Lawyers and the Challenges of the Electronic Age

Recently I was reading a commentary by a young lawyer that was on working conditions. The commentary was not on technology, but it raised a really important point that is often missed, and indeed that relates directly to work environment.  As this blog tracks changes on an historical basis, and this is a pretty big one, it's well worth looking at.  That is, how has computerization and the Internet, both of which we've explored here at great length in the terms of the law, impacted work expectations vs. reality.  It's a bit disturbing in some ways.

 Lawyer, in this case an African American lawyer, the way it was.  Now this scene would be very rare, in a suit and tie, he's going through the books, the way that thousands of lawyers once did.  Now it'd be rare to find a lawyer dressed like this, and in a law library.

First of all, let's look back a bit.  Unfortunately, in doing this, I have to jump around a bit, so bear with me.

Law firms have been around as long as lawyers, that's no surprise. But the nature and position of lawyers within firms is quite a bit different now as compared to earlier eras.  If we go far enough back, let's say into the late 1700s, we'd find that most lawyers worked as general solos or in firms of just a few men.  There was no "Big Law", that category of firm so beloved by the ABA and whose fates sends the ABA into fits of angst.  A lot of other things were different too, and one of them was, by and large, that young would be lawyers basically apprenticed with firms "reading the law".  There were some professors who taught law but the big law schools, or for that matter, the small law schools, didn't exist.

This type of firm basically evolved along into the 20th Century, with there of course being modifications and changes depending upon where a person was, and the big firms, those darling beloveds of the ABA, did start to appear.  But much was different about the practice at the time.

Now, all lawyers kept libraries depending upon their ability to do so. And indeed, the law library remains the stock visual element in film in depicting lawyers, in their firms, at work.  And for a real reason.  The first thing any lawyer did in his own office was to resort to his own library.  If answers couldn't be found there, he might resort to the county law library or, if there was a Federal court, the Federal Court law library.  Beyond that, and perhaps surprising in context, the value of libraries was so appreciated by lawyers that it was very common for lawyers to use the libraries of other firms.  All this was true when I was first practicing.

 Typical court law library, this one in a Federal Courthouse in Seattle.

Now, leaping back to law firms for a second, up until after World War Two, while there were very large firms in big cities, by and large most law was quite local, and this remained the case well into the 1990s.  What wasn't the case, however, was the predominance of the "billable hour" and the business model of the modern firm.  

Billable hours have actually always existed to some degree. There's a reason that Lincoln said "a lawyers time is his stock and trade".  But following World War Two, and really more into the 1960s, there were other models as well.  Most of those simply died off, and in spite of the fact that some lawyers propose other models from time to time, the billable hour is firmly entrenched and it isn't going anywhere.  Lawyers, charge by the hour.

 

 Private lawyers' club library, New York.  This club apparently had quite the reputation at one time, but I'm not sure if it is still around.  If somebody knows of The Lawyers Club in NYC, let us know.

Now, getting back to the libraries, when we consider big projects or big litigation prior to the real dominance of the Internet, what that meant is that young lawyers assigned to research projects, or for that matter more established ones who were doing the same, spent hours and hours in law libraries reading, and then reducing their research to writing.  To give a typical example, a senior lawyer on a case would assign a project or a brief to a young lawyer, who would then spend several days, perhaps even a week of eight to ten hour days researching it, and then he'd reduced that to a written product by dictating (not typing or writing) his work, based upon the copies of cases he'd made and his hand written notes.

Common office scene up until the 1990s.  Secretary (in this case blind) typing while transcribing.  You can still find a few lawyers using Dictaphones, but for the most part this process is one of the past and a lawyer's first product is rendered in print from a computer.  Quite a few lawyers my age and younger, and I'm not young (age 52) generate nearly all of their finished written product themselves.  Voice has returned and is returning, however, in the form of dictating into the computer itself.

It took a long time.

Inside of firms, this was the norm for decades. Firms became highly acclimated to it, and so did the lawyers that grew up in that environment.

And what that meant is that a young lawyer assigned to very few cases actually, simply by default, engaged in a lot of work and thereby rendered quite a return. It wasn't some sort of conspiracy, it just was.  So, to put out one substantial summary brief a single lawyer might have 60 to 80 hours of time.

Now, that's all changed.

With the computer and Internet, the law library is a thing of the past to some degree.  Most more substantial firms still  have one, but quite a few solo practitioners do not.  And they don't need them.  If they have a Westlaw or Lexus account, they have the equivalent of a massive case law, law library, at their fingertips. They also have access, if they are willing to pay more, to the treatises that used to be one of the real pluses of a bigger law library.  But case law is a big deal.

Frankly, I think the product isn't as good as it was before the computer, but the speed at which it is produced is massively increased. Given our prior example, that 60 to 80 hour work product is now reduced to 20 or so hours.  That is, the average good young lawyer can probably do in 20 hours which once took 60, in terms of research and writing.

So one good lawyer is much more efficient than ever.

But, as the business model never contemplated this, and as most of the bigger firms are dominated by lawyers who came up in another era, and as overhead has not gone down, the work hour expectation has not been reduced.

This was the point of the complaining young lawyer.  Wherever he was, he was complaining that where he worked the older lawyers had expectations based on what things were like when their careers started, and things were now different. I'd never considered that, but that's really quite true.

Added to that, however, the younger lawyer probably hasn't considered that while libraries were always expensive, a time has gone on, overhead for firms has increased in every way. So, the business model is not only based on an earlier era, to some extent (and definitely not in all firms) but it may be necessary.

Indeed, the only area this isn't true is for solo practitioners, for whom costs should be way down. With a Westlaw account their libraries are as good as most big firms, and now that there's no real need for scriveners or secretaries, the one having yielding to another, and both to some degree to the computer, in a solo's office, they ought to be more competitive than ever.

All of which makes the ongoing super sized white shoe firms a real oddity.  They do keep on keeping on, but mostly it would seem due to reputation and history.  Mid sized regional firms ought to be a lot more competitive in terms of product than the big firms the ABA has on its perpetual worry list.  True, the internet lets these firms penetrate everywhere, which is something they do use to their advantage.  But the extent to which the advantage is perceived, as opposed to real, is another factor.

Anyhow, by way of that young Internet lawyer's example, he probably has to be working on a lot more things at one time to keep up his requirements than his fellows of 30 or 40 years ago.  And that may explain why so many of the "Millennial" generation lawyers don't stay in firms long. It wouldn't be the only reason, but part of one, I suspect.

On a totally different topic, another interesting is problem has become that young staff members becoming so totally acclimated to the electronic age that they operate in the assumption that the law, in terms of materials and evidence, is in that age.  It isn't.  I've really been noticing that recently.

Many documents are produced only in the electronic form now. A disk comes in the mail, or a thumb drive, or maybe somebody just dropboxes records to another lawyer. That's all well and good, but at the broken bottle end of the law, depositions and court, paper rules.  You can't turn to an witness and say "See!  See Mr. Witness, here in an electronic form within this piece of plastic is that letter that you wrote that says. . . .".

Nope, that's happening with paper.

But that is, interestingly enough not obvious to the totally electronically acclimated.  Recently I've noticed that I have to say "print out" rather than "give me" when getting ready for a deposition, or somebody will think that giving me a thumb drive is adequate.

Indeed, I'm not  the only one, I suspect, that's experienced this, as I've been in more than one deposition recently where a lawyer will say "look at this photo on my computer".  That's a totally worthless line of questioning in a deposition.

