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Deconstructing Legal Education: Why Law School Is Not All It’s Cracked Up to Be

March 21, 2010

As the old saying goes, “In law school, time is meaningless. In time, law school is meaningless.”

Yes, this day would come. I knew one day I would write what you are about to read. Let’s face it, folks, just about everybody hates the legal profession. Honestly, I do not like most other lawyers. For the most part, I do not socialize with other lawyers. And I’m pretty sure a lot of other lawyers do not like me. I belong to one professional legal organization, the New Mexico Criminal Defense Lawyers Association and I steer clear of most other legal organizations and associations. Like Groucho Marx said, I try to stay away from any club that would have me as a member.

On the whole, the legal profession is bankrupt. In a profession supposedly centered on service to one’s fellow man, it is surprisingly devoid of humanity. And it all starts with law school. Some people love law school. I hated nearly every single minute of it. And now I’m paying interest on it for the next twenty-five years of my life for it. So this is my chance to have my say.

So, how does one become a lawyer in the United States? In nearly every jurisdiction in the United States, to be eligible to sit for the bar exam, a candidate must be morally fit (ha!) and must have a Juris Doctorate from an ABA-accredited law school. Nearly every law school in the United States is ABA-accredited, but there are some which are not and some which lose their accreditation. If you go to one of these schools, you are usually throwing your money out the window or limiting where you can practice law. Some bar associations will allow unaccredited law school graduates to sit for the bar exam in the jurisdiction where the school is located and, sometimes, those attorneys can later get licensed in other states, but it’s generally an uphill battle. The law school in Las Vegas (UNLV) was originally like this, but I believe it finally achieved ABA accreditation. So, achieving and maintaining ABA accreditation is a big deal. Rarely, some schools lose their accreditation and their graduates enter professional legal purgatory. So long as one’s school is ABA accredited when the student graduates, it’s never a problem.

The moral fitness requirement is satisfied essentially by not having any felony convictions or incidents of moral turpitude which would reflect poorly on the candidate’s ability to practice law. For example, one cannot be an overt racist. One must demonstrate basic honesty. It is important to note that waivers can be obtained for many situations, though it may mean an investigation and/or a hearing into one’s background.

The problem with law school begins with how people are selected to attend. Every candidate for law school admission must have at least a Bachelor degree. Any given field will do. Most law students have a liberal arts background—political science, history, or english majors. But you do find a smattering of science and engineering degrees and a few truly depraved people that have medical degrees and then decide to go to law school. I have no problem with this requirement, though I think there should be streamlined programs for undergraduates to transition into law school. The real problem is with something called the LSAC, the Law Schools Admissions Council.

The LSAC administers the LSAT, the Law School Admission Test. The LSAT is the first of many exams that prospective lawyers will have to fear and take. One doesn’t pass the LSAT. One achieves a score and that score determines, firstly, whether the candidate will get into law school and, secondly (and ultimately more important), where the candidate will attend law school. The score range is 120-180, with 150 being the the average for any given cohort of exam takers. The competition starts here as any candidate’s score is based on every other score taken for that particular exam. If you’re taking an exam against a bunch of Einsteins, you’re at an inherent disadvantage. Hence, the old wisdom of “If you and I are being chased by a bear, I do not need to outrun the bear, only you” applies and will continue through law school and the bar exam.

Administering the LSAT is a business. It costs a candidate $118.00 to register (with a $60.00 late fee). But it doesn’t stop there because then there is something called the LSDAS (Law School Data Assembly Service). These people are nice enough to forward your LSAT scores on to law schools to which you want to apply and, conveniently, nearly every law school uses this “service”. This costs another $109.00 and gives you one gratis school application. It’s $12.00 for each additional school to which one wishes to apply. Want your LSAT score by phone three weeks after you take the exam? $10.00. Want a hard copy of your score mailed to you? $25.00. And the fees go on and on. To top it all off, nearly every law school charges a fee for the privilege of applying to that school, which can range anywhere from $50-$200.

Mind you, this is just to take the test that means a possible admission to law school. In order to have any shot at getting into a halfway decent law school, a candidate needs at least 155. Most schools won’t even consider applicants with a lower score. Want to go to Harvard Law? Better get at least a 170 and most likely you’ll need a higher score to be realistically competitive. I think I scored a 156 and have only lost three felony trials in my whole career.

