In Defense of the Accused

Twenty-four years ago I was in my junior year at the University of Pennsylvania where I was an associate editor of the award-winning Daily Pennsylvanian, the entirely student-run (with an independent corporation) newspaper at the University of Pennsylvania.

The experience was fantastic.  In my time, I knew Harold Ford, Matt Selman, the infamous Stephen Glass, and Kenny Baer.  Then-professor, now-pollster Frank Luntz came by the DP offices, affectionately known as the Pink Palace near 40th and Walnut streets in Philadlephia.

But my proudest moment was my defense of a student unfairly targeted by Penn’s speech police – in the guise of Catherine Schifter, a petty bureaucratic tyrant who later earned a PhD in something called “educational leadership” – for some columns he had written that offended some students.  I recently located the column I wrote in March 1993 about the incident.

Ultimately, the column was read by Eden Jacobowitz, a student who was an early survivor of the political correctness craze that infected American campuses in the 1980s and 1990s.

I like to think of this as an early fight in my career defending people under attack from judicial authorities.

How Not to Cross-Examine a Witness

My friend Dan Alban, an attorney at the Institute for Justice, appeared earlier this month before the House Committee on the Judiciary, Subcommittee on the Constitution and Civil Justice, where he provided testimony on the state of property rights in American ten years after Kelo v. City of New London.

The Kelo decision was an egregious Supreme Court decision that said that a government can seize property for any public purpose, which includes turning the property over to a private developer on the speculative hope that the private developer will do something to increase the tax revenues for the government.

After providing written testimony and reading testimony into the record, Alban, who was the lead attorney in IJ’s successful litigation striking down IRS regulations in Loving v. IRS, faced questioning from members of the subcommittee, including Rep. Steve Cohen of Tennessee.

Cohen started off his questioning of Alban, who was a “hostile witness,” with a properly phrased leading question: “Your group is the Institute for Justice which you represent, correct?”

The next question, though, was not leading and so Alban didn’t respond with a yes/no answer. That got Cohen riled up, and then, after sneering at Alban – “You are a very smart man” – Cohen tried to bully Alban into giving the answer he wanted.

That didn’t happen.

Cohen then lost all control of his questioning, asked a terrible question – “Why do you think…” – that allowed Alban to give a 20 second respond articulating his position in a reasoned way without interruption and while still being responsive to Cohen’s “why” question.

A Very Smart Man Responds to Questions

How do I start a solo practice?

Having been profiled in MSNBC as someone who has had some success as a solo practitioner, I’ve been contacted by dozens of recent and not-so-recent graduates who wonder how I’ve done what I’ve been able to do.  For a more extensive discussion, visit my page <a href=”https://www.chetson.com/firm/”>www.chetson.com/firm</a>.

First, I’ve been incredibly lucky. Raleigh was an ideal location to start a law firm in 2009. And I was especially equipped to do so. Second, the fact that my wife had a full-time job meant that basic expenses, including our mortgage, were covered, so that I had time to get my practice off the ground. (Too many people don’t ever get to build up a practice because they’re struggling to pay rent.)

If I have advice to share, then it’s this:

  1. Find a sugar-momma or sugar-daddy or sugar-parents who can help you pay rent for as much as a year. Or have savings. Building a practice takes time, and you need to avoid taking every client who comes in the door simply to pay rent. The time invested in building out your practice will (probably) be well-rewarded.
  2. Figure out how to attract clients. How are you going to find people who might need your services? How much are you going to pay marketing channels to advertise? You can’t practice the law if you don’t get hired. Clients pay the bill, and give you an income. How are you going to reach them? This will vary by market, but it is the most crucial question to answer.
  3. Figure out how to get hired. Practicing the law is something you can learn over time. But you first need to be hired by clients willing to pay money for your services. You need to develop the skills to meet with clients, and get hired by clients.
  4. Figure out how to price your services – not so low that you can’t make a living, and not so high that you drive away potential clients.Here are a few tips. Virtually nothing you learned in law school is valuable. Most of it is wrong, as a matter of the daily practice of law. Law school was just a very, very expensive way to punch a ticket so that you can be licensed by a governmental agency to practice law. You need to learn the real practice of the law. How do you do that?Answer: The way that lawyers have learned how to practice law since the country was founded: Apprenticeships.

