Is "Thinking Like a Lawyer" Worth It?

One of the main benefits of law school is learning how to "think like a lawyer". The benefit of learning this magical thinking is ostensibly worth the $120,000-$180,000 spent by law grads over three years. Professors claim that their hide the ball, hazing methods instill this important skill in the heads of all 1L's. But what does "thinking like a lawyer really entail? And more importantly: is learning "how to think like a lawyer" worth the money?

It is worth explaining exactly what "thinking like a lawyer" means. An article by our friends at Above the Law does a good job of introducing the concept. The ATL article points to an article by Lisa Mazzie at Marquette that gives the following examples of "thinking like a lawyer":

• Make “distinctions that do not make a difference to most people”
• See “ambiguity where others see things as crystal clear”
• Look at “issues from all sides” without stating your own position
• Artfully manipulate facts to “persuasively argue any point”
• Are “far more adept at analysis than decision”

As I've alluded to in the past, I now work in a non-law job that I am very happy doing. Part of my job is ensuring regulatory compliance of the products we create. I have the misfortune of dealing with clients' in-house and outside counsel from time to time. Let me break down what I see from lawyers, dealing with them as an outside observer. Many attorneys bring up points that are de minimis or outright wrongheaded. They look for exotic or uncommon ways to interpret regulations whose plain meaning is apparent to everyone else. This is usually done in service of risk minimization. The problem is that any business employing people who have even a modicum of common sense take potential lawsuits into account and evaluate the risks before acting. My company already has a process to consider and quantify potential risks and then choose a course of action based on deep analysis. The lawyers then jump in at the 11^th hour to gum up the works with inane nonsense. In one of the most galling examples, we have a client whose in-house counsel is so "careful" that he has caused them to miss an important regulatory deadline three years running.

One of the glaring drawbacks to "thinking like a lawyer" is that most lawyers have no sense of how their opinions affect the business at hand. In another case, we had a client whose lawyer must have gone to a CLE. She then sent a note to our client team and asked us to add language in their product disclosures addressing an issue that literally no one else in the last twenty years has thought fit to address. When asked by the client team why the lawyer felt the disclosure should be added, she said that if an extremely unlikely and remote chain of events occurred, she wanted to be sure that client would be protected. I guess a lawyer is supposed to think of all the possible risks. But, the great lawyers have the ability to consider all of the factors in a situation; the average lawyer thinks of each matter as being in a vacuum and does not have any qualms in giving directly contradictory advice about the next matter presented. Temperance and awareness are not taught in law schools. Additionally, there is no incentive to think practically and effectively when coming up with unlikely scenarios adds an extra $500 per hour to the clients' bill for the month.

"Thinking like a lawyer" is a concept that has some utility to the stereotypical law student. The stereotypical law student is a liberal arts graduate who goes to law school because she doesn't know what else to do. A person who makes the decision to go to law school without having a clear and articulable goal of what he wants to accomplish is going to benefit from learning some critical thinking skills. However, law schools, like most of what they do, only give law students partial training. Law students are taught to question everything and look at an issue from all sides (these points are debatable). But, law schools do not teach students to apply these skills practically. When students get out into the job market, the billable hour system encourages attorneys to continue thinking inefficiently and impractically. New lawyers do eventually need to develop the ability to apply practicality to fact patterns. But just like with learning how to actually practice law, law schools leave these tasks to employers. 

Learning how to "think like a lawyer" is not worth it. The current price of law school is a high price to pay to learn how to think critically. Undergraduates without any idea of what the next step in their lives will be are better served by entering the job market and maturing a bit. The law schools' value proposition is falling apart when even the slightest scrutiny is applied. We have seen that law schools are trying to integrate "practice readiness" into curriculums; these are half measures that do not address the base issue. Law school is a trade school with an elite veneer draped over it. Schools need to get over their intellectual pretensions and confront reality. But we all know that professors and administrators will hang on to the status quo until it's too late. All we need to do is get some popcorn ready and watch the spectacle unfold.

