Menu
0

800-523-2319experts@tasanet.com


Articles

Law Ethnography

TASA ID: 921

Preface
As a practicing legal anthropologist for 40 years, I have always been curious about how lawyers think.  Are they really so different from the rest of us?  I enrolled in law school believing that becoming a 1L, a first year law student, would be the best way to learn about law and its practitioners.  I also suspected that it would be really cool to get a law degree.  The following work will disabuse both you and me of that idea.

---------------------------------------------------------------------------------------------------

Scott Turow wrote THE book about being a ONE L.  It is an old book.  The Turbulent True Story of a First Year at Harvard Law School published by Warner Books in 1977 is a minor masterpiece.  Anyone thinking about going to law school should read this book.  It will scare.

It is Monday morning, and when I walk into the central building, I can feel my stomach clench.  For the next five days I will assume that I am somewhat less intelligent than anyone around me.  At most moments I'll suspect that the privilege I enjoy was conferred as some kind of peculiar hoax.  I will be certain that no matter what I do, I will not do it well enough and when I fail, I know that I will burn with shame.  By Friday my nerves will be so brittle from sleeplessness and pressure and intellectual fatigue that I will not be certain I can make it through the day.  After years off, I have begun to smoke cigarettes again; I seem to be drinking a little every night.  I do not have the time to read a novel or a magazine, and I am so far removed from the news of world events that I often feel as if I've fallen of the dark side of the planet.  I am distracted at most times and have difficulty keeping up a conversation, even with my wife.  At random instants, I am likely to be stricken with acute feelings of panic, depression, indefinite need, and the pep talks and irony I practice on myself only seems to make it worse.  I am a law student in my first year at the law, and there are many moments when I am simply a mess.

I did read Turow my first few weeks at law school and on any kind of oath known to humans, I can attest it to be the truth.   Except my truth is even more grim than Turow's truth.  I have a PhD in anthropology, several books, and hundreds of articles written to my credit.  And I, unlike Turow, managed to get booted out of law school.  I did not even make it until the end of the first year.  I got the boot at the end of the first term.  

There goes my $20,000 scholarship.  There goes the respect of my professors.   They were expecting an exceptional law student.  And there goes my hope of becoming a lawyer in three years.

I probably should have stated this sooner, but I started my law school training at the age of 80.  I have been a legal anthropologist for almost half a century and an expert witness for almost as long.  I mention all this now because I am about to critique the methods, procedures, practices, and rules of law school and will add some comments about THE LAW itself.  I want you all to suspend the forgivable judgment that this is written out of malice, anger or revenge upon my past legal educational experience.  It is not.  I love my first law school.  The failures are mine.  Later, if you are still reading, you will see how learning law can put you at odds with the rest of the American educational system, but not yet.  This will be a critique of that first term as experienced by a professional anthropologist who did not expect to fail.  I did not expect to do exceptionally well; my background is just too different.  But as a legal anthropologist, I did not expect to actually flunk.

In that first week, I am trying to breathe under water.  I am dropped into the deep end of the swimming pool and no one has yet taught me how to swim.  I am not alone.  While I lack the resiliency of my student colleagues, those wonderful 20 to 30 year olds, I am thrilled enough to be back at school in a student capacity.  I am there to learn and love this. The other students kvetch and moan much like I do.  They too are very tired, very confused and quite anxious.  For me it is a wonderful lark; for them, it is their lives, it is their future.  We have different life schedules at stake.  They look to their future. I look to learn more about law and to improve my already good position as an anthropologist.  And in the beginning, I want to become a lawyer.  We separate by no less than 50 years of living and in some cases, more.  And yet, I have never liked a group of students more; they are spectacular.  They are scared, of course, but they are also funny, very smart, and extremely hard working.  And I have never been treated so well by so many.  The students help me survive the rigors of negotiating stairs, heavy doors, mountains of books, rolling backpacks, packed elevators, stuffed library study rooms and crowded bathrooms.  In every class, to arrive at my seat, there are 10 to 12 classroom steps to negotiate.  Each day, at each class, a different student helps me down the steps to my front row seat.  Another student helps me up.  They carry that rolling backpack, that 35 pound horror of books, note pads, and blank papers and they do it without being asked.  I am impressed and stunned.  I do not even inquire why they do it.  

