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Q&A

By Michael Lenehan

W hen Doug Litowitzgraduated fromNorthwestern’s law

school in 1988, he got what mostof his classmates wanted—anice-paying job in a big down-town firm. He didn’t like itmuch, judging from the title ofhis recent book. The Destructionof Young Lawyers, published latelast year by the University ofAkron Press, is an attempt toexplain why, in Litowitz’s open-ing words, “lawyers are patholog-ically unhappy.”

Everyone has an unhappy lawyerstory. But is there evidence thatlawyers are less satisfied, as a group,than people in other professions? In the first chapter of the book,I cite survey after survey—fromthe American Bar Association,other bar associations, and

studies by psychologists—sayingthat huge numbers of lawyerswould not be lawyers again. Andthere’s a lot of evidence ofdepression and alcoholism, wayabove the norm.

So what’s the problem?I attribute it to a number of fac-tors, starting with law school.We know from statistics thatlaw students are moredepressed than medical stu-dents and business students.How do you explain that? Partof it has to do with the way lawis taught, which is the Socraticmethod, which is basically aninterrogation where one sideknows the answers and asksquestions of a side that doesn’tknow the answers. You know,like in the movie The PaperChase—Professor Kingsfield. It

just makes people anxious andnervous. There’s no proof whatsoever that it’s a good wayof teaching material. Socratesdidn’t even use the Socraticmethod to teach—he just used it to puzzle people.

Wouldn’t Professor Kingsfield saythat it teaches law students tothink on their feet?The ostensible justification isthat it rewards quick thinking—it’s sort of like fencing—youlearn to be nimble and to antici-pate questions that will bethrown at you. But there reallyis no parallel for that in thepractice of law. There’s no timeat which I’m in front of a hundred people being askedquestions by someone whoknows the answer and I don’tknow it.

How about arguing in front of anappeals court?Yeah, but usually when that hap-pens, you know the case betterthan the judges, because you’vebeen on the case for a year or twoyears and you’ve had a lot of timeto prepare. You’re right, butthat’s the only parallel, and it’snot very common. There’s noparallel in corporate law, busi-ness law, poverty law. . .

Basically law is taught induc-tively, case by case. You build upgrains of sand, or, like an impres-sionist painting, you build up dotsuntil a picture emerges. It’s a real-ly ineffective way to teach. Sayyou’re taking a contracts course.You might read one case that dealswith an offer, then a case thatdeals with an acceptance, then acase that deals with consideration,and then maybe a month later a

case that deals with a term, andthen the lesson that you wouldput together at the end of theyear, looking backward, is: Oh, Iguess for there to be a contractthere have to be all these pieces.

You mean there’s never really anoverview? There really isn’t. I wish therewas. In the book I give an exam-ple of the speech I wish my con-tracts teacher had given us:“Here’s what a contract is. Hereare the types of contracts. Here’swhat you need for a contract.

Objection!Doug Litowitz has a few theories on why lawyers are so miserable.

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Here’s why we’re reading this.”That kind of thing really doesn’tget said in law school. And youdon’t get to see things. You’renot working on things. I arguethat for corporation class, youshould file to form a corpora-tion. If you’re doing wills andestates, you should write a will. Ithink the whole thing reallyshould be two years, plus oneyear of practicum.

OK, so let’s stipulate that lawschool sucks. After law schoolcomes . . .The bar exam. Reason numbertwo why lawyers are unhappy.The bar exam’s real purpose is to be a funnel restricting theflow of new lawyers. And it also serves the purpose of scaring young lawyers to be submissive in front of the barauthorities. That real purpose iscaked over with the rationalization that it’s to makesure lawyers are competent, but there’s zero evidence that the bar exam does that. In factthe bar exam is relatively new

in history, and there are somestates, like Wisconsin, where in-state law graduates don’t have to take the bar exam. I’veworked with lawyers who didn’ttake the bar exam and they were fine.

Explain what you mean by restrict-ing the flow of new lawyers.Well, think of a state that has anumber of law schools of varioustypes. For example, Illinois hassome very elite law schools, thenit’s got some second-tier schools,then it’s got some lower-tier. So thecandidates for the bar are prettymixed. Same in New York, same inTexas. So it would seem to me,when I think logically about it, thatevery state that has a mix of lawschools and a mix of intelligentpeople would have roughly similarpass rates for the bar exam. Let’ssay that 20 percent of the pool isincompetent, you’d figure there’dbe a 20 percent failure rate in anyof these states. But the rates arenot similar—they vary wildly. Andthe explanation for that is that it’snot really about competence, it’s

about literally adjusting a bar, tokeep people out. The proof of thisis that states keep adjusting theirpass rates. So New York will say:Well, our pass rate is 75 percent,but Pennsylvania’s raising it to 80so we’re going to raise it to 80. Andthey’ll change the figures—Floridahas been steadily raising the scoreyou need to pass—for no reason.They can’t articulate any reasonwhy they’re doing it.

