According to the “Official JD Admissions Blog at Harvard Law School” A Harvard 3L will be arguing before the First. The results of this case will bind future panels and all District Courts in the First Circuit.*
*I am not the first blawger to disapprove of law students arguing before Courts. CAAFlog beat me to it.
Not sure I understand or agree with your disapproval. 3Ls are not going to be authoring the opinion that will bind future panels and all District Courts of the First Circuit. Reading the post that you provided the link to, it sounds like the student is well-prepared and likely more qualified than many attorneys I've seen argue before a federal circuit. It also sounds like he'll be supervised appropriately, and that both the court and the client have agreed. The U.S. Fifth Circuit has a student practice rule in place, and several times a year students from the Tulane Law School clinics argue cases -- often complex regulatory challenge cases, through the Tulane Environmental Law Clinic -- before that Court. The practice rule requires supervision of the student by an attorney permitted to practice in front of the court. There are plenty of safeguards in place. But perhaps the greatest safeguard is this -- the U.S. Fifth Circuit Judge I clerked for, and those other judges whose work habits I am familiar with, do not rely strictly on the briefing by the attorneys in front of them, nor certainly on the oral argument, to decide the outcome of the case, but use their clerks to perform an exhaustive independent research and analysis of the relevant legal issues and arrive at a conclusion. The briefing and the argument provide a guide and a framework, but do not dictate the result. I will not argue that there are cases wrongly decided and bad precedent set from time to time, but I doubt that such is the result of inexperienced oral advocacy.
Posted by: Tad Bartlett | April 23, 2008 at 03:59 PM
Mr. Bartlett, Thank you for your comments.
To begin, I don’t know the student, and I don’t have direct knowledge of how this student is preparing. However, I do know other students, and I do know other clinics, and I think that on the appellate level they are flawed. I have seen areas of law really screwed up simply because the students didn’t brief issues or understand why they were important.
First of all, clinic students usually don’t understand the politics or the issues being decided. In general, only people that practice in these areas – day in, day out – understand why these issues are important.
Second of all, to say that the student is “more prepared” than other lawyers sounds like stuff I hear all the time. Lawyers insult each other. Judges insult lawyers. Lawyers insult judges. There really isn’t any way to verify who is the bigger idiot. There are reason why people appear less than competent, but most of those reasons are simply not obvious to the outsider.
Third, while the 3Ls won’t be authoring the opinion (or hey, maybe an intern in the judges’ chambers will be), they will be making the strategic decisions (some of which are thought of while writing the brief and some of which occur at oral argument) that will go into writing the opinion. The 3L will be the one having to concede points or waive arguments. This isn’t good.
Fourth, yes, the court and the client have agreed. The court would agree (there isn’t much for the court to lose) and the client probably doesn’t have a real choice. You say that there are safeguards, but the safeguards do not make up for the real problems: there is no assurance that the students (or, quite frankly, the supervisors) get it.
Fifth, and probably most important to my way of thinking, is the fact that judges (yes, even the one you clerked for) are not the be-all and end-all of legal knowledge (even if they can use Westlaw). Instead, they are players in a game. They are appealed to. Arguments are crafted for them. In fact, I would go so far as to say that a lawyer’s job is to manipulate the judge. There isn’t anything wrong with this: both sides get a chance to do this. A law student doesn’t really have the perspective necessary to be able to skillfully do this. Strangely, in some situations (probably not the ones at issue in the cases discussed here or at CAAFlog) this might cut in the student’s favor, where the relief given is very narrow and there isn’t much politics involved – but even there I might just be naïve about the politics of some other areas of law and not see the implications for one case.
PS: There are now additional comments at CAAFlog on this issue.
Posted by: S. COTUS | April 23, 2008 at 05:32 PM