Within three weeks, they all know my name and by week four, I know most of theirs.  Each student is different and each is stunning.  While I can pick out the exceptionally smart ones pretty quickly, by both their questions and answers in class, it strikes me as wonderful that there are no dumb kids here.  Even better, this is a school that makes it a point to be diverse with gender, race, age, ethnicity, and sexual orientation. I am, however, the only octogenarian in residence.  

I quickly fall in love with all the students.  Studenting is so different from teaching, that I can form almost friendships.  Unlike my position in academia where the students make nice to get good grades, these students view me, certainly as an oddity, but hopefully, as an amusing one.  They are always helpful and kind.  They could be laughing at my slowness and ineptitude, behind my back, but that is OK.  I do not see it nor am I ever made aware of it.  This is one of three law schools I could have attended in San Francisco, and I chose this one, in part, because of the students.  I also chose it because of the $20,000 scholarship.  I also chose it because of the workers.  The guys who climb the ladders and fix the lights are as considerate to me as the students.  And so is the staff.  All who make up the full time work staff are friendly, and just plain descent.  And I want to adopt all the folk from the IT department.  They program my computer so I can actually get into the necessary legal materials and I reward them handsomely with pastries..  I should mention that I am only partially computer literate, slow on the uptake to new machinery and unhappy to find out that computer proficiency is essential in law school. 

Finally, to my great surprise, I have made fast friends with the parking attendants where I leave my car each morning.  They sing out my name, and I return the song with their names.  Several, and I did not ask, but several lift my two ton rolling backpack from the trunk of the car and one of them always walks me across the busy, congested, downtown San Francisco street.  They make sure that I arrive at the school unharmed.  It is amazing.  Since I am habitually cynical, I may have to change my attitudes.  

I do not meet my teachers until later in that first day and I am, at first impressed and then amazed, at their teaching abilities.  Each one has his own, and her own special style, from hyper to reserved, from excitable to friendly and it all works.  I study with some of the best teachers I have ever known.  And I have studied with the incomparable Margaret Mead, the brilliant Ernestine Friedl and African Ambassador Elliot Skinner.  I am not putting down my first law school in this critique, even though I was thrown out. 

I am about to start; however, putting down how we study the law.  Granted I only had one term to consider both law, the study of law, the reverence for law and the iconic religious like tones of law.  But a new anthropological broom sweeps pretty clean.  In fact, the longer the ethnographer stays with her group, the more normal their practices seem and the real data and important differences get lost.  My short term stay does have some advantages. 

That first week is a real eye opener. It is fright week.  We experience hazing.  I know the teachers do not feel this way.  They see it as a normal start to an overcrowded workload.  But they are wrong.  We are being punished.  They had to put up with all this miserable stuff when they went through their first year, and by all that's holy, so will we.  We are being pushed and pulled and so much is expected of us that it feels like pledging for a snotty sorority or an elite fraternity.  This is serious hazing.  Every waking moment; that first week is filled with a monstrous amount of papers, more notes, more information, more material than can be handled, and it is taken for granted that we will do all the work demanded on the papers.  Besides the classes, there are clubs to join, extracurricular activities that are strongly recommended, and well over a thousand dollars worth of books to get.  And that is just the rental price of books.  There is more and more and more and yes, I am drowning.  My lark has become my trap and I am in over my head.  

To combat the hazing, and to induce the students to think of something else, every place is filled with candy.  Candy jars sit in almost every teacher's office, the administrators' waiting rooms, and the hallway crevices.  Candy is the pump and plunger that keeps lL's going.  It is rained, drizzled, poured and pushed into our mouths.  Our mouths are open like baby sparrows and candy is stuffed down into our bodies.  It plays with our heads. The sweets give energy to a quickly depleted group of students.  By the end of the first week we will have gained five pounds and seriously upset our stomachs.  The bathrooms begin to smell like used and abused candy factories.  Coffee, once the over the counter wake up drug of choice, has been replaced by sweets.  All kinds of sweets are available:  chocolates, multicolored hard candies, M&M's, all day suckers and my personal favorite, Peppermint Patties.  They are dazzled before our eyes.  Most of the teachers offer us sweets and others actually suggest it will be good for us.  Hazing takes strange forms.

