Week Twelve, Part 4 - Career Planning for 1L’s

I've given no thought to a summer job until I page through the Career Services Handbook. Chapter 4, titled "First-Year Information," lists five opportunities for summer employment:

• law firms,
• government agencies,
• public interest employers,
• judicial internships,
• corporate settings.

I gotta work?? Groan! I was hoping to hide out and write fiction. Now it looks like I won’t be unpacking the novelist life anytime soon.

I read on. "It has become increasingly important to begin career planning in your first year of law school. Because the number of students competing for jobs is increasing, you should strive to distinguish yourself early in you law school career."

Distinguish yourself. Ha! I'm distinguished, all right – as in thirty-two years old and flecks of gray.

The handbook's paragraph on corporate work interests me. "Never say never!" it says. "The opportunities are slim, but they're out there. In the past, corporations have not jumped on the summer clerkship bandwagon. However, with the increasing cost of litigation, many companies are looking in-house for their legal work. But it will take some effort by the industrious student to seek out the opportunities."

Coincidently, yesterday I received a phone message from NIBCO Inc., a Fortune 1000 company in nearby Elkhart. The editor of their in-house magazine, Connections, wondered if I were available on short notice to write an article.

I put aside the handbook and and call her back from a phone in the student lounge. She wants a feature on NIBCO's role in supplying plumbing valves and fittings for the new airport in Denver. The deadline is a week out.

I ask whether NIBCO has a general counsel.

"Tom Eisele," she says. Law degree from Valparaiso, MBA from Notre Dame.

"Any other in-house attorneys?" I ask.

"Sue Toth, from ND Law."

Against my better judgment, I commit to do the article. With the Legal Research exam next week, time is at a premium, but here's a chance for an industrious student to distinguish himself.

* * *

Week Twelve, Part 3 - Legal Research: Bigamy in New Jersey

Our last day of regular class in Legal Research is devoted to review. Next Thursday, all 1L’s will take the final exam en mass.

Patti Ogden, our instructor, warns us that the test will be challenging. The 100 questions may come "from anything we’ve covered the past eleven weeks." Lectures. Handouts. Assigned readings. Small group work. For a one-credit class, there’s a mountain of material.

During the review, I’m amazed at how much we’ve learned. When Ogden refers to the library’s reporters and digests, I understand their purpose. I feel comfortable with shepardizing, that is, using a citator to make sure a case is still good law.

In retrospect, the research assignments each week forced us off the main path of class-to-cubicle and into “the stacks” and “compressed storage.” The lectures provided information that didn’t come up in other contexts. We learned that while all Supreme Court cases are reported, the rate of appellate decisions being published is lower: only 25-65 percent. Federal district court cases are reported even less – 10-25 percent.

While Ogden talks, I make sure I have all my weekly assignments, then arrange them in chronological order. They were hard, without a doubt, but doing them made me feel I could research like a lawyer. I was able to find statutory authority on the issue of “Can a person in New Jersey be found guilty of bigamy if one of his two marriages were a common-law marriage?” And, “If a bride calls off her wedding, can the ex-fiance sue for breach of promise to marry and return of the engagement ring?”

I smile. Will I one day have paying clients with these problems? It seems inconceivable.

Ogden ends class by telling us that the average mark on the final exam is a B. “You're all great people,” Ogden says. “But there's no denying that some of you will score higher than others.”

* * *

Week Twelve, Part 2: Making Partner

I wander into the Career Services Office at Notre Dame Law School. At one end is a reference library and newspaper rack. Beside it an old photocopier.

Two students, a guy and a girl, are paging through loose-leaf binders at the faux wood table. Both have Constitutional Law casebooks next to them. Upperclassmen, I figure. They slide their chairs forward and let me slip by.

I pull a recruiting brochure off the shelf. On the cover is a night view of the Los Angeles skyline. Inside it describes “Career Opportunities” at Latham & Watkins, a LA-based firm with 850 lawyers worldwide. Hong Kong. London. Moscow. Tokyo. Singapore. I imagine myself as a Latham lawyer, working in “high-stakes litigation” or “complex, sophisticated transactions.”

“You still clerking downtown?” the guy asks.

“Twenty hours a week,” she answers.

“Trying to make it hard on yourself?”

“Poverty does strange things to an individual.”

I sit down and skim the testimonials from Latham associates, all of whom have bright smiles and thick hair. Jeffrey B. Greenberg, a Northwestern Law grad, writes, “We are one of the few firms in the country doing extensive utility restructuring work. The deregulation of the electric utility industry involves tearing down massive existing legal structures and replacing it with something entirely new.”

Hmmm. I wonder if that’s a good idea.

The girl at the table says Dean Link is writing her a letter of recommendation.

“He’s probably great at that,” the guys says.

“How would you know?!”

“Dean Link has always struck me as something of a bull-shitter.”

She slaps him on the arm.

“Seriously. Most of what he says is to put the law school or the faculty and student body in a better light. But then I think, maybe that’s just his job.”

“Exactly!” she says.

