It's Fall 1989, my second year of law school, and I'm interviewing with a very nice woman who works, if I remember correctly, at the D.C. office of a major Chicago law firm. She says, "I see you're interested in constitutional law, we do a lot of interesting constitutional litigation at our D.C. office." Seeing the chance to let her talk about her and her firm, I say, "really? Like what?" She says, "Some of the partners represent a consortium of American newspapers. They are petitioning the FCC to publish rules banning phone companies from instituting systems that could carry classified ads" (this is pre-World Wide Web, and they were apparently worried about something like the French system that existed at this time). I said, "oh what's the constitutional theory?" She said, "Well, the idea is that the newspapers rely on classified ads for a large proportion of their revenue, and if they faced competition from telephone-based classified, they would go out of business. For the FCC to allow this would be to basically force the newspapers out of business, which would violate the First Amendment." Obviously without thinking too hard, I laughed heartily, and responded, "No, really, what's your theory?" Awkward silence.
Needless to say, I didn't get a callback. I was going to call this post "My Most Embarrassing Interview Story," but I can't say that I was, or am, embarrassed, by my natural reaction to an extremely frivolous legal theory. [Note: By which I mean, I really thought she was joking. Only when I actually started working at law firms did I find that (1) lawyers occasionally charge corporate clients hundreds of dollars an hour to pursue outrageous legal theories, and (2) lawyers, once they've propounded a theory, often become completely bound to it. One lawyer I worked for actually gave a client an answer before looking it up, and then asked me to research the question. Turns out, there were fourteen cases on point, thirteen of which directly contradicted what the client had been told, and one of which was ambiguous. Instead of graciously admitting to the client that he was wrong, the lawyer asked someone else to re-research the same question, no doubt charging the client yet again to discover that he was mistaken.]
Related Posts (on one page):
- Law Student Interview Tips:
- My Funniest Law Firm Interview Story:
Or that you had completed a year of law school without realizing that lawyers often make frivolous legal arguments in all seriousness?
Or that you didn't realize that if you have trouble distinguishing humor from seriousness, you should always err on the side of caution in professional settings?
Notwithstanding the social embarassment, if a firm regularly wants you to argue positions in court with which you not only personally disagree, but are, in your view, so far-fetched as to make you unable to argue them with a straight face, then when a particularly querulous judge asks rhetorically, during argument, "You're don't really expect me to buy THAT reading of the law, do you, counsel?", you may be unable to restrain at least a tell-tale smile... You're better off without 'em.
and, Bork Fan, while some lawyers may "make frivolous arguments in all seriousness", Federal judges, and judges in some states, also can sanction them for doing it. Some lawyers also steal from their trust accounts, sleep with their clients, and smuggle drugs, too; doesn't mean that we should regard any of them as anything other than disgraces to the profession...
Rather, I think you should be embarrassed because you failed to behave as even an average person would under those circumstances and because, despite apparently wanting the job, you were absolutely clueless on how to go about actually getting it. And you did these things not as a teenager or adolescent, but as a fully grown adult with years of education and experience behind him.
Forgive me if I think that's more than a little pathetic. And by all means, continue to wear your naivete as a badge of honor.
This has nothing to do with the interviewer or her colleagues. It has to do with David's inability to handle the situation with tact. If the interviewer had said something particularly despicable or disgraceful, I would applaud David's visceral, unchecked reaction. But she didn't. She was simply trying to make conversation about a case with which she probably wasn't all that familiar. Mere stupidity or misinformation, without more, shouldn't warrant condescension.
Also, if you think a lawyer would get sanctioned for offering this argument in court, you're about as guileless as David apparently was at 22.
Bork Fan, are your comments indicative of your real-world behavior?
Yes, I realize that. But there's not that big a difference between being "proud" ("badge of honor") and posting about it on your public blog. After all, why else post such a stale, useless anecdote unless it's to show us all how much of a candid rebel you were in your law school days? Oh that's right - it's supposed to your "funniest interview story ever," intended to give us all a big chuckle. Right.
If the theory was so bad that it's actually funny, it seems quite normal to react by laughing. Clearly it was awkward, which is why the anecdote is both amusing and instructive.
