Vol. 40 No. 1
By Mark Herrmann
Mark Herrmann recently left a partnership at Jones Day to become the vice president and chief counsel–litigation at Aon, the world’s leading insurance and reinsurance brokerage. His blunt, but whimsical, book—The Curmudgeon’s Guide to Practicing Law (from which certain ideas and phrases in this article are taken)—has become a cult classic among law students and law firm associates.
Law school focuses on the referees.
What would I most like to have known when I was in law school?
Most people answer this question by saying things that law students already intuit: Hard work counts; mentors help; experiences matter. But there’s one thing I wish I had known that I, at least, didn’t intuit, and about which law schools implicitly deceive students.
Law school focuses on the referees: You read cases that are written by the referees (judges), participate in moot court where your only performance is on a stage before three referees (moot court judges), and write articles analyzing the reasoning employed by referees (judges) to decide cases.
One might almost think that the practice of law is a refereed game.
It is not, and no one mentions this. I sure wish I’d known.
Transactional lawyers spend their careers communicating with clients and negotiating with opposing counsel. Those lawyers may never be in the presence of a referee—that is, they may never set foot in a courtroom—in their entire professional lives.
Even litigators, whose job is to represent clients in court, play a game that is largely unrefereed. Litigation means pretrial activity, and pretrial activity means discovery, and discovery means no referees in the room. Discovery means drafting interrogatories and document requests (and responses to them) and negotiating with the other side for hours on end about disagreements, knowing that only the most extreme deficiencies will ever be called to a court’s attention.
Even in the rare situation that results in motion practice, the judge will punt the issue to a magistrate judge or, in some state courts, a law clerk, to avoid having to wallow in this minutiae. Discovery means taking and defending depositions—with just you, a witness, a court reporter, and opposing counsel in the room. There’s no referee in sight, and no judge particularly interested in later hearing about the perceived mistakes (or misconduct) that may occur.
In moot court at law school, it’s you and your opponent, fully versed in the cases, arguing noble points of law before three robed scholars. At the close of your argument, the referees announce winners and losers, and justice has been served. In real court, it’s you and the lunatic, locked alone in a room, doing battle for seven hours. It’s two-year-olds flinging mashed potatoes at each other. It’s you and the sociopath, mano a mano.
Some lawyers love this; some lawyers hate it; some tolerate it as part of the game.
But my point is different: Whether you’ll love this life or hate it, run to it or away, I sure wish someone had told me.