We stumble from orientation to orientation.  My notebook is already half full of data and this is only the start.  At every orientation we are given multiple papers to stuff into our folders, backpacks, pockets and jackets.  Half of us run to the lockers we have been assigned, and start stuffing all the candy, notes, orientation papers and water bottles in.  This frees our hands so that we will be able to carry more papers and more candy.  

We listen to the orientation talks.  One teacher says, "look to the right. Now, look to the left.  These people will turn out to be your best friends.  You will remember your law school classmates all your lives."  But the next teacher says, "look to your left and now, look to your right.  One of these students will not be here next year."  Of course, in my case, that prophetic vision starts much sooner.  I am gone in one term.  

Between the hazing, the junk food, the burping and the mountains of paper we must carry, we begin to wilt.  I personally do not know if anyone reads this material that first week.  Somewhere in the neighborhood of late afternoon, we start to walk around with stunned looks upon our faces.  That is a good thing too because we will be dismissed before dinner time.  And we will repeat this over the next several days before school actually starts.  In fact, before school starts we are given several assignments to be read and discussed during the following few days.  There is no running start in orientation.  This is a flying leap.  One or two students crash and burn and do not return for the third or fourth day.  But most of us stay, suffer, stuff our faces with candy and "soldier" on.  It will get better.  It has to.  

After orientation each day, later and later each day, some of us descend to the book store.  Most students buy their books through cut rate internet outlets.  Every one at law school loves their computer and they all use it constantly.  For some, they buy their materials first at the school book store and then later order the same materials online.  When their stuff comes in, they return the book store books (each can return the stuff for a limited time), and they save a lot of money.  I am different.  If I relied upon my computer, my books would never arrive and besides, it is easier to buy all the materials at one place.  Part of orientation is learning how to maneuver your books from class to class.  Each one weighs many pounds.  For me, this is an impossible task.  I quickly learn about rolling backpacks and from the first week on, I am never without mine.  

By the start of the third day, the students start looking familiar and a few have made contact with some they will befriend.  Others remain alone for a while but almost all connect with someone or someones after a while.  It is somewhat essential that this human contact is made.  This may be the saving grace of lL law school.  The material, so cold and forbidding, does not provide even a minimum of warmth.  The new friendships will.

By the end of the first week, much of the craziness, confusion and blank stares will have begun to disappear and we all settle into our classroom seats for the duration.  

I have a few extra problems not shared with the rest of the population.  As an old woman, my skin is thinning and my arthritis is bad.  My hands are a structural mess.  Every night as I pull the giant books from the rolling backpack, my hands bleed.  It hurts. My hands catch on the backs of the books, the sides of the backpack and the paper and pen materials jammed into multiple places.  Besides the bleeding hands, I cannot walk the first few steps in the morning.  I must stand still for a few seconds before I can move.  The schedule is grueling for the young students, for me it is torture.  I stagger up until I get those first few steps under me.  But I am in law school and that is my choice.  By evening I have just enough strength to eat some dinner, read my assignments and fall into bed.  My husband has taken over the normal duties of running a house and if not for his efforts, I could not continue.  Unfortunately, the only cooking he knows about comes out of a freezer.  

I idealize the students in their youthful bodies and open futures until reality hits.  Some of them have weekly migraine headaches, some have serious stomach pain, others have skin issues and a few have even worse physical problems.  But for the most part they are a healthy group of young people and those who do not flunk out, will be able to make it, physically, to the finish line.  At the start of the term, I wonder if I will be able to also make it.  Of course, that was before I was booted out.  

I realize, after a while, that I am meandering, skipping down the garden path of school memories.  I do not want to face what comes next.  I do not want to say the really dreadful things that I will say in this paper.  I am so filled with affection for the people, the place and the chance to learn new material, that I am avoiding the very thing I started this paper for.  I am avoiding critiquing law school. I am avoiding critiquing the law.  

No more.

