My name is Patrick J. D’Arcy, and I am a trial lawyer in Irvine, California. After more than a decade of handling cases, jury trials and everyday litigation, I wanted to give an honest perspective to those considering law school, and what litigation (and being a lawyer) is like. For some, it’s the right call. For many others, it is a ticket to non-dischargeable student loan debt and years of financial misery. There’s too many lawyers, and not enough good-paying jobs. All I’m saying is to make an informed choice. Law schools are now feeling the pinch, as fewer applicants apply. The law schools will be forced to market themselves more aggressively, since as a business, they must survive by putting asses in seats. The law professors working at these law schools have seen the layoffs, and to remain employed, will push the narrative about how law school will open up a veritable choice of great careers. Without asses in seats, they lose their jobs. What this tells me is that capitalism works, even if the legal educational system does not.
This blog is my contribution to the marketplace of ideas. If you have a burning desire to work long hours under great stress, deal with serious issues and solve problems, then the law is for you. I come from this without an agenda other than to provide you with information from “the inside.”
While I attack the law professors generally, I want to clarify that it is aimed at: 1) those without relevant experience who instead teach; 2) their stubborn adherence to a “learning model” that penalizes and stifles learning through the “Socratic Method,” the time-honored tradition of wasted time through open-ended questions between the “law professor” and the students; 3) and this horrible lie put out by law schools that their primary responsibility is to “teach you to think like a lawyer” rather than to teach how to be a lawyer.
I’ve met great law professors who have real-world experience, and then bring that experience into the classroom. Then, there are the others: pure academics without real experience who teach to those with even less. Legal education in its present form – sucks.
Patrick J. D’Arcy’s Blog Is Featured In The University of South Dakota Law Review And Other Websites
Apparently my “contribution” is pissing off law professors (and their cush lifestyle) – in a big way. Jonathan Van Patten, a law professor at the University of South Dakota, wrote a law review article (“Skills For Law Students” 61. S.D.L. Rev. 165 (2016)), which prominently quoted my blog, and my criticism (or attack) on legal “education.” In fact, my blog looks to be the centerpiece of his article. He never contacted me about being “featured” in his magnum opus (which he admittedly didn’t have to do). But, it is kind of weird to not even inform me that I am about to be the subject of discussion in the legal community. You’d think he would understand that point. I doubt it had anything to do with an urgent deadline, since law professors don’t look too busy to me.
Law Review Articles Are Mostly Worthless Reading By Academics, For Academics. Trial Lawyers Ignore These Articles (Except To Criticize Them)
Few people read these law review articles, and even fewer people care what is written in them. Having written hundreds of motions, I can tell you that a law review article being used as persuasive authority in a brief is pretty rare. Umm, wait a second. You are a law student applicant, right? Then, I apologize, I am using terms you won’t know the meanings of. A “motion” is effectively a request for the Court to “move” on something, such as moving the Court to make an order. I am now going to tell you something you’ll never learn in law school – a motion must be by way of notice (there are exceptions), and depending on your state’s rules, heard at least 16 court days later (not calendar days), plus five calendar days more for mailing, two business days for FedEx, and no extra days delay for personal service. When a motion is filed, a trial lawyer first checks to see if proper notice was given. If not, then the motion can be temporarily defeated on those grounds. In response to a motion, the other side files an “opposition,” and then you file a “reply” to that opposition. Ok, back to the story….
Rarer still (in fact, about as rare as discovering a 10 legged moose) is a Court’s citation to a law review article for any authority at all. I’d feel ridiculous if, during oral argument, I told the judge about this “great law review article” that is on-point. Law review articles – like the schools from which they reside – largely take a smattering of cases and concepts from different jurisdictions, and there is a standing rule that you NEVER cite to out of state jurisdiction (since it isn’t binding). Even then, the judge will be sure to do his own legal research, and figure you to be a dolt if you can’t find at least one case from your state that addresses the issue.