Note: edited for grammar and clarity 

Alaburda v. TJLS and the Grand Pyrrhic Victory

Today, jurors in San Diego decided by a 9-3 vote that Thomas Jefferson Law School did not commit fraudulent misrepresentations in its graduate employment statistics to Anna Alaburda several years ago.  While many, I am sure, will take such a verdict, particularly in the context of other dismissals, as a resounding victory for law schools, the following passage seems instructive about why this particular verdict went the way it did:

Juror Wade DeMond, who works on regulatory affairs in the pharmaceutical industry, said he questioned how Thomas Jefferson collected employment data after Alaburda's time but that it made a good-faith effort in her case.

"The jury instructions, the questions we were asked, were very specific and they were time-bound: Did Thomas Jefferson falsely represent employment data for the U.S. News & World Report editions that she reviewed? So that means the whole thing gets narrowed down to the 2004 and the 2005 editions," he told reporters.

The narrowness of this case aside, the verdict should not come as a surprise to anyone who's observed the legal news over the last few years.  Contrary to for-profit shitholes, the public at large has built-in defense mechanisms to protect non-profit higher education, to assault lawyers but not the institutions ruined by them, and to cast the harshest possible light on the personal responsibilities of abstract others who suffer only in news articles.  The lawsuits hit many observers like ipecac, causing them to vomit forth all sorts of inanity that ignored the basics of consumer fraud and demanded that prospective students know the impossible and assume that a law school would defraud them with duplicitous stats.  Courts, mostly of the state variety, had similar nausea. As a result, a whole generation of Americans lawyers was simultaneously highly sophisticated and inherently, unreasonably stupid.

But at the end of the day, consider where we were prior to the litigation compared to now.  The New York Times' marquee article on the so-called "scam" didn't hit until 2011.   LawProf's first post didn't hit until August of that year.  While there was a solid trend of "scamblogging" prior to that, the denial on the institutional side was significantly stronger.  In five years, applications and bar exam scores have plummeted and the institutional position has changed radically.  While the courts have been hostile to claims of shenanigans, the market doesn't lie.  That many of the students who applied in droves in 2010 would not be caught dead applying to law school in 2016 is a sign of progress - and not for the law schools.  Awareness about the true state of the job market has spread, and I would it to you that the lawsuits have been an instrumental part of that process.

While the law schools, like many large institutional actors, figured out how to comply with the letter of the law without regard to the spirit, they are unable to counter the truth.  And from a combination of books, blogs and websites, and - yes - these lawsuits, the truth is now more well-known than ever.  These institutions can claim that the Frank McIntyres of the world are experts and that law degrees are worth a gazillion dollars, but the buyers - sophisticated consumers, right? - seemingly aren't taking the bait like they used to.

So law schools generally might win the courtroom war, but their whole defense is a gigantic Pyrrhic victory.  They have lost so much over the last several years that these legal victories have to ring hollow as the market obviously agrees with the spiritual substance of the lawsuits, even if the suits themselves don't yield the Anna Alaburdas of the world a dime.  Law schools can win lawsuits, but they cannot change their recent graduates' dissatisfaction with the "value" received.

Of course, there still are true believers.

"This is not, you know, Trump University," [TJLS lawyer Michael] Sullivan said. "It is so not that. It is such a really excellent law school."

Emphasis added.  Ten years ago, people honestly believed such a statement and took their 150 LSATs to pay tens of thousands in tuition in the hopes of making six figures.  Does anyone outside of TJLS, its paid lackeys, and truly delusion 0Ls honestly think so now? 

For the bottom half of the class, often the only differences between Trump U. and TJLS is that the TJLS student has no sympathy, three wasted years, and six figures of debt.  Considering that the public at large is understanding that in ways they once did not, the law schools have clearly lost.

Bar Pass Standards and the Wiggle Room Problem

The ABA Section on Legal Education and Admissions to the Bar has proposed changing the bar passage standard used to evaluate law schools for accreditation purposes.

Under the proposal (PDF), a law school would have to show that at least 75 percent of its graduates who took a bar exam within two years of their graduation passed.

The proposal, if adopted, would eliminate altogether the first-time bar passage test contained in the current standard (PDF), which a law school can meet by showing that its first-time bar passage rate is no more than 15 points below the average first-time bar passage rate for ABA-approved schools in states where its graduates took the exam.