While on the topic of electronic acclimation, I've now noticed that the cell phone checking addiction that is common with teenagers has spread to lawyers. I've been in more than one deposition recently where lawyers are continually checking texts on their cell phone or looking at it.  I'm convinced that cell phones are a truly hideous invention and won't be good for us long term, and aren't good for us now.

Finally,  I note that a debate has broken out about a recent study which concluded that if legal services were fully automated the population of lawyers were correspondingly drop 13%.

Not so say some, including the New York Times.

Perhaps the missed story is that this has already happened, and impacted the lawyer population, and lawyers incomes, already.  I've addressed this above, basically, but automation is hitting big time and exactly at that time during which there is a surplus of lawyers.  If one lawyer can do the work in 1/5th of the time, this has to have an impact.  It hasn't reduced the population of lawyers yet, but like gasoline, lawyers are a surplus product that we continue to oddly generate irrespective of a lack of demand. We could do some things about that.  We could make the bar exam tougher, but instead we're making it travel, like the UBE, arguably making the situation worse.  Or we could reduce the number of students going through the system, indeed we could probably reduce that by half and not suffer.  Or we could make a legal education tougher.  There seems to be an idea it's really tough, but that's not really true.  Given recent opinions by the US. Supreme Court, making law school tougher and inserting some serious courses on the philosophy and history of law might be a good idea.

A Cornucopia of Unsettling Career Advice and Commentary

 Plan for stained glass window depicting the Lamb of God surrounded by depiction of  modern professionals: architect, dentist, typist, housewife, construction worker, doctor, businessman/husband, and psychiatrist.  To what extent this culture places anything more central than money is questionable.

Some of these posts meander, and this one certainly is going to.  But that's in part because I've been experiencing both some unsettling conversations in this arena and experiencing some synchronicity regarding it as well.  So here goes.

Let's start off with a comment I recently heard.

 Lawyer, sitting, at a desk (probably in a law library). Sitting remains a lawyer constant, but trips to the law library have nearly completely vanished due to on line legal research.*`

Recently I was sitting in a deposition when the very bright young lawyer across the table, who no doubt has a bright career in the law ahead of him, commented on how he just couldn't stand to be sedentary indoors.

Eh?

And you're a lawyer?

Lawyers may try to fool themselves about it, but being a lawyer is, always has been, and always will be, a sedentary career.  Indeed, it may be growing slightly more sedentary due to the computer, although it's always been fairly sedentary.  No two ways about it. It so surprised me that I commented "well you picked a funny career then", to which the another lawyer sitting there laughed and the court reporter loudly exclaimed "yeah".  The young lawyer seemed surprised, like maybe that had never occurred to him, and even looked unsettled.

Maybe he should be unsettled, as it wasn't all that long thereafter that I discovered that the Wyoming State Bar Association has a Facebook page.  I checked that Facebook page out as, of course, I'm a member of that association, all lawyers in the state are.  It was a bit of a shock for a peculiar reason. 

Wyoming lawyers have long used a phrase coined by one of our late bar presidents, Gerald Mason, that we're "proud to be a Wyoming lawyer".  Mason was seriously distressed by all the animosity directed at lawyers and thought if we had pride in ourselves it would combat and even reverse this, or at least he said that.  He seemed to be a pretty sincere fellow, based upon what very little I knew of him, so I think he genuinely believed it.  If so, he was highly naive on that score.

Indeed, I'm probably a rarity in that I've always been skeptical of the phrase, although I'll concede that there was and is some merit to it.  If we're proud to be a "Wyoming" lawyer, that means that there's something unique about being a Wyoming lawyer, as opposed to merely being a lawyer.  I think sometimes people using this phrase really mean that they're boosting the concept that lawyers should be proud of being lawyers, and indeed a recent article in our bar association magazine struck me that way.  There may be some merit to that as well, and I've listed an impressive list of lawyers on this website with some famous, and let's be frank, some infamous characters listed on it.  Anyhow, people who says we're "proud to be [Wyoming] lawyers" usually point to all the positive things lawyers do in society.  And there are quite a few.  If we say we're "proud to be a Wyoming lawyer", that ought to point to the unique things about that status, and there are quite a few, including that our state bar has been small enough that it has encouraged collegial behavior among lawyers.  Of course, that fact that the Wyoming Supreme Court forced the Uniform Bar Exam upon the state means that we're now to the lawyer population megalith of Colorado and there's been a flood of Colorado lawyers getting admitted into Wyoming while living in Colorado.  That's changing the practice here, and for those of us who still keep using the "proud to be a Wyoming lawyer" tagline I'll suggest it's now obsolete, and probably ought to be "proud to be a UBE lawyer with a connection to Wyoming", something that is becoming increasingly accurate and which is difficult to get enthused about.*

Anyhow, that isn't really my hope, even though I retain some hope that maybe the committee that overseas the bar exam will act on behalf of the state's citizens and go back to an actual state exam, a diminishing hope, and probably a pipe dream, in which case I have no hope that the UBE won't do a vast amount of damage to the state.  My actual point is this. Mason's comments about being "proud to be a Wyoming lawyer" cutting into the negative views about lawyers were naive, and that's something that those proud folks should probably be aware of.  People hate lawyers.

Chances are, however, that Mason knew that, and his comments really meant that we shouldn't add to the perception by being part of the commentary.  Indeed, if I recall correctly, he didn't approve of lawyers circulating lawyer jokes for that reason, although it's been a long time since I've read that article.

Apparently the Wyoming State Bar is actually aware of that.  That is, that people don't like lawyers so much.  The last issue of the Wyoming Lawyer (do Colorado UBE lawyers guffaw when they get that?) has an article about the perception of lawyers from outside the law, and one of those commenting flat out states that, save for when a person needs to hire a lawyer, in which case they generally like that lawyer.  There's been more and more comments in our bar journal noting that, and also more and more noting that a lot of lawyers are apparently slipping into emotional trouble in the practice.

Which brings me back to the comment about the Wyoming Bar Association's Facebook page.  It's full of articles about lawyers in trouble with their lives and beyond that, even ones that  are really  harsh on the practice in general.  It's almost like a Caution sign for those pondering a legal career, although anyone reading it surely (or mostly) must already be a member of the bar, I'd guess.  It wasn't what I was expecting.

One article that I saw listed on that site was actually called "25 Reasons Most Attorneys Hate the Practice of Law and Go Crazy (and What to Do About it)" by one Harrison Barnes (whom one other blawg refers to as a "windbag").** Wow, that's a pretty surprising thing I think for a bar association to list on their Facebook page.  And it's a pretty surprising title in and of itself.  "Most"?  Hmmm. . . .  I know at least a couple who love their jobs and are pretty open about that, and they don't have odd malignant personalities or anything.  Most has to be an extreme overstatement.  Maybe he was trying to shock.

Still the article made me recall the conversation above, as it listed this as one of the twenty five reasons***:

They are miserable being behind a desk all day. Most attorneys spend the majority of their days trapped behind a desk. There is very little one-on-one interaction and socializing when you are under pressure to bill as many hours as possible. While television shows and movies glamorize the practice of law, most attorneys spend their time in an office, sitting at a desk, staring at a computer monitor.

That's a pretty accurate statement.

 Middle aged lawyer at his desk in 1919. . . something that middle aged, old aged and young lawyers in 2015 are doing just as much, if not more, than the subject of this photograph did.