So, what does the LSAT test? There are three principle areas of the LSAT: Reading Comprehension, Logical Reasoning and Analytical Reasoning. As best I can tell, the only portion of the exam that has anything to do with the practice of law is the Reading Comprehension portion. As a law student and as a lawyer, one will have to consume volumes of information. If you have problems reading in college, forget law school. You’ll be required to read hundreds of pages a week. The other two sections of the LSAT are akin to brain teasers. For example, you’ll be told that you have to arrange guests at a table at a dinner party, but Alan won’t sit next to Bob and Chris will only sit next to Danielle and Edgar will only sit at the head of the table. Or you’ll read a brief argument and be asked to spot the inconsistency. Like, if God is Love and Love is Blind, is Ray Charles really God?

The most important skill and ability to the practice of law, written communication, is a brief afterthought on the LSAT and isn’t even scored. A candidate will be asked to write a short one page essay on the merits of, say, Chevys over Fords. Or Apples over Oranges. Again, if you have trouble writing in college, forget law school. If you have trouble with the difference between your and you’re or its and it’s, go to Medical School or get your Master’s degree in Marketing. And there’s always Art School.

So, now you’ve shelled out the money and taken the LSAT, sent off your applications to all the law schools you want to attend and sit back and wait to hear the results. Here’s where who your parents are and what equipment God gave you at birth come into play. I remember when I was an undergraduate student, the UNM Law School admissions coordinator came to campus and I went up and told her that I was interested in attending her school. Without knowing anything about my GPA or LSAT score, she told me flat out to not get my hopes up because I was a white male. I’m not here to debate affirmative action programs; it’s a simple fact that who you are and where you come from, two factors that one has no control over, will play a huge role in deciding if you get into law school and what law school you get into.

Depending on the particular law school, your college GPA will comprise about 40% of the total decision for that school in deciding whether you are admitted. So, good students (probably the biggest predictor of future academic success) who score poorly on the LSAT are up the creek without a paddle. Bad students better ace the LSAT or consider something drastic to stand out in the crowd, like gender change, dressing up as the opposite sex, or following C. Thomas Howell’s strategy in the movie Soul Man.

Hopefully, you’ll get your acceptance letter to an acceptable school and the paper chase begins in earnest. Honestly, I only applied to one law school: UNM. And I thought I would not get in. So when I made it in on the second round of selection for my particular class, I was pleasantly surprised. Once admitted, it’s now time to figure out how to pay for the whole catastrophe. If you’re not independently wealthy or have a rich family, you’ll most likely be financing your legal education. Law School scholarships are few and far between. I came out of law school with around $70,000 in debt. Sometimes I wish had just bought a Porsche.

When you get to law school, you’ll find that you won’t be arranging people at a dinner table or debating whether Ray Charles is really God. You’ll be reading. A lot. 90% of of what you read will be cases, which are written by some of the driest and unimaginative writers one could ever imagine. They’ll generally spend ten paragraphs explaining something when one would’ve sufficed. You’ll have no say in what courses you take the first year. At nearly every law school in the United States, everybody takes criminal law, criminal procedure, property, torts, civil procedure, constitutional law, and contracts. There’s also usually a legal research and writing class. Sometime during your second year, you’ll also take your legal ethics and professional responsibility class, AKA “How to Not Get Disbarred”. Actually, I really like my ethics class because you learn all the lawyer rules, like when it’s permissible but not mandatory to rat out your client.

The main classes in law school are taught by something called the Socratic Method, supposedly invented by the Greek philosopher of the same name. Socrates was a master at it—he would never actually teach anybody anything, but would rather ask his students questions that would ultimately bring them to the answer. Socrates, after all, is the man that thought he really knew nothing. Done well, it is amazing. Done poorly—and it usually is—and it will leave you confused and insecure. Each professor does it differently. With some professors, you never know when it’s your turn in the hot seat. Others are merciful and assign what days a student will be called upon. Call me sadist, but I always preferred the former. Having been in the Marines, I was used to authority figures coming up to me out of nowhere and asking me random questions about how long my rifle was or what my fifth general order was or where I would place a machine gun in a defensive position. Most of my classmates didn’t have that experience and it showed. I would often take quiet pleasure in their meltdowns. It’s amusing when the bear takes a huge chunk out of someone’s ass. Just remember that it won’t mean anything in a few years and very rarely will anyone remember a particular episode of academic destruction.

