DeanWuBlog

A Former Student

I am a client of a former student. To advance my research on a book, I have retained a a prominent local law firm to litigate a Freedom of Information Act (FOIA) claim. They are doing so, very graciously on a pro bono basis. Aside from my gratitude for their services, I was delighted to learn that someone whom I had played a minor role in training several years ago was assigned as the associate on the matter.

I am honored to be represented by a former student. Whatever the outcome, I am pleased to see that an advocate whose development I influenced is so capable. The brief he wrote was wonderful, without a doubt far better than I could have penned. That is an accomplishment in which any teacher can take pride: to have imparted some skills, perhaps, to another individual who then can be claimed as a colleague.
The occasion allowed me an opportunity to reflect on the profession.

A law professor, of course, professes; the title remains amply descriptive. In the classroom during the law school, it appropriate that the professor have a different status. After all, a professor would not be entitled to stand on one side of the podium and earn a living offering opinions, if he did not have some superior knowledge as compared to those seated and scribbling notes in the hope of joining the bar. But a professor would fail to understand his task, if he believed that the position he enjoyed was permanent. The point of the exercise is to ensure that as many as possible to one’s students become one’s equals in every respect, even experience – for an attorney who bills hours will, within a few years, surpass the amount of direct interaction with clients and actual transactions and disputes of all except the most seasoned lecturers from whose tutelage she has benefitted.

RSVPs

I recently received a short email from someone I’d invited to a social event, apologizing for having failed to RSVP. Although she was not able to attend anyway, she felt remiss for neglecting to inform me. This was remarkable for two reasons: first, most people nowadays seem to lack any appreciation of the concept of an RSVP; second, even fewer people seem to even notice such a faux pas much less believe it is worth any correction. I appreciated the message very much, both for it’s own sake and as a signal about our shared norms. An RSVP is more than a mere courtesy. Among other rationales for the practice, except for large public events, an RSVP is crucial to establishing an accurate headcount and determining whether to wait for a potential late arrival.

More generally, the RSVP belongs to a category of gestures that anyone, regardless of origin, can not only learn but also execute well, that involve minimal effort and produce an excellent return on the investment, and that are certain to be noticed for their increasing rarity. Another such practice is the thank-you note. Our mothers were right. It is important to send thank-you notes, for gifts and after having been a guest. A failure to do so is simply rude, but needlessly so. As much as I rely on email, in this context there is much more to a hand-written card. It need not be on Crane’s or Pineider stock, or written with a fountain pen, to be impressive and memorable. My 96 year-old aunt writes with a magic marker on white paper she has drawn wide lines on, because that is all she is able to manage.

These practices have in common that they involve follow through. The RSVP is a statement of intention and making good on it is important for establishing a pattern of reliability. The thank you note shows thoughtfulness even after the meal, the drink, the entertainment, and the conversation are no more than a memory.

For a lawyer, follow through is crucial. The source of the greatest number of complaints from clients about their attorneys is that the latter fail to communicate. It takes only a moment to overcome inertia, and the effort will distinguish the competent lawyer from the obviously competent lawyer. If you say to someone, “Let’s do lunch,” then contact her immediately and set an appointment.

Of course, I don’t doubt that there are many occasions when it also is principled to disregard etiquette. David Henry Thoreau, one of the most original thinkers our nation has produced, hardly ever bother with social niceties. He needed neither RSVPs nor thank you notes at Walden Pond. Yet I suspect that Thoreau, scientific in his observations, was at least aware of the rules. When be broke them, he did so deliberately.

Dinner

From time to time, I am invited to give speeches. Once, before the event, I went to dinner with a group of students. It was a nice establishment, suitable for entertaining guests and likely more expensive than I would have chosen on my own. We ordered our meals, and one of the students, I noticed, was unhappy with his choice. He told me he had selected the most expensive entrée on the menu, because someone else was paying for it, even though he didn’t like the main ingredient or the description. . . I will offer the anecdote for amusement, but I will not offer a moral.

