Practice or Study

January 23, 2008

K.B., 3L

Should we practice or study? Both. When I was a 1L, Kenji Yoshino gave a short lecture on how to choose your courses. He suggested that you should take clinics alongside relevant classes. So if you take Property, for example, you should consider taking the Landlord/Tenant Clinic the same semester. Indeed, this year I have had the good fortune of taking Family Law with Professor Anne Alstott and practicing family law with Professor Bob Solomon in the Community Lawyering Clinic. And it is true, as Kenji suggested, that your practice informs your studies, and your studies inform your practice.

I have been practicing family law in the Community Lawyering Clinic for the last two years. I have represented clients in public benefits, divorces, custody and support matters, and utilities disputes. Suddenly this semester, I have an opportunity to study these issues in class as well. And every class seems to broaden my understanding of my clients. Last week, for instance, we studied the Personal Responsibility Act, which transformed the welfare system to focus on creating incentives for people to work. Under the Act, cash assistance may terminate if you are unwilling or unable to find a job or at least attend job training programs. Young mothers in this system, however, find it extremely difficult to apply for and obtain jobs. Often their wages will barely be enough to pay for the child care they need during working hours; so their cash assistance is cut off, and they suffer the consequences. I had seen this phenomenon from a client’s perspective, but I had not understood the politics of the larger system. My one client who struggles to balance work and child care to make ends meet is just one of many young mothers affected by the changes of the welfare system.

Similarly, we are in the midst of studying custody disputes in Family Law. We read a transcript of Rose v. Rose, where both the mother and the father called four expert witnesses to testify on their behalf. The extended trial, and the second trial that followed, took a significant toll on their child as he was passed back and forth. We discussed in class whether an adversarial system is the most efficient or the most judicious way to adjudicate custody – does the adversarial system unnecessarily pit one parent against the other to the detriment of the child? Yesterday, I found myself in court representing a mother who wanted her daughter to transfer schools; the father, for no good reason, would not agree. As the father’s lawyer and I argued before the judge about when we could have a hearing on the issue, how many witnesses we would call, whether we should have a family relations mediation process first, and whether a guardian ad litem should be appointed (and who should pay for it) – all of which would delay this child actually transferring schools and would cost the parties and the state significantly – I thought back to the discussion in Family Law. There has to be a better way.

I have tremendously enjoyed practicing family law this year – in part because I understand the issues better; I am able to place my clients and the problems they face in a broader context. Similarly, I am able to place the problems that I face as their lawyer in a broader context; the system itself is broken – not unfixable, but broken. Perhaps there is a broader lesson here; our practices will be richer and more interesting if we continue to read and study the broader context of our field. Understanding the theory, history, and policy of our fields will make us better, more creative lawyers, and will hopefully empower us to make a dent in the systems themselves.