But first-- a caveat- this is not a stall, it is caution.  I participated fully in law school while I was a full time 1L student, but I was only at this first school one term.  That is a very short time to do any kind of critique.  So with my short term, down and dirty field observation, here is my analysis. 

Can one think like a lawyer?  Does being a lawyer expand your consciousness or limit it?  Does succumbing to the hive mentality, being pushed to think like everyone else, improve or stunt communications between practitioners?  Does the religious aspects of the law limit its growth?  Or does it keep it "pure"?  These are the perennial questions.  Or to put it more snottily, can one be a good human being and a good lawyer?  These are the questions to answer.  

Lawyers, certainly the ones I keep speaking to at school, hold the view that "thinking like a lawyer" puts them in a different place, a better place, than the rest of humanity, and that place is special.  In fact, it is so special, that lawyers, especially the ones from "good schools" and with "impressive jobs" consider themselves significantly above the rest of us.  Bless my first law school.  The teachers there do not act like they think this is so.  They may consider themselves above the rest of the learned professions, but they do not present this view to the students.  

Different ways of thinking; however, do creep in.  To think like a lawyer is a little like stepping back, stepping away from one's common, for most of us, instinctual humanity and considering first, and foremost, the rules and our place within those rules.  

I learned, in one class, that in law, apparently doing nothing, in many situations, is not only the best thing to do, it is the legally the right thing to do.  This first example startled me so profoundly that it not only turned my head around, it made me aware of how the law takes as premises, certain basic ways of thinking.  These views are alien to most educated folk and certainly alien to most community minded folk.  If you value your community, whether you think in terms of ethnicity, sub-cultural choices, or your place in the world, there is a shared body of information, values and ideals that are overwhelmingly primary.  Your people, your in-group, your school, your club, your church, your community, your social world, this is where the basic sense of self lies.  In part we are defined by, and define ourselves by, the community we belong to.  When someone falls too far outside of this community mode and these shared values, we think of terms like sociopath, extreme egoist or scary outsider.  It does not matter if your people ride motorcycles and form motorcycle clubs or participate in church gatherings or build learning seminaries.  If you are an insider, you take on most of the values of the group, your group.  We know everyone is not the same and conflict arises, but there are rules for resolving in-group conflicts in ways that maintain the group.  If you are willing to stretch a little, you can come to the anthropological term “culture.”  

This is one of the very few defining anthropological terms and it acknowledges that one can belong to both a traditional culture, the culture of birth and other cultures, the cultures of choice as well.  As we grow older, we may form or join a number of different communities of choice through personal desire or particular circumstances.  The many communities of choice may overlap and will usually share some basic views and ideals in common.  To belong to oppositional communities, with completely different sets of views and values, at the same time, is to invite uncomfortable cognitive dissonance.  Law in many ways, ignores many common in-group values and invites cognitive dissonance. 

Law is in some ways like a community, or culture of choice.  You are not born into this culture.  You do not learn it as a child and grow into its ways, views and behaviors.  It is not reproducibleNor does it birth itself.  Yet, in many ways it forms its own culture.  The premises, views and values; however, are (in important instances) very different from the vast majority of other in-group folk, other ethnicities.  If we see law and the groups that lawyers form, as at least partial communities of choice, do they share common, let-us-survive-as-a-group, views?  Consider one of the common shared group values, loyalty.  Loyalty to each other?  Maybe. But I suspect that the main loyalty is to the law itself.  And what is the law?  Our law, this pastiche of English Common Law mixed with all the changes both big and small that we have added and subtracted from it, makes up an enormous body of writing.  If there is one defining aspect to lawyering, it is the accepting of and being loyal to the writings in the books of law.  

Lawyers are people of the book, the law book.  They are not the chosen people.  They are the people who choose.  

Here is the example that turned my head around and made me realize that the ethics within law are different from those of most other groups.  I learned in class that if someone is drowning and you could easily save that person, you must think first if you should save him.  If you start to save, to act in favor of saving a drowning man, you had better do it the right way.  If you, in any way, cause that drowning person harm, you can be sued.  Did I hear right?  Yes, reiterates the teacher.  It is clear that some kinds of actions you can take are genuinely foolish.  If you get in the way of official and competent help, you deserve to be chewed out, if not sued.  But let us imagine the scenario where the drowning man is in a swimming pool and all you would have to do to save him, is reach down and help him out.  You are strong enough.  You reach down.  The drowning man grabs your hand.  You save his life and he breaks his little finger in clinging to you.  Is he grateful?  Probably- but he has the right, the legal right, to sue you for damages. 