Riding

I will never be a professional motorcycle rider. That is a liberating limitation, realized long ago and shortly after my entry in this hobby. It serves as a reminder not to speed in trying to catch a pack, allowing me to set my own pace that is enjoyable. Yet this realization does not stop me from trying to improve, in judgment, handling, and the myriad skills required to keep the rubber side down and the shiny side up. To the contrary, it returns me to the great pleasures of riding for it’s own sake. I remain ambitious. I’d like to decrease the day to day risks I face as I ride in traffic, increase the distance I can travel in a day on a long-distance trip, and so on.

Although I remember the quip that “it’s bad enough when your enemies succeed, it’s worse then your friends do,” I have become convinced that there are the appropriate uses of competitive instincts – professionally -- and there are equally appropriate contexts for the gifted amateur. As a teacher, I see that there is much more than training the best litigator. The transactional lawyer who never sits foot in a courtroom also needs basic background in the rules of civil procedure; so too the politician, the business person, and the scholar who enters my classroom. Few of us will perform at the top of the field in every endeavor. Society would be worse off, and each of us as individuals, too, if we entered the fray only in activities in which we were certain to prevail. We cultivate a hundred great readers to produce one greater writer; the ninety-nine greater readers, if they must take pride in their accomplishment, can be assured that it is an honor indeed to be a great reader.

Legal Advice

I often am asked for legal advice. Sometimes, family and friends, or students current and former, or total strangers, contact me to ask about a transaction or a dispute. In almost all instances, I turn them down. I do so for many reasons, not least of which are the restrictions on my license (people may want advice about the law of a state where I am not barred), my acute awareness of the limits of my knowledge (people may ask me about criminal law, an area in which I have virtually never done work), and the constraints of my role (it would be inappropriate except in situations I cannot imagine, for the dean of a law school to serve as legal counsel on behalf of a student). The people who ask for assistance on a pro bono basis may be incredulous, but I almost never make a decision based on whether I would be paid a fee or on the size of that fee. I am genuinely flattered to be asked, even if anyone with a bar card would have been asked. I also hasten to add I believe we have a responsibility, those of us who have the privilege to belong to the profession, to render service in the public interest -- I need not note that the majority of my actual legal work nowadays involves no compensation.

There is a particular type of inquiry, however, that I invariably turn down, but which laypeople are puzzled by. It is the inquiry that comes with the assurance, "oh, I don't want you to be my lawyer," or "I already have a lawyer, but I just have a few questions," or "I don't want any formal opinion, just some advice," or "I can explain it in just a few minutes." These are especially dangerous. The more casual they appear to be, the more dangerous they have the potential to become.

Here is the reason. As soon as you start to answer questions -- even as simple as "I'm just wondering if I have a claim worth pursuing -- I don't want you to represent me; I just want to know if it is worth talking to a real lawyer" or "I'm wonder if I should file this in federal court or state court," or "Is it too late to sue?" -- if the person forms a reasonable belief (and what is a reasonable belief may look quite different later, especially if an off-the-cuff response turns out to be less than ideal) you are giving them legal advice, congratulations: you have formed an attorney-client relationship that may subject you to professional liability, complaints to the bar, and all manner of entanglements you had not expected. The casebooks are replete with object lessions of the well-meaning lawyer who has managed, through a series of mishaps, each understandable in isolation, to expose herself to sanctions that could have been avoided if she had been just slightly less friendly.

While it may not be easy to explain why to someone who trusts you, and, indeed, someone whom you may believe has a compelling case, I suggest the following reasons for this apparently harsh philosophy. The would-be client, whose insistence that she is not looking for a lawyer can recede from memory, is by the very purpose of explaining her concerns likely to divulge information that must be protected by the attorney-client confidence. Yet if she does so before a preliminary conflicts check, she may jeopardize her case and compromise the lawyer. Laypeople cannot be blamed for not realizing what lawyers would find obvious: people have said to me, "I'd like to know your opinion of whether I can sue [name of my current employer], but of course I know you can't actually represent me because you work for them." Needless to say, I also can't offer any opinion, whatever the caveats, and I shouldn't even be told about the allegations.