The assertion that Mr. Bernstein was clueless as to how to get a job implies that the appropriate way to get a job is to stifle one's natural reactions and tell the interviewer whatever he wants to hear. I disagree. I think the way to get a job that's the right fit is to be yourself. Clearly this was not a fit, so it's a good thing that he didn't get the job, not a bad thing.
Hmm. How old are you, I can't help wondering. On the one hand, you write well. On the other hand, your utter humorlessness, your tendency toward overreaction ("pathetic," "cluelessness,"), and your pedantic* preachiness ("tittering child," "if you have trouble distinguishing humor from seriousness, you should always err on the side of caution in professional settings") screams "grad student." Which is it?
- Alaska Jack
PS I've been told by someone who should know that, it person, Bork is actually a pretty genial guy. Just FYI.
Bork Fan: I don't see what is so embarrasing about that.
Sorry, Steve P. It's really not that difficult for most adults, especially in the particular context that David provided.
"Bork Fan, are your comments indicative of your real-world behavior?"
Real-world? Is the world in which we're now communicating not real?
Some employers like a quick wit and a sense of humor. Some employers like to filter out the overly gullible. Some employers want a critical mind.
A interviewer may knowingly assert something utterly absurd to test the interviewee's reaction. In that case, a good-hearted chuckle might indeed be the appropriate response.
Of course. But again, I think it was clear from the context (not to mention the results) that is not what this employer intended. Had the employer said something truly ridiculous, David's response would have been perfectly appropriate. But she didn't. She said something rather typical of lawyers who either misconstrue a difficult area of the law or strain it to meet their client's needs. My point is simply that David should have been able to pick up on this and the fact that he didn't is a bit embarrassing.
I'm merely a humble Bork fan with a giant brain and a boatload of tact.
This is a good point. If, e.g., she had said, "My partner has me arguing that it violates the First Amendment [rolls eyes]," then a hearty laugh would have been in order. "Yeah, but it pays the bills!" would have been a socially-acceptable response.
Still, I disagree that someone at 22 should have advanced social skills.
He threw my memo out and told me to give him THE RIGHT answer (I was a 5L at the time). When I was unable to defend his asinine theory he pretty much defamed my legal abilities to the entire firm and had his favorite 1L re-draft my memo.
Of course, the coup de grace came when we actually sat down with the two lawyers who were going to try the case and the theory used (and which in fact won at the trial level and before the 9th Circuit) was the one which I devised on my own and which the senior, name, partner rejected outright.
This summer, at a large conference, I ran into one of the other name partners, who actually tried the case, and he introduced me to everyone as the father of the winning theory in the litigation (which, in this area of law, has garnered quite a bit of positive attention for him).
This will sound trite but it is an adversarial profession and is also a service profession. This means that if clients want to pursue it then lawyers work with what they have: often the goal is to turn chicken scraps into chicken salad. Judges and law professors can later weigh the merits of a particular legal theory later, a lawyer's job is to make it and handle the details. This may be somehow unappealing, but lawyer's are most needed for unpopular clients and theories (I recognize that this one is merely ridiculous versus say, the unpopularity and lack of authority behind the early movement to overturn Plessy).
As far as Professor Bernstein's anecdote about researching the issue with 13 cases against and 1 ambiguous depends on who it was for and in what context. If it was litigation then you're simply going to go with your best argument, even if it is weak overall. You present it as logically as you can and provide what authority you have. If your clerk does that and it's clear you have no choice, the partner may choose to advise the client to settle later. He probably should've demurred on the question and consulted the research first, but if he knew what the argument was going to be, I'm not sure where the problem is. Doesn't a lawyer most earn his salt in those contexts?
On the other hand, if this was a transaction matter and the client is acting in reliance on this advice, then it sounds more like malpractice than a lawyer's "slickness," so I'm not sure what to say.
My wife was asked if she would mind going undercover to union meetings in order to spy during organizational campaigns. She asked, "wouldn't that be illegal?" No call back.
Of course it is illegal, and it is better to have that problem at the interview, then quiting in the middle of the summer because you are not a fan of breaking the law.
So I assume that you've done the proper diligence on every one of your employers to ensure that they NEVER made a "ridiculous" argument in court before going to work for them?