Do not get office shares with fellow recent grads. You will all be equally impoverished, and equally ill-prepared to practice the law. A better idea is to identify an experienced lawyer who may have excess work who can throw you some cases each month, and for whom you can provide additional support. (Currently in my office share, we have three attorneys: A very senior lawyer who provides the other two of us with tons of experience and learning opportunities, me, and a recent grad. The recent grad benefits by getting the cast-off clients that neither I nor the senior lawyer have time for. In addition to building his experience, he’s providing me and the senior lawyer with additional court coverage.)

Find one practice area. Do not practice in multiple areas. As a new lawyer, you’re not competent even to practice in the area you pick without a mentor. Clients know that, but may see your commitment to become a criminal lawyer to be reason enough to hire you, since you can explain that you’re young, and aggressive. But saying you’re a young aggressive criminal lawyer, estates lawyer, PI lawyer, bankruptcy lawyer, and real estate lawyer is nonsense. You are not. You are simply going to be incompetent at everything, and no client who has any money is going to hire you. Clients aren’t stupid. Don’t try to pretend you are more than you are.

Get some office space. I’ve written before about the advantages of a virtual office, but I have always had at least some office space, and I would recommend you get some space as well. You simply will have too much trouble getting hired on a case if you can’t show clients that you have a real physical presence. I know of a young lawyer who had a DWI prospect come to visit him at his home. As she was driving up, she realized it was his home, and drove away. That probably cost him $2,000, which is the cost of 4 months of rent in a decent downtown Raleigh location.

Don’t over-invest in computers, equipment, and books. Start lean. You can use money you earn from early clients to buy additional equipment.

Make sure you have a mentor. Do not take cases for which you have no qualifications, unless you have a mentor. And make sure you split your fee with your mentor. You will develop far more goodwill by splitting cases, and you will get additional support on cases where you don’t split the fee.

 

Should I earn a Paralegal Certificate?

I’m often asked whether it makes sense to get a paralegal certificate. The answer is, probably not.

First, in order to be a good paralegal, you don’t need a certificate. You just need to be a good paralegal – good research skills, ability to be detail oriented, ability to deal with clients and potential clients.

Most paralegal programs are not worth your money or your time. If you can be all the things I’ve described above, the paralegal programs will teach you nothing new. They will happily take your money or your federally subsidized loans in order to “teach” you how to be a paralegal.

I’m frequently sent inquiries from potential employees who have gotten paralegal certificates and want to work for me. I have no need for people who have merely earned a certificate. I’d much prefer the person with 5 or 10 years of experience dealing with legal issues, rather than the person who spent six months getting a certificate.

Should I go to UNC Law school?

I’m a graduate of the University of North Carolina Law School at Chapel Hill. As I have written elsewhere, few are applying to law school and that’s a good thing.

I’ve also written about my experiences in attending law school, graduating, and establishing a law practice. I was profiled by MSNBC in 2011.

Required Reading Before Going to Law School

Paul Campos’ Don’t Go To Law School (Unless) should be required reading for anyone going to school.

I’d also recommend Brian Tamanaha’s Failing Law Schools.

Don’t Go to UNC at Sticker

UNC charges in-state students about $27,000 for tuition, books, travel, health insurance, and miscellaneous. It’ll cost you an estimated $15,000 to live for nine months in Chapel Hill. Non-North Carolina students will pay closer to $40,000.

Multiplied by three years, without any adjustment for tuition increases, and the instate student will pay close to $80,000 while the out of state student pays $120,000 not including any living expenses.

Since most students, having paid for expensive undergraduate degrees, debt finance the cost of law school, students can come out of UNC with between $100,00 and $150,000 in debt. Adding in the financing of that debt, and the numbers climb.

This is an outrageous amount of money, but is worth while if students coming out of UNC can secure jobs of $100,000 or more to pay that debt. While there are government programs such as Income-Based Repayment, such programs are not feasible for most students.