Of course, a lot of modern professions do that, and I've commented on that on this blog before.  People truly not meant to do that, but we're building a world in which that's what everyone is going to have to do, it seems.  That's a very curious fact, as it isn't really good for us.  And I suppose that a person, in pondering careers, should consider, as my young friend mentioned above, their ability o handle that.  If they really "can't stand" to be in a chair all day, the law, and a lot of other professions, probably should be considered in that context.

Another comment that struck me

One that struck me was this comment:

They are exhausted from the constant conflict (conflict with peers, conflict with clients, and conflict with opposing counsel). The constant conflict attorneys face can take a massive toll on them. This conflict is never ending and something that drains attorneys emotionally and physically.

The same author stated, concerning the rising (or perhaps now simply appreciated for the first time a a real problem) of substance abuse:

If I were to pick you up and drop you in the middle of a war zone in the Middle East, give you a machine gun, and tell you that you had to fight there for the next 30 years, that would screw you up pretty badly. You'd want some liquor and antidepressants, and you'd be pretty sweaty and pissed off. Practicing law often feels the same way. At least in the war zone, you would know who your enemy was, and there would not be so many rules!

That's actually not a bad summary of what litigators do, and of course we should keep in mind that not all lawyers are litigators by any means.  I do think that's a factor in lawyer discontent and substance abuse, however.  Indeed, I was pretty surprised a few years ago when I completed defending a pretty hard deposition of a tough deponent, and jokingly asked the opposing lawyer if that lawyer "would like a beer" only to have that lawyer accept. We actually did have some in the office and that lawyer gladly took it, saying to me "I don't think it would be possible to practice law without beer." 

It ought to be possible to practice law without beer, and of course I know a few lawyers who don't drink at all, including a few litigators who don't.****  Frankly, I haven't known all that many lawyers who really had a substance abuse problem either, although it's apparently a rising problem.  I've written on stress and the law before, and I guess this is part of that scene.

Slipping away from the law, however, but noting that I heard the following at a party of all legal professionals, I've been a bit bothered by the western concept of career once again for a peculiar reason.  I've also written on that before.

This one comes up on a personal level, I'll note.

At this party, a friend of mine made an inquiry as to what my son's career plans are.  Oddly enough (synchronicity?) the same topic was simultaneously being explored by somebody else with my wife, which I know as I could hear her discussing it.

We don't really know what his plans are and perhaps he doesn't as well.  I have to say, at age 18 a lack of a plan worries parents but at the same time can a person rationally be expected to have one?  I'm not so sure that everyone should, and a person ought not to rush to one just because everyone thinks you should have one.

And people do think you should have one, and it turns out that they have ones for you, which is quite surprising.

Now, he tested very well on the ACT. Very well. And without bothering to do any studying for it.  So, when his ACT scores were mentioned by my wife (not me) to the above referenced friend, and it was noted that he may start off at the local community college, he was taken aback.  He was frank that a person with such high ACT scores should not do that, very much not do that, and rather should go to a major university from the onset.  Indeed, he thought about it and determined that my son should go to Georgia Tech to major in engineering.

Maybe he should major in engineering, and maybe he should go to Georgia Tech (about which I know nothing at all), but that raises an interesting aspect of Weltanschauung that hard for almost anyone in this society not to have, including myself. That is, in the western world (and my friend here is a European immigrant from one of the highly ordered European societies) there is a very strong concept that a person should exploit academics and then career to the maximum possible extent, even if that means leaving the place of their birth and all they know.

Why is that?

As far as I can tell, the only thing that's based on is a concept of money.  The general idea seems to be that a person should make as much money as they can.  It's a really primitive instinct and it probably derives from the idea that we need to keep the wolf from the door. But it's a particularly pronounced cultural concept, in my view, in Protestant societies.  By that I do not mean that only Protestants have it, that would be completely and utterly false, but it's a cultural aspect of those societies and generally held by nearly everyone in them, without any question of its correctness whatsoever.*^

And it's not as if its devoid of any rationality. There is some.  It's well proven that money won't make a person happy, but poverty sure doesn't help that situation much either. At least a little monetary surplus helps keep some anxiety at bay, unless a person is irresponsible with money.

But the acquisition of it can lead a person into areas that they would otherwise not naturally go.  Its stated by some that a person can't be a monetary success unless he loves what he's doing but the evidence of that is quite poor, and at least by my historical and personal observation the opposite is true in at least some cases.  A lot of people do well, at least for a time (whether they can indefinitely is another matter) doing things that they would rather not.

Indeed, I'd argue that this is responsible for one of the things that is constantly noted in articles like the one linked in above.  People start to compensate for their discontent, with some of that surplus money, with things that lead them into trouble.  According to Mr. Barnes, whose article is cited above:

Here are some incredible statistics:

• The American Bar Association estimates that 15-20 percent of all attorneys are alcoholics or suffer from substance abuse problems. Jones, D. (2001). Career killers. In B.P. Crowley, & M.L. Winick (Eds.). A guide to the basic law practice. Alliance Press, 180-197
   
• Lawyers have the highest rate of suicide of any profession. Greiner, M. (Sept, 1996). What about me? Texas Bar Journal.
   
• Lawyers have the highest rate of depression of any profession according to a John Hopkins' study of 100 professions. Occupations and the prevalence of major depressive disorder. Journal of Occupational Medicine, 32 (11), 1079-1087.

Pretty grim.  I think, however, that the last two items are statistically incorrect, and actually dentist have a higher rate of depression and suicide than lawyers do.

All the dentist I've every met, and I've known a lot as my father and one of my uncles were dentists, seemed to be a happy lot but obviously not all are.  Indeed, maybe only the upset in any profession draw attention.  However, I will note that dentist do suffer from some of the same liabilities that lawyers do, namely that people are pretty vocal to express their discontent with the entire group of them and at the same time complaint about their fees, etc.  Like lawyers, they make a lot less money than people believe that they do and they tend to have massive overhead.  Oddly, at the same time, it's a profession that, like the law, people from the lower middle class have pushed their children towards for a long time.  My father got into it in his own, like I did with the law, but college in general was something he was reluctant to do but for a big push from my grandmother.  His father owned a meat packing company and died young.  My uncle's father was, I believe, a construction worker.  One of my father's good physician friends, I'd note, came from a farm in Nebraska and other dentist friends had fathers who were, respectively, a railroad worker and a miner.

Which brings me back to community colleges for a moment.

My father attended the local community college, Casper College.  He did so as his mother wanted him to.  He was employed at the post office at the time, after the death of my grandfather, and his basic plan was to stay there.  My grandmother recognized that he undoubtedly had the intelligence to advance in university and she urged him to do so.  He was the single most intelligent man I've ever met and that was obviously apparent to my grandmother.  He started off in engineering and then went right from Casper College to the University of Nebraska, after a brief stop at Creighton which he didn't care for.  So, he did well, as we've been using the term, by Casper College.  And he's not the only one of his generation around here who did.  And who still does.

Indeed, recently I spoke to a lawyer about a decade younger than me who related to me that he'd started off at Casper College, in education.  He related that it was his opinion that if he hadn't have started there, he ultimately would not have graduated from university, in his opinion.  His father was a mechanic, I'll note.

Likewise, I've often suspected that if I hadn't have started off in Casper College I may have not made it far in post high school education.  Indeed, my earlier college career strongly suggests that to me.

