When it comes to lawyer “war stories,” I agree with Philip Thomas: “The only stories about a lawyer that other lawyers want to hear are funny stories.” That said, cautionary tales have an important place in the law school curriculum: learning to “think like a lawyer” includes understanding how and why lawyers screw up. How else are law students supposed to learn just how dire the consequences can be?
Via the ABA Journal and the WSJ Law Blog, I saw a new law review article called, “This is Your Brain on Law School: The Impact of Fear-Based Narratives on Law Students.” Beginning and ending with Aristotle quotes,* lawprof Abigail Patthoff tackles the question of how law professors should use cautionary tales to ensure students take home the right messages. By way of social science research into the “extended parallel process model,” Patthoff concludes, “the listeners who are most fearful following a fear appeal are also the listeners who are least likely to benefit from the fear appeal.” Thus, given law students’ pre-existing high anxiety levels, law professors should use fear-inducing cautionary tales “sparingly, carefully, and never without an accompanying efficacy message.”
Patthoff argues law professors should give fewer cautionary tales because “the combined weight of a semester’s worth of threats may, after a while, cause students’ perceptions of the threats to outweigh their perceptions of their ability to avoid those threats,” and that “law professors should attempt to soften both the perceived severity and perceived susceptibility aspect of cautionary tales” by using neutral, impersonal language. The point, she says, is to ensure law students won’t be so anxious and overwhelmed that they either develop an emotional coping mechanism (e.g., “this won’t happen to me”) or ignore the message completely.
Part of her argument is indisputable. Patthoff says that, when professors give a cautionary tale from the law, they shouldn’t just scare law students, but should “articulate the recommended response — even if that response seems obvious.” Indeed, a “cautionary tale” is of little use if it is given without any clear guidance to the student to help them avoid making the same mistake.
But there’s a problem: given the dearth of practical experience among law professors (a problem that is getting worse over time), what advice do they have? Patthoff gives several exemplar “cautionary tales,” but they all involve rudimentary issues that are easily addressed, like, as she notes, “consult the local rules and the Bluebook before filing a brief.” These are not the sort of serious problems that can cause true mischief in lawyer’s careers. A real cautionary tale would look more like this precedential Third Circuit opinion from last week, in which the court reinstated a fraud case against BASF and Cahill Gordon & Reindel alleging they “conspired to prevent thousands of asbestos-injury victims from obtaining fair tort recoveries for their injuries” by destroying and concealing evidence.
The situation is rich with cautionary tales, ranging from the defense lawyers who allegedly signed on to a shockingly unethical scheme to the plaintiffs who agreed to confidentiality orders in individual cases, thereby unwittingly allowing the scheme to be perpetuated. “Don’t conceal evidence” is a rather obvious lesson — can we rely on law professors who have never been near those situations to instruct students on how such an obviously wrong situation comes to pass, or how to prevent it from happening? Maybe so if they’re watching the dockets closely, and the important details end up on the docket, but a cautionary tale that is, at best, partial and built entirely on hearsay doesn’t have the same impact as one from someone who is actually in the field.
Moreover, as much as I don’t want to apply a “when I was your age” mindset towards law school, I worry that Patthoff’s suggestion to make law school less stressful misses a critical part of the law.
To practice law is to be afraid. Show me a lawyer who is unconcerned about their client’s situation, and I will show you a lawyer who should be fired. As Patthoff says,
Thus, while a student might believe himself capable of proofreading a brief for punctuation errors, he may not, for example, believe himself capable of proofreading a brief for punctuation errors, and accurately citing the law per Bluebook, and effectively rebutting adverse authority, and using persuasive writing techniques, etc.
That’s just the tip of the anxiety iceberg. Those are all issues lawyers consider and resolve as a matter of course. Far more worrying to the practicing lawyer — that example is a litigator, an area I know, so we’ll go with that — are larger issues like: what huge mistake have I made without knowing it? Should I tell the client to consider settling for ______? Should I even be filing this motion? Should I have filed a motion on something else? How will I present all this stuff at trial? What will the summary judgment motion (or response) look like?
Those are just a handful of the case-specific fears. Unless a lawyer is in-house somewhere, a lawyer typically has a completely different set of clients every few years, a turbulent economic model that has ruined many lawyers.
The question isn’t if the lawyer is afraid, the question is how the lawyer learns to deal with the fear. Patthoff suggests that a “fear control” response is when “instead of attempting to control the actual danger presented, the audience attempts to control their fear of the danger,” like if they engage in “denial” or “avoidance.” But there is another way. Viktor Frankl used to give the example** of two soldiers in a foxhole when heavy shooting began:
“You’re afraid, aren’t you? Just more proof I’m superior to you.”
“Sure, I am. But who is superior? If you were as afraid as I am, you would have run away long ago.”
The lesson, Frankl said, was: “what counts is not our fears and anxieties as such, but the attitude we adopt toward them.”
Law school shouldn’t be an arbitrary hazing, but law students need to experience substantial anxiety because, as lawyers, they will face real fears their entire career, and they need to learn how to adopt the right attitude towards them. If a person can’t handle the anxieties of law school, how can they be expected to handle the anxieties of actual practice?
* It’s always a good idea to quote Aristotle. The article begins with the partial quote, “fear makes people inclined to deliberation,” and ends with: “If there is to be the anguish of uncertainty, there must be some lurking hope of deliverance, and that this is so would appear from the fact that fear sets [people] deliberating — but no one deliberates about things that are hopeless.” I’m not sure from where that version of the latter quote comes. The full context of the quote in Aristotle’s Rhetoric is:
Those who either are, or seem to be, highly prosperous do not think they are likely to suffer anything; wherefore they are insolent, contemptuous, and rash, and what makes them such is wealth, strength, a number of friends, power. It is the same with those who think that they have already suffered all possible ills and are coldly indifferent to the future, like those who are being beaten to death; for it is a necessary incentive to fear that there should remain some hope of being saved from the cause of their distress. A sign of this is that fear makes men deliberate, whereas no one deliberates about things that are hopeless.  So that whenever it is preferable that the audience should feel afraid, it is necessary to make them think they are likely to suffer, by reminding them that others greater than they have suffered, and showing that their equals are suffering or have suffered, and that at the hands of those from whom they did not expect it, in such a manner and at times when they did not think it likely.
** I’ve softened the example. The original example involves a Jewish army doctor and a gentile colonel during WWI, and they’re discussing racial superiority. Frankl was a survivor of multiple concentration camps, including Auschwitz.