UNC is not worth that kind of cost, and its employment numbers do not justify that kind of expenditure.

Only go to UNC at sticker if you are independently wealthy, by which I mean you have money to burn.

UNC’s Employment Numbers are Not Good

In 2011, fewer than 25 people who attended UNC reported a salary of $117,500 or more out of a total class of 247. That’s pathetic. That means that less than 10 percent of the entire graduating class made enough money to finance six-figure school debt.

Note also that the employment numbers for 2010 and 2009 are substantially better.

It would not be pathetic if UNC charged reasonable tuition. But, having charged $75,000 for North Carolinians to attend the school (without factoring in living expenses), UNC does not produce the kind of employment results that justify the cost.

UNC Law Professors are Overpaid

If UNC professors were paid commensurate with the employment opportunities they generate for their students, then there would be no issue. But in light of these dismal numbers, students should consider whether they want to help finance the salaries of even assistant law professors who earn somewhere between $100,000 and full professors or deans who earn high $100s and more.

So if UNC tells you when you apply that there is no scholarship money available to give you a tuition break, maybe you want to ask them whether they’ve looked at professors’ salaries.

Only Go to UNC if You Get a Good Price… And Want to be a Lawyer

The image that lawyers have comes from television and the movies, where high-minded lawyers do interesting work, make impassioned pleas for the downtrodden, and argue before the Supreme Court.

The reality is that the vast majority of UNC grads – or any law school grads – do no such thing. Rather than think you’re a special snowflake, think more critically about why you want to go to law school.

Law school is boring tedious. But practicing the law is not, for the most part, a joyous party. It is hard, difficult work, and usually never exciting. It is, in fact, a job.

Lawyers have high rates of drop-out (leaving the profession), alcoholism, and drug abuse. That is not an indication that the profession is fun. It is an indication of the exact opposite.

The only reason you should go to law school is to be a practicing lawyer.

The JD is not Versatile

Law school admissions officers will tell you that the JD is versatile, so even if you’re not sure you want to be a lawyer, don’t worry, you should spend $100,000 and up for the privilege of learning how to think like a lawyer.

First, virtually nothing you learn in law school is actually applicable to the daily practice of law, and very few law school professors or admissions officers have practiced for more than a couple of years before escaping to academia.

Don’t believe it.

Second, as most recent grads who are struggling to find employment will tell you, having a JD is actually almost uniformly a warning sign to people in other sectors of the economy.

Lawyers are regarded as litigious, as know-it-alls, as people who can’t take direction because they went to law school and are full of themselves, and as people who will quit a non-legal or semi-legal job in order to become a lawyer if the market improves.

The sad thing is that the legal market is not expected to improve. While the economy is getting better in general, the legal market is getting weaker because many law firms and corporations are finding more efficient ways of outsourcing legal work or giving what was once legal work to non-lawyers who are paid a lot less.

So Should You Go to UNC Law School

In short, you should only go to law school if UNC is offering you a substantial – more than 2/3rds discount – on the tuition, and if you have money to pay for the rest. In other words, if you plan to take out any amount of loans, you need to realize that they are not dischargeable. You must pay them back. And it is unlikely that you will get a job out of UNC that will justify paying them back.

That said, UNC is a good enough law school so that if you can pay for it out of pocket, then you should go. But only if you really want to be a lawyer.

How can UNC fix its problem?

UNC Law School employment stats show that just 26 graduates of the 2011 class (total # grads 247) got jobs in private law firms of 250 or more. These are the firms that pay ~$140,000 that can service the debt accrued getting a degree at UNC which is likely to be at least $100,000 in non-dischargeable educational debt. JUST 21 – twenty-one – earned more than $110,000, after having dropped $75,000 (in-state) in tuition, plus $60,000 (living expenses) for a conservative total of $135,000 over three years. Meanwhile, UNC Law School pays its average full professor $175,000 to teach an average course load of 2 to 3 courses semester during a nine month academic year. Incidentially, UNC’s 16 female profs (of all types) earned an average salary $14,000 less than male counterparts.