In the first year, you’ll spend a lot of time sizing up every one else in your class. The competition begins. Remember what I told you about outrunning the bear? People will be judged smart or stupid depending on whether they speak, what they say, and how they say it. Can’t explain the Rule Against Perpetuities? (and I still can’t) You’ll be judged a moron by your peers. Do you one day wax poetically about Mens Rea? Your fellow students will be begging for your criminal law outline for the final exam.

This brings us to the all important process of law school grading. In nearly every class, most especially in the first year, a student’s entire grade will boil down to one thing: The Final Exam. And I do mean FINAL. There are usually no quizzes or mid-terms. Law school exams are radically different from what most students experience in their undergraduate education. And here’s the real kicker. The exam is usually one or two questions, a few paragraphs long. And no professor will ever ask you what the Rule Against Perpetuities is or to explain Mens Rea. Rather, it will most likely be a long and convoluted fact pattern through which you’ll have to apply the “rule” of the law to the facts and the facts to the “rule” of the law. There’s no right or wrong answer. You’ll fill blue book after blue book (hopefully) with your drivel in the hopes that you spot all the issues the professor has tried to conceal. Hopefully you’ll analyze the facts and law in a coherent manner with which either the professor agrees or can at least understand. Most law school exams last three to five hours and are graded anonymously. Each student receives a number prior to the exam period and that number is used for identification purposes.

I heard that one time, a law student, upon reading the exam and being impossibly stumped to formulate an answer, wrote a simple two word answer: “Who knows?” Reportedly, he received an A+.

Are you sick the day your exam is scheduled? Suck it up. Break up with your girlfriend the day before? Too bad, so sad. It’s do or die and law professors are generally the most unforgiving kind of person. They’ve not only outrun the bear in the past, they now take perverse pleasure in being the bear.
And they all want to be the grizzly, not a cuddly panda. I’ll never forget in the first year when one of my particularly eager classmates, one who loved law school and who thought she was God’s gift to law school and the legal education process and knew the answer to everything and wanted everyone to know it, raised her hand and shifted and shuffled in her seat until finally the professor—the oldest, crustiest, professor at the school who had a reputation for spiking students in softball games in his younger years and brawling with umpires over bad calls—called on her. She began her answer with, “Well, I think…” and he cut her off right there. “Sweety, maybe your mom cares what you think, maybe your sister cares what you think, maybe your dog cares what you think, but I don’t give a damn what you think.” Then he threw a piece of chalk in her direction and furiously chewed his nicorette gum. God damn, he was a magnificent bastard. It’s only fitting that they named a a wing of the UNM law school after him.

Another thing that distinguishes law school exams is that each student is permitted to bring in what is called an “outline”. It’s basically what normal people would refer to as a cheat sheet. You can put nearly anything you want in your outline. You can use other people’s outlines. Before exam period, people are busy running around collecting this outline or that outline. Particularly popular were the outlines of second and third year students who were “smart” or who had aced a particular exam. The hope was that the magic would rub off. It usually didn’t.

The bear decides who gets what grade. Probably about 60% of the class will be in the C+ to B range. About 20% will be in the A range and C range and everybody else is scattered throughout. I know 60% and 20% do not add up to 100%, but why the hell do you think I went to law school to begin in the first place? Once again, you are graded against your peers. If someone spots one more issue than you, that’s points they got and you didn’t. We used to joke that the professors would take the exam blue books to one of the staircases at the law school, throw them up in the air and whatever step they landed on determined your grade. For all I know, that’s how it really worked.

I quickly learned that one of the worst things I could do was to discuss my answer with anyone else after the test was over. If they brought up something in their answer that I had completely missed, I would spend the next month convinced I had failed the exam. Many a night of hellish, catatonic introspection would result.

