How Not to Turn Down a Law Job Offer

A young law school graduate was about to start working for a criminal defense attorney. Shortly before she was to start, he told her that he had also decided to hire another attorney, and as a result, had to adjust her salary lower. She sent him the following email:

At this time, I am writing to inform you that I will not be accepting your offer. After careful consideration, I have come to the conclusion that the pay you are offering would neither fulfill me nor support the lifestyle I am living in light of the work I would be doing for you. I have decided instead to work for myself, and reap 100% of the benefits that I sew [sic]. Thank you for the interviews.

The attorney called and left a message to the graduate to discuss, but the graduate left a voicemail turning down the offer again. The attorney wrote to the graduate:

Given that you had two interviews, were offered and accepted the job (indeed, you had a definite start date), I am surprised that you chose an e-mail and a 9:30 p.m. voicemail message to convey this information to me. It smacks of immaturity and is quite unprofessional. Indeed, I did rely upon your acceptance by ordering stationary and business cards with your name, reformatting a computer and setting up both internal and external e-mails for you here at the office. While I do not quarrel with your reasoning, I am extremely disappointed in the way this played out. I sincerely wish you the best of luck in your future endeavors.

The graduate responded with this email:

A real lawyer would have put the contract into writing and not exercised any such reliance until he did so. Again, thank you.

The attorney responded:

Thank you for the refresher course on contracts. This is not a bar exam question. You need to realize that this is a very small legal community, especially the criminal defense bar. Do you really want to start pissing off more experienced lawyers at this early stage of your career?

The graduate's response, via email:

bla bla bla.

The attorney forwarded the email exchange to some friends, and soon it had been forwarded throughout cyberspace. It was forwarded to me the other day.

Some thoughts about this saga:

1. Was it appropriate for the attorney to forward the snarky email exchange to his friends, especially in this day and age where email can readily take on a life of its own and spread around the world? Many folks in the legal world are well-familiar with the famous email by the Skadden Arps summer associate who accidentally emailed everybody in the firm with an email that began: "I'm busy doing jack shit."

2. A tip -- if you're going to create a snarky email exchange that might get circulated widely, please run spell check. At least spell "blah" correctly.

3. It seems to me as though the graduate had every right to turn down the job offer when the terms were changed significantly. She may even have been justified in being a bit upset over it, but that doesn't excuse the unprofessional manner in which she chose to express herself. And the attorney's professionalism is not going to win any awards either.

4. The email is another amazing illustration of social network theory. The email exchange occurred on Feb. 6th, and within a few weeks made it to my email inbox. I don't know the attorney or the graduate, but there are definitely less than six degrees of separation. . . .

For their part, the attorney and the graduate seem to be taking it all in stride. According to a Massachusetts Lawyers Weekly article:

"I'm hearing from people I haven't heard from in years," [the attorney] laughs. . . .

"I'm not upset at all," [the graduate] says. "I'm enjoying the notoriety."

Hat tip: Marcia Hofmann

Posted by Daniel J. Solove at 05:26 PM | Comments (0) | TrackBack

The Portrait of the Lawyer as a Young Man

Last week, the WSJ Law Blog had a quick write-up on Douglas Litowitz's recent book The Destruction of Young Lawyers, which seems to be a fabulously original stream of assertions to the effect that there are a lot of unhappy junior associates in big law firms. Shocking! Just shocking!

Now I should point out that I am a young associate at a big law firm, and I admit that I am from time to time quite miserable. It is a high-pressure job. The hours are long, and frequently your days consist of high-stakes boredom, which combines stress and monotony in a rather toxic cocktail. Some of this is structural. Big-time litigation is not possible without massive priv reviews. The billable hour creates a really cruddy set of incentives for young attorneys from a life-style point of view. However, I think that these structural defects in the legal market -- especially at "elite" firms on Wall Street or K Street -- have less to do with the spiritual misery of young lawyers than two other factors: lack of interest in the law and the mismatch between the dominant myths about the legal profession current in law schools and the reality of the legal profession in practice.

