Tuesday, July 8, 2008
Posted by Jeff Lipshaw
There's some commentary on Northwestern's new two-year program from Brian Leiter here, Bill Henderson here, and some skepticism from Brian Leiter about Bill's view. If I may put it in a nutshell, the Leiter argument says Northwestern can't really claim to compete with the mega-elites like Chicago simply by running a gimmicked-up, business school-like program that focuses on anything other churning out the smartest of the smart. This was part of the response to Bill:
One thing that Professor Henderson's Panglossian assessment loses sight of is that the law is an intellectual profession, in which certain kinds of high-order analytical and argumentative skills go a long, long way. This is why, for example, really successful litigation partners at top firms tend to be quite smart; some may also be good at "teamwork," and various B-School gimmickry, etc., but plenty aren't. But they can think, and argue, and analyze, and write, which is, I would have thought, what good law schools teach to and model for their students.
The crux of the argument is that "think, argue, analyze, and write" ("TAAW") skills are both necessary and sufficient for a successful lawyer at an elite firm, to the exclusion of other social skills. There's some seat of the pants empiricism going on here about what (a) leading or elite law firms are; (b) what leading or elite firms do; (c) what it means to be successful and with what kind of attributes; and (d) whether firms actually look to granular distinctions between schools like Chicago and Northwestern, or Harvard and BU, or other examples of "mega-elite" versus "super-elite" versus "elite" in deciding about the individuals they will hire. I don't know that my anecdotes can beat up your anecdotes, but I've been a big firm litigation partner, a big firm corporate partner, a general counsel who hires big firms, and a law professor. Let me suggest some parts of the quoted passage that are problematic.
(a) Even at the mega-firms, there are very few lawyers whose practice is so restricted as to do nothing but things requiring ONLY TAAW skills. I suppose if one's practice involved no more than briefing and arguing appellate cases with no need for assistance other than a few brilliant but browbeat-able associates (and possibly no need for clients), we could argue TAAW skills indeed are both necessary and sufficient. (I won't bother with the argument that TAAW is not necessary - even at the elite schools, students in the bottom quartile are looked upon with some suspicion, both for intellectual and other somewhat Darwinian reasons, so I'm assuming every lawyer hired by an NLJ 250 firm has TAAW skills.) Most big firms have an appellate litigation group, but it would be relatively small. Suffice it to say that elite firm appellate litigation groups are not, by a long shot, going to soak up a full year's worth of graduates from the top 20 US News law schools.
(b) Litigation practice at an elite firm by and large requires TAAW skills as a necessary condition, but it is rarely sufficient. Even elite firm lawyers make arguments to judges (trial and appellate) who (horrors!) graduated from 3d and 4th tier schools. An ability to come down to a less lofty level is not only an intellectual skill, but a social skill. It means you actually care about being understood by somebody else, and have the social sense to perceive that fiddling with your Phi Beta Kappa key (literally and figuratively) in front of the judge who worked her way at night through Urban Center Law School is not the best way to go. (I'd even be careful with that stereotype. One of the smartest people - in terms of pure analytical horsepower - I've ever met is my former partner and now United States District Judge (E.D. Mich.) Nancy G. Edmunds, who became a lawyer as a second career, and was the editor-in-chief of the Wayne Law Review back in 1977 or so.)
(c) Trial lawyers (and elite firms do trial work) make arguments to lay people. Jury research (as well as lore) suggests that juries react emotionally as much or more than intellectually.
(d) Not all practice, and not even all litigation practice, is intellectual and argumentative. 90% of all the cases litigated by big firms settle. Settlement is NOT a matter of arguing and writing, and while it involves analysis and thinking, it is of a different kind - more on the scale of emotional quotient than IQ. TAAW skills here are again necessary but not sufficient.
(e) I have hired dozens of high-powered lawyers. Their TAAW skills were my instruments. I liked hiring smart lawyers and, for me, TAAW skills, or at least everything but the "argumentative," were necessary conditions. (Indeed, I confess that I had a reputation in the practice as something of an elite school elitist). But nothing drives a general counsel crazier than her own counsel who can't seem to stop using his TAAW skills to make his own client's life miserable, like not acceding to the business needs of the client when it impacts upon the purity of the legal argument being made by the TAAW-driven lawyer. I could recount dozens of instances where lawyers' intellect (and particularly seeing a non-TAAW situation as one calling for TAAW skills) got in the way of good results. Not to mention lawyers who thought their TAAW skills were so non-fungible as to be able to ignore our instructions on getting bills in on time, or failing to accommodate our public company accounting rules in doing fee forecasts, and being prompt with their responses to auditors' inquiries.
(f) There's some discussion someplace in the comments about hiring Sitzfleisch, which I interpret to mean warm bodies. That is an interesting comment because, in the context of the present discussion, it had to do with elite firms hiring not-so-smart people to do routine work. Ironically, in my day in a non-New York big law firm, it was the really smart but socially challenged nerd who was the Sitzfleisch! You'd put him (usually him) back somewhere in the library, have him churn out great memos and briefs, but never, under any condition, let him interact with a client.
(g) Not even those of us with an elitist bent would hire individual lawyers on a rankings algorithm. Schools perform a rough filtering function, and that's about it. I can't even imagine a hiring committee saying something like "well, they are exactly equal but Mary went to Chicago and Joe went to Northwestern, so let's hire Mary." I'm going to suggest for the vast bulk of NLJ 250 hiring, the top twenty schools or so in US News are completely fungible, and barring some cataclysmic change, will always be. (Even the US News "lawyer/judge" assessments are of programs, not students, and those assessments, I suspect, are as influenced by the prior US News ranking as the peer assessments.) Moreover, digging deep into the US News 3d and 4th tier, firms, and even elite ones, regularly take students from those programs. I'm happy to say that my best securities law students from Suffolk are going to Ropes & Gray, Wilmer Hale, and Goodwin Procter.
The only causal connection I can see in the argument is that if somehow there's a cataclysmic change in the peer assessments of schools like Northwestern that makes a quantum change in the coordination aspect of US News and the like, entering students might think twice. Or firms might cut back on the schools they visit for purposes of hiring. (By the way, my recollection is that Georgetown leads the pack nationwide in terms of law firms who interview on campus.) But my guess is that these are all at best attenuated causal chains. Here, as elsewhere (as all seem to agree), the life of the law is not logic but experience.