12 October 2005

Judicial Temperament

I had an opportunity to try out my own judicial temperament last night. Again. I was a judge at the ABA Negotiation Competition for the law students. That leads to a few relatively random observations:

  • Given some of the crap that passes for CLE, I see no reason that this kind of activity shouldn't. One must be much more engaged with the material and the arguments as a judge than one is while snoozing or proofreading briefs in the back corner of an overheated "ballroom" at some crappy, overpriced downtown hotel. Then, too, there is the concept of "giving back to the profession" (also called "paying forward") to consider. But that might be expecting the profession to act like a profession instead of a cartelized business.
  • At this particular law school, the Negotiation Competition is dominated by 1Ls; all twelve contestants that I saw last night were 1Ls. For some reason, this is considered "abnormal." Perhaps that's a hint to law schools on the desperate desire for feedback by law students. It's five or six weeks into the term, and the only other opportunity that 1Ls have for meaningful feedback is in the one class that (usually) isn't graded: Legal Writing.
  • This year, I had no silverback gorillas among the contestants. Fortunately, that seems rare among students at the U of I College of Law—in the last four years, I've only had to deal with two silverbacks (out of sixty students). Why, then, is that the default attitude of so many licensed attorneys? What do we do to these poor students that strips them of their humanity? Do I really need to ask rhetorical questions of this nature?
  • The problems that the ABA uses—this is the fourth year in a row that I've participated as a judge—are needlessly artificial, and often misleading. Each year, one (or, as in this year, both) "sides" of the problem are in weak bargaining positions. I understand the fear that there needs to be an artificial motive to reach an agreement… but that fails to account for the students' own desire to get feedback, which will drive them toward reasonability. A creative team can blow these artificial constraints out of the room; for example, one team managed to completely twist the agenda by emphasizing the fault and responsibility of a third party (mentioned in the problem) that was not at the table, greatly to its client's (and its own) benefit.1
  • More disturbingly, the ABA problems are exclusively transactional and/or prelitigation. Students—and particularly 1Ls—would greatly benefit from the kinds of thinking that goes into a pretrial settlement conference. The packet could be as simple as a short opinion denying summary judgment along with a few "private" facts.

If you're a licensed attorney, and you're relatively near a law school, but you're not volunteering for this sort of thing, why not? If you give even two evenings a year, that's two opportunities to learn something that you won't get out of CLE… and, as one of my colleagues did last year, evaluate potential law clerks.2

  1. A few comments for those who think I'm giving away "the answer" to the problem.
    • There's more than one third party with potential fault and responsibility in this particular problem, which is one of its few good (and realistic) aspects. (Overall, I thought the problem so unrealistic and weak that it actually undermines the potential for learning, although it is a decent purely competitive fact pattern.)
    • Only one side can use this to its advantage… but the other side has a countervailing argument that the opponents almost reached in the round last night, despite getting hit cold with a 45-minute time limit.
    • The actual use and presentation of the material is primarily of tactical and psychological benefit; it isn't "the answer," and in any event it's only my opinion based on the actual use (particularly by one team member).
  2. Maybe I shouldn't have said that. I can just see now that a major law firm somewhere will sponsor a "competition" for which it provides all the judges—but that the judges are all doing hidden hiring interviews. If that sounds too Macchiavellian to be true, remember with whom you're dealing.