That would be fine if it actually happened. The more common situation is that lawyers try to turn horseshit into chicken salad and don't have the heart/spine/lack of greed necessary to tell the client the expected success multiplied by the expected fees = big loss to the client, nice gain to the firm.
I suppose. It also depends on who the client is (large corporation, well-staffed in-house department) and it seems like there's a pretty compelling market argument that firms that routinely do this would have to see their business drop because of skepticism over the quality of their legal advice, which is a lawyer/law firm's only product.
Now if you have small business owner X and some lawyer is simply breaking every state and ABA ethical rule by dragging things on and on, then yes, this is not only wrong but also undermines the profession.
Oh my God! How unthinkably shocking! A lawyer gave an off the cuff answer and then followed it up with research. Clear grounds for disbarrment.
Oh well, that's unfortunate, but shit happens and it appears no harm was done. Besides, I find it unlikely that a big firm partner would give such advice (about which he was clearly uncertain, as indicated the follow-up research assignment) without the usual caveats.
Well, I've reassigned work when I got an unexpected answer and had less than complete confidence in the reliability of the associate tasked with the original research. I guess the partner felt the need to double check your work. Perhaps the story says more about the impression you made on the partner than the one he made upon you.
And I feel pretty certain that your implication that the partner didn't inform the client of the correct answer, once he was confident it was incorrect, is unfounded.
Why, no doubt? Writing down associate hours when, e.g., the research is duplicative or went down a blind alley is quite common. I do it frequently when preparing bills. Why are you so quick to assume shady dealings?
Feel free to snear at private practice from the ivory tower, but rest assured that even the most dupicative research memo couldn't be less valuable than much of the hack-work that fills many law reviews.
"Here's a tip: Reread your post, and think of what people would think if you said this over dinner. If you think people would view you as a crank, a blowhard, or as someone who vastly overdoes it on the hyperbole, rewrite your post before hitting enter."
Love,
All of us
Perhaps he should have followed up with an expression of appreciation for how hard it must be to argue such a difficult interpretation of the First Amendment in court. However, no one can be expected to recover perfectly from every slip of the tongue and misunderstanding.
I find it a little strange, from the viewpoint of another field, that one would consider working for a company that espoused such ridiculous approach. What biologist would apply with a biotech company that supported spontaneous generation, what geologist would work for an oil exploration firm that defended young earth theory?
She did. That's ludicrous, and billing a client for making that argument is malpractice at best. Bernstein's response was appropriate.
You misunderstand. Yes, the legal argument itself was ridiculous. But she didn't SAY it in such a way that would have led David to believe that she THOUGHT it was ridiculous, and thus would have made his response appropriate. Do you see the distinction?
I agree with Bork Fan that the interviewee's "youngness" probably contributed to the awkwardness. There's usually not much joking about a firm's specific work, or litigation strategies.
Also, maybe the young man being interviewed was a bit arrogant. I also have to wonder if "a very nice man" had briefly described the work using the same exact words, if the response would have been, "No, really, what's your theory?"
That just seems a little casual considering it's a job interview, and a little condescending, even as you've remembered the story here today. Students with no real experience often "know the most" and have the most confidence in their untested skills.
Good that it happened though. No doubt you wouldn't have fit in there no matter how good your skills, and it's probably good that both the firm and you saw it early.
Again, context matters. If a litigation partner asks an associate for a research memo and the associate returns with an "on the one hand . . . on the other hand" law-exam-like discertation, it is simply not useful. Like it or not, your client has a position, and the associate's job is to argue it.
A good associate takes this terrible position, writes the best argument he can, and puts a footnote that says "Please note that the majority of caselaw is in our opponent's favor. I've attached several of those cases." The partner can then make an informed decision. You don't write amicus briefs with an eye merely on "what the law actually says," do you? I thought the legal realists won the battle over the idea of fixed and immutable legal postulates floating in the sky long ago.
Makes sense to me, Bork fan.
I think it's called social intelligence.
There are better ways to follow up if an interviewee was skeptical than -- "No, really, what's your theory?"
Perhaps distinuishing when someone is serious or kidding you (a bit of the blarney, some call it), and when they are seriously mistaken and how to respectfully deal is key.
