July 2000

Law Clerking Your Way Into the Law

by Peter O'Neil

About a year ago, I did my first closing argument. The trial involved a young man who’d been badly burned when the dump truck he was driving tipped, spilled fuel and burned. We thought we had a good product liability case against the truck manufacturer, but it was complicated by lots of potentially confusing issues. Among other things, the accident happened the first time our client drove the truck, and the defense argued that he had contributed to his own harm by agreeing to drive without formal training. So at some point in the closing I said, "You’ve watched me learn a lot on this job. That’s the way we do it here — people learn by doing stuff."

What the jury didn’t know (and what I longed to tell them) was that I’d started on the case as a paralegal. I’d learned to be a lawyer on the job, spending my days working on big product liability cases, and my nights and weekends struggling with the rule against perpetuities, the Palsgraf case and Marbury v. Madison. I did this as a participant in the Washington State Bar Association’s Rule 6 Law Clerk Program, a program that allows full-time legal workers to study for the bar exam without going to law school.

When I began the program, I was the primary wage earner in our family. I had a wife, two kids and a mortgage. I had no inclination to go into debt to study law. (I saved the going-into-debt part for later, after I became a partner.) The Law Clerk Program allowed me to keep a job I liked and earn a good living while learning the law.

Washington is one of about a half dozen states that still offer people an opportunity to take the bar exam without going to law school. The program is a highly structured four-year course of study that covers every subject on Washington’s bar exam, from torts and contracts to criminal law and community property. You study constitutional law. You study business law. You study real property, wills and trusts, and administrative law. It’s grueling and a little relentless, but it works. In fact, the Bar reports a slightly better historical success rate on the bar exam for law clerks than for law school graduates.

The truth is I never had any particular ambition to practice law. I started down the path by accident after returning from a three-year stint in the Peace Corps. I was a newlywed with a new, albeit small, mortgage. My brother was a Seattle lawyer. He gave me a two-week project at his firm handling some administrative chores. Ten years later, someone delivered a bunch of roses to mark my 10th anniversary with the company. That’s when I decided I had to do something.

By then, I was one of the more senior paralegals. I’d become something of a quiet rumor working with Paul Whelan on product liability cases, most recently a case involving a major truck fire. I enjoyed discovery. I had an instinct for finding needles in the hay and enjoyed sticking those needles into the sides of corporations that I thought were hurting people needlessly.

The one thing that I never entirely enjoyed was telling people what I did for a living. When you tell people you are a legal assistant or paralegal, they wrongly assume that you spend your days setting up appointments or doing mundane research. The truth is you only do those things about half the day. The rest of the time, I got to use and develop an exciting variety of skills. I wrote, researched, interviewed clients and witnesses, and located people. I helped make demonstrative exhibits, did investigations and organized stuff. I helped with document production, traveled, and took videos and photographs. (I once saw one of my videos on the local news. I was mortified to see the disclaimer "amateur footage" superimposed on my work.) I kicked around at accident scenes, inspected crashed cars and trucks, and talked with experts. I wrote scripts for depositions, interrogatories, requests for production and motions to compel. I did all sorts of things. But when I told someone what I did for a living, they always looked sort of bored and said, "So you do research for the attorneys?"

Then I had kids. When I applied to participate in the program I wrote the following: "Daughters can be powerful motivators. My second was born a few days ago. She weighs eight pounds something. Of course I want to feed her and clothe her and help send her to college. I want to be there for her as much as possible. And I want my daughters to know they can achieve their goals. My daughters are a big reason why I’m writing this."

I knew I could be a sharper thorn in the side of those corporations if I became a lawyer. So finally I called the Bar Association and got some information about the Law Clerk Program. I’d heard about it for years, and had been encouraged to apply, but I hadn’t thought too seriously about it. (I always thought of my legal career as temporary.) When the packet came, it all began to seem real. Six courses a year, most of them two months long. The courses were briefly described in the syllabus. I read the material and got sort of excited. I read it again. In the course of a few days I fell in love with the idea. I would study law the old fashioned way, joining Lincoln, Marshall and Oliver Wendell Holmes as a home-schooled lawyer. It didn’t matter if I passed or failed. It didn’t matter if I ever worked as a lawyer. It was enough that I would somehow make sense of what I’d been doing all those years as a paralegal.

That’s what I thought at the time, anyway. So I went to Paul Whelan, the attorney I’d worked with for most of a decade, and asked if he would tutor me. I had an unfair advantage. I knew he’d say yes. We had worked together for a long time and he had generously allowed me to take a major role in many of our cases. A sort of pained expression passed over his face. He hadn’t yet read the material from the Bar Association, but he probably had a notion how much time and work he would have to put into the project.

Every month for four years he or an "assistant tutor" would have to prepare a course outline, talk with me about the law, and then write and grade an exam. Although the program provides some structure and a few guidelines, the tutor is responsible for preparation of the courses and examinations and grading of the work. In other words, it’s a huge commitment.