I had no plans at all of going to Casper College at the time that I graduated from high school.  When I was in my senior year of high school, my vague thoughts were that I'd go to the University of Wyoming and major in Wildlife Management.  Like my son, I tested well on the ACT and my mother told me I could go anywhere I wanted, which frankly baffled me as I'd never thought of going outside the state.  Indeed, she darned near scared me by suggesting that I could go anywhere, in part because she cited the example of an older cousin who was going to a very prestigious university and whom I thought of as a really good student.  I didn't think of myself that way and probably regarded myself as an indifferent student.  I don't know that I really was, but I didn't have any developed study habits and therefore must muscled through high school on what I liked or what I needed to learn, when I needed to learn it.  I'd become a student, really, in college and university, a habit that became a personal character trait that's never left.*****  Anyhow, I declared then that UW was where I was going, which seemed to disappoint my mother a bit.

Shortly after that, or perhaps before that, I had my ACT scores as noted and also had to take some sort of personality career test, one of the very few and fairly pathetic things the school district did here at that time to attempt to help students find a career.  Wildlife Management was mentioned and my plan was loosely fixed, sort of. My idea was to go to UW and major in that while enrolling in ROTC, as I also wanted to see if a career in the Army, another outdoor profession (I believed) might be for me.  If it was, I figured I could do that for twenty years and then retire, and enter the Game & Fish here.  If it wasn't, I could do four years and come back and work for the Game & Fish. The concept that I wouldn't get hired by the Game & Fish didn't really occur to me, oddly enough.

I mentioned that to my father, who replied that there were a lot of people around here who had Wildlife Management degrees and no jobs.  That was all the more he said about it, but he so rarely gave advice of that type that any time he did, I listened.  Indeed, I don't ever recall ignoring his advice on such topics, which was always very rare.  That was enough to deter me from majoring in Wildlife Management and I decided instead to major in geology, which was an outdoor science that I was good at in high school.  It might be the case that avoiding  a career with the Game & Fish saved me from disappointment as a game warden later told me that he didn't get out hunting much as he was always working during the season, something that would seem self evident I guess, but which didn't occur to me at the time. That same sentiment is contained in an interview by Brett McKay, of the Art of Manliness, of his father Tom McKay, who was a New Mexico and later Federal game warden.  In that interview he relates:

9. What is the biggest misconception people have about the job?

The biggest misconception is that game wardens spend all their time hunting and fishing. The good wardens and agents have no time for this as they are in the field managing the other nimrods out there during hunting season. I hunted and fished much more before I became a game warden, not at all after I became one.

I would have had a hard time with that.

I did make it down to UW and I did obtain a degree in geology, but I didn't go down right away.  I enrolled in UW and went down to orientation.  Something about it turned me off right away.  It might just have been the hugely unfamiliar environment.  We were supposed to stay in the dorms and the crowd of people there, for an only child and solitary introspective personality was too much, and I backed off that very day.*~ I went home and announced I was going to Casper College.*~~ The very next day I went down and enlisted in the Army National Guard as I felt not starting off in ROTC would be disingenuine.  Joining the National Guard was one of the very best post high school decisions I ever made.

 

Me, as a Sergeant in the Wyoming Army National Guard in South Korea.  My parents weren't happy about me joining the Guard, but it was one of the absolute best post high school decisions I ever made and I have no regrets about doing it at all.

Going to Casper College may have saved my entire academic career.  My mother was very ill at the time and I lived at home.  In the afternoons when I didn't have class I went hunting or fishing.  In retrospect it was the freest I have ever been.  I got into the swing of studying at the post high school level and when I went to UW two years later I was ready for it.  In the meantime I'd learned that I didn't think I wanted a career in the military and my desire to experience that had been satisfied by the National Guard, indeed it'd last beyond that as my enlistment period of six years took me all the way though my undergraduate career. 

Would I have made it through university if I hadn't have gone to Casper College?  I don't know. Maybe I would have, but even during that first two years there were times when I wanted to quit pretty badly and acknowledge my desire to do so, although even now I'm not quite sure why I occasionally harbored those feelings.  On one occasion I recall even asking my father to ask a sheep rancher friend of his if they had any jobs, which would have been a turn in a much different direction, had it lasted, to say the least (that ranch long ago sold).*~~~   By the time I went down to UW however the urge to quit was behind me and it never occurred to me again.

Would my father have gone at all if it hadn't been there?  I don't know that either, maybe he would have.  It's hard to say.  But I can't sneeze at community colleges.  Indeed, as earlier mentioned in a post on this blog, at least actor Tom Hanks feels that he wouldn't have made it through university but for starting at a community college first.

 

Casper College geomorphology class, 1983.  This was the last Casper College class I took in my path towards a Bachelors of Science, and I already had just obtained my Associates when I took it. Technically it was a University of Wyoming class.  Of the individuals depicted, three of us I know went on to UW but only one other went on as a geology major, a good friend of mine who I am still in contact with today.  The professor remains at Casper College to this day.

Circling back around, a crash in the oilfield, much like the one we're experiencing right now, left me unemployable without after I graduated with a geology degree and I ended up in law school a year later.  I'd first contemplated the law, however, as far back as Casper College, when it became evident that I'd probably have to go on to grad school in order to find a career in geology.  I did take the Graduate Records Exam as well as the LSAT, and did well in both, and took the law route.*~~~~

 

Classroom in the S.H. Knight Building, the geology building, at the University of Wyoming, 1986.

Which oddly enough brings me back to this topic.  Recently a dental hygienist, asking my son's career plans, suggested that as his father was a "famous" lawyer, he could go on to law school and then capitalize on the last name.

Well, the thought that I'm famous is flattering, but quite inaccurate.  Indeed, if I'm famous I should be getting on television and capitalizing on my fame by hanging out with the people who are famous for being famous.  But that's not going to happen.  And unless you have a really famous lawyer last name, that's just not going to work.

But the thought that this is good advice is interesting.  Being a lawyer, in reality, is really hard, tough, work and anybody who is familiar with it probably ought to pause before recommending it to anyone.  Some lawyers I know have claimed that they'd not recommend it to their own children, although the very few I know whose have a child who is a lawyer are proud of it.  One person I know fits both of these criteria.  Of course the recommendation is based on a misunderstanding, at least in part, as to what we actually do.

 

All of which brings me back to a few points.

First of all, I think the concept that a person must maximize their economic potential deserves some serious reconsideration as part of the culture.  Not that it hasn't always been somewhat criticized.  But the idea that a person must do something as that will generate the highest income for them assumes that a high income is the highest goal, and it's pretty clear that point of view is destructive in more ways than one.  At the bottom line, just because a person can do it and make a high return doesn't mean that would make them happy.  I'd wager that there are plenty of high income people who would have been much happier doing something else, and I've heard plenty of high income people who look back on some earlier low income position as their happiest one.  Guys at their desks look back on working on family farms, or working in construction, or being a soldier in the Army, as their golden days, and not without reason.  Indeed, to at least some extent, perhaps we ought to reassess our views on this topic on a societal basis.

Which isn't to glamorize low income, as you'll sometimes find people do. Or suggest that a person can suddenly just up and have no income at all.  Not hardly.

Secondly, people should be cautious pushing a person towards a career if they aren't really familiar with it.  I have a better idea than most about a lot of careers, so I could probably do that better than most, but I don't think that's universally the case by any means.  Indeed, one of the really neat things about being a lawyer in litigation is that you get to know quite a bit about what a lot of other people do. Even then you sure don't know everything, however.  I would never have thought, for example, about game wardens not getting to do much hunting and fishing.  Some occupations we know a lot better than others, but usually because we have a close personal association with them in some fashion.