“But he seems to do it for everything.” The guy lowers his voice an octave. “When I played Bookstore Basketball, there were two Division I players on my team.”

They get up to leave, ignoring me – a lowly 1L – the whole time.

By now I’m at the page entitled “Making Partner.” The brochure says associates are considered for admission to the partnership after eight years. The Associates Committee presents its recommendations and the partners vote on each candidate. I expect a paragraph about “henceforth true riches await them.” Instead there are individual pictures of five middle-aged men: the Latham & Watkins Executive Committee.

I put the brochure back and walk to the bulletin board outside the main entrance. In addition to job postings and career information, there’s a photocopy of a newspaper article from Business Journal. It’s titled, “Glut of lawyers in Denver leaves new grads among underemployed.” The author interviewed six greenhorns who have been unable to get jobs.

One of them, Tamatha Blase, is a graduate of Washburn University School of Law in Topeka, Kansas. She decided to “hang out her own shingle after sending dozens of resumes and landing only two interviews.” To pay the bills, she tends bar at night.

The author writes, “Her law-school reveries of becoming a glamorous corporate attorney working in a posh skyscraper on high-profile cases came crashing down. And the realities of long hours and potential ethical conflicts set in.”

I grab a Career Services Handbook from a large stack and head to my cube. With so much at stake, I better start studying.

* * *

Week Twelve, Part 1 - Torts: Palsgraf

Before we launch into the most famous torts case ever, Palsgraf v. Long Island Railroad, Professor Charles Rice makes an announcement. “On Thursday there will be no Torts anywhere.” He’s flying to Rome to view the induction of a former student into the Legion of Christ.

I hear happy murmurs around the classroom. Unlike other profs, Rice doesn’t make up missed classes. In our closed universe of study, class, and Notre Dame football, we now have eight hours of unexpected time.

Rice starts Palsgraf by saying, "This whole deal was pretty bizarre."

He’s right. The facts amaze us all.

Mrs. Palsgraf, the plaintiff, purchased a ticket from the Long Island Railroad. While she was waiting on the platform, two men ran to catch a train as it was pulling away. The first man jumped aboard. A railroad attendant helped the second by pushing him onto the train. In the process, the man dropped a package of fireworks which exploded. The blast shook the area, causing some scales to fall on Mrs. Palsgraf at the other end of the platform.

Palsgraf sued and was awarded damages for her injuries. The railroad appealed and won.

Rice calls on a student near me. Louise stands up. She’s wearing a jean jacket and matching pants. Around her waist hangs a tie-dyed wrap, purple and white. Her hair is pulled back in a gold clip and glitter barrettes.

Rice asks her, "Why did the railroad win?"

"Because the injury was not foreseeable," she says.

"Was it a matter of fact or of law?"

Louise hesitates and Rice stares at her, his "guess antennae" twitching.

"Of law," she says.

"Good. Whether or not there's a duty is a question of law." On the board he writes the elements of negligence, DTY, BRCH, CSTN, DMGS, then points at the first group of letters. "According to Justice Cardozo, a duty is owed only to the foreseeable plaintiff. So it's a limited duty. Have the courts generally picked up this aspect?"

"I believe so," Louise says.

"Yes, they have. Now, what was foreseeable when the railroad worker helped the terrorist with the package?" Rice asks.

"That he might drop it or break something."

"What about the firecrackers?"

"Unforeseeable," says Louise.

"Good. In Cardozo's opinion there are two issues: duty and causation. He's strict on foreseeability and injury. But once you have breached duty, causation is practically unlimited."

Louise sits down.

"No, no." Rice barks. "Keep playing. This case is an intellectual toy."

Louise stands back up and we turn our attention to the minority opinion.

Rice says that we have the same two issues with Justice Andrews: duty and causation. "What's his position on each?"

Louise rubs her chin with slender fingertips. She wears no make-up or nail polish. "As to duty and causation, Andrews is the opposite of Cardozo."

Rice smiles at the truism. "You're right," he says. "Andrews is broad on duty, restrictive on causation. Sum up Andrews on duty."

"If somebody gets hurt through your conduct, you owe them a duty."

"Good. But as to causation, how does Andrews limit it?"

"By but-for?"

"Is that a guess?" Rice asks.

"An educated one," she says. Her chutzpah draws a laugh.

"What is this, Jeopardy? Some day in New York Municipal Court are you going to answer a judge with a question?" Rice stares at Louise until her head drops. "Look at the shopping list on the bottom of page 210," he says.

"It's limited by proximate cause."

"Keep going."

She reads, "Whether the causation is but-for, natural and continuous, direct, foreseeable, or remote in time or space."

"Have courts picked up on this?"

"I'm not sure," she says. Rice has tamed Louise, at least for the moment.

"Just as courts tend to treat duty and foreseeability according to Cardozo," Rice says, "they tend to make the Andrews catalog a test for causation."

Rice steps back to the podium and leafs through his notebook. Louise sits down.