UNC’s personnel budget is bloated. Cut salaries, particularly at the top – professors, associate professors, and even some assistant professors. Trim the number of faculty positions. This would reduce the budget.

UNC can hire more adjuncts and clinical professors, who cost much less. These clinical professors often have more real-world experience, in any case, and are better at explaining actually how to be a lawyer.

A Victory Against the IRS – Licensing and Tax Preparers

In a remarkable ruling, a federal district court judge in Washington, DC struck down new regulations imposed last year by the IRS upon up to 350,000 tax preparers, ranging from “mom and pop” preparers to employees of large tax preparation services such as H&R Block and Jackson Hewitt.

The lawsuit against the IRS was filed by the Institute for Justice, an Arlington-based non-profit law firm that challenges regulations that limit economic freedom.

In this case, the regulations had been pushed by large tax preparers, primarily out of an effort to raise the barrier to entry and costs for smaller preparers. An exemption was also in place for attorneys that shielded people working for lawyers from the regulations.

The lead attorney, Dan Alban, who challenged the regulations is a good friend of mine.

Alban called the IRS plan “an unlawful power grab by one of the most powerful federal agencies and thankfully the court stopped the IRS dead in its tracks.”

Alban and his team of lawyers at IJ argued in their briefs that the IRS was never given the statutory authority by Congress to regulate tax preparers.

Alban’s victory is a huge win for consumers.

“It is also good for the public at large because the cost of preparing a tax return was about to go up” as a result of the increased regulations, Alban said.

A similar complaint can be lodged about the largely unnecessary and onerous regulations on lawyers. The increase of lawyer referral and rating services, such as Avvo, mean that consumers of legal services (also known as clients) have more information today than they ever had in the past about the quality of lawyers they seek to hire.

But entrenched lawyers, especially in the big law firms which tend to be wealthier, generally hate competition. And one way to stop new lawyers from entering the market or to force less prosperous lawyers out of the profession is to impose greater regulations and educational requirements.

In the name of improving the quality of legal services (because who would object to that?), law firms through the state bars that license lawyers, impose fees and Continuing Legal Education requirements that increase the cost of being a lawyer.

Some states, including the District of Columbia, have no mandatory CLE requirements. But North Carolina does. And yet there is no evidence that lawyers who practice in states where there is no mandatory continuing education requirement are worse lawyers.

New Jersey examined whether mandatory Continuing Legal Education requirements have any effect on improving the quality of legal services, and found that empirical data affirming the effectiveness of mandatory CLE do not appear to exist” (pdf).

A good lawyer is constantly learning new things, keeping abreast of legal developments, reading case law, and attending educational programs, regardless of whether there is a requirement.

One hopes that after it’s finished beating the IRS, IJ turns its attention to unnecessary licensing requirements affecting other professions.

Advancing the Public Discourse

Meet Bernie Burk, assistant professor of law at the University of North Carolina at Chapel Hill. Bernie doesn’t like it when you say the current sad state of law schools or abysmal employment prospects for recent law school grads is a crisis or a disaster.

This is what Burk had to say recently on the blog The Faculty Lounge about a law review comment on the employment crisis among young lawyers authored by the leaders of Law School Transparency, a group of recent law school grads who have meticulously documented employment statistics among recent law grads:

So I was intrigued to look into the latest contribution to the law-school reform discussion authored by LST’s co-founders and its research director … What a disappointment. Commentators with the public stature of Law School Transparency should not “dabble.”

I do not mean to say that three twenty-somethings who have essentially never practiced or taught law have no place explaining how to assemble a curriculum or run a law school so that its graduates will be both prepared to practice and attractive to legal employers in the most difficult legal job market in American history. I do mean to say that, if you don’t know how to do it and you don’t know how to teach it, you really ought to do your homework so that your prescriptions are meticulously grounded in empirical experience and coherent argument. Sadly, you won’t find much of either here….

Burk apparently removed his post, but not before it caught the attention of Paul Caron at TaxProf Blog. Here’s more at Scott Greenfield’s Simple Justice.