So, now the first year is over. The class rankings come out and now you know where you stand against your peers. Sometimes the know it all people who were the most talkative and active in class end up getting the worst grades and they finally shut the hell up. That mousy girl that sat in the corner and said barely two things all semester is actually a Property law idiot savant. The best advice I can give is that in another couple years, you’re not going to remember who got what grade, let alone your own. And if you do, you should probably commit Seppuku.

There is one grade I remember from my first year and I’m pretty sure all the other students in that class remember their grade also, particularly if you were male. It was my legal research and writing class and I ended up with a C+. The professor was a “progressive” Native American woman who made it a point to tell the class that while she had a male as a partner, she was bisexual. This class was not graded anonymously and it’s one of the only classes where students get feedback from their professor throughout the semester. There were about sixteen students in the class, about half male and half female. It’s kept small so that the professor can hopefully spend a lot of time on each student and develop their legal writing ability. I remember my C+ because only one other male in the class scored higher than me (with a B-). This means that, most likely, only one female scored lower than me. When I conferred with the other male students on our final paper, which had our final grade written on it, we strangely noticed that we all had the same comments from the professor on our paper: It was great having you in class. You’ve shown improvement over the semester and best of luck in the future. Yada, Yada, Yada. We actually had to talk one of my fellow male students, who had received a D+, out of physically confronting the professor. The next semester, in my Advocacy class, which is the second part of the written education component, and with the same cohort of students, I received an A- from another female professor who, while also progressive, was also much fairer and didn’t seem to grade along gender lines. In speaking with other students who got my first professor for their second semester Advocacy class, it seemed as if the males fared as equally bad as my cohort, even if they had good grades in their legal research and writing class. Something was definitely rotten in Denmark…

The second year begins and things become more relaxed. You have greater freedom in choosing your classes. The real challenge began for me and that challenge was boredom. Law school became very banal. I quit going to class unless attendance was mandatory and it usually wasn’t. I would show up for the final, take it and pass it. My grades weren’t bad the first year, but they got better in my second and third year. Obviously, I had learned how to game the system and developed the skills necessary to navigate law school. Reading cases became easier. I was able to figure out what was important and what wasn’t in a case. What would sometimes take me an hour and two read throughs usually would take me about fifteen minutes. I could sit down twenty minutes prior to a class and breeze through the five or six cases I was supposed to have spent reading the night before. I, like everyone else, became fluent in the language of the law. This is the one great piece of learning that only law school can give a person.

The classes I enjoyed the most were the classes where I actually did something, like Trial Practice and an Externship. In this Trial Practice, students learn how to be a lawyer. Students would take turns being witnesses while others would practice direct and cross examination skills and how to deliver opening statements and closing arguments. These classes were taught by real lawyers, not law professors. Why? Because law professors do not know how to practice law, let alone the much valued skill of examining a witness. Sure, they may be able to deconstruct a student’s analysis of Pierson v. Post, but they only how to teach law school. I relished the contact with real attorneys who did real cases and had real clients. I was also lucky enough to land a summer externship with a criminal defense lawyer hundreds of miles from the law school. He threw me into the ocean without a raft and I learned how to talk to child molesters and drug dealers. I learned that prosecutors overcharged cases and some people went to prison that either did not deserve to be there or got way too much time for what they had done. I got to actually go to court and practice under his watch. I tried two cases, cross examined real police officers on the stand and delivered arguments to real juries and judges. I learned that judges are unfair and that the law is not a computer in which when you put in the facts and apply the law, the perfect result spews forth. I got to see the sausage being made. I came back to the law school after that summer with more practical experience than anyone in my class and most of my law professors.

This is my main criticism of law school: Law school is not lawyer school. And it should be. I can understand the first year focus on academics and theory, but in my opinion, the emphasis in the second year needs to shift to the skills required in practice. And the third year should be entirely spent working with a real attorney doing real things, like a physician’s residency after medical school. The truth is that law professors are the chosen few, the academic elite. They rarely practice and instead are annointed in law school by other law professors to bear the academic burden. Those who practice law are taught by those who never have practiced and never will practice. Would you want your doctor to be taught by a teacher who never had a patient in their life and never saw a case of the mumps? That’s the situation in which most baby lawyers, and their clients, find themselves.

