Civil Litigation: The Truth, The Whole Truth And Nothing But The Truth

Well, even the New York Times is reporting what a dismal choice law school tends to be for so many would be attorneys these days.  Read all about it here.

My favorite passage in this story is this quote from a jobless law school grad who owes 250k :

“It’s a prestige thing,” he says. “I’m an attorney. All of my friends see me as a person they look up to. They understand I’m in a lot of debt, but I’ve done something they feel they could never do and the respect and admiration is important.”

I had a root canal done yesterday and I really appreciated the roar of laughter that paragraph elicited from me.

I have written several posts in the hopes of giving people thinking of law school some idea of the debt ice berg they are probably sailing towards.   This is the start of a series to give some idea of what the practice of law tends to be in reality, rather than in theory as set forth in law schools. 

For those who wish to persist in becoming attorneys, and who are thinking of becoming civil litigators, the video at the beginning of this post is much closer to what you will spend most of your time doing than anything you will experience in moot court.  Oh, you will spend time in court:  endless status hearings and pre-trial conferences will eat up quite a bit of your time, along with motion hearings, often dealing with fairly petty aspects of the case. 

If you are  really lucky you may even get to go in front of a jury once or twice a year.  Then you hope that your litigation skills haven’t atrophied too much since you last had to use them.  (That is one reason why I still do some criminal defense work:  more frequent trials.)  I would estimate that for every hour I have spent in trial in a civil case, I have spent at least 100 hours dealing with the type of junk discovery referred to in the video. 

The vast majority of civil cases of course never go to trial but are settled.  An attorney can gain a reputation as an experienced litigator and see precious few trials that go to verdict in his career.  Something to contemplate for law students who, as I did when I was a law student,  find trial work enjoyable.  Criminal defense work tends to have more trials, but that area of practice has problems of its own which we will explore in a future post.


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Donald R. McClarey

Cradle Catholic. Active in the pro-life movement since 1973. Father of three and happily married for 35 years. Small town lawyer and amateur historian. Former president of the board of directors of the local crisis pregnancy center for a decade.


  1. Is there any avenue more appeasing for the young law student today?

    I’m planning on starting in the fall. Preliminary plans were that I’d maybe focus on Con Law, and/or estate planning/tax?

  2. I have always had a deep love for Constitutional Law and have found it almost completely useless in the actual practice of law, outside of my criminal law practice. Tax law there is always a demand for, especially if you also have an accounting degree. Estate planning less so, unless you are dealing with very large estates indeed. In reference to Constitutional Law, a firm that specializes in appellate work would be the ticket, although there aren’t many of them. Most large law firms will have a section devoted to appellate work, but do not count on landing a position with such a firm in this economy. I would spend the summer with a law firm if at all possible seeing what they do. If it doesn’t cost them anything, I think you will find that a lot of attorneys wouldn’t mind showing you the basics of what they do. That is a piece of advice I would give to every would be attorney. A state’s attorney’s office or a public defender’s office would also be a great place to observe quite a bit of actual court room procedure. Cout hearings are usually open to the public. Just sitting and listening would be beneficial if not inspiring.

  3. My own observation is that foreign language skills are in heavy demand for law grads and paralegals. Immigrants, especially those with poor English skills, stay away from police, the criminal justice and the civil courts. If immigrants were to contact lawyers with the same frequency as fluent English speakers, there would upswing in business, so lawyers who communicate well with them are well-positioned to reach out to that untapped market.

  4. My wife has a master’s degree in Spanish and is fluent in that language, as well as a few other languages. She has assisted me with Hispanic clients in the past, and knowing Spanish would be a plus for attorneys in areas with a heavy Hispanic population. I have received referrals from Hispanic clients I have represented in the past, and that is a market that can be tapped by an enterprising attorney.

  5. I, too, love learning about, reading, teaching, etc. constitutional law. I have never used it in practice in six years. Most con-law cases come up to bigger firms or specialty defence firms (Alliance Defence Fund, for instance), or indirectly, as when I had a client sued in Texas with little to no jurisdictional contact with the state.

    Tax is likely to land you a better position than con-law. If you enjoy the tax, and especially if you do well and go on and get an LLM in tax, you will likely be hired, and maybe even by a tax consulting firm (Deloitte, for instance). Estate planning is up in the air right now – the law changes by the day, and is becoming increasingly complex. Many firms do not view it as a “money” area of the law, and do not devote resource to it. I interviewed with two firms where there one and only estate planner was retiring, and they were not interested in the estate planning aspects of my education despite that fact.

    In this day and time, I would seriously consider avoiding law school. The market is flooded, and the nearly 100k in debt that most students graduate with comes up VERY quickly.

    Speaking of con law – Donald, did you ever get a look at my video on Xtranormal? (I keep pushing it, because I think it’s good – no legal ego here….much….. :P)


  6. “In this day and time, I would seriously consider avoiding law school. The market is flooded, and the nearly 100k in debt that most students graduate with comes up VERY quickly.”

    Amen. I would only go to law school today on a full ride scholarship, if the military were paying for it, or I had a parent willing to pay for it. I graduated in 82 with only 7k in debt, and I paid for the entire thing through loans and part time work. The days when it was possible to pay for a large portion of law school through part time work are as dead as Julius Caesar unfortunately.

  7. Thanks, Donald!

    BTW, I am a solo practitioner because of a law firm layoff, running my own firm since January, 2009. I can confirm what you say about trial work. I would add that if one is interested in courtroom work, doing domestic work will result in being in court quite a bit. I defend against forced adoptions as an appointed attorney, work in divorce matters, custody matters, and so on. The work is steady, but usually consists in “one offs” – non-repeating clients, and can be very gut wrenching.