On one hand, this removes something of a loophole - if enough law students in a state sucked, all of the crappy law schools that produced the suckage would still be easily in compliance because they were all clustered within 15 points of the average that they collectively jacked up.  It became a true feat to one of the few schools to land in hot water for having low bar passage rates.

While the new standard is somewhat admirable in that they're holding law schools to an absolute standard rather than one that allows them all to sink simultaneously without penalty, the standard still fails completely to  help students and ensure that American law schools are actually viable, worthwhile institutions.

First, the measure is phrased not on a per-test basis, but on a per-student basis.  In other words, a student who fails three bar exams in a row and passes on the fourth try counts as one plus and no negatives at the end of a two-year period.  The rationale for this is explained in the proposal:

While first-time pass rate is important for consumers and is (and should continue to be) disclosed under Standard 509, the Committee believes that, for the purposes of accreditation, an ultimate pass rate is the more appropriate measure of whether a school is operating a sound program of legal education [so if they have to take a year and a half to teach themselves everything, the school is doing well?  -ed], and it is not subject to the idiosyncrasies [? - ed] that can be found with a reliance on the pass rate of first-time takers. 
...
It should be understood that the proposal makes no attempt to place a limit on the number of times that an individual may sit for a bar exam. 

In other words, the ABA may soon not care if a law school's entire graduating class fails the bar on the first try for accreditation purposes.

You're basically going to see schools like the Infilaw units put students on one of two tracks:  1) those who they think can pass a bar, which will mean pushing them to take the bar four times after which the student becomes persona non grata; and 2) students who they're going to pay to hold on taking a bar exam for at least two years.

Because that's the other problem with the standard:  it's expressly limited to students who "choose" to take a bar exam.  Just as evaluating a school only by its graduates who volunteer to submit employment information is a terrible way to evaluate the job market, only counting those who choose to take a bar exam is a poor metric of how the school at large is functioning.  It rests on the exploitable assumption that most law students will take a bar exam, that there is an unknowable minority who went to law school with no intention of being lawyers who will not take a bar exam, and that law schools will act in good faith to not disturb the balance.

The problem is that, behaviorally, we know law schools do act to manipulate post-graduation statistics to their advantage.  And yet, when these standards get drafted, inevitably the law schools are allowed to whittle the edges based on "unfair" arguments and mythological ideas about law school to preserve avenues for manipulation.  All regulatory efforts like this is accomplish to allow creative types to find new ways to lie.

Thinking about it further, why do we use the bar exam at all?  The problem, it seems, is that there's no truly standardized test in law school.  It's an odd realization given the strong emphasis on the LSAT as a uniform pre-law comparison metric, the standardization of 1L curriculum and ubiquity of GPA in determining job fortunes, and the ever-standardization of the bar exam.

I'm normally not an advocate for adding standardized tests to an educational system, but given the realities of legal education, it would seem ideal to have some sort of standardized test taken during the 3L year.  Require every would-be graduate to take it, give them some carrot to ensure effort, and require that the school achieve above a certain result in the aggregate.  In the alternative, give some sort of uniform test after year one to ensure that "contracts" at Cooley is the same as "contracts" at Columbia.  In the former, students would gain a pre-bar evaluation of their study needs; in the latter, BigLaw employers would have a cross-school metric to use when reviewing candidates.

Of course, there's a strong institutional resistance to any such moves, not only because legal educators are intentionally stodgy and reluctant to believe in any alternative that might disrupt the status quo, but also because at least 175 presently accredited schools benefit handsomely by institutionalized wiggle room.

After all, regulatory capture is all about finding a way to comply with the letter of regulations before they even exist, spirit of the regulations be damned.  While on the surface, this new regulation has some positive changes, it unfortunately builds in evasion tactics to ensure that all but the most piddling law schools are going to be in compliance for a long time to come, regardless of what warm bodies are still enrolling with those succulent tuition checks.

The Burden of Student Loans Comes Full-Circle

One item that is oft-repeated on the scamblogs is the burden of student loan debt, and how it can be  life-altering.  With all the emphasis on million-dollar degrees and sophisticated consumers, many within and without the establishment place the blame on the student marks themselves, rather than asking why tuition costs have grown so high, or why graduates struggle to find meaningful opportunities to service that debt.