Then after you pass the test,there’s a character committeethat you have to pass through toget your license. And they’re veryintrusive. They always ask ifyou’ve ever seen a psychiatrist ora psychologist. In many statesyou have to disclose your medi-cines, name every place you’velived for the last ten years, and soforth. And really it’s not aboutscreening. Each year they getthousands of lawyers; they’re notgoing to go down the line andlook at everybody’s references andwhere they lived. It’s about power:we know something embarrassingabout you. To me it’s really just a

Doug Litowitz

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ritual of humiliation. The whole system of legal edu-

cation would be so much moreuseful if they just said: Here’swhat we’re going to do. You haveto take a course on the structureof the Cook County court system.You have to know where to file acomplaint, you have to know howto schedule a motion, how to

open a client file. That would be athousand times more useful thanwhat they have now. Because youget your law degree, you pass thebar, and you know what? Youdon’t know anything! You’re alicensed fraud.

Which brings us to another one ofyour themes, the forces that pushyoung lawyers into big firms.

Young lawyers cannot hang outa shingle like they used to. It’stoo expensive, they have toomuch debt, there’s too muchcompetition for clients. . . . Andthey don’t know anything abouthow to help a client, how to filea motion, how to form a corporation. Lawyers learnthese things on the job, not inschool. So they get pushed into

the big firms, where they’reworked to death.

It starts with debt. Law schoolhas gotten so expensive. Theaverage law school grad owes$80,000 by the time he gets hisdegree. So at this point you’revery vulnerable. You need tomake money, you need compe-tence, you’ll do anything. So youtake a job in a big firm. Because,

after all, that’s where most of thejobs are. And they have an incen-tive to take as much out of you aspossible. And so they work youto death, and you’re monitoredconstantly for your billablehours, and it’s not a good life.One of the things that happens isyou lose interest in areas of law.You just get interested in money.When you’re in law school you

Q&A

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might say, well, I’m kind of inter-ested in intellectual property, orI’m interested in real estate. Butwhen lawyers get out they findthemselves in places they neverthought they’d be, doing thingsthey may not believe in.

What do big firms specializein? They specialize in represent-ing powerful companies. Soyou’re a corporate lawyer, andcorporate law is largely aboutprotecting people who are insid-ers in corporations.

One of the examples I use inthe book, from my own experi-ence at a big firm, is we take acompany that’s public and wetake it private, take it off thestock market, buy it up. And thenwe would take it back publicagain. And you ask yourself:What’s going on? Why are wedoing this? Who benefits fromthis? And it always came down tobenefiting the insiders of the cor-poration. Because those are thepeople who are your clients.Those are the people who hiredyour firm and the people you dealwith every day. So you write thefine print in a contract that takesaway an employee’s right to suehis company for discrimination,or you write a brief for a companythat fights tooth and nail againstevery workman’s comp claim. Youare pretty much trying to protectthese insiders against workersand against consumers.

And of course the client is always right. Yeah, the prevailing ethosamong lawyers is that your job isto serve the client, whatevertheir needs are. It’s not for thelawyer to say that the client isoverreaching, or being unfair—your job is just to do what theywant you to do. Everything thathappened at Enron andWorldCom and all that stuff,that was all mediated by lawyers.All of the dot-com meltdown—everything there, every piece ofpaper, was drafted by a lawyer.

So that’s why you left the big-firm life?Yes, after practicing at a bigfirm for a couple of years Idecided that I would go backand be a professor. So I went toLoyola and got a PhD, and afterthat I started teaching [atChicago-Kent and OhioNorthern University, amongother places]. I did that foreight years.

But now you’re working in securities law.I needed to earn some money, soI quit teaching recently andcame back to Chicago, where Igrew up, to work at an invest-ment fund.

Given all you have to say about theinfluence of capitalism on the legalprofession, isn’t that a little weird? I think about that. But what canI say—life is full of surprises. It’sa personal thing. Let’s just say it’sa contradiction that I hope to beable to resolve someday. v

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