I heard this and could not believe it.  DO NOTHING I was told.  This may be the right course of action.  Unless you are in a special relationship with the drowning man, or it is your job or you have professional expertise, the best thing you might do is leave him alone.  And let him drown.  

This can't be right!

After a few weeks of class,I interviewed 11 students and asked what they would do if they saw someone drowning and they felt they could save him.  Would they try to do so even if there was the potential of causing him harm?  Ten of the 11 said yes.  Of course they would try to save a drowning man, that was the "right" thing to do.  The 11th student said he would think about it first.  Then, if he thought he could do it without causing harm to himself, or the man drowning, he would act.  

Three weeks later, to the day, I interviewed 15 students on the same topic.  Included were the original 11 and four more.  Of that first eleven, only four now said that they would immediately help.  Seven students now said they would think carefully about it first; they would now hesitate before doing anything.  It might be just a few moments of hesitation, but in those moments, of course, the person could drown.  All four of the new students interviewed responded that they might or might not help depending upon the circumstances.  In any given circumstances, these new four would think first, then act.  Of the four who would immediately help, they are of mixed gender and mixed race.  They said “Help Him! Help Him!” - me too.  The response of the first group is the start.  They were thinking like lawyers. Thinking like a lawyer dampens, does not destroy, but dampens what in our general American culture we might call "an immediate human response" to help someone in trouble.  The law teacher said think first.  Think first always.  

Three weeks after that, only one student and I, alone, would attempt a rescue before thinking of the potentially negative consequences first.  

When my friends heard that I wanted to go to law school, the most common response was "if you start to think like a lawyer, we will shoot you."  

The next example came right after the first one.  "Call 911" the teacher says, when you see someone staggering in the street.  Do not get involved.  Keep your distance.  But if you live a life and not the law, you know that there are many folk who do not wish you to call 911.  There may be many reasons for them not wanting you to call the cops.  Calling 911 can be a harsh sentence for them, but it can also be a life saver.  It is up to the person who is considering calling 911 to find out from the injured person if they should make the call.  The caller will have to make his or her own judgment if the person in trouble is too sick to respond.  Each situation is different.  It is not re ipsa loquitur.  

Of course, common law, which our system is taken from, was all written by men, elite men, rich men, men with servants and/or slaves, but you who are reading this know this already.  The U.S. Constitutional amendments let the rest of us in a little bit at a time.  We do fight for our chances in the US and we have chances to fight for our rights.  We non-elite can fight for our place in the sun.  We can fight to change the laws.  One scenario is simple.  First civil disobedience, then strikes, then protest marches, then window and store bustings, then riots and rebellions.  We get jailed.  We get beaten.  We wind up in hospitals.  We die.  But some of the time, the laws change.  There are other scenarios.  We push to get new laws on the ballots and sometimes, without violence, the law can change.  Women do vote.  We mainly have control over our bodies.  We can apply for most jobs, schools and homes in "safe" neighborhoods.  Non-elite men in this lifetime, in most places, can visit a gay bar without being battered by cops.  We can participate in interracial sex and marriage.  We can have gay marriage.  Many roads are open to us now, roads that were closed less than one hundred years ago.  It takes time.  But in most countries of the world, this is the impossible dream.  Of course, if you are an American Indian, expect to hoe the harder row.  Inequality still abounds.

Another problem with studying law is the amount of work we are given and the enormous amount of materials we are expected, in a short time, to learn.  It is not just that it is too much or too hard nor even that it is not very clear; it actually prevents independent thinking.  We have so much work to do, to repeat, to regurgitate and to just plain learn, that there is no time for other ways of thinking to even creep in.  We are being directed, diverted, brainwashed towards only one type of thinking and towards only one view.  