  8. Ah family law, Jonathan, the bane of my existence! I am often appointed to be GAL for children in dissolution and adoption cases because I am “good with kids” in the words of one Judge who appoints me to such cases. Seeing kids go through that mill is indeed gut wrenching. I often threaten to refuse appointments and sometimes do, but usually I accede thinking I can do some good for the kids, although often I wonder if anything good ever comes from cases where the law attempts to sort out the fallout after parents decide to go to war with each other.

  9. The most I have used Con law as a civil litigator in the past 16 years has been in combox arguments. Occasionally (like maybe 7 times in the last 16 years) I have had a motion to dismiss for lack of personal jurisdiction.

    I would imagine criminal law practices would run into con law issues more often. My typical day is spent figuring out how not to answer discovery and looking through thousands of pages of irrelevant documents to find the 5 or so that really matter. Oh, and drafting the same motion to compel/response to motion to compel over and over and over again for each case. I love my life.

  10. People who wish to attend law school cmatt would benefit from hearing what attorneys really think about practicing the law, a staple of conversation whenever attorneys gather. We give them only a taste of how unpleasant the practice of law is for so many of the brethren and sistren of the bar.

  11. “but usually I accede thinking I can do some good for the kids, although often I wonder if anything good ever comes from cases where the law attempts to sort out the fallout after parents decide to go to war with each other.”

    I have had debates with people on this very issue, concerning the law and courts. We usually reach a point where we agree that there is very little the law can do. One fellow (a lawyer and counselor) with whom I dicussed this (not a Catholic), said that the parents had to try and co-parent – that is, had to try and do whatever was best for the children regardless of their feelings for each other.

    Given ToTB and other writings recently, my own thought is that the parents hate each other because what is going on is really the attempted murder of a third person, the married body, and each parent hates the other because they blame the other (usually unjustly) for the death. In addition, as the law does not take fault into account, people’s sense of injustice is aroused because while one parent may have stayed with the child, worked hard, been sober, not cheated, the other parent may STILL get custody because of a better job or keeping the house, or whatever, and rage arises because, truly, it is unjust to reward misbehavior and bad parenting.

  12. Back when I practiced law, I worked on exactly one case that involved a Con Law matter, and that was as a summer associate in which I wrote an extensive memo on the Lord Mansfield Rule for the partner who was lead counsel on a case in which a man with whom a wife had an affair before reconciling with her husband was trying to assert his paternity over a child that may or may not have been his. Beyond that … zip. Big-time Con Law matters are just far too rare an occurrence to decide to practice law in hopes of doing Con Law stuff. I suppose constitutional issues arise more often in criminal matters, but hardly the stuff to write home about.

    Donald, didn’t you post one of these videos a few months ago in which the experienced attorney told the young lady who was thinking about law school that, unless you went to Harvard or Yale and graduated at the top of your class, you had a zero percent chance of ever doing extensive Con Law work? That’s probably a 100 percent accurate assessment.

  13. I suppose it’s also pretty darn difficult to make it to the academic side of things as a law prof?

    I’m going to have to seriously weight scholarship money in my decision of where to go. Applied to 10+ schools, 5 of them top 14, 7 or 8 of them top 20. The tension, then, is that the lower ranked school is likely to give me more money, and the higher ranked school is likely to land me more opportunities and greater earning potential. This is terribly general, but which side would y’all tend to err on: better ranked school or better scholarship package (while still being “tier 1”)?

  14. Francis,

    If you want to teach or pay back debts with any rapidity, go to the highest tier school you can, and graduate in the top 10% or better of your class. Be on the law review and publish articles. Then, you might have a chance at a good firm position or clerkship, and might have a chance of teaching afterward.

    If you plan to practice with a small firm / local firm, or solo, then don’t amass the debts, and get as much scholarship money as possible. Still try and graduation in the top 10% of your class, though.

    Good luck!


  15. “Donald, didn’t you post one of these videos a few months ago in which the experienced attorney told the young lady who was thinking about law school that, unless you went to Harvard or Yale and graduated at the top of your class, you had a zero percent chance of ever doing extensive Con Law work? That’s probably a 100 percent accurate assessment.”

    I did Jay and I would agree with the sentiment. One of the many problems with the law as a career is that what attracts people to it, is almost always not what they will be doing to earn a living. Fiction is partially to blame, usually giving a completely false view of what an attorney actually does. Of course I can just imagine people aching to watch a television show about a bright young attorney and her adventures working 80 hours a week at a major law firm and touring some of the more elegant document warehouses in the country in a never ending search for documents in cases that no one ever will read. As the season cliff hanger she gets to attend an 8 hour deposition to hold the briefcase for the attorney giving the deposition. Must see TV!

  16. Must see TV!

    I also blame John Grisham. Did he write the Pelican Brief? The only thing worse than trial court litigation is appellate work. Your life is more in danger from paper cuts than any mind blowing argument you might come up with or secrets you may unearth (yeah right – secrets after 5 years of discovery and a two week jury trial and if it wasn’t entered into evidence it doesn’t exist in the appellate universe anyway). And Westlaw/Lexis has made things only worse. Nothing more disheartening than crafting what you think is a well pointed issue search only to come back with 1,345 results (only 4 of which will actually be relevant)! Oh joy! Or worse – nothing in your jurisdiction, so your boss suggests you do an ALLSTATES search. Why? Because you CAN, that’s why. Even though you seriously doubt a state court judge in Oklahoma is going to care much about a Puerto Rican magistrate court judge’s opinion on the intricacies of other insurance clauses under Florida law (by the way, you, not your boss, will be the one arguing said golden authority before the court if it ever comes to it – good luck with that).

    As we pan back to our hero still in front of his PC reading the 347th case from his search (tune in next wek when he decides to use the “focus” feature!!).

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