Paul was lucky in one respect. For much of the time I was studying, we were at a large plaintiff firm. At least seven different lawyers there offered to help me with courses, and it was a pretty impressive faculty. Paul Whelan taught me torts and evidence. I had a private course in constitutional law from Leonard Schroeter. Bill Rutzick taught me civil procedure, and former King County Prosecutor Becky Roe taught me criminal law. At our new firm, Paul Stritmatter helped with the trial advocacy course.

Friends and family also chipped in. A Bellevue attorney, Rosemarie Warren LeMoine, taught me family law, and my brother (now a law professor in New York) took on the courses that no one in our circle of personal injury attorneys knew what to do with, like tax law and corporations.

But for the most part it was Whelan, and he took the job seriously. There would be lists of cases and statutes to read. He grabbed opportunities to talk on case-related drives to Portland and Bend, Oregon. Examination questions were handled in great secrecy and handed to me in sealed envelopes like Academy Award results.

The Law Clerk Program is incredibly well conceived. The first year is composed of six two-month courses, including first-year standards such as torts, contracts and real property. For three years, the proscribed courses come relentlessly: criminal law, constitutional law, U.C.C., corporations, agency, administrative law, one right after the other, with no break for the holidays or spring or summer. Electives are only available during the final year, and by then I didn’t want anything fancy or unique — I just wanted whatever would help me pass the bar exam.

My study halls were Metro buses, exercise bikes, and Starbucks coffee houses. Most Wednesdays, I’d hit the law library for as long as I could stand it. I tended to study on the go, moving from spot to spot to ease the monotony.

All the while, the rest of my life kept moving. My younger daughter didn’t get to see me as much as my first daughter had, at least during the first two years of my program. My wife took an extra load because I would have to disappear a couple of evenings a week to read.

I was never completely at ease. One of the things that bothered me about the program was that I had trouble judging my own progress. I occasionally envied traditional students who were able to see how their grades stacked up against others. My tutors gave me good marks most of the time, but I didn’t quite believe them because they were friends and co-workers who had no curve by which to grade me. I was always at the top and bottom of my class at the same time. Looking back, I think that the ambiguity helped. It forced me to work harder, just in case.

And, although it sounds funny, I think in a strange way that it also helped not to have a regular professor. No one spoonfed me anything. I sometimes spent hours struggling to understand a concept, and then reading cases to make sure I really understood it. Bill Rutzick told me at the start of the course to read 10 or 15 cases a week. I took it to heart and probably destroyed a small forest making photocopies. When I finally did have "real" professors at the bar review course, I knew that the struggle had paid off and that I’d actually worked my way to some sort of an understanding.

Christopher Otorowski was the attorney assigned by the Bar Association to review my progress. He answered our questions and reviewed our monthly submissions. But most of the time he, like the Bar Association, was ominously silent. I remained vaguely paranoid throughout. I kept expecting to receive a letter telling me that I had it completely wrong, that my work was not even in the ballpark, and that I had no chance of passing the bar exam. But instead, I got silence.

In the meantime, I was taking a growing role on our cases. I gained a new feel for legal research, a subject that had always seemed a little frightening to me. I wrote a motion for certification to the Washington State Supreme Court. It was denied. I wrote most of the opening brief that got a major product liability case raised from the dead. (It had been dismissed with prejudice years before by stipulation. Unfortunately, the plaintiff attorney had not bothered to tell his clients.) That same case ended the day before a major sanctions hearing for which I wrote most of the briefs. We did some great discovery during the years that I was studying, and I played a major role in that.

Once an attorney for General Motors saw me whispering a suggestion to Whelan during a deposition and sneered, "Why don’t you just let O’Neil ask the questions?"

"He’ll be doing just that next year!" said Whelan. I was mortified. I was trying to keep things very quiet, afraid the whole effort was in vain.

I tried to keep my own expectations low, but it wasn’t easy. For six weeks prior to the bar exam, I stopped working to concentrate on the bar review course. My wife took the kids on an extended visit with her parents. I lived a monkish life of study, exercise and extremely drab cafeteria food. I administered almost a hundred practice tests to myself, writing each response in longhand and timing the response.

When it came time for the exam, I got myself a hotel room in Bellevue, spent the morning studying, then went for a long jog. I went to bed early. And I lay there, never sleeping a wink, an insomniac for the first time in my life. I had thought I was less than fully invested in the process. I had pretended that was my secret weapon: I would pass because I did not care. I had not spent a dime on law school. It didn’t matter if I passed or failed.

As my daughter says, "Yeah, right."

My handwriting that first day looked like a three-year-old’s, except vaguely psychotic, with dark, shaky lettering. I lived through the day on shots of espresso. I was so exhausted that night that I actually did sleep. After the first 24 hours of caffeine and exhaustion, the second day of the exam felt like a vacation.

It was raining in October when the results were due. Our mailman parked at the corner and started on the other side of the street. I watched him go from house to house. I had absolutely no notion what the results would say. I heard our mailbox bang shut. I grabbed the envelope and sat down. It didn’t matter if I passed or failed.

Yeah, right.

For more information on the Law Clerk Program, see www.wsba.org/lic/faq/rule6.htm.

Peter O’Neil is a partner at the Seattle-Hoquiam law firm of Stritmatter Kessler Whelan Withey Coluccio. Before that, he was a legal assistant for 15 years.

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