Rice thrusts his chin her way. "Now, Louise." She stands back up. "Here's an old New York case. A driver swerves off the highway and tears down part of a pasture fence. He's negligent. The cattle stray. That evening the farmer goes to round them up. He falls in a hole. Was his injury foreseeable in terms of proximate cause?"

"No."

"No? What are you, some kind of flinty, stone-eyed Ayn Rand afficionado? Don't you want this man to be whole?"

She laughs. "Falling in a hole doesn't seem foreseeable."

"The trial court agreed and threw him out, citing Palsgraff," Rice says. "But the appellate court reversed.

"So I was right either way?" she asks.

I'm amazed at her moxy.

"Or wrong," he says. "How ‘bout this one. The defendant, a man, operates his auto in a negligent manner and causes head injuries to a three-year-old boy. The boy becomes emotionally disturbed. Seven years later, he shoots the plaintiff. Is there proximate cause?"

"Definitely not. Remote in time or space."

Rice agrees. "One more. The defendant negligently obstructs the sidewalk. Plaintiff is a pedestrian – not a mountain goat. He walks around the obstruction and gets hit by a car. What other facts do we need to know, Louise?"

"Was there another way around?"

"No, there wasn’t," says Rice.

"Was it a country road?"

"No, 34th Street in New York.”

Rice never does tell us how the case came out. Class ends with us still trying to ferret out the facts. "Make sure you know the Andrews list of ingredients for causation," Rice calls as we pack up.

I tell Louise she did great.

"Worst experience of my life. I was standing up for years."

"But you're golden for the rest of the semester. Rice won’t call on you again."

"If he does, there’ll be a new member of the castrati."

* * *

Week Eleven, Part 7 - Legal Theory Into Practice

If making arguments is the sine qua non of being a lawyer, I’m soon able to use my new-found legal muscle.

On Friday afternoon after my last class, I drive to Overhead Door Company in Mishawaka. There I purchase a garage door opener so that Terri and I will both have one.

Once I get home, however, it seems the transmitter unit in the opener is set incorrectly. The garage door won’t open when I push the button.

I call Bill, the clerk at Overhead Door, and he explains the setting adjustments I need to make. Wella! The door goes up and down like new.

Quite proud of my technological prowess, I test the garage door a half dozen times. Then, suddenly, it won’t close.

I call Bill again.

He says my continuous use has burned out the receiver unit on the motor!

I drive back to Overhead Door to get a replacement part. Bill tries to charge me the full price, $15.00.

“Can't we make a case that I'm not totally liable for this problem," I say. Bill is tall enough to install an overhead door without a ladder, and I’m on eye-level with the ballpoint pen in his pocket.

Silence.

"I know I’m to blame in part, but don’t you agree there’s concurrent causation?”

Silence.

“But-for the transmitter not being set right originally, this wouldn't have happened.”

Silence.

“How about dividing the fault,” I suggest. “I'm willing to be liable for half.”

“All right,” he says. “That’ll be $7.50.”

* * *

Week Eleven, Part 6 - Torts: Latin For Lawyers

In Torts, Professor Charles Rice is chewing through case law at an amazing pace. For the week, including a Monday make-up class, we read and brief 19 appellate decisions. For the most part, the cases focus on the causation element of negligence.

We discuss post hoc, ergo prompter hoc: the fallacy of concluding that since Event B happened after Event A, A was the cause of B.

Then we look at the sine qua non rule: “the act of the defendant without which there would not have been a tort.” Rice calls it “but-for causation” and says it’s the first question in determining liability.

“For example, ‘But-for defendant’s LF, would plaintiff’s house have burned down?’”

We looked puzzled: LF?

“Little Fire,” he says, “as opposed to ‘BF’ – Big Fire.”

We all jot down these symbols, as if they’re vital.

“Suppose Abel starts LF-1 and Baker starts LF-2. Little Fires join together in BF which burns your house down. Who’s liable?”

Several students struggle to answer.

Rice waits. “What else do you need to know?” He answers his own question. “Whether each fire is a substantial factor!”

We nod.

“If so, there’s concurrent causation,” Rice says, “and both A and B are liable. But if LF-1 would've just died out, there’s no liability for Abel.”

Class ends after Rice gives us an overview of market-share liability.

I head home about 6:00 p.m.

As we get supper ready, Terri asks me how school was.

“We learned about but-for causation, sometimes referred to as sine qua non.” I let the Latin roll off my tongue. “To prove the defendant negligent, the plaintiff must show that the defendant had a duty to be careful. That he breached the duty. And but-for the breach, there wouldn't have been any injury.” I’m ticking off the elements on my fingers.

“And?” she says.

“And I was thinking about you.”

She puts down the potato peeler.

“But-for you telling me about ND's reputation for great lawyers, and but-for you reviewing
my personal statement, and but-for you nixing my idea of being a court reporter, I wouldn’t be at Notre Dame Law School.”

“Thanks,” she says. “I did because I love you.”

“Oh I didn’t mean it like that,” I say, poking her in the ribs. “I’m looking for someone to blame!”

* * *