My article was circulated at another law school (Lewis & Clarke). Here’s a link to this very informative law review article, and you’ll notice that the law professor takes aim at me right out of the gate (starting on the top of page 2). Van Patten Skills for Law Students_stamped
The good professor quoted me with an obvious disdain for my thoughts and beliefs (page 2, footnote 6), which he is certainly entitled to do:
“As a trial lawyer, I am constantly reviewing the latest cases (as other lawyers do). We NEVER refer to our casebooks or our lecture notes to help us out. They are irrelevant. To prove what BS the “Socratic Method” is (the main learning device used by law schools), watch how fast these same “law professors” simply give you the information during a condensed bar review session, when they did nothing of the sort during your time in law school. Explain to me how the Socratic Method fosters learning when the “law professor” leads a class filled with students with no background in the subject, and peppers them with open-end questions chock full of wrong answers. All that results is mass confusion. What a huge waste of time. If medical schools worked this way, the doctors would have no practical training. Instead, they put them on rotations, and the professors are practicing surgeons. Not law schools- they put someone in charge who typically couldn’t hack it in court. Law schools are fine with it. They graduate functional idiots who do not know how to draft a complaint, take a deposition, know the rules of evidence, serve a complaint, file motions, etc. I learned all of this for the first time after I graduated. Law school is an extended liberal arts education. I tell you this so you can be aware of the problem you will encounter thinking graduating from law school is enough to start your own practice. When law schools speak of”practical training,” just do what I do and laugh your ass off.”
Be sure to read his criticisms of what I wrote. I’m trying my best to get at least 200 people to read this article outside of the law school itself.
I can understand why Professor Van Patten is upset. My blog (and those of other trial attorneys who actually earn a living practicing law) are unmasking legal academia and a threat to their livelihood. We have crossed over to the other side, and see what is wrong with legal education. You would think intelligent people such as law professors would just immediately reinvent themselves to address their failings. Nope. They have an agenda of self-preservation.
Law Schools Need To Replace Decaying Faculty Without Practical Experience With Trial Lawyers And Judges
Imagine if the law schools actually did something revolutionary, and started hiring trial lawyers to teach Civil Procedure, Torts, Contracts, Real Estate (Property), etc., and fire the law professors who lacked legal skills, teach from stale books, and get their hard-earned pay asking law students such thought provoking questions, “And, what do you think about Stacy’s answer?” The first thing we’d do is toss your useless casebooks – an archaic invention of old cases cobbled together and put into one book. About 200 years ago some law professor figured it would be a great idea to assemble cases together from different fields to increase learning. The world has moved on – we are searching for cases (for our jurisdiction) on line with Lexis, Westlaw, etc. Next, we will make the law students spend several hours per week working with outside attorneys to learn about the job, under the tutelage of real lawyers.
Imagine this scenario – the law school hires people like me to teach Civil Procedure (which are the rules of litigation in state and federal court, each with their own specific rules), Evidence (something we live and breathe in court), Torts (the personal injury lawyers will line up to teach this), Contracts (litigation attorneys are always suing over breach of contract claims), etc. You get the idea. Bringing in trial lawyers and practicing attorneys would create a healthy chaos – the students will be forced to actually learn something. The typical “law professor” has been out of circulation for many years (or never been in circulation in the first place). A problem with my approach (although a huge improvement over the current system), is that today’s practicing attorneys will get “stale” in their skills, and start to fall off the wagon. Rules and procedures change.
Professor Van Patten’s Resume Fails To List Actual Trial Experience
I don’t know Professor Van Patten. However, when I reviewed his resume, I didn’t see anything about jury trials, cases he won, notable appellate victories, etc., which is something I argued in my blog regarding law professor qualifications. http://www.usd.edu/faculty-and-staff/Jonathan-VanPatten Perhaps there is a different resume which lists this stuff? If so, great. Then get on board with me!!
What I did see (and what I ironically complained about in my blog) were articles that law professors churn out like Professor Van Patten’s important work, “Storytelling For Lawyers.” This title is up there with the movie, Bedtime For Bonzo. I did mention in my critique that law professors are driven to put out such articles, rather than solve real-world problems facing real lawyers. I will allow the good professor to show me his litigation experience, and I am fairly hopeful he has some. I would think that he does.
Professor Van Patten takes a few pot shots at me (and that’s ok). But his criticisms are ineffective and ironic. For instance, he chides me by stating: “Don’t trust a trial lawyer who uses ALL CAPS or snarky quotations to make a point.” Well, Professor Van Patten, YOU used ALL CAPS throughout your headings to make your points, right? And if you equate a lack of trust in a trial lawyer with the use of the ALL CAPS approach, then you’ll need to exclude A LOT of lawyers.
If you wrote briefs, you would notice that ALL CAPS is for headings (as you used in your article) or for emphasis. Besides, the comparison is illogical. What does ALL CAPS have to do with honesty and knowledge about trial law? As for using ALL CAPS, we do this ALL THE TIME (just sparingly). Another thing, Jonathan, your writing style is patterned and predictable.