Of these two factors, I think that the first is more important. Lots of people go to law school who really have no business being there. The reason is that they have no interest in the law. I suspect that this may be even more decidedly the case at elite law schools than elsewhere, although I admit that this is no more than a guess. Our universities produce a tremendous number of graduates in the humanities and the social sciences who have no marketable skills beyond some smattering of writing ability and critical thinking. (There is no shame in this. I studied mainly philosophy as an undergraduate, and I am very glad that I did. On the other hand, when I graduated none of the Big Five Epistemology Firms were hiring.) Some significant subset of these essentially skilless graduates are united by equally strong aversions to mathematics and business. So they go to law school, which they vaguely understand to be different than business (what they see on The Practice doesn't look like business). More importantly, law school is reputed to be equation-free. They didn't even have to study math for the LSAT. When they get to law school, they discover to their everlasting professional consternation that what you study in law school is the law. As it turns out they find the law boring. Learning its substance, structure, folkways, history, or theories holds no real interest for them. But hey, they got into Harvard Law School, so they couldn't not go, right? Three years later they emerge from saturation in a field whose only initial recommendations were "not business" and no math to find that they go into practice and spend their time with...the law. Misery and alienation result.

The second factor is the mismatch between the myths of the profession that dominate law schools and the reality of the profession in practice. In law school, the archetype of lawyerly virtue is the civil rights lawyer. A real lawyer is someone who represents the down-trodden and oppressed and uses the courts to transform the world into a better place (generally defined in vaguely leftist -- but hardly radical -- terms) through the application of justice. It is a heady myth, and there is much to be said for representing the down-trodden and oppressed. It gave me great pleasure to file a complaint earlier this month against a state prison system on behalf of some indigent prisoners. In practice, however, lawyers are mainly the handmaidens of commerce. They mainly represent businesses in their disputes and negotiations with other businesses. Alternatively, they sue businesses (here the plaintiff's lawyers can act out a sort of tawdry second-string version of the civil-rights lawyer myths) for business related sins. Some of these are fairly simple, and can capture the imagination of someone who was initiated into the profession with myths of heroic civil rights lawyers. Everyone can understand the drug company that negligently poisons thousands. But more often than not, even the suits against businesses behaving badly involve arcane, businessy wrongs like violations of the securities regulations. The problem is that the law schools have not equiped their graduates with a set of myths that render the overwhelmingly commercial activities of most lawyers meaningful or ennobling. The results are the hoards of young associates who pine away in self-loathing, convinced that they have "sold out."

The sad thing, of course, is that a good part of the spiritual misery of young lawyers is unnecessary. The law is fascinating if it is chosen for its own sake rather than as a default option for English majors desperately seeking a middle-class lifestyle, and commerce has its own nobility and dignity. The misery of priv review and the billable hour, alas, remain.

Posted by Nate Oman at 09:13 PM | Comments (12) | TrackBack

Abolish the Bar Exam

The recent story in the WSJ that Kathleen Sullivan (law, Stanford) failed the Bar Exam raises anew whether the exam ought to be abolished. Before discussing this issue, I must note that I found the story to be a bit sensationalistic for the WSJ, as its main purpose seemed to be to mock Kathleen Sullivan. I was interviewed by the reporter of the story a few days ago because of my blog posts earlier this year (here, here, and here) arguing that Bar Exam should be abolished.

The reporter emailed me and wrote: "I'm a reporter with the Wall Street Journal. I'm researching arguments in favor and against the abolition of bar exams, and wondered if you might have time to share your thoughts on this matter with me today." I spoke to him about my arguments, but he asked a few times if I could name any prominent professors or lawyers who failed. I told him I didn't know of any and that even if I did, I would consider revealing this fact to be a bit tawdry, as failing the Bar Exam is considered an embarrassing fact. I didn't see why it would be necessary to bring embarrassment upon a person for a story about the abolition of the Bar Exam.

I was quite surprised when I read the story, a bit peeved at not being quoted, and somewhat annoyed that the story seemed to be primarily cast as a way to showcase Sullivan's failure rather than address the problems of the Bar Exam. The reporter did not mention Sullivan at all in my interview.

So since they didn't make it into the story, I want to reprise my arguments against the Bar Exam. As I wrote in a post called "Bar None":

Yes, as radical as it may sound, I believe that the Bar Exam should be abolished. Not just amended. Not just tweaked. Not even modified substantially. No. I believe it should be abolished entirely. So all you graduating 3Ls stand up and cheer! I'll accept generous tips, too. Actually, it’s too late for many of you, since you've already been put through the torment, having just completed the exam and wasted most of your summer. Now you probably want the torture inflicted on others -- if so, the Bar is little more than a hazing ritual, one with about as much social value as guzzling beer while blindfolded and upside down. . . .

[The Bar Exam] prevents mobility among lawyers, making it cumbersome and time consuming to move to different states. It does not test on actual law used in legal practice, but on esoteric legal rules, many of which are obsolete, and most of which are of absolutely no value to a practicing attorney or to anyone for that matter. In short, the Bar Exam is an unproductive waste of time.

