Monday, February 8, 2010

Why Not Sue Your Law School?

After all, they taught you how to do it. So do it.

Consider first suing them on a theory of promissory estoppel: you took out all those loans relying reasonably on explicit or implied promises that law school would be a stepping stone to a job decent enough to earn enough to pay the loans back. Whether you were academically disqualified after the first or second year or completed the JD, passed the bar, and still can’t find work, that school has some explaining to do.

Or, try a theory of fraud. St. Thomas University School of Law of Miami is a TTTT that culls routinely 25% of its 1Ls. Thomas Bentey, one of the these disgruntled, culled students, sued St. Thomas U. and others in 2006 for consumer fraud. No details were ever given about a settlement; apparently Bentey walked away from the suit the following year.

No matter what theory, keep in mind that Bentey stepped into a malestrom of mocking and derision from the Blogosphere just for exercising his right to sue. There were two distinct kinds of criticism. The first came from conservative-leaning pundits who thought Bentey had gaul to use the court system simply to say that the dog ate his homework. The other type came from law students themselves, testifying to their own hard work at earning every painstaking credit--Bentey obviously didn’t work as hard as they did.

Since law schools are so fond of also teaching legal analysis, let’s “IRAC” (Issue-Rule-Analysis-Conclusion) a case for both promissory estoppel and fraud. The first is from contract law, and the second is from torts.

If you use promissory estoppel, you’re suing for breach of contract. The elements are 1) a promise; 2) a promise which the promisor should reasonably expect to induce action; 3) the promise does induce such action; and 4) injustice can be avoided only by enforcement of the promise.

1) D: Law schools can always argue that they never make any promises to the students. They might mention statistics, such as “92% of our graduates get jobs within the first nine months of graduating,” but that’s not a promise. Even if they might have even cooked these statistics, it’s a statement not a promise.

P: But a promise, by legal definition, is a manifestation of intention to act, made as to justify a promisee in understanding that a commitment has been made. Law schools finesse their inductees, pampering them with glowing projections of their success stories. The entire package of disinformation is indeed a manifestation of intention to act and leads any reasonable person to believe that this law school is committed to the success of its students--all of its students.

2) D: Law schools can also argue that their spiel in getting law students to come to their schools, which involves a heaping helping of smiles and pats on the back during orientation sessions, as well as sitting in on lectures, is mere custom. Prospective students should reasonably know this, so the law school never realized the student would take the custom seriously and rely on it. Besides, everyone knows that lawyers are tricky.

P: We all should reasonably know that lawyers are tricky, but what about schools? Anyone who grows up in America is led to reasonably believe that schools are honest and will not be tricky about their statistics or their methods--that's the only custom at issue here. Until it becomes customary for schools themselves to be dishonest and this is clearly known to prospective students, caveat emptor in matters of education should not apply to them.

3) D: Law schools can point to many things that induce students into law, from family pressure to greed. Law schools are so competitive, that students apply to many schools and then pick the highest ranked school that accepts them. Law schools can claim that their promises, based on deceptive statistics or otherwise, therefore do not specifically induce a student.

P: In my own case, I showed up at my law school’s orientation and went through my first two months without having spent a dime on tuition. I was testing the waters and wanted to make sure this was going to work out before signing over my life in the form of student loans. It was my law school’s specific assurances that they had my best interests in mind, and I relied specifically on those assurances. If not, I would have walked away from law school without paying after my second month there.

4) D: The elusive concept of justice may always be in the eyes of the beholder, but schools maintain their integrity be preserving the power to cut those students not doing well from their programs. It is a just process to keep students free to make their own decisions--a freedom which includes taking the consequences of their own bad decisions.

P: It is never in good faith to bargain with deception. Puffing may be allowed and is a process of exaggerating the quality of what you are selling, but puffing is always supposed to be recognized as such. Deceiving a reasonable person always shows bad faith, and bad faith is always unjust. The only way injustice can be avoided is for the law school to pay back the money an injured former student lays out for tuition and living expenses.

Then there is fraud. Fraud has nine elements: 1) a representation; 2) falsity of representation; 3) materiality of representation; 4) speaker’s knowledge of the falsity; 5) speaker’s intent it should be relied on; 6) hearer’s ignorance of the falsity; 7) hearer’s reliance on the representation; 8) hearer’s right to rely on representation; and 9) hearer’s consequent and proximate injury caused by reliance.

1) granted: law schools make representations about their schools.

2) D: Although representations about the schools are sometimes deceptive, they are often carefully made to maintain some truth.

P: Here is an example of a claim made by a law school recently during its orientation, which I attended: “among students who maintain a ‘B’ average or better, 80% pass the bar on the first attempt.” That makes the school sound terrific. Keep in mind this school is a TTTT with a low first-time bar pass rate, usually more like 20-30%. If you do the math, based on their very brutal grading curve, 50-70% of their students maintain a “C” average. In their materials, it clearly says “no more than 25%” of their students maintain a “B” average or better. In other words, a class that starts out with 60 students the first year, winnows down to about 35 students after routine culling, and will have two to three students passing the bar on the first attempt. The numbers are clearly deceptive, but accurate. So far, this isn’t enough to prove falsity (although it is a pretty clear indicator that at least this school is being inordinately tricky). Then again, this same school mentioned its “attrition rate” after the first year of 10-20%, when its own description of the grading curve in a book handed out to prospective students clearly shows that it routinely culls 30% of 1Ls. “10-20%” is a falsity. It is typical for a law school to create deceptive statistics, but one can usually find the patently false claims mixed in with these deceptive claims.

