The Sunday New York Times nailed what’s wrong with legal education in this country: The legal academy educates lawyers by long exposure to professors who don’t practice law. The chattering class teaches theory, not practice. Mere practitioners are scorned. We have nothing to teach. We don’t write learned treatises with titles like "Historic Injustice and the Non-Identity Problem: The Limitations of the Subsequent-Wrong Solution and Towards a New Solution."
"Law school has a kind of intellectual inferiority complex, and its built into the idea of law school itself," according to W. Bradley Wendel, dean of the Cornell University Law School. Law professors want to write learned treatises to look like the work product of historians, economists, philosophers, sociologists. Those who teach the law don’t want to look like lawyers. The result is young lawyers who know nothing about the practice of law.
Much the same can be said of writing about the law in general. Few practitioners write about what they do in court. There is a dearth of such literature. This is due in part to the vanishing trial. Few cases go to trial any longer for a variety of reasons ranging from broad grants of judicial immunity to state actors, to savage sentencing schemes that make trial too risky a bargain, to the expense of litigation: for every trial lawyer there are a score of people who exist merely to push paper from one pile to another.
I almost never read a press report of a trial that captures the nuances of what goes on in the room. Cases are compressed into sound bites. The most dramatic moment of the day, whether it matters to the overall case or not, is reported. The contest of principles, the fight to determine what are the facts in a given dispute, the more mundane but necessary work of trial is rarely reported upon with comprehension.
Perhaps that is inevitable. After all, in a tough economy, newspapers and the media in general have cut staffs to the bone. Most news organizations no longer have a dedicated court reporter. Editors send general assignment reporters to cover trial, and the results often show.
The best court reporter I ever knew is a woman named Lynne Touhy. She was forced off the pages of The Hartford Courant some years ago. She had the rare gift of being able to write about a legal dispute and capture both the legal issue that drove the case, and the underlying story that energized it. I read her pieces to learn how better to tell my clients’ stories.
For a time, I had hoped that blogging might present a forum for writing about what goes on in court. There was a time when folks wrote about what they did and what they saw. Then the ethos of social media dumbed it all down. I can count on one hand the blogs that inform: Blogging about the law has followed an unusual course. First, folks wrote about the law, and some tried to write about what they did in court. Then came the wave of those who churned out volume writing about what others reported. Then the blawgosphere became fully self-conscious in an almost Hegelian sense: Now the rage is writing about those who write about those who comment on what others do. It is a race to lonely irrelevance.
In some bizarre sense, legal writing has followed the law professor’s course. It used to be said that those who can’t do teach. Perhaps those who don’t try cases fill their act hunger with empty words, telling the world what should happen in the cases they will never try. Even Glenn Greenwald, whose writing I enjoy and respect, describes himself as a former constitutional law and civil rights attorney. What ran him out of the courtroom? He’s a young man still. He spent less than a decade earning a perspective on what goes on in the courtrooms of this nation. That’s not a lot of time.
"I decided voluntarily to wind down my practice in 2005 because I could, and because, after ten years, I was bored with litigating full-time and wanted to do other things which I thought were more engaging and could make more of an impact, including political writing," Greenwald once wrote. Apparently he has never walked a man facing life in prison out of the courthouse. There is no greater impact imaginable.
I wish more lawyers wrote about what they did and saw in court. Those are lawyers who I would read daily. It can be done without running afoul of the attorney-client privilege. But instead we get lawyers writing about lawyers who write about lawyers. Cross-linking, community-building, interlocking webs of men and women with so much more time on their hands than they would have if they were traveling into court each day with people in trouble.
Practice conceived isn’t theory relieved, I say. That applies to both the legal academy and to the world of legal writing. The press for tenure and status finds a rough parallel in the social media world’s preoccupation with web-page rankings, hits and cross-links. Perhaps there is nothing to do but sit back and enjoy the show, if you have time. Just don’t expect to learn much law from a professor who has never practiced law, or from a writer who confines himself to commenting on what others do. Experience isn’t a spectator’s sport.