Think Tarasoff!  Consider what happened to her - (murdered by her stalker boyfriend). Consider her stalker boyfriend!  He ends up in another country with a life and prospects.  This one case has serious and important implications for every social science as well as implications for law.  Yet, with all the work we must do, we cannot peruse it, take it intellectually apart, analyze, sympathize, consider, and struggle with what should, or could be done in this situation.  The force, scope and avalanche of material to be studied prevents us from considering most aspects of Tarasoff.  We can only consider what effect it has on the law.  And how the law changes because of it.  That is not enough.  

Our system of law, jurisprudence in the US, taken mostly in whole from England takes at its core the multiple assumptions that only men, only men of property, wealth or prominence, (upper class in today's parlance) have the knowledge or right to create and shape a judicial system.  The laws have been, for the most part, not protective of children, foreigners, women, people of poverty or color.  Each of us, from the different groups, the outsider groups, the non-English European groups has had to fight for changes, fight to knock down unjust laws.  We have fought against the poll tax. We have fought laws that have kept women out of many jobs.  We have fought for protective child laws.  Many amendments begin to include outsiders under the law.  

But do not forget that there is something very strange about tort law.  You must have money.  Jury trials can be very expensive and it can take a long time to bring each case to trial.  Only the wealthy can get the kind of satisfaction they need.  Businesses and corporations can do this, but individual people, unless it is a class action case, rarely have the money, the smarts, or the position to bring a case to trial.  If this is what happens in torts, what hope is there for the "common folk?"  The court at least appoints lawyers in criminal cases for anyone who cannot afford a lawyer.  

Judges have enormous power and yet judges can be prejudiced or mad or just plain stupid. How can you remove them?  With great, great difficulty.  

How can a judge speak to the issues of poverty?  A poor person in a court room may look poor and talk in “uneducated” English.  He may wear ill fitting clothes and may be dirty.  Can a judge imagine what this man's life is like?  A judge, who may never have taken a subway, or a bus, may have to give a decision based upon his knowledge of these vehicles of transportation.  How can he do that?  Even cars raise a problem.  Never having gone round and round looking for a parking space, how can a judge sympathize with the rage, anger and frustration of the "common" person who does this every day?  

You know all of this already.  Nothing I have said is new or startling or even very interesting.  Yet in the study of law, right from the very beginning, there should be some space to speak to these troubling issues in our law, our system of law.  Along with classes on contracts and torts, there should be classes on the philosophies of law.  These studies should start at the beginning of law school before students are directed and diverted towards only one way of thinking.  Philosophy of law classes are taught at universities but not in most law schools and rarely, if ever, in the first or second year. 

We are a country of immigrants ruled over by a court system based upon English common law forged by noblemen.  How can it fit over the different ethnicities or communities in America?  The men who formed our constitution did try to protect the people they covered.  Unfortunately, they only covered a small percentage of the population, not the rest of us.  Most of us did not come over on the Mayflower.  

The law is mostly a closed system.  Yes, a judge, a legislature, a court decision may nudge it a bit here and there, and each nudge can ultimately make major changes, but fundamentally it is a closed system.

The law is also similar to religion it the way it functions.  It is not the spiritual stuff of religion; it is on the structural side.  The law, for students of law, lawyers and judges, tells us how to think, what to think about and also how much is permitted within the parameters of thought.  If you abide by this, you feel safe.  You know what to do and how to do it.  The judge is not the father confessor but he is the one who interprets the law.  Listen to the judge and you know how to live, you do not have to think beyond that.  In fact, thinking beyond that can get you into a lot of trouble.  The law functions like religion.  You have in-group conformity and a sense of community.  You also have a sense of rightness in relation to the rest of the society.  You know the rules, follow the rules and while you may not get into heaven, you may get a chance at the Supreme Court.  It opens the possibility of becoming a hive society.  Being a lawyer does not expand your consciousness, it limits it.  We are educated, in law, to think inside the box.  Since it is mostly a closed system, those "outsiders" who made it in, the "foreigners," the women, and those born poor must push against the very edge of the law to win cases and make changes.  It is never right nor wrong; it is always win or loose.

When I went to a school administrator and asked some questions about philosophy and law, I was told that it ''was above his pay grade". Amazing, I thought. How can anything, any question, comment or inquiry be above his pay grade?  He may not know the answers or even find the right places to look for the answers, but above his pay grade?  How can any question be above an intellectual’s pay grade?  All questions fall within the scope of valid inquiry, even the stuff I find absurd like ghosts and golems.  