My guess is most all lawyers would agree. So why does the Bar Exam persist?

Perhaps as a way for states to restrain competition among lawyers... but this would be an impermissible purpose. Perhaps inertia. Perhaps because of the "we suffered, now you must suffer too" mentality. I can't think of good reasons for retaining the Bar Exam. Yet this misery-creating, time-wasting ritual survives -- even thrives -- despite the fact that it has no valid justification and has achieved near universal enmity.

In lieu of the Bar, states should permit all students who graduate from an accredited law school to become members of the Bar after working a certain number of supervised pro bono hours. All the time spent studying for testing could be used for pro bono work, which would provide a benefit to the community and practical training for future lawyers. I think that this is much better than wasting most of a summer studying for a meaningless test. . . .

I also provided a quick roundup of my arguments against the Bar Exam:

1. It doesn't test on the kinds of skills a good lawyer should have.

2. It often tests on obsolete legal rules.

3. The Bar Exam is largely a memory test, and memorizing legal rules is not something that most lawyers really need to do.

4. The Bar Exam often serves to inhibit practicing lawyers from moving readily from state to state. The investment in time to retake the Bar Exam can be too much for many if they are going to a state without reciprocity.

5. The Bar often weeds out people who don't have the money to take an expensive course like BarBri. Certainly, there are the unlucky folks who take BarBri and fail, but this does not frequently occur.

6. There is no need for lawyers to know much about a lot of Bar Exam subjects. Does a criminal lawyer need to know the rule against perpetuities?

7. The Bar consumes hours upon hours of time. This time could be used much more productively in ways that help out the community. Right now, time studying for the Bar is time that could be spent helping others or doing something more productive. The time taken to study for the Bar is wasted time, with little value to the person studying or to society.

8. Nobody really uses the rules as formulated on the Bar Exam. As I've written elsewhere, if one practiced the criminal law on the Bar Exam, one would be disbarred!

9. As far as barriers to entry, the Bar Exam is not really necessary. Law school is a significant barrier to entry. It requires three long years of time, study, and money. In the end, it’s much easier to make it past one Bar Exam than through three years of law school.

One of the main arguments for the Bar Exam is that it will help ensure that lawyers are competent. Our profession doesn’t do a very good job of this. It provides a meaningless entry exam (the Bar) and then requires attorneys to waste their time and money on expensive continuing legal education (CLE) courses. In the end, the only real way to ensure that lawyers are competent is for the profession to crack down on incompetence. Many a time, judges wince through incompetent lawyering and accept incompetent briefs and pleadings. Many an ineffective assistance of counsel case contains egregious actions by the attorney. It shocks me that attorneys can engage in some of these actions brazenly in front of judges and prosecutors without being taken to task. In short, the Bar Exam has little to do with competence.

So that's why we should just get rid of the Bar Exam. Throw it away. Burn it. Bury it. And go to a system where lawyers-to-be spend some time helping the community while honing the necessary skills.

One big problem with the Bar is that it functions so as to make it very onerous for lawyers to move to a different state. Thus, Sullivan is already licensed to practice in New York and Massachusetts. She has already passed the Bar. But she many years later because she wants to practice in California she now must pass an exam filled with a bunch of irrelevant questions. In fact, the longer one practices and the better one knows the law, the worse one will do on the Bar Exam. That's because the Bar Exam bears so little relationship to law practice, and as they tell you in BarBri class, thinking on the Bar Exam will hurt you, not help you. Sullivan's problem was that she didn't waste enough hours memorizing the often obsolete and reductive rules for the Bar Exam. Indeed, any practicing lawyer or law professor who doesn't have a lot of time on her hands to waste would encounter a similar problem. She probably thought she knew the law and had a ton of legal experience -- but this would hurt her in the exam, not help her.

Maybe some good will come out of this and the Bar Exam will be seriously rethought. Sadly, however, the WSJ article seems more intent on focusing on Sullivan than on addressing the problems with the Bar Exam.

Posted by Daniel J. Solove at 12:12 PM | Comments (19) | TrackBack

Henderson on Lawyers in the Rust Belt

Immediately before retiring from the Conglomerate, Bill Henderson put up a nice post on the economics of law firm practice in the industrial midwest. The data is especially useful for students looking for a new perspective on where to go to law school. Go check it out.