Finally, I think people should be pretty cautious about their concepts of ideal schools or institutions.  We have a very pronounced societal tendency to view certain schools almost as if they're Hogwarts institution of magic.  It's true that there are very good, and very poor, schools, but as higher education has spread in the US post war there are, quite frankly, a lot of really good schools that offer individual students an individual advantage.  A lot of people who go on to other schools start off at a community college level and beyond that quite a few graduate from universities that are very good, if not very big names.  In some occupations, in my view, such as law, some schools have acquired an inordinately revered reputation and society in general would benefit if their stars faded a bit.  It may actually be the case, in spite of all the criticism of higher education, that it's gotten so good that there are not all that many Yugos amongst the Mercedes really, except in terms of reputation, which does admittedly mean a lot in terms of later employment.

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*`I'll make it the topic of another entry, more appropriate for the supposed focus of this blog, but a different comment I read elsewhere noted how the big firm expectation of a certain  number of billable hours of young associates is irrelevant in the modern context, as electronic legal research has made the practice of that sort of law so much more efficient. That is, a single lawyer can do the work of an entire team of lawyers.  Not only that, but one lawyer can research a topic in half a day that formerly would have taken days.  That person's comment noted that his superiors, all of whom had started off well before electronic research and never really learned it, didn't grasp that in his big firm, and therefore they didn't understand that what was for him a four hour project wouldn't result in 24 hours of billable time.  A very interesting point.

*Wyoming has seen a jump in applicants to its bar, but due to the UBE.

** Barnes seems to be employed as a lawyer recruiter, and the rest of his articles, to the very limited extent I've bothered to look at them, seem rather rah rah to me about the profession, so I don't know what to make of this one.  He notes that he was a drop out from the profession in this one, so its perhaps unusually candid.  If so, I don't know how to reconcile his rah rah posts and his occupation which would amount to recruiting people into something he claims drives people crazy.  Of course, maybe if I read all of them I'd feel differently, but I doubt that I will.

 ***I was going to list the full 25, and then comment on them, but it was too much of a diversionary project. Suffice it to say, I don't think all of them were all that common.

In fairness, Barnes offers solutions to his perceived problems as well, although there aren't many listed.  One of them is just to quit working and figure it out next, which strikes me as something that wouldn't be realistic for a lot of folks.

****The beloved late Gerald Mason, who coined the phrase "Proud to be a Wyoming lawyer", didn't drink and held what was, as far as I know, the only dry State Bar Association Annual Meeting.  I didn't go, but then I only rarely do.  I recall hearing some complaints about it, however.

Which isn't to say that I've witnessed a lot of lawyer drinking abuse.  I'm sure that lawyers drink more than airline pilots, but I really haven't seen a significant number of lawyers boozing it up.  Maybe I'd have to hang out more where that sort of stuff occurs, but I doubt it.  I suspect that this may be one of those areas where a lot of attention is being paid to a particular problem, but that means that attention is being paid, not that its increasing. 

*^It may mean nothing at all, but amongst European societies, it is noticeable that the ones that have not had a significant Protestant influence tend to be much less economic driven and have cultures much less focused on an individuals relationship to work..  Pretty much all of Europe and south of the Rhine would fit this category, and their work behaviors and life focus does tend to be quite a bit different.  The work ethic of France, Italy and Spain tends to drive Americans crazy to some extent.

Hillaire Belloc, I learned after writing this, was so convinced of something similar that he attributed Capitalism to the Protestant Reformation, with his analysis having some merit to it.  Belloc wasn't stating that in a nice way, as he was a Distributist and lived in the era of fairly unrestrained Capitalism.

*****While I didn't know it at the time, my parents feared in my later undergraduate stage that I'd become one of the classic "career students", a fear that was very parental on their part but actually not very well founded.  On the other hand, by becoming a lawyer, maybe that is what happened.

*~According to the same individual above who first is mentioned in this long winded essay, "introspection is my cure to bear".   Maybe.

*~~These struggles must be more common than I suppose.  I just watched the film American Graffiti for the first time in a long time and found, which I'd forgotten, that much of the film's central plot is based upon the central character struggling with whether to leave the next day for university or to attend the local community college.  He goes, his close friend who is going with him stays.

*~~~Indeed, I was practicing law when it sold and it was one of the first experiences for me on how agriculture was now really beyond the means of the common man, something that shocked me at the time, and which was a sad experience to observe.  Some out of state person bought it, something I can't help relive every time I drive through it, which I very frequently to.

*~~~~ I did well on both tests without studying for either.  Indeed, while I understand why a person would study for the GRE, it still baffles me that people actually study for  the LSAT.  The LSAT is just a logic test.  If a person can't do well on the LSAT without studying for it, they probably shouldn't enter law school.

New Year's Resolutions for Other People. 2016 Edition

 Polly and Her Pals, January 4, 1919.

Yes, I know that this is rude, but I fear that if I don't do this form them, they're not going to do it for themselves. And some folks needs some resolve, let alone resolutions.  So, in spite of last year's failure of this topic, we'll try again.  Probably with an equal lack of success, but here goes.

1.  The American political system.  Hey, your broken and are not making sense.

Well, not completely broken, but the method of picking a President sure is. What's with this absurdly long period just to pick a party candidate that is, after all, the candidate for that party? It's presented like an actual national election.  Ditch it, and have a convention about eight weeks before the national election and pick the candidate then. No primaries or any of that baloney.

And while you are at it, let's admit that the two party system doesn't make natural sense either.  The Democrats are at least two parties, the GOP is at least three.  Let's admit it and get some variety rolling.  Why are Clinton and Saunders in the same party?  Why are Trump and Paul?  It doesn't make very much sense.

2.  The Upper Federal Judiciary.  Back to law school for the Federal bench, or at least the Supreme Court.

The job of the Supreme Court isn't all that hard.  It's just to interpret the law, which usually is fairly straight forward.  Don't worry about the consequences of that, but quit making stuff up when it suits some "evolving concept".  You aren't a legislature.  Last year was a bad year for you.  Try to fix what you botched up in the law this year.

While you are at it, look up "natural law".  If you don't get that, or think there isn't one, enroll in the local colleges night school classes in biology.  Really.  You may have been wearing weird obsolete judicial stuff so long that you've forgotten that there is a nature.

Speaking of obsolete judicial stuff, why are we holding on to robes?  It's strange.

Also speaking of obsolescence, even though I know it runs counter to cherished ideas, perhaps its time to seriously consider imposing a mandatory retirement age for Federal judges. This is, I know, the exact opposite of what our legislature has pondered in regards to our own judiciary in recent years, but I mean it.  Four of the current justices are in their 70s.  Sure, they may be sharp, but sooner or later we're going to get one that isn't, then what?  And beyond that, lawyers, and that's what they are, in their 70s began practicing law in the 1960s.  Most Americans were alive in the 1960s.  Experience is one thing, but time does move on, and recently they've issued an opinion trying to anticipate what they think the evolution of trends are.  People in their 70s aren't necessarily that clued in, really, to current social evolution on things.

3.  The Media.  Try focusing on real news this year. Not the photogenic stuff, but the real stuff.  Just because its photogenic doesn't make it really important.

