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Saturday, March 26, 2011

Judges and suits and ties, oh my.

We had what is known in legal lexicon as a “hot bench.”

The term refers to a judicial panel that peppers an appellate attorney with overlapping questions, interrupting her carefully calibrated roadmap for a detour into rocky hypothetical terrain and then dumping her back on the highway with a flat stare.

When it was over, I sat down and glanced across the aisle at opposing counsel, who flashed an encouraging thumbs-up sign. The judges were bent over their scoring sheets, writing and writing and writing. I looked down at my four-page argument with its color-coded bullet points, fabulous points asserted with authority in a practice setting and then desperately abandoned in the heat of inquisition. Eyes back to the bench. God, please make them stop writing.

“Lose the pen,” one advised. “It’s distracting.”

“When your time is up, stop talking.”

“Less swaying at podium,” wrote another.

This third criticism I’d heard once before, from the third-year student who presided over our practice round last week. I like the podium. I feel it anchors me. By all accounts, however, all I’m missing is the pianist and the three-quarter time.

Oral-argument day is a milestone for first-year law students. The psychological pressure to perform well is wholly out of proportion to its pass-fail worth, but the idea is to expose students to a setting that mirrors the environment in which they would argue on behalf of real clients with real liberty and prosperity at stake. For purposes of this exercise, we were advocating for the parties to a fictitious stalemate in which we have invested months of labor and which formed the basis of a brief that accounts for 70 percent of one’s final grade in Basic Legal Skills. For our clients, the whole thing ends with a question mark. For us, it’s an exclamation point.

My opposing counsel and I were assigned to what we later learned were three of the more heavily credentialed panelists of the day, their resumes thick with achievements in oral advocacy, and I’m glad it worked out that way. A hot bench can expose your weaknesses, but tearing tissue is what builds muscle. And it’s valuable instruction for someone whose traditional approach to argumentation is a three-step process that goes something like this: 1) prop feet on nearest table, 2) roll eyes at opponent’s ridiculous position, and, 3) cut opponent off at knees with sarcasm. You have to presume that judges who find ballpoint pens distracting will not take kindly to that sort of thing.

For good or ill, Basic Legal Skills is finished. The only thing standing between me and my yet-to-be-secured summer employment is a month of lockdown studying for five final exams.

Feels good. 

Sunday, March 20, 2011

Spring Break & Oral Fixation

        You could say a law student on spring break is not unlike a firefighter who is momentarily without a fire and so collapses in full gear to nap in the bunkhouse. You could say it, but it wouldn’t necessarily be true. Whether you retreat to cerulean coastal waters or labor to recover ground lost to the all-consuming spring brief, the law-school blaze is never really extinguished.

         Much of my break went to corralling notes that, upon review, reflect some early cohesion, but grow more fragmented as the deadline for the brief approaches. Scrolling through the pages, I recognized concepts I will be expected to apply with some authority in coming weeks, but which now trigger only a vague memory of fingers and keyboard thudding out words. Torts, for example: Should oysters be the same as fish, for legal purposes? Or, Contracts: Think of botched nose job. It once made perfect sense. In Criminal Law, rape is interrupted by spring break and presumably resumes on Monday. Otherwise, I found my thought process disrupted by the slightest stimulus, my brain a scratchy FM radio scan of Japanese nuclear reactors, Libyan air strikes, Charlie Sheen developments and, once, a brief consideration of just how many Walgreens stores one city needs before it reaches critical mass. 

         And yet I am possessed of an odd tranquility. It could be the milder climate and the reappearance of the sun. Just as possible is the notion that one can sustain a state of apprehension for only so long. At some point you cross into that realm Pink Floyd called comfortably numb. 

         The brief is done, but not really behind us. Behind are the research, the composition, the painstaking adherence to citation rules and the Machiavelian quirks of Microsoft Word, without which human communication by all accounts would come to a halt. What still lies ahead are the oral arguments we must make in support of our fictitious clients, who are embroiled in an all-too-plausible legal clash. The last time I spoke in a public setting, my audience was a classroom of 12-year-olds who were easily impressed and not at liberty to question my reasoning. Nevertheless, it remains my policy that, if you are to fail, you must fail spectacularly. There must be none of this tentative, what-will-they-think reticence. You must fail in such a way that the sheer magnitude of your failure becomes its own legacy and eclipses the boring deficiency of your performance.

         Call it your parting shot at winter.

Saturday, March 5, 2011

Just Briefly

Question Presented:

         Is a middle-aged refugee from the decaying empire of American journalism entitled to recover for emotional distress sustained in pursuit of a law degree?

Statement of Facts

         Claimant once reasoned that telling true stories was a more or less unobjectionable way to make a living and spent a number of years telling stories of tragedy and corruption and natural disaster, greasy summer festivals and farmers whose gardens occasionally yielded a turnip that looked like either Jesus or Elvis, depending on the light. And then two things happened. First, claimant grew weary of telling the same stories with interchangeable names. Next, people who used to buy expensive newspaper ads recognized that one could read about senators and mutant turnips in a digital language of ones and zeros without paying and without getting ink-smudged fingers and could sell their bicycles on Craigslist for free. Claimant concluded that if one is to recast oneself from a role of casual observation into one of genuine advocacy, one had better do so while one still has some daylight.


         Claimant has worked pretty hard on a brief, which is not merely a brief, but is The Brief, the unholy badass of the spring semester and the basis for a hefty percentage of a first-year student’s final grade in legal writing. Claimant has consequently suffered distress. Severe distress. Emotionally, that is. To send her away empty-handed would shock the conscience, would violate society’s evolving standard of decency and be altogether unreasonable.



* * * * * * * * *
         That’s a truncated and highly imprecise illustration of the way in which I communicate these days. As it turns out, a legal argument is a story told according to formulaic construction, conveyed in a language of buzzwords handed down from high court to low and repeated only with precision. The perfectionist who normally dwells within me (but with whom my relationship is now estranged) likes that part of the law, the recognition that no two words mean exactly the same thing or evoke the same visceral response. In a non-academic setting, you might call it plagiarism. Around here, we call it research.

         The aforementioned brief has consumed our lives in recent weeks. The doctrinal professors have indulged our inadequate preparation and our lackadaisical class participation with knowing nods and transparent stalling techniques so that we cover less material than we ordinarily would. The legal-writing course with the deceptively simplified name of Basic Legal Skills spans a full year. In the fall, you write memos predicting what a court is likely to do under a given set of circumstances. The spring is devoted exclusively to the brief and is your chance to unleash your inner, pre-disbarred F. Lee Bailey and try to convince the court that the only just result is the one that favors your client.

         For a conceptual thinker like myself, the meticulous work of ensuring the accuracy of the citations, merging roman and Arabic numerals in the same document and taking care to italicize the word but not the comma has been as difficult as crafting the argument. It is also instructive to know that, in the practice of law, a deadline really is a deadline. There will be no vaguely frustrated judge to rip the document out of your queue 20 minutes after the deadline has passed and no law clerk whose job it will be to fix your mechanical errors. It’s hard out here for a would-be lawyer.

         There were last-minute printing errors and technological gaffes, but I’ll spare you the details. Before I turned the thing in, I told it I had done all I could for it, that it would now have to go forth in this Rand Paul-icized world and either stand or fall on its own merits. When the professor took it from my hands, she gleefully pronounced it a rite of passage.

         I went home and poured myself a drink.