‘Moneyball For Law Firms’ (Gwen Moritz Editor’s Note)

Malcolm Gladwell has started the fourth season of his podcast, “Revisionist History,” with a fascinating and instructive exploration of the LSAT, the Law School Admission Test. Specifically, he tears apart the idea that a test that strictly limits the time available to address complex problems is the best way to predict who will succeed in law school or the practice of law.

The LSAT, according to Gladwell’s theory, rewards people who read quickly and penalizes those who think deeply. And its structure does not even allow for the test-taker to use time efficiently because finishing one section early does not create more time for another section. The LSAT is carefully crafted so that it does not discriminate based on race or sex, but it is specifically designed to discriminate against equally intelligent people who process their ideas more slowly and carefully — the very kind of thing that can make for an excellent legal mind.

When Gladwell asked LSAT designers why each of the four sections had to be 35 minutes, it was as if he had asked why the sky has to be blue. The sputtering answer: That’s just how it is. While the questions can be changed and tweaked, the format must not be meddled with, because that would create totally different results, and standardized results are what the LSAT produces.

What changing the format would do, Gladwell suggests, is ruin the beautiful bell curve that makes it easy for the top law schools to know which students to admit. And those top law schools — the “T14” — become the de facto employment search committees for the top law firms and for the federal judges and Supreme Court justices who hire the cream of their graduates. Wannabe lawyers who don’t process quite so quickly don’t get into the top schools, so they don’t go straight into the plummest firms or clerkships — even though they might actually be better lawyers.

How do we know this? Well, Gladwell plays audio of the late Supreme Court Justice Antonin Scalia answering a question from a student at Washington College of Law at American University in D.C. Scalia, a Harvard Law graduate, tells this young woman — who is not attending a top-tier law school — that he “can’t afford a miss” when selecting clerks, so he chooses from the law schools that are hardest to get into.

Then he makes this astonishing confession: One of the best law clerks he ever had was “a brilliant guy” named Jeffrey Sutton, now a judge on the 6th U.S. Circuit Court of Appeals, whom he had essentially inherited from Justice Lewis Powell Jr.

“I wouldn’t have hired Jeff Sutton,” Scalia said. “For God’s sake, he went to Ohio State.” (The Moritz College of Law, that is. Alas, no relation.) And Sutton went to Ohio State, he told Gladwell, because he wasn’t accepted by the T14 law school to which he applied, the University of Michigan — presumably because his LSAT didn’t make the cut.

We don’t have to rely on anecdotes to know that top LSAT scores and T14 schools don’t necessarily produce the best lawyers. Gladwell also interviewed Evan Parker, a statistician whose New York firm, LawyerMetrix, practices what he calls “Moneyball for law firms.” That is, he analyzes the factors that combine to produce the most desirable lawyers for a specific practice. His research concludes that where one went to law school — whether among the T14 or elsewhere — is not a predictor of success in a legal career. “Where you went to law school doesn’t matter — at all,” Parker said. “It’s essentially a random predictor.”

My anecdotal observation agrees. I spent five years working for the Nashville (Tennessee) Bar Association, and most of the lawyers I worked with were products of either Vanderbilt (a top 20 law school) or the Nashville School of Law — many when it still had its original name, the Nashville YMCA Night Law School. NSL isn’t even accredited by the American Bar Association, so its graduates have to go through a lot of hoops in order to practice outside Tennessee.

I can’t imagine a single NSL graduate has ever clerked for a U.S. Supreme Court justice, but the NSL graduates I worked with struck me as every bit as smart as the Vandy lawyers, and generally more straightforward and practical. Also more likely to volunteer for community service, like the monthly Dial-a-Lawyer service during which I got to hear how they interacted with the public.

Another thing that doesn’t matter: how much the partners like the recruit. Partners often prefer young lawyers who remind them of themselves — what Parker called “mirror-tocracy” — but that, too, is a poor predictor of success. “Those who are getting higher individual scores are actually less likely to stay,” Parker said.

Email Gwen Moritz, editor of Arkansas Business, at GMoritz@ABPG.com and follow her on Twitter at @gwenmoritz.