4.  People who cite statistics routinely.  Oh, you know who you are.

Research what that stuff means, will you?  Just citing some statistic doesn't mean anything if you don't understand the background to it, and the context of it.  Quite often, you are actually boosting erroneous assumptions.

5.  The Wyoming Legislature.  Hey, take a year off on insisting that the Federal government "give back" the land that Wyoming never owned.   

6.  Politicians.  This year, let's admit that the west is in a war with Islamic fundamentalism and that's going to last a very long time.  As part of that, let's not mince words.  It's a war (most of you are finally admitting that).  The Islamic State is not insane, but grounded in a fundamental conservative, if radical, understanding of Islam.  We're going to have to get this right.

7. Saudi Arabia.  Okay, Saudi Arabia, you won't play nice on petroleum, so we don't have to play nice with you.

Saudi Arabia, like every other country in the world, should be subject to the "Mormon Missionary Standard of Civil Conduct".  Now, I'm not a Mormon, but what I mean by that is that if your country can't tolerate a clean cut kid in a white shirt and tie coming to the door to tell you about the Book of Mormon, or perhaps about the views of the Jehovah's Witnesses, it's not an adult country.

It isn't that you have to believe what they believe, but if you are so freaking insecure about your own beliefs that its illegal for Elder Jones or whomever to come to your door, you have a real problem.  Grow up.

So, Saudi Arabia, start acting civil. And, rest of the world, until there's a Christian church, no matter how small, in a Meccas suburb, quit treating these guys like they are our friends. They aren't.

8.  Muslims.  It is rude to tell a person what to believe, save as evangelization, which isn't rude even if perceived as such.  So I'm not telling you what to believe.  But what I am saying is that there's clearly a world crisis in which one branch of Islam is clearly at war with the rest of the world, and at war with less radical Muslims.

We don't hear from you faithful bystanders much, and we need to.  If you agree that the Islamic State is the new caliphate, say so and tell us why. If you don't, and particularly if you don't agree with its methods, we need to hear that.  That takes some courage either way, but we can probably agree that your faith would sanction that.

9.  Christians.  Again, it's not my position to tell people what to believe, but I will note that in recent years some of you seem to adapt to worldly social positions as if they are religious tenants.  A central message of Christ was that Christianity was going to be unpopular and might end up getting you dead at the worst, or put outside of the circle of your family and friends.  So, if the letters of St. Paul are making you squirm a bit, maybe they ought to, rather than making you look to your political party for answers.

10.  The Islamic State.  Just this week you issued instructions how how abhorrent your soldiers were allowed to go with female captives, and that's pretty darned far.

That's creepy.  Stop it.

11.  Celebrities.  Oh, just shut up.  Seriously.  We don't really need to know what you think on anything at all.

And I mean anything.

12. Wyoming drivers.  Enough is a enough on making up new rules at intersections.  The rules are all in a book put out by the DOT. Get it. Read it.  Apply it.

13.  Lawyers.  For all 25 years of my practice I've heard you lamenting about the loss of civility in the practice. And it is real.  Here's an ideal, start acting civil.  

14.  The Bar Exam Committee.  And not just the Wyoming one.  There is no "uniform" law.  All law, even uniform acts, are going to be modified locally.  You exist for your state and your state alone. Ditch the UBE.

15.  Ford Motors and General Motors.  Automatic transmissions to not belong in heavy trucks. Reintroduce the stick shift in them.

And, while you are at it, Chrysler, I like the diesel engine in the Jeep Wrangler, good idea, but with an automatic only?  Seriously?

16.  Law Schools.  We're flooded with lawyers in the  US right now.  This would be a good time to make the curriculum harder and reduce class size.  You'd be doing your students a favor.

For that matter, you'd be doing them a favor too if you went through the faculty and asked everyone if they'd practiced real law for at least ten years. Those who haven't can benefit by getting a pink slip and going out the door to practice what they've been preaching.

While speaking of law schools, perhaps we ought to consider making them a bit more erudite once again.  In recent years this seems to have declined.  Lawyers who don't have a theory of the law and a historical understanding of that theory aren't very well educated.

I'm not sure how to introduce that, but perhaps we should ponder adding a fourth year to law school to include such topics.

17. Chambers of Commerce and all you economic types.  Economic analysis of things is surprisingly shallow.  Growth is good is about all it amounts to as a rule.  Maybe its time to consider economics in an actual real world, this is what people want sort of way.  And not in the worn out Socialist manner that's getting drug back out this year.

I sort of suspect that most people most places aren't all that keen on growth, but might actually want stability more.  Might be worth pondering.

18.  Television.  Okay TV, I hit you last year, and I am again.

Enough is enough.  I don't care what "real housewives" of any place do.  If you show one more episode featuring a bunch of trashy rich women anywhere, and bill them as housewives, you ought to run a hundred about married Hispanic maids in the same communities. They, dear TV, are the real ones.

And no more shows on the Duggars. Ever.  Haven't we had enough?  Granted, maybe to somebody a show about a family with nineteen children was interesting at first, but now its been done.  And spinning it off into second generations is a bit much.

No more Cody Brown and his crew either.   Ack.

19.  Women.  Women, every year there's a story about how women have not reached economic parity with  men, and you haven't.

And then one of your sisters will make a big news splash by omitting most of her clothing, and be celebrated for that.  Don't emulate her, and let her know what you think. She's not liberating you, she's holding you down.

20.  Men.  Dudes, there's been a lot of press here and there about men being less many now days.  And that press has some merit.  Cut it out with the novel haircuts and skintight jeans and do something manly. Seriously. 

And, take a look at number 19.  Yes, that tart is sans apparel in order to sell her image to you, but you don't have to buy it. Take a look at the ossified freak who is credited with getting this debasement rolling.  You definitely don't want to be that guy.  And the current scientific evidence is that this stuff is in fact having a detrimental psychological and effect on you.

HAPPY NEW YEAR ALL!  Thanks for reading my blog.

Monday at the Bar: The Op Ed in the Wyoming Lawyer on the UBE

Since that time we've endured the UBE as the bar exam for Wyoming and started to live with the sour fruits of that adoption.  In this month's issue of the Wyoming Lawyer, the magazine that members of the Wyoming State Bar all receive, an excellent op ed appears regarding how Wyoming lawyers are carrying the freight for the massive increase in out of state lawyers admitted to practice here.

Thanks, but no thanks, and oh, why even bother. Wyoming rolls over on the UBE.

Two years I wrote this item about the unfortunate move by the Wyoming State Bar adopting the Uniform Bar Exam:

Lex Anteinternet: Wyoming Adopts the Uniform Bar Exam, and why that'...:     Wyoming Supreme Court in  Cheyenne. Students of legal minutia know that the phrase "to pass the bar", or "to be ca...

I made some predictions at that time, including that the net effect of the UBE would be to increasingly pass off Wyoming's legal work to lawyers in big cities in neighboring states, and that has become true.  Now both defense and plaintiff's work, in the civil arena, has become something in which out of state firms are increasingly involved in.  So litigants who have cases in Wyoming are increasingly, in some instances, using non Wyoming lawyers, and in some instances defendants are being defended by non Wyoming lawyers.  It isn't that these attorneys are better than Wyoming's lawyers.  They aren't.  It's that they are from large cities in some instances.  In my view, Wyoming is being hurt by this as lawyers who know Wyoming's law and live in the state aren't handling as much of this work as they should.

