An Almost Perfect Interview for Legal Internship

September 23
(Wednesday)

The interview with the Kerber Wright firm would be different. I had a plan. The lawyer who had argued LaFleur before the Fifth Circuit Court, April Newton, worked for Kerber. If I could just show her my casenote, I thought, I’d have a decent chance of a job offer. No, this wasn’t going to be just another interview; this was going to be a conversation, a meeting of minds. We were going to discuss legal theory in practice. What other recruit could do that? I read through my casenote one more time, mak­ing minor changes, and brought a copy with me to the interview. If I could just pass it along, April Newton might put in a good word for me with the Hiring Committee, I might get an invitation to the firm. I might get to meet her. She might be interested in taking me under her wing.

The two people who interviewed me had been with Kerber for six and eight years, respectively. The woman had returned to law school several years after receiving her undergraduate degree, working for a Texas firm for a year before joining Kerber. I defused questions about my out-of-state roots by asking if she was a lateral hire. She admitted that she had followed her husband to New Orleans.

“You studied English,” she said. “Why did you leave?” She looked at the man as if to say: Why would anyone want to give up reading novels all day for this?

“I enjoyed it,” I said. “It was something I wanted to do. I had the chance to teach.”

“Oh, you taught,” she said, looking again at my resume.

“I taught English composition at Ohio State for three years.” I went into a little soliloquy about graduate school, a speech now quite prac­ticed: the challenge of keeping the attention of eighteen-year-olds, my own work in rhetoric and composition under one of the giants in the field. It was a background I knew would serve me well, I enjoyed it, but I always knew I’d eventually be a lawyer.

“Are you interested in First Amendment law?” she asked.

“Does your firm do much First Amendment law?”

“Not really,” she admitted. “We used to have the Times-Picayune for a client.”

I just nodded.

“What can we tell you about our firm?” she wondered.

Now I had my chance. “I have a writing sample I’d like to leave you,” I told her. “It’s a casenote on LaFleur, a case April Newton argued before the Fifth Circuit. I thought perhaps you could pass it along.”

The woman looked at the man. She looked stunned. “No one’s brought this up before,” she said to him before turning back to me. “I guess I should just tell you. April Newton is no longer with the firm. She left Friday.”

Friday!

“Who handles the ERISA cases?” I asked.

They looked at each other and mentioned a name or two. They weren’t sure. The woman rebounded: “Oh, we have some very good ERISA lawyers,” she said. “You might want to send your casenote to April, anyway. I’m sure she’d love to see a casenote on her case. She’s a marvelous woman.”

The door was open. We were shaking hands. The room across the hall was noisy. The television blared. Children squealed. The woman thanked me very much for coming, promised to get back with me soon.

“I’m glad to have met you,” I said. “Yesterday, when I was interview­ing I took a wrong turn and was grilled for twenty minutes by tourists.”

The woman burst out laughing.

The man smiled.

It was almost the perfect interview.

Almost.

September 24
(Thursday)

Remedies class grinded on with Professor Worth delivering his three typewritten pages of lecture notes three days a week to a class that had dwindled to a core of about fifteen students. Even the Law Review guy who sat in front of me was now missing class frequently. When he returned after a stretch, Worth admitted in an odd soliloquy that “this stuff is really pretty basic.” Then Worth marched us through his prepared material, his questions spiraling forth with a blaze of ambiguity and detachment.

Jose Cadicamo was rarely attending class, and his absences were starting to concern me. When I missed class earlier in the semester, Jose had loaned me his notes. Now, the more days Jose missed, the more of my notes I figured I’d have to pass along in return. I didn’t like the idea of being used to his advantage. While I went to class and worried about looking stupid, Jose was at work making money, gaining legal experi­ence, getting something to add to his resume. When Jose did come to class, he was usually late, striding into the room, the lapels of his suit flapping lightly at his sides. He always glanced toward the podium as he entered and took his seat behind me with a comment and a chuckle. Worth went on without notice.

I wasn’t comfortable with the line of cases we had been reading on reparative and structural injunctions. For a couple of days, I’d been trying to find a few hours to sit down and put some pieces together. One night after dinner, I finally worked my way through the cases, taking notes as I went along, making diagrams of the major argu­ments. I had four pages of notes. Then I read through my notes. I hoped something would click. With reparative injunctions, we faced the same question we had been asking all semester: What is the plain­tiff’s rightful position? In Bell v. Southwell, for example, a county commissioner had won the election but also intimidated a number of minorities from voting. Two years later, the case finally came to court. The county commissioner argued that even if all of the minorities had voted against him, he would still have won the election. The argument failed. The court sought to protect the process, not the result, and it enjoined the commissioner from serving the remaining two years of his term. But what of acts during the two years in office? How much should be undone? The questions boiled down to how much of the plaintiff’s harm resulted from the defendant’s wrongdoing, a question much like proximate cause, which we had wrestled with in torts the year before. Where does legal causation stop? The answer isn’t in physics but rather in human judgment. It’s what law professors call a policy question.

