Friday, January 23, 2009

What Hath Law School Wrought?

I am taking Professional Responsibility this semester. This week in class we talked about the gulf that obtains between lawyers and non-lawyers in society. More than that, there is alleged to be a gulf of similar span separating lawyers as they are now from who they were when they first walked into law school. Specifically, law school is believed in much of the relevant literature to render those subject to it less reactionary and more conservative, in the non-political sense of that word.

It is not surprising that law school should change a person. As students we spend three years reading cases that lay out the opposing sides' arguments. We read dissents from majority opinions. We read cases where an appellate court reverses a trial court or where a state supreme court reverses the appellate court. Of course we read cases of the Supreme Court of the United States, which does what it will, and about which it is said that it is not final because it is right, but right because it is final. And too we read of cases with similar facts decided differently in different jurisdictions. In short, we become accustomed to needing to see a thing all around before coming to judgment on its nature. That is not what the mass of society is in the habit of doing.

Hardly surprising then, that when released back into society newly minted lawyers should have some trouble relating to non-lawyers. And if it were possible to introduce them to their former selves, the trouble would be no less. The joke told at the orientation for my class was that three years later we would know enough to answer most questions with, "It depends." No self- respecting reactionary, nor even a host of a cable television talk show (which might be the same thing), would be caught saying something like that.

For me personally, one of the worst things to happen in law school was my realization that the woman in the McDonald's hot-coffee-in-the-lap case had a point. I think before long every law student, present or past, will have this experience: someone, family or friend, will pull out a news story about some facially absurd law suit. Then everyone present will denounce the suit. Then they come to you. Wanting to commiserate yet constrained by self respect, you say something detached like, "That's something." But the others find this judgment unsatisfying and press you for a more strident condemnation of the thing. At length you are obligated to say something even less satisfying to them, but which warms your innards; something like, "Well, the relevant standard..." And then the outrage of the group moves from the lawsuit to your profession, and, the undertaking being in jest or not, you are distanced from those folks to some degree.

Such is the burden of a life in the law, I suppose. Speaking for myself, while I am nostalgic for the guy who could enjoy visceral outrage at the McDonald's case, I cannot wish to lose my hard-gained understanding (like how that dude in the Matrix can't go back to the cocoon). Happily, I still don't think the McDonalds woman should have recovered; though it would take me some time, and possibly some footnotes, to explain why.


Marie T. Reilly said...

David Hutchinson said...

Dean Reilly,

That is a good story. However, I think (I hope) pleading negligence (and having it mitigate the sanction) for getting lost while driving is a tendency reserved for only a subset of lawyers. That is to say, the most altered of the altered.

At any rate, assuming the obvious autobiographical nature of the story, you are lucky you weren't presented with some sort of equation once you reached safety, purporting to show how the precautions you failed to take (bring along a map; advance work on Mapquest), given their low cost relative to the the harm of getting lost, and the raised probability of getting lost given the failure to take such precautions, precipitated the incident and established your negligence.

Marie T. Reilly said...

That calculation,nearly word for word, runs through my mind every time I've screwed something up since sometime in October 1981 when my mind was hauled away by Caroll Towing.

Imagine trying to explain to a 5 year old how easy it is to tie shoes relative to the cost of tripping over loose laces.

Luckily, I'm a also a bankruptcy lawyer and deeply invested in forgiveness.

David Hutchinson said...

That's good stuff.

You are ruled by the Eternal Hand Formula, which really just means you are rigorously rational. I say eternal and not immortal because immortal things have a beginning, and I think the Hand Formula always existed. The great man simply recognized and named the thing.

Here's something: when I was a 1L and was first exposed to Learned Hand, and for some time thereafter, I thought that his name might actually have been Bob or Larry or some such, and that 'Learned' was an honorific, like the venerable in The Venerable Bede, but without the definite article. Given that it was not, it says something about the farsightedness of those who named the judge (even though it was his middle name) that they anticipated his erudition.