As significant is the risk level associated with legal conjectures that are not based on adequate investigation of the facts and research into the law. Under our rules, a lawyer cannot rely solely on the representations of her client -- a fortiori, she should not rely solely on the representations of someone who isn't even her client. Someone who chats me up at the barbershop, the bar, or a ballgame cannot, no matter how good a listener I am, tell me enough about the situation for me to be able to do anything meaningful. And other than the extraordinarily limited areas of the law that I follow closely, off the top of my head I don't know the intricacies of whether a landlord must pay back a security deposit within a week or a month or a year. I have found in every instance I have seen that a layperson, even someone with great intelligence in other disciplines, does not describe accurately documents that are relevant, and in many instances they are unaware that the papers in their hands are significant. This problem isn't due to malice or stupidity; it's a consequence of their very need for legal help -- they are not trained and don't know the difference between a complaint, an answer, a subpoena, and a judgment. If they did, they would not bother to seek out my view.

If someone has counsel, I am even more loathe to start second-guessing that attorney. I know I wouldn't want to have someone commenting on my legal work without having a real grasp of the issues and the rationale for decisions. If the person expresses concerns about their lawyer, my advice is always the same: talk to the lawyer herself. After all, the source of most complaints against lawyers is the failure to communicate. It may be that the client has good reason to be concerned about their lawyer, but raising the issue with the lawyer will be much more useful than grousing to me about it.

In the end, I tell people who approach me that if they believe their legal question is worth asking, then it deserves a good answer. That requires finding someone, not me, who is capable and willing to invest the needed time and energy to offer that answer.

Jin Wu

My uncle passed away this week. Dr. Jin Wu was a wonderful role model for any professor who aspires to a leadership role in higher education. An immigrant who had been born in China and raised in Taiwan, he was educated at the University of Iowa. An expert in the interaction of the atmosphere and the oceans, he eventually held an endowed chair and supervised a major research laboratory at University of Delaware. It would have been quite a career for anyone, to move around the world, establish one’s self, and make contributions in a highly technical field. (Accordingly to the obituary and other accounts, my uncle also was a Renaissance man: I knew he was a sports fan, but I didn’t know he served as a media commentator in Taiwan on the NBA playoffs!)

Instead of retiring a decade ago, however, my uncle accepted the position of president of his alma mater in Tainan, just south of Taipei. After two highly successful years, he was offered the opportunity to serve as the Education Minister, a cabinet-level position. In a culture that has always valued education greatly but that also is suffused with a strong sense of hierarchy, my uncle became a reformer, bringing about comprehensive changes to the post-secondary system. At the time of his death, he was working on an article advocating changes here, increasing the scope of access for everyone who wished to improve their lives and increasing the level of support to students of all abilities. The ability to make the transition from academe to high public office, and to leave the position widely admired, is rare.

Along the way, my uncle developed a fascination with the Chinese Admiral Cheng Ho, the Muslim eunuch who commanded an armada of enormous vessels that may actually have reached the West Coast of the North American continent before Columbus became the European discoverer of the New World. He was heavily involved in studies that blended history and science, most recently holding a position as a distinguished scholar at the United States Library of Congress. Bridging the gap between the two cultures of science and the humanities is at least as difficult as integrating East and West.

For me, my uncle’s legacy offers many lessons. Among the most important are the ability to blend the most rigorous scholarship with an interest in interacting with the general public, wearing one’s educational accomplishments as lightly as possible while bringing intellectual insights to bear on practical problems of policy; cultivating a genuine curiosity about the infinite variety of human endeavors and the natural world, without being limited by the confines of formal training or the artificial categories of contemporary disciplines; and pursuing ever greater challenges over the course of a career that was more than a series of jobs.

