A longtime fan of BTQ (how long? He’s been with us since the beginning. The fact that this is a law-related post should be a clue to his identity. Hint, hint. Nudge, nudge.) emailed these thoughts to me over the weekend:
Over at Crescat, Raffi Melkonian was talking favorably about apprenticeships for tailors and said this in passing: “If I was opening a restaurant, I’d go apprentice for five or six years in a classical French restaurant. A good lawyer ought to cut his or her teeth on the work of better lawyers for at least that amount of time.” Hold the phone. Maybe I’m not entirely clear on what kind of apprenticeship Raffi has in mind, but I don’t think I agree with this. Maybe — I repeat maybe — I could go along if he means engaging in an apprenticeship instead of going to law school. (A few states will still let you do that, but I’m pretty sure not even they require that long a training period.) But if he means in addition to law school, he’s talking about eight or nine years’ worth of education before one would be able to do whatever the legal equivalent of opening a restaurant is.
By the way, what is that equivalent? Hanging out a shingle or starting one’s own firm? I’m not familiar with the French restaurant training system, but I would assume that sometime before the six years are up, the head chef at least lets his or her underlings toss salad or bake bread or something. In the same fashion, perhaps Raffi sees the mentor attorney letting the hireling take a few depositions or conduct a few cross-examinations or draw up a few simple wills. But I would imagine that Raffi’s definition of leave-the-nest independence would include finding one’s own clients and handling all their legal affairs without oversight from anyone. And note that if Raffi means five or six years after law school, how far back would that push the seven- or eight-year partner track at many of the nation’s biggest law firms?
There are two real problems with this model. First, there just isn’t that much law to learn. While every case or client would certainly bring some new education, it wouldn’t take that long to get the basics down. An armed robbery trial isn’t all that different from a trial for aggravated assault. And once you’ve done those, a murder trial brings higher stakes but isn’t a difference in kind — it’s not as different as soup is from souffle. I’m not as familiar with the civil side of things, but to take one example, all contracts, from a store’s order of a manufacturer’s widgets to a complex bank merger, are based on the same set of generally agreed-upon rules. Even the rare lawyer who aims to be a generalist (from soup to nuts, to stretch the food analogy even further) won’t have to study eight or nine years before having enough know-how to go it alone. While no one is able to learn all of the law, those so inclined are able to learn how to practice law in something less than a decade’s time.
But more importantly, the law shouldn’t be so difficult to learn that it takes eight or nine years of study and an apprenticeship to feel comfortable practicing it. We ought to have a legal system in which the reasonably intelligent lay person can handle the bulk of his or her own legal affairs. I’m thinking of things like taxes, wills, divorces, home sales, etc., for people of average means. Instead, we’ve built a system so protectionist and complicated that it’s not laughable to suggest it should take five or six (or eight or nine) years of training before one enters it. And it wasn’t that long ago that the basic law degree required only a two-year course of study! There’s something wrong with this picture! Now, I’m not an anti-lawyer lawyer (a self-hating lawyer? well, maybe for other reasons), and I don’t think we ought to close the law schools and issue everyone a set of the Nolo books. Education and training (and mentorships) are wonderful things, both in their own right and for what they do for one’s practice. And sure, not everyone who passes the bar is as competent as the system presumes them to be. But I know people a year or less out of law school who are putting people in jail as assistant district attorneys, or keeping people out of jail as public defenders, or bringing in their own clients for small firms, or trying cases against major corporations. They were ready, and they didn’t need that much hand-holding, and they served their clients well. Any system that would require them to still be using training wheels would be a waste.