And let’s not fool ourselves. Just like administering the LSAT, legal education in the United States is a business. Students are willing to shell out ridiculous amounts of money to go to law school to have the opportunity become the next Ally McBeal. Law schools are relatively simple set ups. No expensive lab equipment is necessary to educate prospective lawyers. The pedagogy is essentially the same as it was one hundred years ago. All a school needs is asses in the seats. And there’s plenty of those to go around. In many law schools, a third or more of the first year class is washed out by the grade curve at the end of the first year. They don’t make the cut and get their walking papers. And their tuition is pocketed by the school. The hapless failures have the difficult choice of trying to transfer to another school, which is probably more expensive than the one they just got booted from, or making a go as a barista at Starbucks or joining the French Foreign Legion.

Law school is decidedly anti-capitalist. This is ironic because you quickly realize in practice that law is a business, not a calling, and you’re not going to save the world. No professor ever taught me about the business of practicing law. Of course, it was because they themselves had no clue. No one ever taught me about setting up a law practice, how to do taxes, how to bring in new clients, etc. Of course, most of my classmates only aspired to clerk for a judge right out of law school or land a job with the perfect firm and become a part of the collective. To them, legal perfection was becoming an associate at Dewey, Cheatem, and Howe for $70,000 a year starting salary, working 80 hours a work churning out billable hours for their firm (and making the firm’s partners rich), carrying a partner’s briefcase for six years and maybe getting to ask a couple questions in a deposition, play firm politics and hopefully get picked to be a partner themselves one day. Or sometimes they are mercilessly tossed out out on their ass after rendering years of service. This is where your soul gets crushed and you become just another cog in the machine. If had to choose between practicing at a big firm or not practicing at all, you’ll most likely soon find me greeting you at the local Walmart. Again, I don’t want to be associated with a club that would have me as a member.

As with any entrenched institution, change will be difficult and slow coming, if it comes at all. Those in the institution have little incentive to change what currently exists. I began to see the wizard behind the curtain when I signed up for my bar exam review course and was taught by practicing attorneys everything I needed to know for the bar exam in about six weeks. They were especially adept at breaking down the law into common sense nuts and bolts that anyone could understand. Sure, having the legal education helped me digest it much faster, but in all honesty, if you gave me a reasonably intelligent individual, I could teach that person everything they needed to know to pass the bar exam in about six months.

I always remember what a wise third year law student once told me in my first week of law school: The A students become law professors, the B students become judges and the C students make all the money. Also, one my favorite law professors told me that if he was ever charged with a crime, he would rather have a lawyer that was a C student in law school rather than an A student. So, remember that the next time you need a lawyer.

C. J. McElhinney is a Las Cruces criminal defense attorney who graduated barely in the top half of his law school class.

Copyright © 2010 by C. J. McElhinney. This material may be reproduced for non-profit educational or informational purposes only.

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4 Comments
  1. Jerry Lobdill permalink

    My grandfather, (who was about 15 years younger than Pat Garrett, had a high school diploma, taught school for a year or so, served in the Philippines in the Spanish American War, homesteaded just north of Fort Sumner, NM, sold out, then read law with a practicing attorney in Granbury, TX, got a mail order law degree, and passed the bar), became a judge and lawyer in Fort Smith, AR. His son, my uncle, also became a Fort Smith lawyer, and his son, probably one of those A students, became a law professor at U of AZ. He is now about 79 and is still writing text books on torts.

    I have always been grateful that I didn’t aspire to that profession. Now I know what I escaped. On the other hand, physics graduate school was eerily similar, and I hated it for reasons similar to yours. The after-years were also similar, except that practically no one who stayed with science made any money to speak of regardless of their grades in school.

    I am now mercifully retired and enjoying studying the history of the wild west and playing guitar as much as I want.

    I enjoyed your piece about Pat Garrett’s murder. I attended the Wild West History Association’s annual RoundUp this year in Ruidoso and afterward got the cook’s tour of all the historical sites from there to Las Cruces–including a visit to the Garrett murder site–guided by Cal Traylor.

    There is still no agreement about who killed Garrett or why. My favorite candidate is Killer Miller. Our problem is that 102 years later all the witnesses are dead; the physical evidence is destroyed; the accused, tried, and acquitted suspect was certainly the least likely suspect, and the trial was a travesty and a joke.