Thomas Sugrue

I was thrilled to see the enthusiasm and the level of engagement of the standing room only crowd – even the balcony was filled (“the crow’s nest,” as those who attended the event would undertand) – for the Izumi Family Scholar in Residence speaker Thomas Sugrue yesterday afternoon. I am always pleased to welcome speakers to campus, because I believe that beyond the research and the teaching, what makes a public institution such as our Law School so important to the community is our ability to be a public venue. There are so few opportunities now to engage in civic life. Universities serve their purpose when they lead the effort to offer serious discourse about our society.

Dr. Sugrue, the critically acclaimed author of The Origins of the Urban Crisis, the single most important book about the city of Detroit, is an especially appropriate scholar for us to invite. The type of work he does is what our Law School is known for. It is rigorous, meeting every academic standard, as the copious endnotes demonstrate. It also is passionate in its commitment to practical progress. Thank you to everyone who participated in two days of intellectual activity that give us hope for the value of education.

Rules

While as Dean I believe it is crucial to foster a sense of stakeholding, with students at the center of the community, I also recognize that the role includes the responsibility to make decisions that may be unpopular both about policy and as to specific cases. Every semester, I must sign letters informing a small number of persons that they are no longer academically eligible to continue their education here, their scholarship will not continue, they cannot graduate, they face discipline for misconduct, and so on. The best I can do is ensure that we support people as much as we can while they are enrolled to give them every chance to succeed; that our decision-making is principled and fair; and that we explain our actions in a reasoned manner. Accordingly, I would be remiss if I did not occasionally note the importance of learning the rules that govern an institution.

The study of law offers insights into the management of a law school, and vice versa. Indeed, students who are being trained in advocacy -- specifically legal advocacy that abides by precedent and a set of formal procedures -- may be expected to be more attentive to the rules that govern an institution. Students are already part of the profession, even though they have yet to graduate and pass the bar exam. They are expected to conduct themselves as lawyers would, and it is not easy to adjust to such norms. There are positive aspects to the law; there are negative aspects. It is a cliche, but one we might sometimes prefer to ignore, that every choice produces consequences.

Just as lawyers recognize they must abide by statutes and cases, so too students must recognize there are university regulations. Lawyers are able to challenge the status quo, but even then what distinguishes legal advocacy for the better is its established structure for doing so.

From time to time, students who are unhappy about an outcome seek to appeal it. And sometimes, after they have appealed through the normal process and exhausted their options, they hope to continue their appeal by requesting that the Dean or the faculty make an exception because of their personal circumstances, which may be genuinely compelling. They are surprised, then, to find that the Dean lacks authority to grant extraordinary relief or that the faculty have agreed, as a matter of policy, that they will not take a particular type of action, such as changing a grade. In these situations, students may be disappointed -- understandably.

Yet there are parallels in the practice of law. The rules governing appeals, for example, are so strict as to shock most laypeople and even lawyers unfamiliar with that specialized area. Failure to file an appeal on a timely basis is virtually certain to be fatal to a case, no matter what the facts show about the merits. Statutes of limitations are similar. Once they have run, if the recognized exceptions do not apply, well-founded claims may nonetheless be lost.

There are various reasons for such seemingly harsh results, which are amply covered in the relevant courses. Suffice it to say that the rules have typically been adopted because they produce optimal results in the aggregate even if they fail to do so in specific instances. There may be countervailing considerations. Time limits and limits on appeals tend to be severe, because society as a whole values resolution and repose. Such limits also tend to be enforced uniformly, out of our commitment to equal justice: a waiver in this case either means that one individual receives special treatment by virtue of nothing more than having been aggressive or that numerous others must then in turn also be considered.

A lawyer who wishes to counsel clients in these intricacies must abide by them, too.

New Dean

I am pleased to welcome the tenth Dean of the Law School, Professor Bob Ackerman of Penn State University Law School. Previously Dean at Willamette University College of Law, Professor Ackerman is an expert in mediation. We have already met at the AALS Annual Meeting in New York City. I look forward to working with him over the next several months on the transition. He is wonderfully qualified for the position. Please join me in congratulating him on his appointment.