Jonathan Van Patten says not to “confuse” the “third and fourth years” of medical school and their “four years of residency” with “the first two years of law school.” Actually, I’m not confused at all. You are. You see, there are only three years of law school, so years two and three (not one and two) are for the “advanced” training of the law students. In medical school, the “advanced training” takes place after the first year as well (but they actually learn how to be doctors). It’s an analogy that was lost on you.
My Observations (Criticisms) Of Professor Van Patten’s Law Review Article.
More Is Less – Trial And Appellate Courts Want Brevity, Not Long-Winded Articles That Fill Up Space
Point 1: This law review article is too long, and bores me. A judge and her clerk (if it were a brief) would be pissed reading this. A practicing lawyer knows that all briefs have page limits (including rules on font size, spacing and pagination). Long winded articles (or briefs) are ineffective, unimpressive, and cause the reader to lose focus on the important points. Excessive footnotes take away from the art of persuasion. Effective writers know when to scrap arguments for brevity and clarity. Law professors tend to think that a weighty and lengthy article is impressive, when a busy judge thinks just the opposite. The attitude of the court system is if it takes you a long time to make your points then you haven’t thought them through. Of course, there are exceptions, such as the 43 page appellate brief I filed to defend my trial court victory, but that’s because it dealt with 13 witnesses.
Law School Courses Are Not “Foundational,” But A Foundation Of Ignorance
Point 2. Van Patten argues that first year courses are “foundational.” Huh? What the hell does that even mean? A foundation of ignorance? Practicing lawyers know to avoid ambiguity in their phrases. Storytelling For Lawyers, based upon the ambiguous title, could be, for all I know, Professor Van Patten’s attempt to cure lawyer insomnia by presenting a series of really boring cases for required reading at night. I mean, any time you can get your hands on a toxic tort case where the amount of phenylananline bifurcate 23 diboxyl exceeds 0.1 deciliters per nonliter, and the thousands of pages of data by EPA scientists in dispute with their published results, you are sure to be snoring loudly by page three. I’m not going to lie, a “good” case will do that and get you off your sleeping meds quickly. The first-year courses are taught so as to block learning, ok? The “foundation” is really more like a wall of professionally prescribed ignorance.
Professor Van Patten Cites To A 1965 Study That Legal Education Sucks.
Point 3. Van Patten cites to a 1965 article stressing the failure of legal education. He makes my point for me: 50 years is enough time to know when something isn’t working. The problem is that change will only occur in legal education when the “law professor” agrees to give up his cush lifestyle to benefit the students. But asking a law professor to sacrifice for the greater good is, well, as the last 50 years has shown, not going to happen. In 2065, a new “law professor” will write yet another useless law review article citing to Van Patten, and argue that legal education needs revamping.
Watch This Youtube Video Of A Law Professor Speaking To A Law School Graduate Working At A Gas Station.
https://www.youtube.com/watch?v=ZhjhHuMKqgs
We Need Law Review Articles Of Value
What practicing lawyers secretly dread are the undiscovered cases out there that doom their position. In federal court, I represented a Burger King franchisee in a hotly disputed real estate lease case, where the landlord wanted $450K in damages. I won the case because – surprise – I didn’t turn to my casebook, call my law professor or review my notes from law school. Instead, I did what real lawyers do – research on Westlaw and Lexis and found a recently handed down case that destroyed the other side. Van Patten says about me, “Don’t trust a trial lawyer who uses ALL CAPS or snarky quotation marks to make a point….” Well, Mr. Van Patten, trust this – I filed Rule 12b(6) (that’s Civil Procedure Rule 12b(6)) challenges and got the owners and four of the six claims against their company dismissed, and then dismissed the case through a seldom used Rule 56 opposition to their motion for summary judgment (a motion to end the case in their favor without the need for a trial). My clients never even appeared at one hearing. I never learned any of that shit in law school. Incredibly, when I started work at Sheppard Mullin in Orange County upon graduation, I didn’t even know what an “opposition” or a “reply” was. Thanks for your observations, but my clients trust me. And this isn’t “Rate My Professor” type shit. These are real world problems that are serious and in need of resolution. If my clients thought I sucked as a lawyer, you can be damn sure I’d be out of business. This rule doesn’t apply to law professors – no matter how little information you impart, you get paid and work few hours to do it. None of this is real world.