Posted by Dave Hoffman at 08:05 PM | Comments (0) | TrackBack

Old Courthouse Architecture

The other day, I blogged about new courthouse architecture. A few of the commentators said they had a soft spot for older courthouse architecture, which I share. Therefore, I thought I'd surf the web for some examples of older courthouses. I love architecture, and I found many an interesting picture to share with you. Here is what I found, with the year each was constructed:

Posted by Daniel J. Solove at 12:34 AM | Comments (5) | TrackBack

New Courthouse Architecture

They're being built at a staggering rate. New ones are rapidly replacing old ones. Top architects are being called in to design them. . . .

No, I'm not talking about stadiums. I'm talking about courthouses. A recent Legal Affairs article chronicles a dramatic transformation in courthouse architecture and describes the building boom in new courthouses. Courthouses used to be built as "solemn, neo-Classical style structures," but recently things have changed. Today, top architects bid on the construction of courthouses:

The new architect selection standards coincide with the largest federal courthouse building initiative in the nation's history, a program necessitated by the rise in the number of federal cases—up some 20 percent in the last decade—and a shift in caseloads from the Rust Belt to the Sun Belt. As droves of people continue to move from Buffalo to Houston or from St. Louis to Phoenix, caseloads are moving with them. In all, nearly 200 courthouses will be built or renovated over the next 25 years, at a cost in the tens of billions of dollars.

If you're interested in the history of courthouse architecture, the article is well worth checking out. One of the courthouses discussed in the article is the stunning new federal courthouse in Boston, pictured below:

For all the law architecture nerds out there, I did a little web surfing and found some pictures of new or planned courthouses. Beginning with state courthouses, here are ones from Lexington, SC, Lexington, KY, and Syracuse, NY:

Here are courthouses from Albequerque, NM and Hall County, GA:

Here are new federal courthouses from Washington, DC and Fresno, CA:

Here are new federal courthouses in Las Vegas, NV and Minneapolis, MN:

Here are new federal courthouses in Seattle, WA and Buffalo, NY:

And, although not brand new, it is certainly worth mentioning the 9th Circuit courthouse in Pasadena, CA where I clerked, which is one of the most beautiful courthouses I've seen:

Hat tip: beSpacific

Posted by Daniel J. Solove at 12:02 AM | Comments (4) | TrackBack

How to Develop a Supreme Court Practice

How does a law firm develop a Supreme Court appellate law practice? Hang out a shingle? Well, yes, if you've got Seth Waxman. This interesting article explains how law firms build a Supreme Court practice. The article contrasts the firm of Wilmer Culter, where Waxman argued all five of its Supreme Court cases last term, with the firm of Jones Day, which had five different attorneys argue its six Supreme Court cases.

Posted by Daniel J. Solove at 04:45 PM | Comments (0) | TrackBack

The Music of the Law

Unlike my co-bloggers, I practice law for a living. Like most would-be lawyers my view of practice was powerfully shaped by Law & Order episodes. I do mainly civil and appellate litigation, so my practice contains few trips to Attica, but I did envision the practice of law as being a much more social endeavor. At the very least, I expected there to be some noise. My law firm, however, tends to be a very quiet place. People work in their offices, and if they talk they do so in conference rooms. There is none of the noisy bustle of the Law & Order DA's office. As it happens, I don't think well in silence. I find it distracting and unnerving. Even in college, for example, I found it impossible to study economics in the library. The quiet destroyed my concentration, so I always did econ work in the student union cafeteria. At work, I escape the silence by closing my door and playing music, which leads to the important question of which music goes with which tasks.

For document review, I find that I like rock music, especially U2. I think that for the rest of my life the music and lyrics of "One" will be permanently associated with insurance documents in my mind.

If I am doing general legal research -- looking on Westlaw for cases or statutes -- I find that I like folk music or bluegrass. There is something about the sound of Nanci Griffith or Allison Krauss that I associate with SCT-OLD searches or rummaging around through ALLFEDS.

For more serious research such as close reading of key cases or a careful review of the opposing parties' briefs I prefer baroque music, in particular Handel or Correlli. At the very least, there is something about the rationalism of Correlli or Bach that just makes me feel more incisive, analytical, and logical.

For writing I find that I do best with either lively folk and blue grass (something about banjo picking gets the words flowing for me), choral music -- especially Beethoven or Brahms -- or, somewhat inexplicably, the Dave Matthews Band.

Of course these are not hard and fast categories. I have been known to review documents while listening to Handel's Water Music, and I recently wrote a cert petition while listening to "Joshua Tree" over and over and over again.

Posted by Nate Oman at 09:06 AM | Comments (5) | TrackBack