When the UBE was adopted by the Wyoming Supreme Court, a Wyoming component was added in the form of a CLE that new admittees had to take. The concept was that, in the course of a day, they'd be exposed to Wyoming's law. That was always a fairly absurd concept, as it takes years to pick up the nuances of Wyoming's law, and no CLE with topics ripping by in fifteen minute increments is going to do that.

In saying that, I should note that I was part of the process.  While I'm opposed to the UBE and particularly opposed to the reciprocity aspects of it, my very opposition to it ended up causing me to be asked to write for one of the CLE topics.  I agreed to do it, after being approached, as I felt I had little choice.  Having been asked to do it, I could hardly decline, particularly as those who asked me were well aware of my opposition to the entire process.

Due to that, in the most recent issue of the state bar's publication I see that I, along with the other authors of written material for the UBE, have been thanked.  The reason is that the Bar Examiners have now concluded that the CLE requirement isn't worthwhile, so we're just going to admit new members without a state component, other than an expanded introductory pathways requirement.  Those who wasted their time on the written CLE requirement programs, such as myself, have had the futility of their efforts publicly applauded.

Well. . ., thanks but no thanks.  The entire Uniform Bar Exam process is misbegotten and ought to be dumped, and it was always a poorly through.   All this is serving to do is to export Wyoming's legal work to the detriment of Wyomingites.  It's not too late to salvage the situation, but it will become so as fewer and fewer Wyoming lawyers handle substantial cases.  I can easily envision a near future when even the judges will be out of state lawyers who apply for those positions are deemed to be the only ones experienced enough in the topics to handle the tasks.

The Board of Law Examiners, by the way, dumped the CLE requirement as it was ineffective.  That should have been self evident from the get go, as it was quite evident to me, as one of the drafters of a section of it, that the time element of it was so short as to be nonsensical.  There was no way that anyone was going to learn much in that sort of CLE, and there was no test as a part of it.  It was just something a person had to endure.

In its place, the BLE is going to expand the Pathways to Professionalism, a mandatory professionalism course which will be expanded.  Well, quite frankly, programs on professionalism do not  enhance professionalism one iota.

In making this decision, according to the article I read, the BLE was conceding that the law of most states is all the same, and a person can just look it up on the Internet.  Oh really. Well, that's baloney, and anyone who has had the experience of out of state lawyers practicing in a complicated Wyoming case knows better.  Of course, if we persist in this path, it will become very similar to Colorado's law, as that's where the majority of out of state "Wyoming" practitioners live.

Indeed, recently I was in a case which had one such practitioner on the defense side and two out of state lawyers on the plaintiff's side.  The lawyer on the defense side had a practice heavily based on out of state work, and he commented that "he couldn't believe" that Wyoming allowed such simple CLE admission and that he'd think that Wyoming lawyers would resent it.  So, something that's pretty self evident to out of state lawyers practicing in the state apparently isn't to those who are supposed to be manning the gate here.

This entire situation has been a terrible shame.  The concept that Wyoming's bar exam was somehow fatally flawed was poorly thought out, and the Wyoming Supreme Court really bought a line of baloney in adopting the UBE sales pitch.  There's no excuse for it, and the situation should be reversed before the damage, which will take years to undo, becomes any worse.  It would be simple to repair.  Simply require that any applicant to the Wyoming bar take a test on Wyoming's law.

Wyoming has a lot of really good lawyers, still.  And we have a law school, still.  We can craft a Wyoming component and test those who wish to practice here on Wyoming's law.  We should.

If we don't, our current pathway will have a logical development.  Within a decade nearly all serious litigation will be handled by out of state lawyers, and Wyoming's lawyers will reduce in number and be reduced to minor matters and criminal matters.  The judges will start to come from out of state too, and our law will start to resemble Colorado's, whether we want it to or not. The law school of which so many Wyoming lawyers are graduates, will go by the end of the next decade, as the uniqueness of Wyoming's law will decline, and there will be no reason to have an institution that serves no state specific purpose.

Wyoming Adopts the Uniform Bar Exam, and why that's not only a change, but a bad idea

 

 Wyoming Supreme Court in  Cheyenne.

Students of legal minutia know that the phrase "to pass the bar", or "to be called to the bar", refers to an actual physical feature in an English courtroom.  Indeed, it's a feature in American courtrooms today. Courtrooms have a "bar", basically a fence, that separates the gallery from where the litigants and their lawyers, and the judge and the jury, sit during a trial.  When lawyers were admitted to practice, back in antiquity, they were "called to the bar" and allowed to "pass" it.  That is, their admission to practice meant that they were part of the privileged few who were allowed to open the gate and walk through, if they did not as a litigant.  

How a person "passes" the bar has differed over the years, but it's always involved some course of study, either through a law school or under the tutelage of a lawyer, and a species of examination by the court to which the applicant proposes to practice.  In the United States, as we're a federated republic, each state has controlled that process since there was a country.  Prior to that, each colony did.  So, for example, a lawyer in 1700's Virginia could not freely practice in 1700's New York, which  is equally true of Virginia and New York today.  You have to pass the state's bar.  The sole exception is probably found in patent law, which has its own bar, with that bar being a Federal one.

States have had different systems, as noted, for admitting new lawyers to practice, but starting in the late 19th Century the American Bar Association undertook a major effort to improve the professionalism of the practice of law, and as part of that it came to certify law schools.  In many states, such as Wyoming, admission to the bar came to normally require graduation from an ABA certified law school combined with a Bar Examination.  The Bar Examination examined the applicamt on the law of the state.  Wyoming's Bar Exam, for example, has always featured state specific topics, although it has featured some national ones too.  Like most states, Wyoming has also required passage of the Multi State Bar Exam, which is a national test that tests on either national topics or general concepts of law.

This has now passed away in Wyoming. The current Bar Commissioners have adopted, and the  Wyoming Supreme Court has approved, adoption of the Uniform Bar Exam in Wyoming. This is a terrible idea.  It's not too late for the State Bar to correct its error, and I hope that it does, although reversing a bad administrative decision is never easy.

The Uniform Bar Exam (UBE) is a national test.  Wyoming's adoption of it means that Wyoming has joined handful of states that will use this exam rather than create one of their own.  No Wyoming specific topics will be tested at all.  None.  In order to gain admission beyond that, an applicant need only to take a CLE on Wyoming's law.

The sole purpose of a bar exam is to provide protection to the public.  Passage of a bar exam in any state means that the passing lawyers are deemed competent to represent clients in that state, but nowhere else.  As Wyoming has a self administering state bar, overseen by the Wyoming Supreme Court, passage of the bar here has been a representation by the State Bar and the Wyoming Supreme Court that those passing the exam are deemed competent to represent Wyomingites, in Wyoming, in Wyoming’s Court, under Wyoming’s law.  Passage of the UBE, with a mere CLE on Wyoming’s law, hardly provides that security as admission to Wyoming’s bar will now completely omit any testing on Wyoming’s law.  And Wyoming's law is highly unique in a number of areas. Wyoming is the only state to use Comparative Fault, as opposed to Comparative Negligence, in tort cases. Wyoming's law on oil and gas tort indemnification is unique.  Wyoming's water law is unique.  I don't know much about the state's criminal law, but to the extent I've had to become familiar with it from time to time in the past, it's been unique. Worker Compensation in Wyoming, a state administered system, is unique.  Our oil and gas law is unique.  Now, thanks the the UBE, the student can safely be that none of this will show up on an examination, and that rater the student will be tested on general concepts, whether nor not they are applicable here, and on general topics, with the old Wyoming specific topics gone.