Finally, to end this ramble, this polemic, I will address my own issues.  I was thrown out of law school.  I was not persecuted.  I was not deliberately picked on nor was I made an example of.  I merely fell into the category of failed students.  Do I think that was equitable or fair?  My answer is both yes and no.  I believe a better system could be instituted.  When a student is close to failing, both above and below the mark, I think each case should be looked at individually.  The circumstances of failure should be noted.  Some students may be permitted another try.  Others may be booted out.  In my case, I probably would have been booted. I did fail one class, but I do think that students deserve to be seen in their totality, and not in the narrow circumstances of just grades. 

This has been a short polemic based on 14 weeks of study.  No more.  Much has been left out.  Sometimes in class, I felt like a spin doctor.  I was told if one argument does not work, use another, or another or another.  But keep on fighting.  This paper is many things, some good, some not so good, but it is not spin.  

First Addendum      

Fast forward a year.  A difficult year full of worry and work.  My husband became very sick and recovered just in time for us to get our lives back.  Although we are both a lot older than we were before he got sick, in that year we really aged. 

Since I was booted out of my first law school, I feel like an incomplete law student.  I have much more to learn.  I apply to another law school and am lucky to be accepted.  My second law school, also accredited, understands my dilemma.  I am still thinking like an anthropologist but will do my very best to learn how to think like a lawyer. 

My second school, nothing like the first, teaches adults at night.  Like the first school, it is hard but hard in a different way.  I can read and study in the day but night school does have its own problems.  If you school from 6 p.m. to 9 p.m. four nights a week, when do you eat dinner?  Since I never solved this problem successfully, I will hungrily, move on.  By now, I am studying all the time, taking only one weekend half-day to do all household chores.  The rest is read, report, brief, IRAC, study and sink.  I am sinking under the work load.  Fortunately, this time, I am up with my class and feel neither hopeless, helpless nor abjectly stupid.  We are all struggling together with the enormous work load.  Yet once again we are fortunate to have exceptionally good teachers who are mostly patient, kind and forgiving. 

Since this is my second time around, when the first exam finds me again failing, I freak.  But the second exam jumps me to a B-.  I am finally getting the idea; understand the concepts, learn, (memorize) the outlines and practice, practice, practice briefing.  Studying law takes all the time there is, but I am the only student who does not intend to become a lawyer.  For the rest, it will be their careers, the fulfillment of lifelong dreams and a way to leave unpleasant current jobs.  I applaud them and am once again grateful for their acceptance.  Even though these students are full adults, some with kids, all with jobs, they are still 40 to 50 years my junior. 

And then the miracle. 

Deep into the second law school’s middle of the term madness, I get my first click.  There it is.  Only for a second, but in that second, I think like a lawyer. 

The clicks keep coming.  Thinking like a lawyer, for me, means as I approach an action, any action, I immediately jump to the possible consequences of that action.  Before even starting the behavior, I am already considering the possible results.  I ask a very lawyerly question.  Am I thinking like a reasonable person?  This realization has a remarkable impact on me, and I do not like it.  No, I hate it.  If I think of each consequence before I take any action, then I will have lost my spontaneity.  My creativity will be zapped and innovation, invention and plain ole wonderful crazy behavior will be lost.  I know that my friend Jayne, the best lawyer, biker and plain old hell raiser whom I know, when off the clock, refuses to think like a lawyer.  She leaves all that behind as soon as she leaves her office.  But how many other lawyers are able to do that? 

The zings and zaps and clicks are coming and I realize that I am in the middle of culture shock.  As an anthropologist, I always experience that wonderful/terrible jolt of cognitive dissonance when a new culture rears up and jumps between me and my typical way of thinking.  As I become fully immersed within a new culture, I start to take on the ideas, values, moralities and behaviors of that new culture.  As I make the shift into the new culture, my mind plays little mean tricks on me and I have to decide where to land.

