Thursday, October 08, 2009

Best moment in PR class today

I was talking about bar applications today and the fact that I waited until after I passed the California bar to bring my dog-bite case to a lawyer, so that I didn't have to amend my bar application to add that I was a plaintiff in, well, a dog-bite case.

One of my students raised her hand and asked, "Wasn't that unethical to wait until afterwards to file suit, just to avoid amending your bar application?"

My first thought was that the statute of limitations had barely begun to run on the case (I was bitten in January; took the bar in February) so I was well within my rights to wait. But she caused me to think about the bigger picture. I answered her: "Yes. You're right. I should have gone ahead and updated my application and gone ahead with the suit."

Good for the student for calling me on this one. I like the fact that she was comfortable enough in the class to ask.

6 comments:

Legally UnBound said...

You are very wrong about 'second-guessing' yourself. The bar application is very literal. They want to know about 'lawsuits', not potential claims you may or may not have. While your dog-bite case may or may not have been legitimate, it also may or may not have been filed. The point in question is whether 'it had been filed'. The bar does not want to know about potential claims (correct me if I'm wrong).

Imagine if every applicant informed the bar about every potential claim that they may or may not make. I say 'may or may not' because you had not actually filed a lawsuit (if I understand you correctly). It does not matter what your 'intention' is at the time of the bar application. Your actions are what matters. Ethics is about our actions, our follow through with our responsibilities. While our thoughts may be unethical (and they are relevant to our degree of action or inaction), our ability to correct our thoughts (or intent) and 'act' appropriately is what defines our ethics. It is about our actions, not our mental calisthenics.

I think you are getting really bogged down in theory here. You are doing the UNLV students a real disservice by getting them bogged down in theory, too much. They should be understanding what to DO, not how they should 'overthink' about a situation. The bar application is very 'literal' and is not based upon 'theory'. You should tell the Bar about every traffic citation you have received, whether you have ever been arrested, etc., but not whether you are thinking about filing a potential lawsuit.

I've got several UNLV Law Grads working for me. Consistently, they get bogged down in irrelevant theory and have a hard time getting to the reality of legal thought and analysis. It takes a good year, sometimes more, to cure this. Maybe this 'overthinking' is a contribution to why.

You can do better and you should be leading the charge...

*This may seem harsh, though it is not intended to be insulting, rather aggressively discussed.

Nancy Rapoport said...

Thanks, UnBound--although we'll have to agree to disagree, I appreciate your input. Here's what I want to teach our Boyd students: not just to read the rules as technicians, but to ask themselves WHY the rules are there, so that they can consider the spirit of the rules and whether it makes sense to comply with the spirit of the rules.

Often, it's easy for lawyers to say that they are in technical compliance with regulations. After all, Enron's financial disclosures were "technically" accurate--but obtuse.

I want them to understand that the bar examiners want to get a feel for whether someone's overly litigious or not, which is what the question in California (way back in 1987, as best I can recall) was all about. If I was only THINKING about pursuing remedies, then you're right -- I had no duty to amend. But, hey, the dog bit my nose off, I had medical bills as well as pain and suffering. I wasn't going to give up on my claims against the dog's owners. (I was the 106th German Shepherd attack in San Francisco that year.)

I do, however, agree with you that we tend to leave law students with the idea that every possible argument is a "good" argument, and that's not optimal training. But I disagree with you that teaching them theory is a disservice. After all, at some point, I expect our grads to be out there MAKING theory--making legislation, making law through litigating key cases, etc.

Thanks so much for reading my blog!

Legally UnBound said...

I read back over my comment. I think I did give you the wrong impression about my thoughts on teaching 'theory'. I agree with your last paragraph, whole-heartedly.

Enron was a 'technical' violation of the rules & the law. But, I'm not talking about 'technical' and 'spirit of the law' issues. My main point is that we should not be making a mountain out of a mole hill by over-thinking an issue, as practitioners. The majority of state bar applications ask about being a defendant in lawsuits, not being a plaintiff. Thus, my opinion is that the main intent of the 'character & fitness' evaluation is our actions in the community (e.g. who are we harming). Though, you may be right about the 'litigious' investigation (I don't believe you fit into that category, so I think not amending your application was ethical, even if we are discussing 'intent' from a theory standpoint).

The students & the lawyers should think, think, think about the problems they face. However, informing the bar about a lawsuit that does not exist is not 'finding the loophole' or 'unethical'. This has nothing to do with 'technical'. This is creating an obstacle that does not exist. This is what I see all too often from young lawyers.

Just yesterday I was in a conference call with co-counsel (who has been practicing about 2 years). In discussing potential claims to be made for our mutual client, his analysis was so theoretical that he wanted to make 15-20 causes of action in the Complaint. I had to get forceful and spend most of the time educating him on actually proving the claims, ensuring the claims reflect the literal facts and teaching him to be sensitive to the additional costs of defending Motions related to tenuous claims he wants to theorize.

I'm all for 'hitting the gas' when it comes to theoretical discussion of legal thought. However, many attorneys (usually young) need to understand the 'value of the brake', too.

Thanks for responding and taking the time to provide thought provoking discussion.

I hope you have a great weekend!

Nancy Rapoport said...

Dear UnBound, You're completely right! We let students graduate without understanding the difference between making EVERY argument and making GOOD arguments--and we let students graduate without understanding the difference between what they CAN do as lawyers and what they SHOULD do. Thank goodness there are practitioners out there who can continue their training; however, with the economy the way it is, many graduates won't get the benefit of good training post-graduation. Law schools really need to consider these gaps between theory and practice.

Here's to good weekends! All the best,
n.

Scott Unger said...

If the question simply asked about former or current lawsuits in which you were a Plaintiff then did not have to disclose. The obvious reason was you did not file the lawsuit prior to filing the bar application, hence you were not a plaintiff at that time.

If the question was "have you or do you know of any lawsuits in which you maybe a plaintiff" then you had a duty to disclose.

Nevertheless, I am impressed that your current student thought of the issue. It is the identification of issues and working through them which is important for lawyers along with lawyers to be. I am not surprised that your law student would not be afraid to question you about the issue. As one of your former students, you never used positon, rank or title to intimidate. That's what makes you a wonderful teacher and person.

Boyd is fortunate to have you.

Nancy Rapoport said...

Thanks, Scott--and I'm fortunate to have you as a friend!