.

But we're not going to.

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Postscript

If all of this seems somewhat strident, and it likely does, let me note that if I had been at the same conference as our bar council and that question had been asked, I would have had to raise my hand.

That gives me a pretty strong set of opinions on this.

A few years ago I was handling the defense of a client in which the plaintiff was represented by a well known and highly respected plaintiff's attorney who was probably in his early 60s at the time.  I'd known of him, but hadn't met him, prior to that case.

I was surprised in the case by how disheveled he seemed to be.  I was also surprised that he wouldn't attend any of the out of state depositions, which isn't the norm for careful practitioners.  But beyond that it didn't seem to me that anything was really alarming about his behavior.  Then, one day, he called me up, after calling a lawyer who was handling the defense of another defendant in the action, and asked for the vacation of a set of dates.

I really debated granting the extension.  It seemed like an odd request and the case was heading relatively soon towards a set of motion hearings.  But usually we cooperate with each other on things like that, so I reluctantly agreed, although I felt really odd about it.

The next morning the other defense counsel texted me early in the morning. The plaintiff's lawyer had gone home that night and killed himself.  I didn't see it coming.

But maybe somebody could have.

And maybe he shouldn't have been in the profession, or have been allowed to stay in it.  Learning a little bit more about him after that, it seemed that it was well known that he was suffering from depression and he'd lived a truly tragic life.

Self policing bar indeed.