Do I go native?  Do I renounce my old culture and take on the new one?  This is always the question in my 40 years of anthropological research.  If the answer is no, I leave the research immediately.  I think it is unethical to research a culture I do not love.  With one exception after the research is finished, I leave the new culture and return, mostly, to my old one.  Only with biker culture do I manage to synchronize the two and remain a participant in both.  I no longer ride, (my husband still rides,) yet I retain many of the ideals, values and unabashedly proud behaviors of California bikers.  I also remain a besotted anthropologist. 

What to do about law?  I love it not, so I will spend the next few weeks valiantly working to remove the legal click. 

In my first law school my anger and sorrow at the school’s unwillingness to confront the ethical problems within law left me unwilling to try to “think like a lawyer.”  In my second school, with all the extra law training and work, the click emerged.  It is a miracle.  I have felt the unique click that I think is primary to thinking like a lawyer.  I have felt the potential results and consequences of my actions arrive in my brain a second or two before I do the action itself.  I was “thinking like a lawyer.”  Unfortunately, this is not a miracle I wish to keep. 

This leaves the question of law school.  I will leave law school at the end of the term but will stay until the finish out of respect for my teachers.  They have worked very hard pushing law into my very resisting skull. 

I have learned what I came to learn.  I do not like thinking like a lawyer and I do not like studying law.  It is a culture I best stay away from.  I found the study tedious, boring and horribly repetitive.  Working in the profession could prove fascinating, but the study of law is not. 

I am not good at law.  It does not come easily nor naturally to me.  It does not suit my temperament nor my personality.  I am a bad law student and even with all my study, I am only able to achieve a middling fair grade.  I am, however, a good anthropologist.  My work has been printed and reprinted in refereed journals.  My major book on bikers is still in print after fifteen years.  I have won all but one of my courtroom legal anthropology cases.  My articles appear in many readings in anthropology including the very prestigious Classics of Practicing Anthropology.  I appear to be wedded to the field. 

I have learned what I came to learn. I wanted to know how to think like a lawyer.  The information clicked.  I wanted to see if I would enjoy studying law, and I do not.  I do, however, understand why lawyers hire expert witnesses in social science and why I have been such a successful one.  It is precisely because I do not think like a lawyer that it works.   This has been, for me, an amazing study.  At 81, however, it seems important that I get back to the work I should be doing, in a field where I may still contribute something of use. 

Second Addendum 

I wish to add a most important bit of advice.  Law is complex, difficult and scary.  If a person gets into trouble and is sued, it is important to hire the best, and I mean the very best lawyer you can afford.  Borrow the money if you must, but get really good representation.  This is even more important if you are brought up on any criminal charges.  This is not a time to stint on price.  Get the very best damned lawyer you can because your very life will depend upon it.  Lawyering may not be for me, but I have enormous respect for those who have mastered the profession.  Use them. 

Third Addendum

I wish to personally thank the teachers at my second law school who knew very little about my background, law failures and academic successes and treated me with fairness.  I apologize for stopping after one term and not finishing the race for lawyership.  The ship of law will just have to sail without me.  While this is of no great loss to the profession, it is a great boon to me.  I am a bad law student but I treasure all that you have taught me.  What I did learn is profoundly important and will be put to good use in anthropology.  It will also be put to good use in life.      Thank you. 

This expert is an anthropologist specializing in ethnographic field work in American societies.   From bikers to cyberspace: law and land.  A live in cultural anthropologist.  Expert witness in gender and custody often with a variety of competing cultural values. This expert can be reached via email, bjoans@earthlink.net or if you would like to chat with the expert, give TASA a call.

TASA Article Disclaimer

This article discusses issues of general interest and does not give any specific legal or business advice pertaining to any specific circumstances.  Before acting upon any of its information, you should obtain appropriate advice from a lawyer or other qualified professional. 

This article may not be duplicated, altered, distributed, saved, incorporated into another document or website, or otherwise modified without the permission of TASA.

Previous Notes From An Expert Witness
Next The Risk in CM at Risk
Print
Tasa ID921

Name:
Email:
Subject:
Message:
x

Let Us Find Your Expert 

Submit

Search Experts

TASA provides a variety of quality, independent experts who meet your case criteria. Search our extensive list of experts now.

Search Experts