The Great Red & Blue Divide – Does it Produce Better Lawyers?

Recently, I read an opinion piece in the Washington Post by Tess Winston, a third-year student at Stanford Law School, that expresses concerns about a refusal among law students to consider – much less engage with – legal concepts that don’t fully comport with their chosen political camp entitled “With some of my fellow Stanford Law students, there’s no room for argument”. Winston describes “an academic environment with two loud camps, one aligning with far-right politics, one aligning with the far left.” That alignment, in and of itself, raises little cause for concern. Lawyers are no different from other Americans who profess political leanings. The problem is in the students’ lack of respect for their fellow law students, who will someday be their professional colleagues, and in the refusal to participate in valuable academic exercises. Winston writes, “The far-left students have a dismissive shorthand for fellow students whose politics they consider not sufficiently progressive: ‘future prosecutors.’ The message is loud and clear — prosecutors are the bad guys. But also: Be careful what you say.” Winston describes an evidence class as follows: “When two students are given a choice to explain from the perspective of a prosecutor or defense attorney how certain evidence should be entered into the record, the first student almost invariably opts for defense attorney; then the other student makes a joke or a comment signaling displeasure at being stuck with the role of prosecutor.” Similarly, “In other courses, students have refused to argue points made by justices whose perspectives they don’t like.” And, “[i] t’s even worse outside the classroom. Expressing nuance about certain matters — whether on Israel or policing — is essentially taboo for anyone who doesn’t want to invite social ostracizing.”

Let’s dig into that a little further. Suppose Alice Advocate, a law student, wants to be a defense attorney after she graduates and passes the Bar. Alice refuses to participate in academic exercises in which she role-plays as a prosecuting attorney. She also refuses to role-play from the perspective of any judge with conservative leanings. Role-playing does not mean that Alice agrees with the argument she is presenting; instead, it means that, as an academic exercise, Alice is exploring another perspective and expanding her abilities to craft legal arguments.

Alice graduates, passes the Bar, and becomes a practicing defense attorney. In one of Alice’s first jury trials, the judge tends to be more conservative. In law school, Alice refused to consider the point of view of conservative-leaning judges. As a result, in Alice’s jury trial, her arguments continually alienate the judge. In addition, Alice has never considered legal issues from a prosecutor’s perspective and is blindsided by many of the prosecutor’s arguments. Alice has no friends from law school who became prosecutors because she ostracized students interested in pursuing that career, so her social network does not include other lawyers she can call upon to collaborate about her trial who offer a different point of view. Suppose you were the defendant in that scenario. Would you want to be represented by Alice? Or would you prefer to be represented by an attorney who has carefully considered all viewpoints and can anticipate prosecutorial arguments and the judge’s concerns? I know what lawyer I would pick, and it wouldn’t be Alice.

Winston states, “These dynamics are hardly unique to Stanford. My friends at law schools, including Yale and Harvard, have shared similar experiences.” These law students raise the alarm about the legal profession’s future. Some time ago, I wrote a post, “How Did We Get Here?”, about the problematic choices Seattleites faced in an upcoming election for Seattle City Attorney. “As one attorney, former President Obama, noted, ‘[P]rogress doesn’t come when we demonize opponents. It’s not born in righteous spite.”’ I agree with President Obama. The behavior described by Winston contributes to the decline of civility and professionalism among lawyers and also detracts from what should be a law student’s primary goal to learn and a practicing lawyer’s primary goal to achieve –  which is representing our clients at the highest level possible.