Question for practicing Grads: Are Judges Smart?

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manofjustice
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Question for practicing Grads: Are Judges Smart?

Postby manofjustice » Fri Jan 11, 2013 11:18 pm

Serious question, purposefully vague and direct. I notice that a lot of judges, state AND federal, don't graduate from prestigious law schools. Many even graduate from not-very-prestigious law schools without honors.

Now, I know that "not graduating from a prestigious law school" != dumb. That is why I am asking the question of real lawyers.

Well, this matters because a) law professors are very smart. That is a luxury to smart students. But when smart students become smart lawyers, a fellow smart lawyer I know has told me, they can easily become frustrated when their smart arguments seem to go over the heads of less-smart judges and less-smart opposing counsel.

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dingbat
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Re: Question for practicing Grads: Are Judges Smart?

Postby dingbat » Fri Jan 11, 2013 11:37 pm

manofjustice wrote:Serious question, purposefully vague and direct. I notice that a lot of judges, state AND federal, don't graduate from prestigious law schools. Many even graduate from not-very-prestigious law schools without honors.

Now, I know that "not graduating from a prestigious law school" != dumb. That is why I am asking the question of real lawyers.

Well, this matters because a) law professors are very smart. That is a luxury to smart students. But when smart students become smart lawyers, a fellow smart lawyer I know has told me, they can easily become frustrated when their smart arguments seem to go over the heads of less-smart judges and less-smart opposing counsel.

I don't think you'll ever need to worry about this. :P

While most, if not all, judges are smarter than the average bear, some judges are smarter than others and a lawyer may, on occasion, find that s/he is smarter than the judge.

That being said, just because a lawyer thinks their argument goes over the head of the judge (or opposing counsel), sometimes their argument isn't as smart as they thought. But then, that's life. You may find that this thing that you find really clever goes over the head of your boss, or some other smart person, and sometimes it does, but that doesn't mean you're smarter than the other person. It just means that that person missed it.

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manofjustice
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Re: Question for practicing Grads: Are Judges Smart?

Postby manofjustice » Fri Jan 11, 2013 11:39 pm

manofjustice wrote:Serious question, purposefully vague and direct. I notice that a lot of judges, state AND federal, don't graduate from prestigious law schools. Many even graduate from not-very-prestigious law schools without honors.

Now, I know that "not graduating from a prestigious law school" != dumb. That is why I am asking the question of real lawyers.

Well, this matters because a) law professors are very smart. That is a luxury to smart students. But when smart students become smart lawyers, a fellow smart lawyer I know has told me, they can easily become frustrated when their smart arguments seem to go over the heads of less-smart judges and less-smart opposing counsel.

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drmguy
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Re: Question for practicing Grads: Are Judges Smart?

Postby drmguy » Sat Jan 12, 2013 12:22 am

I had a screener with a firm that claimed to suffer from this. My interviewer said some people in his office sometimes lose track of the whole win loss part about a suit. They just go around giving high fives for writing a great brief.

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A. Nony Mouse
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Re: Question for practicing Grads: Are Judges Smart?

Postby A. Nony Mouse » Sat Jan 12, 2013 1:38 am

This is a really weird question. It's like asking, Are people smart? Well, yes - some of them.

And if your argument goes over someone's head, you're not making it very clearly.

(Which isn't to say there aren't idiot judges - there are. But the interesting thing about clerking is that it makes really clear how entrenched each side gets in their own perspective/argument and how much they can miss the points that judges really care about.)

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ph14
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Re: Question for practicing Grads: Are Judges Smart?

Postby ph14 » Sun Jan 13, 2013 2:42 pm

Some are. Some aren't. What they all are though is busy. They don't know the ins and outs of a case as well as you do, so you need to make your arguments clear.

MinEMorris
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Re: Question for practicing Grads: Are Judges Smart?