Can you imagine if someone responded in a similar manner to a real client? Even if the client was off the wall wack? Know your role.
If you were applying to an airline, and the airline told you they were going to guarantee 100% on-time arrivals and take-offs by scheduling all flights between 12AM and 4AM, would you laugh?
You weren't by any chance arguing that position, were you?
As for the male-female issue, the interviewer was not presenting this as HER theory (I don't think she even worked in the relevant group of the firm), but as that of a senior partner, who in those days was almost certainly male.
Because the latter clearly doesn't have the slightest clue about any of the things he's preaching about, such as tact, grace, or good people skills. (Judging the former by his confirmation testimony and his books, he doesn't, either.)
--Assuming a haughty, self-righteous attitude that lends itself well to intentional hypocrisy and ironic contradictions
--Responding to almost every comment directed his way in an effort to keep things moving
--Dropping a very obvious clue that he is not being serious ("a humble Bork Fan with a giant brain and a boatload of tact.")
--Picking back up where he left off after everyone apparently did not notice this
Expect this charade to continue until the thread reaches 100 comments, at which point he will reveal his identity, and many of you will feel foolish for engaging him in this rather pointless discussion.
I was speaking mostly to his role as an associate. The partner may have been out of line, but there was certainly nothing out of line for asking an associate to write a research memo on a potentially fruitless topic. I was simply saying that it's the partner's judgment call, and that, to me, it appears that the work product--a research memo, not a complaint, motion, etc--was flawed in its approach. A partner can better evaluate whether an argument is frivolous if a smart and intelligent associate has tried to make the most compelling case he or she could for it and comes up snake eyes. Particularly if they also, while still writing persuasively in the client's favor, highlight the potential pratfalls and negative caselaw.
This is a frequent mistake for young associates, treating litigation assignments as if they were law exams or law review articles. But the story was told as if the fact that the partner--not omniscient about this area of law--asked an associate to do a research memo and then, unconvinced by the work product (again, the partner may have simply wanted someone else to actually make the best arguments for the client so he had something to evaluate) was acting unscrupulously. I guess I can't get over the comment that "this is what the law is," when I thought every lawyer would say "I'll make the best arguments, and then we'll evaluate them before proceeding further." Nothing in the story indicated that a motion was filed with the argument that had 13 cases against on the strength of the 1 ambiguous case. Yet this partner is some kind of legal incarnation of Gordon Gekko.
- Alaska Jack
I think Professor Bernstein's point is not that lawyers shouldn't make such outrageous claims on behalf of paying clients, but that they should at least have the intelligence and decency not to be proud of those arguments when in the privacy of a college interviewing room. As to whether or not he should have had a better poker face when listening to that kind of nonsense, I think he should be commended for not letting his economic self interest overrule his incredulity when hearing this kind of argument.
I once interviewed with the state attorney (prosecutor) thinking they also handled other state legal matters such as real estate and contracts and when he asked if I like trial work said no, I preferred transactional desk work. Confused, he kept pressing, trying to give me an out and when he said well how about litigation, I said oh, yeah that would be good....
That was almost as bad as going to the wrong "Mr. WIlliams" law office for an interview and then stoppping at a gas station to have my tire changed so I could say I had a flat.
But then Einstein forgot to wear socks and often forgot to take his keys when he went out so I felt like I was in good company.
David's behavior may have cost him this particular job, but that's not a bad thing. This was clearly not the job for him. His honest reaction made that clear to both of them.
But it's wrong to believe that practicing lawyers are more likely to believe in this stupid inversion of the First Amendment than ivory-tower academics.
In fact, it's politically-correct academics like Owen Fiss who argue that some speech must be suppressed to make it easier for competing speakers to get their message across.
The not very bright attorney who interviewed David probably had read one too many books by tiresome ideologues like Owen Fiss or Catharine MacKinnon.
David is also right about some lawyers' willingness to try to cover up when they've given dubious advice to a client by seeking out "research" from junior attorneys or summer associates that matches their wrong answer. I've seen lawyers do just that.
I was interviewing with THE major law firm in my state, mostly as a favor to a new partner who casually knew my father.
During the interview, another partner gave me a tour of the offices, showing how snazzy their digs were and the flexibility partners had in decorating their offices. She led me into the wmpty office of their newest partner, until recently the state Attorney General, and proudly told me he had just joined the firm.