But back to Burk, who does a little dabbling of his own in Carolina Law, a glossy magazine designed primarily for UNC alumni and donors to the law school:

“Many more prestigious schools, including Carolina, still see nearly all their graduates employed within nine months after graduation.”

Is Burk correct?

No. Law School Transparency reports that only 68 percent of UNC’s class of 2011 was employed in full-time, long term legal jobs. About 1 in 5 graduates did not have a full-time, long term job of any sort nine months after graduating from UNC.

This is far from “nearly all” graduates being employed within nine months after graduation, even if one wants to assume that a law student who graduates and gets a job in something other than the legal profession is a success for the student or a credit to the school the school.

Apparently if you use stark language to describe the nature of what is a real, lived crisis for tens of thousands of law school grads, you’re not contributing to the public discourse in a manner that meets Bernie Burk’s high standards.

But if you overstate the employment results for recent grads of UNC Law School… you’re Bernie Burk.

University of North Carolina Law School 2011 Employment Statistics

Let’s be very specific about the employment statistics for my alma mater – the University of North Carolina and Chapel Hill. As Paul Campos, author of the Inside the Law School Scam blog, notes, someone considering law school as path should only go to law school in order to practice law – which is to say, go to law school to be a lawyer, where the JD is required.

According to a report filed with the American Bar Association, UNC Law School reported a total 2011 graduating class of 247. (Statistics for those who graduated in May 2012 are not yet available.)

Only 169 of the 247 students (or 68 percent) had full time jobs at the time the numbers were recorded (typically 9 months after graduation) where a law degree was required. Nine other graduates had gotten part-time or short-term positions requiring a JD.

To my mind, that statistic is dreadful.

But let’s assume you think that going to law school, spending more than $150,000 in direct tuition, cost of living, and opportunity costs, justifies an outcome where you have a 1/3rd chance of not having a job where a JD is required.

37 of the graduates who had “long-term” jobs where JDs were required were employed as either solos or in firms of fewer than 10 lawyers.

There’s certainly nothing wrong with such work. Most criminal defense work is done by small firms, or solo practitioners. But these are generally low pay jobs where a group of recent graduates get together in a firm they start to share costs, and try to survive by getting hired on cases.

Or they are lower-paid jobs in small firms that do not have the income to justify paying anywhere close to six-figure salaries.

Many students when they apply to law school have very little idea about what it means to be a lawyer. Their ideas about law school or the practice of law are from television, the movies – dating back to the 1970s film The Paper Chase, the 1980s LA Law, the 1990s Boston Legal and Ally McBeal, and various John Grisham novels turned into films.

They also are thinking about BigLaw life, in firms larger than 250 lawyers, where salaries can start at $140,000 to $160,000, depending the city.

Just how many law students did UNC place into such positions in 2011? Twenty-Six (26).

That’s right, you had about a 10 percent chance – 1 in 10 – of getting a high paid BigLaw job out of UNC if you were part of the 2011 graduating class.

Starting a Solo Practice – A Seminar

You probably don’t need to be told that this is the worst hiring environment for recently licensed (and even experienced) attorneys in… forever. A few statistics:

  • Law schools are graduating 45,000 lawyers each year for what the Bureau of Labor Statistics estimates are about 25,000 new jobs.
  • Average recent law grad educational debt is more than $100,000.
  • My informal survey of 2011 and 2012 recent law grads suggests more than half are under-employed or unemployed (Meaning, for instance, if you’d told them in 2008 that they could pay UNC $100,000 to graduate with a job as a doc reviewer, a volunteer in a PD, DA or non-profit office, on a post-graduate “fellowship,” or no job at all, they would’ve considered that a bad deal.)

You can’t discharge the debt. You can’t even give back your JD in exchange for debt forgiveness. You can’t will into existence new jobs.

But what can you do?

A friend, Kellie Mannette (UNC ’09), and I were talking about the parlous state of the legal market today, and how we can help recent grads.

We’re trying to gauge interest in what would be a short, free seminar – perhaps 2 to 3 hours – where we and other attorneys would address – in specifics – how to start a solo practice.

