Law in Contemporary Society

A Reflection on the Legal Education

-- By MeiqiangCui - 16 Feb 2012

A law school student lives in the casebook world. But wait, there are more facts to be considered!

Last December, when I was hurrying down the street, I suddenly felt that I ran into a totally different world. There were patients waiting in front of a pharmacy store to get medicines, the elders walking slowly with their shopping carts, and young parents having briefcase in one arm and small child in the other. All of these seemed to have little to do with the casebooks and outlines I buried myself into. I could not help asking myself: if there is the real life, then what I was studying for all these months?”

Disconnection to one’s surroundings and the society is a common problem for law school students. Our schedules are generally so tight that we claim to even lack the time to read newspapers. In the mean time, most professors train us by giving the facts that they deem legally important, and require us to assort them according to the elements of rules. Such training further reinforced the assumption that only facts that are “legally” relevant count. However, other factors, such as the social background when the dispute happens, the economic and psychological impact of a potential decision, and the specific litigants and judge handling the case all play a significant role in predicting the outcome of a lawsuit.

Individual differences influence the outcome of a lawsuit.

A trial lawyer usually will do everything he can to better understand the presiding judge, because the judge’s individual working style matters. During the years I worked at a Chinese firm, if we were assigned a judge we had never worked with, we would research all her speeches, publications and judicial opinions to have a general idea about her. We would also contact the lawyers who appeared before her to talk about their experiences. For example, the Civil Procedure Law provides that both parties have a 30-day evidence production period, and may move to extend for another 30 days as of right. Thereafter judges have discretion with respect to further extensions. If a judge tends to clear the cases out of her docket quickly, she may order the case to be dismissed; another judge, who would like to decide the cases based on merits, may allow it to proceed. If the client’s sole purpose is to keep the case alive so as to have more bargaining power at the negotiation table, knowledge about the individual judge would be crucial.

Similarly, a trial lawyer would collect information about her opponents. Different opposing counsels may adopt profoundly different strategies for similar disputes. For example, many senior patent examiners, after establishing the patent examination system in China and retiring from the State Intellectual Property Office (“SIPO”), found their own patent agency firm. The firm enjoys a huge advantage in defending in patent invalidation disputes, because lawyers there are widely regarded as authoritative in interpreting the Examination Guidelines. Moreover, since SIPO uses a quasi master-apprentice system, and the Chinese culture emphasizes respect for one’s teacher, patent examiners feel considerable pressure when invalidating a patent prosecuted under their former teachers’ names.

Social background of a dispute also counts.

How a case will come out also depends on the social background when the dispute happens. For example, in constitutional cases, the Supreme Court constantly cited national consensus as an important reference for their opinions concerning same sex relationship, death penalty, abortion and others. Another example would be People v Goetz, where the court ruled that the defendant’s conduct constituted self defense when he shot four armless black youths in a subway car, who asked him for five dollars. People v Goetz, 68 N.Y.2d. 96. The whole opinion, while it talked at length about the definition of “reasonable person” under the MPC and the state penal code, does not make much sense until one reads the supplemental background information. The tragedy happened in 1984, when the crime rate among blacks was disproportionally high, and the New York City was considered one of the most dangerous cities in the States. Most likely, the court was influenced by the prevalent notion of racial discrimination, and the potential dissatisfaction against the court for failing to protect people’s safety should the case come out the other way.

A tentative approach to improve our legal education

Since the outcome of a lawsuit depends on multiple factors such as the specific counsels, the judge, and the social background, to name a few, law school students should sharpen their ability to integrate such facts to their legal arguments, and use them to shed light on facts that can directly fit into the elements of rules. As a result, we can start to improve our legal education from the following perspectives. First, it will be easier for 1Ls to understand the function of laws by giving them less court opinions but more materials about the economic, social and cultural background of the cases. Students will be able to better understand why law is said to be a weak social force and how it interacts with other forces to shape people's behaviors. Second, the students cannot study law while isolating themselves from the society. Clinics, internships and externships should be more readily available. They enable us to observe the actual operation of the rules, appreciate the consequences produced on people's lives, and learn to sense the subtle factors considered by courts but are not articulated in the opinions. Third, we need to change the solitary study mode to one involving more teamwork. While one may easily fall into the illusion that she is supposed to focus on the law and nothing else, three or four 1Ls together most likely will deviate from discussing the case itself and talk about their feelings towards the decision based on their own life experiences. Instead of a waste of time, such deviation provides insights on how various facts that perhaps are not even mentioned in the opinion exert influence on the judge's mind.

(To be honest, I’m still perplexed at how to improve our sensitivity towards facts. By facts I mean not only the facts that one may like to use as evidences, but also facts that point to the social background of a dispute. I tried to hang out with many lawyers and judges this summer. More often than not, their talk centers on promotion, compensation, high-end restaurants and brands. It’s disturbing to realize that lawyers as a group either does not care about the social problems or is generally not willing to discuss them. Perhaps the root of indifference is not at the law schools, but at the legal profession.)


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r6 - 22 Jan 2013 - 20:10:43 - IanSullivan
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