Structural injunctions were different. Here, we encountered what the casebook called the two traditions of equity. Again, the basic question was the same: What is the plaintiff’s rightful position? The narrow view was that the rightful position is determined by the defendant’s wrong. The wrong we were dealing with in class was deliberate school segregation. The broader view seemed first to determine the rightful position and then to work backward to the result it wanted to reach. By this logic, almost anything a court ordered that tended to bring about the rightful position was appropriate: busing, redistricting, magnet schools ...

***

In Pollution Control, Muder continued to crunch the Clean Water Act into little pieces under the heel of her shoe. The CWA, she was let­ting us know, is a watered-down statute in a world where dilution is an unacceptable means of pollution prevention. Executive Order 12291, signed by President Reagan, had mandated all agency regulations go through the Office of Management and Budget for review. To receive OMB clearance, the benefits of an agency regulation had to exceed the costs. Although Congress had said that cost was only one factor to be considered when the EPA established water regulations, the president said that costs must control. Which branch of our government runs the agency, the legisla­tive or the executive? It was a conflict Muder built up with as much drama as she could muster.

“What is the EPA?” she asked. “Where is it in the Constitution? It acts like the legislative, judicial, and the executive branches.” The EPA was supposed to give the cost of pollution control to industry merely a mild glance when it determined the best available technology required under the Clean Water Act, but once costs entered the equation, they quickly became the controlling factor. The EPA buckled. The weakness of the EPA, according to Muder, was one of the reasons the Clean Water Act didn’t live up to its high expectations.

So what branch of government controls the EPA?

“It’s one of the great unlitigated issues,” Muder said.

But who had the final say on the Clean Water Act? students wanted to know.

Muder shrugged. “EPA figures costs when it makes regulations,” she said.

September 28
(Monday)

Kerber Wright, April Newton’s old law firm, didn’t waste any time in responding:

Dear Mr. Westphal:

Our attorneys enjoyed meeting with you when they recently visited Urbane Law School, and your interest in Kerber Wright is appreciated.

We interview many outstanding candidates for a limited number of positions in our summer program. Despite your impressive credentials, we are unable to offer a position to you at this time.

Again, thank you for your interest in the Firm and for giving us the opportunity to meet with you.

Sincerely,

Robert U. Tinker
Hiring Partner
9365m

As if virtual strangers weren’t giving me enough grief, I was also get­ting news about the drought in the legal market from friends and rela­tives. The year was marked by a media blitz on how bad things were in the job market in general and for lawyers in particular. And most of the major articles found their way into my mailbox. Dad sent articles from the National Law Journal and Business Week. Business Week ran the familiar graph of the bar’s “swelling ranks.” Ray Sharp, a neighbor of mine growing up, sent an article he had clipped from the local business daily. The headline was a real day brightener: “Law firms recruit fewer students, but quality up.” It was the same old song: firms were visiting fewer campuses and law schools were reporting record numbers of applicants. The two Columbus law schools were bursting. Ohio State University’s College of Law had received a record high number of applicants. Capital University was experiencing the upsurge as well. In the middle of the article I discovered why my friend Ray had sent it along. The article quoted Gwen Hollings, one of the lawyers on the Hiring Committee at Gaines, Duncan, Duffy & Gray—still the best shot I had of landing a job in Ohio. Gaines was visiting only 12 law schools this year, Gwen was quoted as saying, down from 18 the year before. Other firms were doing likewise. The number of clerks hired would be down. Although demand was still high for the best and brightest, the competition among those in the middle of the class would be fierce. It was the same old song, a terrible dirty little song I couldn’t shake, that kept playing over and over in my head. Oh to be swimmin’ with bow­legged women …

I had been thinking of Ray Sharp lately, anyway. At times, when I seemed to grasp a point particularly quickly in B.E., it occurred to me that Ray and I had spent our childhood playing board games such as Stocks & Bonds, Mergers & Acquisitions, Tycoon. Ray had since started his own business and was doing well importing replacement casters and selling them mail order to office furniture stores across the country. Perhaps I could learn a thing or two that would be of use to him. Were there ways for him to structure his business differently? What were some of the tax consequences of the partnership? I could at least tell him with a knowing nod, “When in doubt, don’t incorporate.”

It would only be advice. From what I could see, the old adage that one shouldn’t go into business with friends or relatives seemed to be confirmed by the number of cases we read where brother sued brother, long-time friend sued long-time friend. It was sad and ugly and real. Two friends start a business. They thrive. Ten years later they can’t even speak to one another. Brothers are hiring the best lawyers they can to screw the other to the wall. The lawsuits often don’t even
make eco­nomic sense. The business is destroyed. Lives are wasted …

Excerpted from LAW SCHOOL RED INK WHITE COLLAR BLUES
By Kenneth David Westphal
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