Postby MinEMorris » Mon Jan 14, 2013 12:48 am

One factor that I think might mislead people into believing their arguments go over the heads of judges and one that is often overlooked is the fact that most trial level judges are very sensitive about being overturned on appeal. When you're a trial judge, your record on appeal can be of equivalent significance to your career and future as win/loss ratio is to practicing attorneys or grades are to law students. I've heard that if you ask a trial judge how many times they've been overturned in the past year, most will instantly respond with an exact number (i.e. they're keeping close score).

If you're making some legal argument that you think is brilliant and novel, then there's a good chance that you're also arguing for something unintuitive (i.e. just doesn't "seem" right), controversial, or hitherto unrecognized. Those are the exact qualities of positions that courts of appeal and Supreme Courts bend over backwards to find a way to shut down no matter how in line with precedent, genius, or whatever else the position is (think cases like Newdow v. Elk Grove Unified). So a smart trial judge that doesn't want to get overturned may decide to reject your argument even if (s)he can't find anything wrong with it, because (s)he feels it is likely that a higher court will find something or make something up to strike down your very novel argument if it seems like the right thing to do.

Similarly, the failure of a trial judge to point out why they've decided to not accept your novel argument is not necessarily an indication that it somehow went over their head. Remember, if a trial judge gives a specific legal basis for a holding, then to get reversed on appeal all that has to be shown is that that specific legal basis was illegitimate. If the trial judge gives no basis, then what has to be shown on appeal is that there exists no legitimate legal basis whatsoever for the judge's position. Needless to say, this causes trial judges to be extremely cautious about providing any sort of reason as to why they reject an argument. In fact, if the trial judge does issue any sort of opinion or ruling, it's usually only to the extent that it is mandated by statute or the decisions of higher courts, and even then they try to leave as much room as possible for the appellate court to save their ruling.

Honestly, I feel very skeptical of the claim that legal arguments by super smart attorneys often go over the head of trial judges. For one thing, I've interacted with quite a few trial judges and I honestly found them all to be surprisingly serious, dedicated, and competent. There were a couple I felt skeptical about, but no more frequently and to no greater extent than I've felt skeptical about the competence of my professors. Second, not to crap on what we all do, but ultimately legal arguments aren't that complex (note that I recognize facts can be very complex, and cases can be very complex since they can involve so many distinct issues, but my sense is that we're talking about specific legal arguments here; afterall, if it's super complex facts that make the argument so difficult, then it's the facts that are going over the judge's head and not your legal argument). Legal arguments are ultimately founded on logic, and even the best and most novel legal arguments can often be broken down into very basic logical forms like modus ponens (if P then Q, P, therefore Q); it's not like we're melting eachother's minds with algebraic geometry hypotheses. Accordingly, I think there's something mistaken about using school/grades as a proxy for someone's ability to appreciate a legal argument, since this is generally not the skill being tested in law school. Instead, law school tests people's ability to generate and contest legal arguments, which really is quite distinct (think of the difference between understanding why a grandmaster chessplayer made a move after he explains it and thinking of the move on your own). The chances are that if you're making a legal argument that another lawyer simply can't understand despite having no reason to doubt the authority for your premises, it's your explanation that is suffering and not the lawyer's intellect.

All of that said, im sure it happens with some frequency that judges are too lazy or inattentive to fully appreciate a legal argument, and some perfectly solid ones thereby go unnoticed. Anyway, I'm not a practicing attorney (sorry, I know that's outside of OPs request), but those are my two bits.

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A. Nony Mouse
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Re: Question for practicing Grads: Are Judges Smart?

Postby A. Nony Mouse » Mon Jan 14, 2013 1:02 am

MinEMorris wrote:One factor that I think might mislead people into believing their arguments go over the heads of judges and one that is often overlooked is the fact that most trial level judges are very sensitive about being overturned on appeal. When you're a trial judge, your record on appeal can be of equivalent significance to your career and future as win/loss ratio is to practicing attorneys or grades are to law students. I've heard that if you ask a trial judge how many times they've been overturned in the past year, most will instantly respond with an exact number-- that is, they're keeping close score.