This is not a networking event. This is not a meet and greet. If you do meet other people who turn out to be helpful, that’s great. But the main point is to impart ideas and information on how you – in a practical sense – can start up a solo practice, keep costs down, find clients, get mentored, satisfy bar requirements (CLE, ethics, and trust issues), and figure out how to practice your area of law.

Note: I am not suggesting that solo practices will save the legal job market, or necessarily be right for you. But faced with the avalanche of debt, I don’t have a lot of other suggestions other than to help you figure out whether this is a possible avenue for you.

Even if you “know” that solo practice is not for you, you probably don’t know what solo practice involves. This would be a low-cost way for you to figure out whether you want to try this form of law practice, a form of law practice that goes back hundreds of years, far longer than the Cravath model of the big law firm.

We would host this somewhere in the Raleigh-Durham-Chapel Hill Area.

But we need your help:

  1. To help us reach out to recent and future grads (we think the classes would be 2010, 2011, 2012, 2013, 2014, and 2015) from any law school.
  2. To help us build out the agenda with your questions, suggestions, and ideas.

We will not be offering CLE credit for this seminar. However, we would provide refreshments and it would be casual.

The Terrible Legal Market

First, congratulations to those who passed the North Carolina Bar.

Unfortunately, that’s where the good news ends.

Last year according to the Bureau of Labor Statistics, the American economy created 25,000 new jobs requiring a JD. More than 40,000 graduated from law school. That same imbalance was true, more or less, of 2008, 2009, 2010, 2011, and will be true of 2013.

The problem isn’t that there are too many lawyers. The problem is that there are too many new lawyers with crushing debt loads who are entering a market where there are precious few jobs – under 5,000 – that can justify the debt that was assumed to go to law school.

In addition, layoffs and a 5-year-long weak job market means that there are plenty of more experienced lawyers who are better qualified to take whatever new jobs open up.

The government has stepped in with Income Based Repayment (IBR), but this is a false hope, which basically keeps a person indebted for 10 years before any kind of relief is possible. And then the relief comes with tax implications.

Having been profiled by MSNBC a few years ago for building a successful criminal law practice, I’m routinely contacted by recent grads asking for advice. Just this week I spoke to a gentleman who passed the bar and is busy setting up a practice in the Research Triangle.

For those of you considering going to law school or those of you in the first or second years, here’s my advice. Unless you are going to a Top 10 law school or you are going to law school and will emerge with less than $50,000 in total debt, you should cut your losses now.

Most of the 40,000 people who graduate from law school have no idea what the actual practice of law entails. They are going to law school because for 30 years it has been a ticket to at least a middle (or upper middle) and professional class lifestyle. But those days are over for the vast majority of law school grads.

The corporate economy cannot support ten thousand $160,000 a year hires each year. Those people who would’ve taken those jobs are now seeking what have long been derided as second-tier public service and non-profit jobs. The people who occupied those jobs are being pushed out of the market entirely.

And yet law schools continue to hike tuition, in large part because:


  1. Law schools have bloated budgets, driven by excessive faculty salaries.
  2. Law schools can foist those costs onto students who defer payment for three years.
  3. Law schools have either obscured or mis-represented hiring statistics.
  4. Law schools have had such significant cultural power that no one would think they would do 1, 2 & 3.
  5. The government has subsidized the true cost of law school, but denies the law student relief in bankruptcy by making student loans non-dischargeable.

Note that what’s true of law schools – the bloated budgets, the overpaid faculty, the bloated administrations – is also true of American higher education in general, just not to the same degree (although I don’t for a moment believe an English professor, who provides as much or more value than a law professor, would ever think himself overpaid.)

The problem in all this is that there is a denial of responsibility on the part of law schools, who insist that whatever problems their students are having in finding jobs are directly related to their students’ lack of “networking”.

I’m happy to take calls from law students who have graduated and are now seeking some advice. I’m afraid I’m not going to be the bearer of overly optimistic news. While the general economy is doing a bit better, than legal market is terrible, and will be terrible for at least the next 5 to 10 years. There’s just too much supply, too much debt, and too few jobs.

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