Lessons from Legal Practice

Ethan Leib, who is about start teaching at UC Hastings College of the Law, writes about what he learned from two years of legal practice:

Just what have I learned? That legal realism is at least partially true; that the law is at least partially autonomous; that the judiciary has severe institutional limitations; that clerks have a lot of power and those who teach them can have immediate impact; that politics is only relevant in the marginal cases in the lower courts; that being an advocate can be redemptive; that ethical questions pervade the profession; that practicing can be as intellectual and rigorous as any theoretical enterprise; that serving clients can make one feel extremely useful and selfless; that representing the poor or thinking through the cases of the dispossessed is an ennobling experience; that hierarchy and commitment to it is very damaging to legal institutions.

This strikes me all as pretty plausible, although my lessons from practice were somewhat different. In two clerkships, I found judges who adhered to precedent when they should, albeit one judge who was quite willing to encode his preferences when the law seemed truly open. Clerks, on the other hand, only had a lot of power if the judges let them — and only the bad judges let them. My three years in the firm did throw up an ethical question or two (which the firm resolved in textbook fashion), but it hardly pervaded our lives so long as we recalled a few simple rules that should be second nature to all lawyers.

I worked with people who would have agreed “that serving clients can make one feel extremely useful and selfless”; alternately, and in less grandiose terms, they felt they were solving other people's hard problems while supporting their own families in style, and that made them feel pretty good. I respected that, but it didn't work as well for me. Although I found I liked commercial practice much more than I would have expected, in the long run my clients — good people — tended to have complex but often boring problems. Strategy was fun, but lasted two days. Implementation was grueling, and could last months. And, at the end of it all, while I was happy that our guys won, and knew it mattered to their personal futures, deep down how much did I really care which oil company got the money?

If I'd had to, I could have carried on despite the long hours. But if I was going to have children, I wanted to see them. And, the lure of controlling my own intellectual agenda was very powerful. Now I'm my own client, I have interesting and complex problems, and I often listen to my lawyer.

[posting time corrected to reflect reality]

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