If you're making some legal argument that you think is brilliant and novel, then there's a good chance that you're also arguing for something unintuitive (i.e. just doesn't "seem" right), controversial, or hitherto unrecognized. Those are the exact qualities of positions that courts of appeal and Supreme Courts bend over backwards to find a way to shut down no matter how in line with precedent, genius, or whatever else the position is (remember cases like Newdow v. Elk Grove Unified). So a smart trial judge that doesn't want to get overturned may decide to reject your argument even if (s)he can't find anything wrong with it, because (s)he feels it is likely that a higher court will find something or make something up to strike down your very novel argument if it seems like the right thing to do.

Similarly, the failure of a trial judge to point out why they've decided to not accept your novel argument is not necessarily an indication that it somehow went over their head. Remember, if a trial judge gives a specific legal basis for a holding, then to get reversed on appeal all that has to be shown is that that specific legal basis was fallible. If the trial judge gives no basis, then what has to be shown on appeal is that there exists no legitimate legal basis whatsoever for the judge's position. Needless to say, this causes trial judges to be extremely cautious about providing any sort of reason as to why they reject an argument. In fact, if the trial judge does issue any sort of opinion or ruling, it's usually only to the extent that it is mandated by statute or the decisions of higher courts, and even then they try to leave as much room as possible for the appellate court to save their ruling.

Honestly, I feel very skeptical of the claim that legal arguments by super smart attorneys often go over the head of trial judges. For one thing, I've interacted with quite a few trial judges and I honestly found them all to be surprisingly serious, dedicated, and competent. There were a couple I felt skeptical about, but no more frequently and to no greater extent than I've felt skeptical about the competence of my professors. Second, not to crap on what we all do, but ultimately legal arguments aren't that complex (note that I recognize facts can be very complex, and cases can be very complex since they can involve so many distinct issues, but my sense is that we're talking about specific legal arguments here; afterall, if it's super complex facts that make the argument so difficult, then it's the facts that are going over the judge's head and not your legal argument). Legal arguments are ultimately founded on logic, and even the best and most novel legal arguments can often be broken down into very basic logical forms like modus ponens (if P then Q, P therefore Q); it's not like we're melting eachother's minds with algebraic geometry hypotheses. Accordingly, I think there's something mistaken about using school/grades as a proxy for someone's ability to appreciate a legal argument, since this is generally not the skill being tested in law school. Instead, law school tests people's ability to generate and contest legal arguments, which really is quite distinct (think of the difference of understanding why a grandmaster chessplayer made a move after he explains it as opposed to thinking of the move on your own). The chances are that if you're making a legal argument that another lawyer simply can't understand despite having no reason to doubt the authority for your premises, it's your explanation that is suffering and not the lawyer's intellect.

All of that said, im sure it happens with some frequency that judges are too lazy or inattentive to fully appreciate a legal argument, and some perfectly solid ones have thereby gone unnoticed. Anyway, I'm not a practicing attorney (sorry, I know that's outside of OPs request), but those are my two bits.

I do appreciate the point about appeals, and judges' desire not to be overturned on appeal. And it's true that something completely novel raises red flags. But the bolded part just isn't true. Trial judges are generally very careful to give reasons why they're rejecting an argument - because you can be overturned for failing to provide a basis for your ruling just about as often as being overturned on a specific argument. Judges don't find anything beyond what they have to resolve the case, which means they often don't resolve quite a lot of issues. But there are lot and lots of contexts in which they have to provide a legal basis for their arguments. I mean, sure, when the court's issuing a 2 paragraph order telling the parties to get their butts in gear and actually hand discovery over to each other, no, there isn't going to be an elaborate legal reasoning. But when the motion or whatever actually turns on a question of law, courts are very careful to explain their legal reasoning.

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Re: Question for practicing Grads: Are Judges Smart?