That this is a bad idea would seem to be self evident in light of the effort, just one year ago, to require new Wyoming lawyers to be adopted by a “mentor”, who would oversee their work for a year and tutor them on the nuts and bolts of practice.  At that time it was thought that new lawyers were so ill prepared to practice law in Wyoming that they were effectively incompetent to do so without the tutelage of a local practicing attorney.  Now the State Bar proposes to let lawyers practice without their even having been tested on Wyoming law.

I should note that there still seems to be some concern that the University of Wyoming’s College of Law is not preparing students to take the Bar Exam, given recent low passage rates, and that this seems to be a silent means of addressing that.  Most applicants to practice in Wyoming, although certainly not all, are graduates of the University of Wyoming.  Indeed, it used to be regarded as a real advantage to admission here to have attended law school here.  In recent years, however, there has been a noted decline in pass rates at the Bar Exam, and the law school itself has indicated that its moving towards not really attempting to teach Wyoming's law.  Indeed, that has been the case in some areas, such as torts, for a very long time. But students who were aiming to practice in Wyoming generally made sure to take Wyoming specific courses, such as Oil & Gas and Water Law.  Water Law actually disappeared from the bar exam a year or so again, perhaps indicting the general direction that things were headed in.   The general attitude now somewhat seems to be that the College of Law does not attempt to teach Wyoming specific topics, and therefore the Bar Exam should likewise omit them.  The thought seems to be that if Wyoming topics are entirely removed, therefore, that passage rates will climb thus essentially allowing failure to dictate what should be tested rather than taught.  Whether that is the case or not, and whether or not that is the impetus behind this effort, some serious consideration of the logical result of this move should be considered.


Indeed, this is such a move in the wrong direction that my suspicion is that it might ultimately lead to the elimination of the law school.  The only real basis, at least in the eyes of the public, for the University of Wyoming having a law school at all is to prepare students to be Wyoming lawyers.  This may not be evident to the faculty of the law school, but that’s how the school is perceived.  There is already a fair amount of discontent with the law school in certain quarters of Wyoming’s populace.  I would note that as a lawyer who is also a stockman, and familiar with the views held in the agricultural and mineral production industries, there is very little sympathy for the efforts of some of the College of Law’s professors who use their positions to support their efforts in opposition to those industries.

Academic freedom aside, if the Wyoming State Bar is not going to test on Wyoming topics, and if the only requirement for admission to the state bar after taking the UBE is to take a Wyoming CLE, then there is no reason for the University of Wyoming to retain the College of Law.  While practicing lawyers may not appreciate it, the general public has next to no sympathy whatsoever for the practice of law and the law school, and  there will be very little reason for the public to support the continued existence of a school which provides no unique Wyoming benefits and which employs some professors who are opposed to basic Wyoming industries.  For example, the College of Law's professor Deb Donahue has taken a radical approach to the topic of livestock on the public domain, essentially opposing its presence, although perhaps she's contributed a real gem of an argument the other way around in one essay when she sappily noted how when she looked out of the window of her Laramie home she wasn't witnessing wildlands the way they had been. . . no kidding. .  she was looking out from a house, the ultimate destroyer of wildland.  At any rate, it's asking a lot for anyone in the agriculture industry to support the existence of a state law school when the students don't have to take any Wyoming specific topics in order to take the bar safely, and when no Wyoming specific topic is a required course, and when no Wyoming specific law is being emphasized.  Members of the agricultural sector, for one, therefore have no incentive at all to support the ongoing existence of the law school and, as there's at least one professor that is a declared opponent of their interests, they have a real incentive to wish the law school's demise.

The same is now true for the oil and gas industry.  There has always been at least one professor at the College of Law who was an opponent, on private time, of some mineral industry activity. And academic freedom dictates that this must be allowed.  But it was also the case that a person could receive a very solid education in oil and gas law, and mining law (and water law) at he university.  It is my supposition that this is still the case. But at least as two of those topics, oil & gas, and water law, an incentive existed to study the topics in that they were on the bar exam.  Water law, as earlier noted, no longer is.  Now oil & gas will not be either.  In the midst of an oil boom, there's no earthly reason to suppose that this course of study in now not needed.  And, again, now this section of the state's economy, which is a huge portion of it, should wonder why bother with supporting the College of Law.    When there are those on the faculty who are industry opponents, an industry of this type probably ought to consider opposing the existence of the college, as the incentive that previously existed to take industry specific classes has now been removed.

Put another way, the University of Wyoming does not have a Medical School.  It does not have a Dental School.  It does not offer degrees in Veterinary Medicine.  Why should it have a College of Law if there is nothing Wyoming-centric about that institution’s education or to the admission to the Wyoming State Bar?

I very seriously doubt the implications of this move have been completely thought out, and if they were this course of action would not have been taken.  I doubt that this move is supported by the majority of the members of Wyoming’s bar.  I suspect that when the topic comes up in conversation with non lawyers, on the rare instances in which that might occur, that the UBE takers will be regarded as lesser lawyers, and I would be surprised if the Legislature did not begin to question why the University of Wyoming needs a law school if there are no Wyoming topics on the bar exam.  Indeed, I cannot think of a reason to support the law school in any fashion, other than that I am a graduate of it, and would think we might be better off taking the same approach we presently take towards dental, medical and veterinary students, in the absence of a real Wyoming State Bar exam. 

I'm not urging the elimination of the law school. I am urging the reconsideration of the UBE.

Postscript:

As anyone following the comments will know, assuming that they're not from here and don't already know it, Wyoming did charge ahead with the UBE and its solution, as described below, for the deficiency of Wyoming topics in the new testing regime was to require a CLE for admission. That's the way things now are.

At least a few lawyers I've spoken to about this are not happy at all about it, to include at least one other who was associated with putting together the CLE, as I was.  CLE topics were limited to about 10 minutes in length.  I fear that all we've done is open the door to malpractice, at best.

But, more particularly, one of my expressed concerns here has already been confirmed.  One lawyer I know well told me that he recently spoke to a Denver attorney who has confirmed that his firm now intends to send out Denver lawyers to each of the rural UBE states, Wyoming, Montana and Colorado. And I'm sure it won't be limited to one.  That will be the beginning of the end of whole categories of work in these states, and the results will not be happy ones for either actual clients or local lawyers.

My prediction on this is that within five to ten years entire classes of significant legal work will now be concentrated in Denver and Denver firms, where previously they were handled locally.  The old traditional firms that aren't aware of this danger will wake up to it within three or four years, but it will be too late for them. By that time, the backers of the UBE will be so entrenched that there will be no going back.

My further prediction is that this will be the end of the University of Wyoming's College of Law.  With the UBE, it is now wholly obsolete and totally unneeded.  The Dean of the College, who was somehow associated with the UBE CLE, sent out a congratulatory letter to all of us who worked on it, showing how ignorant on this development he is.  If we're going to give our work to Denver lawyers, what need have we of a law school here at all?  None.  Lawyers aren't well liked and most people see no reason for state sponsorship of the creation of more.  Now, there really isn't one.

It's the end of an era, to be sure.  Much of the court work and major business work will not be going to Denver. With that, the collegiality of the Wyoming bar will give way to the nasty behavior associated with most.  The need for a local law school has been eliminated.  The concerns of those of us opposed to this development won't even be recalled in short order.