Eric Rasmusen on Everyday Versus Fancy Law

totmauthor —  19 September 2011

Let me start with a couple of stories.

Story 1.  I’m an economist, but I got a chance to be like a real lawyer in filing an amicus brief recently (Barnes v. Indiana– here’s our brief).  We had only two weeks to organize, write, and file because of an oddity of the case (a petitition for the Indiana Supreme Case to rehear after an opinion that surprised everyone with its breadth). We had legal counsel, but pro bono, without paralegal help, and by email. It came down to the wire in writing and getting final approval from amici, so he suggested that I do the physical filing. I took the brief to Kinko’s around 9 p.m., but discovered they couldn’t do the binding by 11, and I needed to drive an hour get to the Indianapolis Statehouse and file by midnight. I went to my office instead, and did simple staple binding with green cardstock, which ran out so I used white cardstock for the back covers and made it to the Rotunda at 11:50. Alas, our counsel shortly got a notice that the back covers needed to be green too. But the Court Clerk was merciful, and allowed us to slip in replacement briefs without a formal motion.

Story 2.  The company MDCO hired the law firm WilmerHale to handle its patents. WilmerHale filed for a patent extension 62 days after a key date, missing the statutory deadline of 60 days. This was perhaps because of confusion over whether the days started being counted from the Friday night of a previous filing’s approval of the following Monday morning. The uproar that began then is still in progress (litigation and a special statutory amendment known as the “The Dog Ate My Homework Bill”), but MDCO and WilmerHale settled for $214 million malpractice damages if their efforts fail to win back the patent extension.

I tell these two stories as examples of the importance in everyday lawyering of following arbitrary rules. Experience counts in this, and care, and even wisdom (don’t wait till the last minute or something bad might turn up unexpectedly) but not IQ.

To be sure, other defects can be fixed up by IQ. That’s what MDCO is doing with its litigation, where it hired Peter Keisler and Sidley Austin. (Medicines v. Kappos, 731 F.Supp.2d 470 (2010), brief here ).  But everyday lawyering is not rocket science. It demands trustworthiness, experience, and wisdom, but not intelligence. That’s why big national firms hire local counsel— the big firms are wise enough to know that experience counts.

Training for everyday lawyering is different from training for appellate work or for helping on fancy deals. Everyday lawyering is best learned by serving as an apprentice.  There is a place for both kinds of lawyering. Fancy practice benfits from law school training. Everyday lawyering doesn’t. A lot of legal work falls in between— trial work, for example.

The current system of requiring lawyers to first go to law school, then to pass a bar exam, and then to stay out of big enough trouble to force disbarment proceedings doesn’t have much effect on fancy lawyering. For something complicated, you probably want someone who went to law school anyway. Or, if you happen to come across some self-tutored legal genius, you’ll find a way to make sure of his talents, perhaps by having him serve as “assistant” to your team of licensed lawyers. It’s like requiring a PhD to be a physics professor— pretty much every good candidate will have a PhD, but it’s not a binding constraint.

The current system does have an effect on everyday lawyering, but not a good one. First, it forces all the lawyers to go to law school. Thus, as often brings complaint, three years after starting their legal training, lawyers still aren’t ready to practice everyday law. To be sure, after a month’s supplemental training many of them have acquired all the book-learning they need to practice in a particular jurisdiction. But imagine the comparison between someone aged 21 who spent three years in law school and someone who had spent three years working in a law office. Who would you rather have file your amicus brief or your patent extension?

And, of course, teaching Marbury v. Madison, Chevron, and Hadley v. Baxendale to prepare someone for everyday lawyering is a waste of time. It’s part of their heritage, and part of a liberal education in the law, but it won’t help you do divorce cases.

A bar exam might be a good idea. I would certainly like to know whether a lawyer I find in the yellow pages has passed a bar exam somewhere in the world or not, though I’m not sure I’d insist on the Indiana exam. More important than that, I’d like to know his score— truly useful information. If he passed the Indiana exam 20 years ago, what he learned may well be obsolete, but if he was in the 8th percentile of those passing, that’s still relevant.

And having disbarment be the penalty for bad conduct is definitely a good idea. Just as someone who has been convicted of child molesting shouldn’t be allowed to start a daycare center, so someone who has been convicted of embezzlement shouldn’t be allowed to practice law. And, ideally, this shouldn’t be left up to judges. It takes a long time to obtain a criminal conviction and “beyond a reasonable doubt” is a tough standard to meet. I’d prefer a speedy tribunal with a preponderance of evidence standard, with the possibility of the guilty lawyer appealing to the courts afterwards for reversal.

Going back to Story 2, let’s also have more public information about incompetence in everyday lawyering. Mistakes there are easy to verify, unlike mistakes in appellate argument. So let’s have a bulletin board with official publication of bloopers. In teaching Story 2 to my undergrads, I’d like to know the names of the WilmerHale lawyers who blew it, and the story of what happened to them. I haven’t found that yet, but with a bulletin board, it would be easy. And how can they complain if all it does is tell the truth?

Thus, let’s get rid of the law school requirement but keep the bar exam and disbarment. Let’s even make the bar exam and disbarment more important, by disclosing more information to the public and by speeding up how they work.

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