Postby KidStuddi » Mon Jan 14, 2013 1:36 am

manofjustice wrote:Serious question, purposefully vague and direct. I notice that a lot of judges, state AND federal, don't graduate from prestigious law schools. Many even graduate from not-very-prestigious law schools without honors.

Now, I know that "not graduating from a prestigious law school" != dumb. That is why I am asking the question of real lawyers.

Well, this matters because a) law professors are very smart. That is a luxury to smart students. But when smart students become smart lawyers, a fellow smart lawyer I know has told me, they can easily become frustrated when their smart arguments seem to go over the heads of less-smart judges and less-smart opposing counsel.


It varies. Federal judges are more consistent in terms of "quality" because of the uniform appointment process. State level trial judges can attain their positions in a whole host of different ways that can lead to lot less rigor in the screening process and a lot more variability on the bench.

That being said, your "smart" lawyer friend doesn't seem very smart if they're writing over a judge's head. Knowing your audience is part of being "smart" I would think. If a professor came in on day 1 of class and started discussing some arcane journal article that's related to the course in some manner but way over all of the students' heads, I think most people would say it was the professor being dumb, not the students who had no idea what he was talking about. On the other hand, when a smart professor walks into a room full of students who know nothing about a subject, they find a way to talk to you about it for several months without going over your head. Good legal writing does the same thing.

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reasonable_man
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Re: Question for practicing Grads: Are Judges Smart?

Postby reasonable_man » Mon Jan 14, 2013 2:07 am

It really does depend. Federal Judges (Article III), are usually fairly intelligent. State Court Judges vary. In New York, their is a wide range in the State level trial Courts. Some are really great and some could be a bit better. The selection process in NY is highly political and doesn't always yield the best candidates. That said, it could be way worse too. My biggest complaint about the Courts in NY is not the quality of judges, so much as the time and resources that are wasted by retention of seriously outdated rules and court room procedures. If the NY rules (and practice) mirrored the FRCP and Federal practice closer; the system would be better.

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manofjustice
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Re: Question for practicing Grads: Are Judges Smart?

Postby manofjustice » Mon Jan 14, 2013 2:29 am

MinEMorris wrote:One factor that I think might mislead people into believing their arguments go over the heads of judges and one that is often overlooked is the fact that most trial level judges are very sensitive about being overturned on appeal. When you're a trial judge, your record on appeal can be of equivalent significance to your career and future as win/loss ratio is to practicing attorneys or grades are to law students. I've heard that if you ask a trial judge how many times they've been overturned in the past year, most will instantly respond with an exact number (i.e. they're keeping close score).

If you're making some legal argument that you think is brilliant and novel, then there's a good chance that you're also arguing for something unintuitive (i.e. just doesn't "seem" right), controversial, or hitherto unrecognized. Those are the exact qualities of positions that courts of appeal and Supreme Courts bend over backwards to find a way to shut down no matter how in line with precedent, genius, or whatever else the position is (think cases like Newdow v. Elk Grove Unified). So a smart trial judge that doesn't want to get overturned may decide to reject your argument even if (s)he can't find anything wrong with it, because (s)he feels it is likely that a higher court will find something or make something up to strike down your very novel argument if it seems like the right thing to do.

Similarly, the failure of a trial judge to point out why they've decided to not accept your novel argument is not necessarily an indication that it somehow went over their head. Remember, if a trial judge gives a specific legal basis for a holding, then to get reversed on appeal all that has to be shown is that that specific legal basis was illegitimate. If the trial judge gives no basis, then what has to be shown on appeal is that there exists no legitimate legal basis whatsoever for the judge's position. Needless to say, this causes trial judges to be extremely cautious about providing any sort of reason as to why they reject an argument. In fact, if the trial judge does issue any sort of opinion or ruling, it's usually only to the extent that it is mandated by statute or the decisions of higher courts, and even then they try to leave as much room as possible for the appellate court to save their ruling.