 

That would require sober introspection and analysis, however, something that few who benefit directly from the receipt of student loan dollars are willing to engage in.  A new data point, however, is the increasing costs that non-lawyers are also dealing with:

When Samuel Smith graduated with a master's in engineering from Cornell, he thought the $190,000 in debt he incurred would pay off. But it took him a while to land job at a software firm in Austin, Texas. And now, after paying $1,750 a month in loan payments, rent and food, he says he doesn't have much left over.

He doesn't own a TV and says "it'd be nice to go out for drinks once in a while."

 

http://www.npr.org/2016/03/01/468272843/strategies-for-when-youre-starting-out-saddled-with-student-debt

 

Wait, someone who graduated with an oh-so-vaunted STEM degree is struggling to pay their student loan debt?  Wasn't it just a few years ago that detractors were saying, "well, you liberal artist law students deserve what you got, because you didn't get a REAL DEGREE!!!"  As readers of the blog know, as an ex-STEMer myself, I certainly heard all about how great tech was decades ago, though the dollars were not materializing for me fully, either, at the time. 

 

Samuel Smith appears to be paying his debt down aggressively, though, so maybe if he went on the thirty-year repayment plan and ate a ton of interest, he would have more money to drink with, I hear some say.  Well, how about another engineer:

 

Greg Deckard and his wife are trying to do all that. They live in Mobile, Ala. And he recently went back to school to get a software engineering degree. But now they owe $126,000 in student loans on top of a mortgage and day care for two kids.

 

"If I go with a 20- to 25-year plan, then I'm in my 60s when I finish paying. I'm 42 and I have very little saved for retirement," he says, let alone for his kids' college education.

 

Hello, fellow non-trad Gen-X student!  You're coming in loud and clear with the family obligations, mortgage obligations, and student loan debt.  I hear some say "well, you should have just been working harder this whole time.  You were greedy for going back to school to try to improve yourself, so what did you expect?  Start boot-strapping!"  But I fully appreciate the quandary that you and many like you find yourself in.

 

Not to leave out our fellow liberal artists, however:

 

[IBR-type programs] would benefit Rosette Cirillo, an inner-city teacher in Chelsea, Mass., who is the first in her family to go to college. She jokes about the $120,000 in college and grad school debt: "Oh, it's my tax on trying to become part of the middle class."

 

Every joke indeed has a kernel of truth within it.

 

In sum, did you notice the numbers?  While the article states the average debt has "only" grown to $35,000.00, the issue is that more and more students are graduating with six-figure debt, even in the "sure-fire winner" category.  It appears lawyers are not alone anymore, and we in the scam movement have always said that law school is the canary in the coal mine.

 

Not to be outdone, Northwestern University has hit upon a novel concept:

 

Starting next fall, freshmen who ordinarily would have to take out loans will instead receive a combination of grants and scholarships, along with earnings from work-study and summer jobs, to cover their expenses. Current undergraduate students who already have $20,000 or more in loans will have that debt capped starting next fall, and receive a scholarship instead of having to borrow more, according to spokesman Alan Cubbage...

 

"We know that the fear of loans chases people away," Northwestern President Morton Schapiro said in an interview about the new policy. "It might attract some students who might otherwise not go here, but I think it's more about treating the students who come here better. We have a very successful capital campaign, we have a large endowment. We have the resources. The question is do we have the will — and we do."

 

Charge.  Students.  Less. 

Brilliant!  That thing that "couldn't be done!"  If only the law school cartel had "the will" previously to "treat students better."  Then perhaps there would have been no need for Law School Transparency or the scamblogs, or thousands upon thousands of debt-riddled lawyers.  I wonder how the Pritzker School of Law is taking the development... 

 

http://www.chicagotribune.com/news/local/breaking/ct-northwestern-university-loans-financial-aid-20160303-story.html

 

In any event, friends, while the rest of the academic world is apparently waking up to the consequences of high tuition, know exactly how and why you are going to school, be it law school or any other endeavor.  Do your research.  Ask hard questions.  Don't be a lemming.