The office desk was black, with a shiny mirror-like surface. The chair was both modern and black as well. The walls had a two-tone gray wallpaper, with a darker color toward the floor and a lighter gray from mid-wall to the ceiling.
Without thinking, I blurted out, "Oh, is this the Darth Vader office?"
I did not get the job.
Ironically, the partner who secured my interview later left the firm, became an Article 1 Judge, and became my next door neighbor when I bought the house next to his.
When I told him the story, he laughed and said I wouldn't have liked working for the firm anyway.
When I was 22, I interviewed for a job with the State Department's Foreign Service Office (after nailing the written test). The interview went well, until one question: what were the lessons learned from the Vietnam War. I mentioned ensuring public support for a war by manipulating the press and restricting its access to the battlefield (citing Grenada as an example to show how this lesson was learned and applied). Now, I may or may not have been right, but was it a smart idea to tell a US Ambassodor, appointed by Reagan, that the main lesson learned by the US government from the Vietnam War was manipulating the press? My remark was symptomatic of the smugness that comes with being young, full of ideas, and thinking you know everything. So, I have sympathy for David's remark, which was probably less tacky than some things I have said in similar situations.
It's a fine line. Nobody likes a smartaleck but someone who you think can respectfully stand up to you probably won't be the office gossip, and could save you money one day by telling you what you don't want to hear.
I've told the story many times, and in firms that know what they're doing there are actually two decent answers: (1) "then we'll have to raise your billing rate" or (2) "if you do get it done that fast, we always have more for you."
BorkFan = woman Bernstein interviewed with
I think my on-campus interview went like this: Mutual introductions (they sent a mid-level associate and a senior associate). Next sentence out of the senior associate's mouth is "We're really not sure if these interviews are for show and if the firm's going to be hiring." The interview muddled along after that.
My most bizarre interview had to be with CalTrans [for non-Californians, this is the state Department of Transportation, and is involved in high-profile litigation in areas from eminent domain to personal injury to environmental law, as well as high-profile land acquisition and public contracts matters]. The interviewer dressed worse than most law professors. When I opened the door, she said "Hi, are you [name of a female classmate who had an interview with them an hour later]." I said no, and introduced myself. I handed her a resume and writing sample. She hands the writing sample back to me, saying "we don't look at those". She looks at my resume, says "A average, Law Review", looks up at me and says "We don't think you'd be happy here." That was a royal we. I'm sure I looked stunned, and I asked why not. Her response was something like "You're going to want to do things that are important." I asked "Don't you get a lot of courtroom experience working for CalTrans?" Her response was "Why would you want to do that?" I don't remember much more about the interview, although she didn't have questions for me and was eager to talk about their employee fringe benefits and pension program.
Nick
I realize that there are many times when the client is being obdurate and totally off the wall but if the law firm actually pursues this knowing that it is totally off the wall what does that tell you about the ethics of the firm. I realize that everyone is entitled to the best defense possible legally but when you come up with something this dense I certainly don't want you handling my business. To me this smacks of being the worst kind of ambulance chasing, sleazy, hack lawyer out there and I choose to put my money with attornies who at least have some scruples. In particular those who think David handled this stupid question wrong and that he should just have answered with a really and gone on, please let me know who you work for as that is a firm I personally want to do any work for me. I want to go into court being represented by someone who will work hard for me and will do it with decent and reasonable arguments. If my case is really that bad, I want my lawyer to tell me that my case is really that bad and then tell me the best he can do for me. Absent that, get a new and reputable lawyer and put that one behind you.
I still say, you would not have responded in the same way if a male interviewer had told you exactly the same thing. I'd bet anything on it.
Happy New Year. Hope it's a good one for all.
I should emphasize that this was buy-side, not sell-side -- i.e., the position was for someone to recommend investments to portfolio-managers within the company.
While I don't know how they do things in California, in most states the really juicy Department of Transportation stuff would be handled by the Attorney General. It's quite clear that the CalTrans interviewer thought of its legal department as a second-rate place where people with your apparent qualifications wouldn't be happy. Even if that belief were not objectively accurate, it would become a self-fulfilling prophecy.