Honestly, I feel very skeptical of the claim that legal arguments by super smart attorneys often go over the head of trial judges. For one thing, I've interacted with quite a few trial judges and I honestly found them all to be surprisingly serious, dedicated, and competent. There were a couple I felt skeptical about, but no more frequently and to no greater extent than I've felt skeptical about the competence of my professors. Second, not to crap on what we all do, but ultimately legal arguments aren't that complex (note that I recognize facts can be very complex, and cases can be very complex since they can involve so many distinct issues, but my sense is that we're talking about specific legal arguments here; afterall, if it's super complex facts that make the argument so difficult, then it's the facts that are going over the judge's head and not your legal argument). Legal arguments are ultimately founded on logic, and even the best and most novel legal arguments can often be broken down into very basic logical forms like modus ponens (if P then Q, P, therefore Q); it's not like we're melting eachother's minds with algebraic geometry hypotheses. Accordingly, I think there's something mistaken about using school/grades as a proxy for someone's ability to appreciate a legal argument, since this is generally not the skill being tested in law school. Instead, law school tests people's ability to generate and contest legal arguments, which really is quite distinct (think of the difference between understanding why a grandmaster chessplayer made a move after he explains it and thinking of the move on your own). The chances are that if you're making a legal argument that another lawyer simply can't understand despite having no reason to doubt the authority for your premises, it's your explanation that is suffering and not the lawyer's intellect.

All of that said, im sure it happens with some frequency that judges are too lazy or inattentive to fully appreciate a legal argument, and some perfectly solid ones thereby go unnoticed. Anyway, I'm not a practicing attorney (sorry, I know that's outside of OPs request), but those are my two bits.


Very enjoyable post.

Credited re: facts being complicated, not arguments of law.

One thing that troubles me re: the law is that it's not that complicated. At least its basic animating rules are not.

But it does seem that mixed questions of fact and law, while not being complex per se, can be very abstract, which is itself a kind of complexity.

But that aside, I suppose a lawyer can still lament that his command of complex facts is superior to a judge's.

Everything said re: clarity in explanation being a kind of intelligence is all credited too. If someone can't explain something complex in a simple way, they might not really understand it themselves. Or, at least they're not smart enough to contextualize something complicated within something simple--which could be harder, or at least more work, than just understanding the thing in its complexity. For sure, achieving only the latter limits insight.

But all that aside, I think my lawyer friend, with respect to opposing counsel, had something more like this in mind: they could sometimes be too dumb to see "all the angles" and therefore were reluctant to settle cases that ought to be settled. Of course, that's an issue distinct from judges.

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reasonable_man
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Re: Question for practicing Grads: Are Judges Smart?

Postby reasonable_man » Mon Jan 14, 2013 9:01 am

MinEMorris wrote:One factor that I think might mislead people into believing their arguments go over the heads of judges and one that is often overlooked is the fact that most trial level judges are very sensitive about being overturned on appeal. When you're a trial judge, your record on appeal can be of equivalent significance to your career and future as win/loss ratio is to practicing attorneys or grades are to law students. I've heard that if you ask a trial judge how many times they've been overturned in the past year, most will instantly respond with an exact number (i.e. they're keeping close score).

If you're making some legal argument that you think is brilliant and novel, then there's a good chance that you're also arguing for something unintuitive (i.e. just doesn't "seem" right), controversial, or hitherto unrecognized. Those are the exact qualities of positions that courts of appeal and Supreme Courts bend over backwards to find a way to shut down no matter how in line with precedent, genius, or whatever else the position is (think cases like Newdow v. Elk Grove Unified). So a smart trial judge that doesn't want to get overturned may decide to reject your argument even if (s)he can't find anything wrong with it, because (s)he feels it is likely that a higher court will find something or make something up to strike down your very novel argument if it seems like the right thing to do.