    The issue has become a tar baby with aficionados. We cannot even agree whether there should be a debate or not. One panelist at the WWHA Roundup on this subject opined that since we cannot convict anyone now we ought to just drop the discussion. Of course, that panelist had his own favorite suspect.

    My idea is that we should not demand a verdict of guilt beyond a reasonable doubt at this late date. A preponderance of the evidence should be acceptable. Of course, I have my favorite suspect too. 🙂

    Thanks for your essays on Pat and the law.

    • The “Killer Miller” is the “sexiest” of the theories, but my money is on a conspiracy between Fall, Cox, Rhode and Brazel. It is certainly an issue that can be debated openly as no one really has the answer. Besides, how many “Who Done It?” mysteries still exist in the Old West? People always bring up the death of Billy the Kid as a mystery, but it seems pretty clear to me that Garrett killed him and that’s that. Those that want to argue about Billy’s death and Brush Bill Roberts will probably also want to debate you about the Kennedy Assassination and 9/11. I think most reasonable people can look at the facts and circumstances of Garrett’s death and realize that it’s really an open question.

      Regarding law school and the legal profession, I think that like any other calling, there’s always a difference between the academic and the practical.

      BTW, I would love to see a mock trial of the Garrett case done. An interesting feature of New Mexico self-defense law is that once a defendant raises the defense and there is the slightest bit of evidence of it, not only does the prosecution have to prove beyond a reasonable doubt that the defendant killed the victim, the prosecution also has to prove beyond a reasonable doubt that the the defendant did *NOT* act in self-defense. Given the physical evidence, it would be very difficult for a defendant to prevail. So if Brazel did not act in self-defense, then he’s guilty of murder. But that still leaves the question who who the triggerman really was.

  2. Jerry Lobdill permalink

    Thanks for this reply. In your last paragraph you give NM criminal case rules. Were these rules in place in 1908? Are there procedural rules germane to this case that are no longer applicable today?

    Some have opined that the jury did not believe that Brazel did the shooting at all. If that were the case I presume the Not Guilty verdict would have been the logical option?

    There seems to have been little questioning of Adamson about the details of why Pat and he were coming into Cruces that fateful day, who, where and when they were expecting to meet there, etc. This line of questioning would have been relevant in order to establish exactly what the story was. Adamson said Miller was in El Paso on the very day of the preliminary hearing. Since he was a vitally interested party in the outcome of the meeting one has to wonder why he never showed up in Cruces that afternoon or any time later.

  3. I believe the New Mexico Rules of Criminal Procedure were adopted either in the 1950’s-1960’s. They’ve been modified here and there. I don’t know what was in place in 1908, but our criminal justice system was much more streamlined then. Today we have UJI (Uniform Jury Instructions) which limit a Judge’s discretion in how jury instructions are worded. But they don’t exist for every single scenario/defense and some are little more than “fill in the blank” forms. An attorney representing a party can submit a proposed jury instruction and the court can adopt it, modify it or decline it. It then can be an issue raised on appeal (e.g. the jury was improperly instructed and any verdict rendered should be set aside).

    In 1908, just as it is now, the trial judge would have tremendous discretion in how the trial would be conducted. The judge can limit questioning of witnesses and exclude evidence. And the judge can really control the outcome with the jury instructions. For an example of this back in the day, read Judge Bristol’s instructions to a jury investigating Alexander McSween’s “embezzlement” case and John Tunstall’s murder.

    As to why Miller would absent himself from the proceedings, it makes perfect sense to me to stay out of the whole situation if at all possible. Think about it, do you want to called to testify at a trial? Hell no. And back then (and even today still), testifying against the wrong person could get you killed.

    Yes, I suppose the jury could have believed someone else killed Garrett. But that wasn’t even something he ever argued nor was any evidence ever presented. I think they either bought the self-defense theory or they were just plain bought off (or otherwise intimidated).

    Another possible explanation of the Brazel verdict is some of those people on the jury may not have liked Garrett very much. By many accounts, he had become a particularly sour personality towards the end of his life. Having been “the Law” for a long period of time in Dona Ana County, he no doubt upset some people at some point. It was hard to sit on the fence back in those days and inevitably your actions would piss somebody off sooner or later.

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