3) D: Law schools argue that education is not about bar pass rates, culling, or even about getting a job afterward. It is about instilling a community of legal thinkers in order to develop their own legal philosophies. The only thing material about law school is the education itself.

P: This was the line I was handed when I sat down with the dean of my former law school after being academically disqualified after the first year: “I know you spent a lot of money, but just think of the education you got.” After all those deceptive statistics and promises that induced my reliance in the first place, the law school is telling me that it’s dedicated only to the education, not what these statistics indicate. There are many reasons why I went to law school, including just the joy of learning, but passing the bar and getting a job are clearly material to the decision. At my station in life, I was clearly attempting to better my professional career by signing on to this law school, not just enriching my life with knowledge.

4 & 5) D: Assuming a law student could prove that one of its statements was false, so many numbers were given, a mistake could always be made. In other words, they can always claim they never meant to make a false claim or trick anybody.

P: The real essence of the sleaze of law school is its knowledge that they are not only deceiving and spinning their numbers, but patently making false claims. No one knows better than the law school itself what their numbers are. That they calculate and prepare their deceptive and false claims carefully, reveals their knowledge of falsity, not to mention the level and sophistication of their trickery.

6) D: If a law student has taken the LSAT and researched law schools enough to apply for them, they should be aware of all the information out there available to them and the raw statistics about such things as culling and bar pass rates, let alone about jobs available to graduates.

P: Although it is true that a caveat emptor theory gives the law schools some leeway as to what they can expect their law students to know, this balancing test needs to be taken in context of the fact that no school that collects money from a Government agency in the form of student loans should be making any deceptive or false claims--at all. Law school “rankings” or law school guides published privately are not held to the same standard as the Government. Even if a student knew all the statistics published in law school guides, a law school accredited by the American Bar Association and that is capable of distributing Federally insured loans represents the final, “official” authority of all statistics and information. Students who are generally not accustom to their government lying to them should not be held to a caveat emptor theory.

7) D: Law schools can point out that other factors, such as family pressure or even greed, can motivate a student to study law; but P: clearly students rely on the deceptive and false claims of law schools when choosing where to study. Otherwise the law students wouldn’t bother to spin such sophisticated deception.

8) granted: a law student can chose any law school they are accepted into and they have a right to rely on any pitch the law school gives them.

9) D: Again, the law schools claim there couldn’t possibly be any damages since the law student invariably learns something from the experience.

P: But any student who falls prey to the deceptions and falsity of a law school runs the risk of damaging their professional career for the rest of their life. If any school is not working with honesty and integrity, they must return tuition and any other expenses that a student incurred. If a career is ruined because of a law school’s shenanigans, they should even collect money for future earnings, based on the careers they were promised by the law schools in the first place.

These are certainly not the only two theories from which a prima facie case could be made. Other torts, such as misrepresentation, could be similarly applied.

However, another significant factor comes into play: the 11th Amendment, as demonstrated in Lupert v. California State Bar, 761 F.2d 1325. Lawyers are all officers of the court and must be given the freedom to make statements in the course of their work even though they might be distortions of the truth. Of course, this type of immunity was granted to officers of the court so that they can participate in the adversarial justice system: a lawyer could not get far if he or she was sued every time someone was accused of committing a crime or having bad character.

Still, I was shocked with the issue of the 11th Amendment as used to defeat the plaintiff’s case in Lupert. 11th Amendment immunity is granted with the intention of justice being served in a court of law, not so that lawyers can run law schools on the side and make big bucks on extracting tuition from gullible young lawyer wannabees.

Lupert also states that no one has a right to be a lawyer. It is a case about a woman who fails the California “Baby Bar” (FYLSE) exam and complains that the test is too difficult, with a pass rate of only about 20%.

Perhaps no one has a right to be a lawyer, but if the law is to be respected, it needs to practice what it preaches. Lupert may not have had a good case, but I do believe Bentey probably did.

Unfortunately, lessons about life in the real world will show anyone trying to change the system that social activism is required, even if the legal case is sound. This is, after all, the same court system that hung witches in 1692, and protected and enforced the South’s racist policy of segregation for almost 100 years after the American Civil War.

We live in a competitive society that often ties itself up into knots trying to determine who should advance and who should be “fired” (as Donald Trump famously appears to draw pleasure from saying). I’ll always root for justice when it plays a role in this process, but justice for our justice system is an issue that gets complicated quickly.

If you must, sue your law school, but expect the same results as Bentey got, no matter how good your case is. Law schools, which are a part of the legal system, require pressure from the outside if change is to occur. So at least let’s keep blogging about them.

1 comment:

  1. The schools will do everything they can to keep the cases from going to trial. The blogosphere is really the last plea to the future students.