The Nonsense Factory by Bruce Cannon Gibney is a scathing critique of the American Legal System. A venture capitalist and former big firm litigator, Gibney knows his subject.

There is a lot to criticize in the legal system starting with law school, and Gibney touches on most of it. His criticism of law schools is pointed, but in a funny way:

American law schools have settled for the worst of all worlds–an abstracted research faculty presiding over an outmoded trade school. The results have not been good….Many students flub the bar exam and will never practice law, while the rest require years of expertise before they can produce competent work on their own….American law schools, then, are something of a bust.

Many students, even from relatively good schools. fail the bar exam–a test for which law school does not really prepare them…Naturally, people who should fail do fail. But some people who should pass also fail….

What is consequential is that the bottom half of law schools routinely admit battalions of students who will not thrive…

new lawyers face troubling levels of unemployment.

Gibney does not stop with law schools. He also criticizes the lack of formal judicial training:

one federal appointee, lacking trial experience, was confounded by routine oral motions, scurrying back to chambers to research basic questions that a trained judge could handle automatically; another recently appointed judge in California has been known to solicit advice from colleagues via text message in open court.

There is a chapter on mandatory arbitration, which Gibney criticizes as catastrophic for employees and consumers. But he does a good job explaining not all arbitration is bad:

arbitration arose to serve specific purposes and remains a fair and useful mechanism for the kinds of disputes that occasioned its invention.

It’s clear Gibney worked in a big law firm when he discusses hourly rates and legal fees:

Clients might accept the risk of minor imperfections, but lawyers won’t and can’t. For junior lawyers, a mere typo can be a source of profound embarrassment, while a substantive mistake is seen as a potentially career-ending disaster….Opponents will gleefully exploit any blunder, and law’s adversarial culture is so deeply entrenched that even senior partners revel in exposing mistakes made by their own teams, however trivial.

Unfortunately, this is 100% true. I also suspect it has spilled into the judiciary as lawyers who worked in this culture became judges.

Much more than when I began practicing in the early 90’s, litigation has become an exercise in dodging trap doors that allow cases to be decided on issues other than the merits. While most of these trap doors–such as pre-suit notice requirements–apply to plaintiffs, many also apply to defendants. Too many cases are decided based on what happens during litigation, as opposed to the underlying dispute.

This is bad for litigants, impedes the public’s trust in the judicial system and makes practicing law miserable. And it will get worse before it gets better.

Gibney’s critique of the legal system is the best I’ve read. The only drawback is he’s light on solutions. For that, I recommend David Tunno’s Fixing the Engine of Justice, which I reviewed here.

In summary, The Nonsense Factory is an enjoyable and thought-provoking read that I highly recommend.

  • Pieter T

    Based on the quotes about law school, the author has a finger on the pulse. With respect to just black letter law, the number of underprepared graduates is troubling. The bar exam is often condemned as too difficult, sometimes rightly so. More often, however, the correlation between candidate profiles and performance is easily predictable. Abstract teaching does little to assist the underperforming student, especially where attrition is virtually zero in light of the role it plays in rankings.

    As for litigation, agree its now too often a gotcha game.