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Representing clients imposes a duty to advocate
As a law school exercise, "getting to maybe" is, I guess, all right. In my Exam book, I even have a conspicuous example, a contract problem with mostly getting-to-maybe responses to a sample exam problem from a NYU contract professor I knew who taught it forever and co-authored a leading casebook....
But getting to maybe is almost never what lawyers actully do. Not in trials or appeals; not in negotiations; not in writing contracts, wills, or real estate, separation or divorce agreements; not in mediation or arbitration; not in commercial, non-profit or public policy practice (including legislative work or in representing villages, towns, cities, state or federal agencies” or in suing any of them); and definitively not in the pervasive and hard-fought compromising that criminal and civil lawyers routinely perform). Clearly, it's not always adversarial but it's always advocacy of one sort or another. To quote an older first-year student who has extensive business consulting experience (See Comment to this posting), "people do not pay you to Get to Maybe."
[Maybe there is a limited exception in that specialized and initial legal memorandum for a senior lawyer about a legal area that is uncertain, but surely not in a legal argument advocating for a client about that area....]
Isn't the reason for this culture of advocacy simply that lawyers in almost any context have a client and are duty bound to advocate for that client? Such advocacy isn't about getting to maybe: that would violate the lawyer's duty to his/her client.
[Perhaps in an exercise of the role of counselor in advising on personal, business or governmental decision,” sure it's possible but more likely it's figuring out and then advocating what appears to be in the best interest of the client in a particular situation rather than getting to maybe.]
I also don't like the touch of relativism inherent in it. Lawyers for both sides always urge their arguments as better than the adversarie's arguments, and the law provides a decision-making procedure as judges (and sometimes juries) decide which are better in one way or another. And the judge must always decide: no getting to maybe there either. And even if a jury can't agree on a verdict, that also is not any getting to maybe. Jurors are saying, in effect, that we can't agree on a verdict by the criminal law standard of proof beyond a reasonable doubt or the civil law standard of a preponderance of the evidence.
I have a hypothesis about this academic construct. If a teacher has practiced for a substantial time, his/her exam inclination is likely to be some form of advocacy argument, expecting that students will demonstrate how one argument is better than a second or third argument in some way. But a teacher without such experience can use getting-to-maybe problems and responses as another way to demonstrate to students that he/she is a dazzling master of the universe,” but actually knows very little about the real world of lawyering. That real world requires knowledge and skill in both "law in the books" and "law in action."
I performed many hundreds of trials and appeals and years of public-policy practice before teaching, so naturally my exam problems always resulted in advocacy arguments of one sort or another (including many policy arguments). And I often expected two or even three arguments in response to an issue with one argument usually preferred but the others arguable. But I can't ever recall creating a problem whose preferred response was getting to maybe. It's not about a choice of a culture of certainty or a culture of getting to maybe. That's an either-or fallacy. Rather, it is about a culture of robust advocacy, at the minimum doing one's very best, for each client in endlessly varying circumstances.
One warning: follow each professor's choice here as always. If he/she indicates in class or old exams, as some do, that getting to maybe is what is expected, you, of course, follow that dictate for that exam” but expect in your career that you may never be asked to get to maybe in virually any legal task.
John Delaney |
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| From: Richard Seagraves |
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| Good evening:
I realize I am only a 1L, having yet to take a final exam, but I believe I can add some substance to this argument given my educational and professional background. For the past five years prior to returning the Unviersity of Houston Law Center, I was a senior consultant for a firm whose client base included healthcare organizations across the United States. I was on the road 90% of my time and spent the majority of my client billable hours working to harmonize the technical and strategic elements unique to electronic medical record systems' implementations. During my consulting career, I obtained my MBA from the Thunderbird School of Global Management. Needless to say, balancing time and priorities (including a wife and daughter) was critical.
My background and real life experiences have taught me that people do not pay you to "Get to Maybe". It is an erroneous concept at best, falacious at worst. Sure, there have been moments where a client has pressed me on an issue, such as modulating business intelligence systems within a comprehensive healthcare IT network to provide real time decision support, where I had to "Get to Maybe" out of sheer necessity. However, the client was asking for nothing more than a public policy argument in law school terms.
Thus, I couldn't agree more with the substance of this article. The frustrations for working individuals who have been successful in both academic and business setting (and certainly those who experienced a very different culture in an MBA program) hinge primarily from the lack of focus that many professors place on real world training, or to move beyond to a more 1L type concept, real world case law and application. My sheer aggrevation with the methodologies are based upon the fact that I have many friends in the Houston legal community, including partners at major firms, who stridently tell me that law school in its first year is, excuse me for my blunt language, "bull shit." But "it is a right of passage." Now, this concept boggles my mind. If this system has entrenched "bull shit" into its core of training young minds, many at 22 and 23 years old who lack a broader perspective, there is a fundamental problem with the system. It has further enforced a grading culture that restricts creativity and a basis in reality in order to make interviewing easier for large law firms HR divisions. I, mean, for the Grace of God, who would want to interview someone who is technically trained in the field of specialty, has broad contacts in the industry, and is competent in legal analysis in a practical sense, if they received B's throughout law school. How mediocre....
I write these past few sentences as a condemnation of a system that is completely unrealistic relative to the importance in responsiblities attorneys acquire when they take their first case. No business person would simply overlook someone's professional background and competency because they had a hire GPA. I have yet to meet that HR person. Sure, there are standards we seek. However, if you can't perform, you can't relate to the client, and you can't apply your methods to the events at hand and your ass is fired. I am appalled frankly with what I see in law school. To think I would advocate a more cordial and collective method of student interaction in an MBA fashion shocks me given my complaints with the case based system in an MBA program. However, the benefits from my point of view in terms of real world training are FAR superior to law school. I could name thirty projects I worked on with kids around the world from my first year in my MBA program alone. I can't name one student I have worked with in a collaborative fashion in law school because: a) it is not encouraged; b) even though you will have to work with colleagues all the time in the real world, somehow the legal educational community has put arrogance before practicality (please understand this is an opinion from someone off the real business street with two children and a spouse observing these dynamics with fascination; it is not meant to condemn all professors); and c) the grading system advocated in law schools to try and place students in top firms has inherently corrupted the bases of Socratic roots, outright pushed some of the brightest analytical and speaking minds right out the doors, and destroyed any semblance of a more practical approach than a single final exam full of fact patterns for which you are required to prepare some semblance of a cohesive answer (although if you put this fact pattern in front of any attorney randomly, they would tell you they would be with you in a day or two at earliest).
So.... does Getting to Maybe truly Get You a Job? Maybe. Does Getting to Maybe help you succeed in the legal educational community based upon its impractical and unrealistic model of real law? Maybe. Does Getting to Maybe actually exist outside the confines of brick or stucco walls surrounding your law school? No. Until professors are willing to spend the time to start asking questions of students in a lawyerly fashion, law schools will continue to lose 10% of their absolutely best prepared students for future legal success due to frustration, anger on money wasted, and the incompetency of the system relative to their practical experiences. |
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