Could you have obtained such a result – full dismissal? My actions saved them $450K in damages and perhaps $400K more in legal fees (including, had the other side won, potentially $500K in attorneys fees added to the $450K they sought). In other words, the $450K damage claim, had we gone to trial and lost, was really about $1.4 million, and against the owners personally. Instead, they got out for about $50K in legal fees. How about the $3.7 million jury verdict I just obtained on a complex stock fraud case where I single-handedly represented 22 plaintiffs, and did the direct, re-direct, cross and 776 examinations for every witness, including the defense expert, a person with 40 years of experience and over 400 trials under his belt? I got their expert to admit my clients were defrauded. Do you realistically think that you would stand any chance at all against me if we faced off in open court – assuming you have limited or no trial experience? While law professors perfect their law review articles, I am working hard figuring out how evidence could be excluded, the missing evidence needed to prove my claims, how to trap witnesses at depositions, what questions not to ask a fact witness, etc. How many law graduates could handle any part of this with a worthless legal education? And again, in fairness to the professor, if he has “real world” litigation experience, then I completely respect him for it. However, then why is he fighting my suggestions?
Law School Graduates Are Being Ripped Off When They Learn How To Become A Lawyer After Spending $200K On Their Education.
Point 4. Van Patten cites (correctly, which makes my point again) that law firms (and not law schools) are the training grounds for new lawyers. Law firms simply charge $350 hour for me (in 2006) to learn on the job. I spent a fortune on my legal education and was a functional idiot upon graduation. The top litigation firms give the scut work to the new lawyers, such as tracking down documents, writing memos, and doing basic research, while charging the client a fortune. Then, that work gets reviewed by a more senior associate (at a higher billing rate). Besides the firm itself, who actually benefits from this? Not the customer. The “law professors” put me (and all graduates) in the embarrassing situation of having to get real questions from clients, and not having any idea how to answer them. Oh, that’s right, I was still taught “how to think like a lawyer,” just not how to be one. Got it. Picture a real world situation – I had to defend a client on federal mail and wire fraud charges, involving millions of dollars. A conviction on one charge alone could land him a 20 year sentence. A law school graduate – who holds a doctorate – that cannot do basic legal work is hardly better off than the person seeking the help. Thinking like lawyer means absolutely nothing when a client looks at you with, “Is any of this registering, or should I go elsewhere?”
Law Schools As Trade Schools? Yes!
Point 5. I agree with Professor Van Patten that law schools must function more like trade schools. The three years of “instruction” needs to be three active years of actually learning by doing. As it stands now, law students sit in the class room, tune out, and listen to a lecture that has no value.
But, Law Schools “Teach You To Think Like A Lawyer,” Right? BULLSHIT. Teach Us Instead To Be Lawyers.
Point 6. Well, Mr. Van Patten, like those who drink the Kool-Aid of academia for too long, gets back to the tired line, “…law school is ultimately not about information. It is primarily about how to think like a lawyer. No lie.” Actually, that’s the biggest damn lie that law schools put out. I am not calling Mr. Van Patten a liar. He is entitled to his opinion. If this is his belief, well, good for him. Of course, the disaster that is legal education (cranking out functional idiots without any skills) should be proof that Van Patten is wrong. But, he doesn’t walk in our shoes. Instead, as a law professor, he drives from his home, gets to the office twice per week, works six hours (per week) or so teaching courses, and then plans his weekend, with large breaks of time in between. He, like law professors in general, will work hard a couple a days a semester grading exams, but people doing document review have it much worse, and it’s every day (for lower pay). The ABA has a rule on teaching loads, so it’s not his fault he must work so few hours per week. Like I said, it’s a great job! I don’t recall him addressing this aspect of his working lifestyle in the law review article.
Professor Van Patten Admits That You Won’t Know Much When You Get Your Law Degree – A Doctorate, No Less. Thanks!
Point 7. Professor Van Patten goes off the rails again, with “It is an important skill to recognize one’s lack of knowledge, to recognize what one does not know and to figure out a way to understand and integrate new information.” First, as the lovely Marisa Tomei stated so eloquently in My Cousin Vinny (in response to Joe Pesci saying “I’ll learn as I go”), “Learn as you go?” How do you know what it is that you don’t know.” That’s right, Marisa. Checkmate. I can tell you from first-hand experience, that you won’t know what you don’t know, at least not initially. In law school, I knew nothing about law and motion practice, the 16 court days advance notice (with five calendar days for mailing, etc.). When a motion landed on my desk, I was like, “Uh, what do I do?” I remember reading it a few times (since I learned to “think like a lawyer”), but I was a total dud on what to do in response. So, I “Googled” “motion” and learned a lot of things. Then I had senior associates telling me what NOT to do, and finally, a partner, who scrapped all of my work and started over. Yeah, law school education is so great.
I won’t re-read and analyze this article any further, I have to get back to actual work.