Dec 28, 2008 Does waiting tables make one a better trial lawyer?
The closest I came to waiting tables was working as a pantry assistant in the kitchen of my old summer camp, making orange juice and bug juice with a garden hose and metal oar, moving food on hand trucks and flat trucks, shoving my hand in innumerable chickens to pull out the gizzard packets (in my pre-vegetarian days), and making sandwiches for the nighttime on duty staff.
I ran into many colorful kitchen characters. Some of them were pleasant, some the opposite, and most in between. I saw things that underlined why to think twice about eating in restaurants. For instance, when I mentioned to a kitchen supervisor with decades in the food service industry that I wasn’t sure whether the chopped liver was still fresh enough for sandwiches for the late-night staff, he scooped his big bare unwashed finger into the yuckbowl, stuck it in his mouth as if it were chocolate, and proclaimed: "That will sharpen your pencil, but I have no one to write to!" In retrospect, I might have asked whether I was still within the state health code to make sandwiches from the now-fingerswirled yuck bowl. Who would have eaten them in the first place, though?
A fellow criminal defense lawyer once observed that prosecutors are not born; they are hatched at the age of twenty-five, with a law degree in one hand, and no real world experience. That might be overly simplistic, but any lawyer runs such a risk if s/he travels a path of a financially-privileged life (not all law students come from such privilege, of course), rarely getting the hands and fingernails dirty, living in the social bubble of a college campus, going straight to law schools that mainly focus on the head zone rather than the heart zone, working summers in the rarefied environments of corporate law firms, talking and writing lawstudentspeak, and competing for grades and law review to avoid having one’s law school years seem all for naught. How many real humans live that way?
Waiting tables seems to be a good way to make one a better trial lawyer. Waiters and waitresses (collectively, "waiters") face customer complaints all the time. Will the waiter learn to diffuse such situations with empathy and humor and to let customer problems roll off the back? At least some do. Waiters often find themselves in between customers and chefs, and trial lawyers often find themselves between clients and judges, clients and prosecutors, and clients and opposing witnesses.
Rather than following the common path of going straight to law school from college, future law students might be wiser to spend at least a year rubbing elbows with a much wider cross section of people than are found on college and law school campuses. I probably would have gone nuts going straight to law school from college, from one Neverland to a new Neverland. In any event, I had not taken the LSAT on time to enter law school right from college, and took a job for one-year as a financial auditor with the Irving Trust Company in the belly of the Wall Street capitalist beast. I winced many times at the unapologetic and very open racially insensitive comments of too many of my colleagues, spoken not only at the frequent happy hours; that underlined future risks to come with racism in jury panels, judges, and the rest of the people I would soon deal with as a lawyer. Although my intention was to get experience, pay, and fun during the year between college and law school, I benefited very much that year rubbing elbows with a much larger cross section of people than I had ever dealt with before on a daily basis, from clerical workers who never would enter college to high-level capitalist managers.
In my first semester of law school, I had a torts professor who seemed to have lived life very far from the country club set. He felt that the way to make good trial lawyers was to simulate hardscrabble courtroom experiences; he spoke of the importance of thinking quickly on one’s feet. He would have students play the roles of judges, witnesses, and lawyers. He had me cross examine a doctor, played by him, to underline the conspiracy of silence that he said previously existed before plenty of physicians agreed to testify as paid expert witnesses for injured plaintiffs in medical negligence cases. At one point during the cross examination, I caught the professor-witness say "Up yours" and give me the finger. The class had a good laugh, and I was not sure how much that was motivated by his frustration with my filtering my participation too much from my head in this exercise rather than shooting more from the hip, or if it was more to stay in the role of the difficult doctor being cross examined.
I visited the professor the same day, because I knew I was to remain on deck the next day to complete this theme of our torts class. When I told him I was not sure whether the bird-flipping was merely him keeping in character as the opposing physician witness, or something beyond that, he told me he would go easy on me the next day. I told him I was not looking to get off easy, but to be treated fairly. Whatever this professor’s strengths and weaknesses, I decided he was worth another try the next year for his evidence class. Of all my law school professors, he seemed to have more trial experience than any of them, and that certainly enhanced my law school learning.
Certainly, law professors should not have a license to be tyrants, nor to act on sexism or racism, nor to act or grade unfairly otherwise. That does not mean that a good law professor molly-coddles.
Not long after graduating law school, I read an interview with my torts law professor, who died earlier this year. When he started teaching law school in the 1960’s, more students had hides like a rhinoceros (I think he said many had significant work experience already), but he found that the hides thinned over time with newer law students. When facing difficult judges — and even the best lawyers cannot completely avoid judges being difficult with them — a critical starting point is for the lawyer to have a thick skin, not an insensitive skin, but a thick skin with a very caring heart. The lawyer is not in the courtroom for his or her own benefit, but to fight for justice for the client.