Similarly, the failure of a trial judge to point out why they've decided to not accept your novel argument is not necessarily an indication that it somehow went over their head. Remember, if a trial judge gives a specific legal basis for a holding, then to get reversed on appeal all that has to be shown is that that specific legal basis was illegitimate. If the trial judge gives no basis, then what has to be shown on appeal is that there exists no legitimate legal basis whatsoever for the judge's position. Needless to say, this causes trial judges to be extremely cautious about providing any sort of reason as to why they reject an argument. In fact, if the trial judge does issue any sort of opinion or ruling, it's usually only to the extent that it is mandated by statute or the decisions of higher courts, and even then they try to leave as much room as possible for the appellate court to save their ruling.

Honestly, I feel very skeptical of the claim that legal arguments by super smart attorneys often go over the head of trial judges. For one thing, I've interacted with quite a few trial judges and I honestly found them all to be surprisingly serious, dedicated, and competent. There were a couple I felt skeptical about, but no more frequently and to no greater extent than I've felt skeptical about the competence of my professors. Second, not to crap on what we all do, but ultimately legal arguments aren't that complex (note that I recognize facts can be very complex, and cases can be very complex since they can involve so many distinct issues, but my sense is that we're talking about specific legal arguments here; afterall, if it's super complex facts that make the argument so difficult, then it's the facts that are going over the judge's head and not your legal argument). Legal arguments are ultimately founded on logic, and even the best and most novel legal arguments can often be broken down into very basic logical forms like modus ponens (if P then Q, P, therefore Q); it's not like we're melting eachother's minds with algebraic geometry hypotheses. Accordingly, I think there's something mistaken about using school/grades as a proxy for someone's ability to appreciate a legal argument, since this is generally not the skill being tested in law school. Instead, law school tests people's ability to generate and contest legal arguments, which really is quite distinct (think of the difference between understanding why a grandmaster chessplayer made a move after he explains it and thinking of the move on your own). The chances are that if you're making a legal argument that another lawyer simply can't understand despite having no reason to doubt the authority for your premises, it's your explanation that is suffering and not the lawyer's intellect.

All of that said, im sure it happens with some frequency that judges are too lazy or inattentive to fully appreciate a legal argument, and some perfectly solid ones thereby go unnoticed. Anyway, I'm not a practicing attorney (sorry, I know that's outside of OPs request), but those are my two bits.



I mostly agree. Often what attorneys perceive as the trial judge “not getting it” is the attorney not doing a good enough job of summarizing the facts and presenting them in a clear and concise way. This is especially true in State Court in New York. The docket is very crowded and you don’t have 10 minutes to explain the facts of your case. Sometimes you have two minutes. Sometimes you have less. Which means you have to make a choice and bring to light the strongest aspect of your arguments and support those arguments with the strongest facts (while being careful not to misrepresent by omission).

The best adversaries I’ve dealt with can do this very well. When I get up in front of a judge and my opponent starts his argument back at the Louisiana Purchase to present, I’m thrilled. Because all he is doing is wasting what little time he has to persuade the Court. That leaves a huge opening for me to step in a suggest something much simpler. Simplicity is king.

TheGreatFish
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Re: Question for practicing Grads: Are Judges Smart?

Postby TheGreatFish » Tue Jan 15, 2013 7:09 am

In my experience judges are generally very intelligent, but also very busy and sometimes even lazy. If a judge doesn't have a clear understanding of the case, it's likely because he didn't have time to thoroughly read the brief or the motion, and not because he's unintelligent.

GeeSure
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Re: Question for practicing Grads: Are Judges Smart?

Postby GeeSure » Thu Jan 31, 2013 8:59 am

I have spent the last five years working for the courts, and what I can tell you, with absolute certainty, is that behind every judge is a team of research attorneys. Your judge might not be smart but that team of research attorneys will make damn sure that he/she looks good. :)

Regardless of what law school you choose to attend it's what you do with the knowledge that you take away from that school that really matters. Some of the smartest people I've worked with graduated from horrible schools.




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