Educating legal education

is the subject of my Trade Tripper column in this Friday-Saturday issue of BusinessWorld:

The not-so-subtle message conveyed by rabid impeachment supporters was their disgust over "legal technicalities" and how lawyers are obstacles at "arriving at the truth." Such shows a profound misunderstanding of the essence of law and the function of lawyers in society. But the blame, ironically, ultimately falls on us lawyers. By our actions and our inability (or ignorance) to convey the nature of the profession, the public itself has been lured into believing the misleading propaganda about the true demands of a properly functioning legal system. And, consequently, democracy as well.

Certainly, there’s a lot to criticize about a legal education that produces lawyers (although loudly self-righteous) with little or no respect for the rule of law. When you have lawyers who think nothing of breaking the evidentiary rules or the Constitution, dishonest in revealing their sources of evidence, or coach witnesses to lie regarding the alleged "facts" they declare before a tribunal or the media, then you know there is something incredibly wrong with the present training into the profession.

The other thing the impeachment case revealed was the utter incompetence displayed by a number of the lawyers that prosecuted it (regardless of the result). While the public, perhaps for political reasons, are forgiving (even maybe encouraging) of such ineptitude (approaching stupidity), nevertheless, the profession itself must take a long hard look as to how we form our lawyers so that pathetic displays of lawyering be not repeated in the future. Otherwise, we are just allowing the legal profession’s slide into triviality.

As I wrote years ago, which unfortunately is becoming more apt today: "Lawyering now seems to be relegated to a matter of flashiness, presentation, of glibness and marketability. Of Blackberries and laptops, of designer suits and fashionable parties. Gone seemingly are the days when the law has been described ‘as a lonely passion,’ of the rumpled solitary individual buried beneath his files and his books. At least in the olden days, despite the corruption that even then has been complained of, eloquence and purpose was apparent. Today, even that has gone. I have had students who could talk your ears off in highly voluble and fashionably phrased social conversations but who could not create, in speech or in writing, a decently coherent, in style and substance, piece of argumentation. These lawyers could talk to you of shoes by Manolo Blahnik, the latest trends in pop psychology, their takes on deconstruction by Derida but could not -- in class or in practice -- summon the appropriate craftsmanship necessary to defend their clients’ interest in court that would be upheld if were left in the light of day."

Which leads to another thing wrong with present legal education: rewarding those that seek popularity rather than the duty to be intellectually humble, honest, and precise. In this regard, I’m reminded of Bryan Magee in his "Confessions of a Philosopher": "Instead of writing as clearly as they could they deliberately chose to be obscure, because they wanted to impress. They put whatever they had to say into long convoluted sentences full of abstract nouns and technical terms, sentences which it is difficult for even the most intelligent readers to think their way clearly -- though when they have, it is surprising how often it turns out that not much has been said."

Consider a random passage from a local "legal scholar": "Scrutinizing the visual description in the curvature within the democratic framework makes a comparative grounding from a liberal perspective furnishing a metaphorical area for normative advocacies. Such problematique acquires an expanding accretion, broad prescience, and juristic clarification of institutional dynamics that categorizes the dualist character from the perspective of conceptual and practical progression."

Actually I made it up by culling from the writings of various legal intellectuals. But how anyone who writes such drivel as that above can be considered an "intellectual" is beyond me. If you found that passage spouting nonsense, you’re right. And yet, journal after legal journal are full of such gibberish. Making us complicit in teaching future great lawyers to write (and think) in this grand manner of confusion.

This is the necessary time to reexamine how we educate future lawyers. Aside from our society’s obviously growing disrespect for the rule of law and misunderstanding of the nature of the legal profession, there is also that aspect of the very relevance of the profession itself. As opined by the New York Times (Legal Education Reform, 25 November 2011): "The economic downturn has left many recent law graduates saddled with crushing student loans and bleak job prospects… Yet, at the same time, more and more Americans find that they cannot afford any kind of legal help. Addressing these issues requires changing legal education and how the profession sees its responsibility to serve the public interest as well as clients."

Like it or not, lawyers are here to stay. We just need a better kind.