Saturday, November 19, 2011

What They Don't Teach Law Students: Lawyering (NYT)

The New York Times has another article on legal eduction, this time criticizing law schools for not teaching practical skills.  The author bases his article mainly on discussions with law firms. While the article has some significant gaps, I agree that its basic message is correct--that law schools do not produce practice-ready attorneys.

First, the gaps.  While the article mentions clinics, it ignores legal writing, which all law schools require, as well as advanced writing courses.  It also leaves out other skills courses that some law schools have recently added, such as contract drafting and other transactional courses.  It fails to mention the Carnegie Report or CLEA's Best Practices, both of which advocate more practical training.  It doesn't mention the Legal Writing Institute, the Association of Legal Writing Directors, and other groups that have advocated change in the legal profession and held conferences where new approaches to legal skills have been presented.  Although the article criticizes legal scholarship, it fails to mention that many of us in the legal skills area produce practical scholarship, as one can see from SSRN or posts on this blog.

Despite the above, more still needs to be done.  Changes need to be made in first-year doctrinal courses.  These courses should include miniskills, such as exercises in case synthesis, rule-based reasoning, reasoning by analogy, distinguishing cases, and dealing with ambiguity.   (Law is more than analysis of single cases!)  As I mentioned earlier this week, some first year courses, especially contracts, could include drafting exercises.   As Scott Burnham has observed, "I find that, in fact, drafting required the same higher-level reasoning processes as case analysis."

The second and third years of law school should build on the miniskills learned in the first year.  The NYT article mentions that lawyers coming into large firms do not know how to do mergers.  Most law schools have courses in mergers and acquisitions.  Why can't these courses actually teach students to do mergers and acquisitions?  You should learn how to write wills in wills class, an estate plan in an estate planning class, and corporate documents in a corporations class.

Despite the efforts of the Carnegie Report, Best Practices, LWI, ALWD, etc., there has been and will continue to be resistance to change, both by law professors and students.  Since we need to make changes in all law school classes, all professors will have to change their teaching methods, but I think a lot of this can be accomplished by a new type of casebook--a casebook that includes cases, skills exercises, drafting exercises, and practical problems.  (Carolina Academic Press is starting to put out some skills-oriented casebooks, but we need many more.)  Of course, we have to also convince our students to take these courses.  While such courses might require more work on the students' part, they should also be more interesting.

It is well know that there is a law school crisis.  The posting below this one notes that LSAT test takers were down 16.9% last month.  Those law schools that don't adapt to new conditions may not exist much longer.


 (hat tip: Ruth Anne Robbins)

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What angered me about this article is that it paints all law schools pretty much as the same and removes any blame from the employers. The fact of the matter is that schools vary greatly. The problem is that schools at the top don't, but big firms, the subject of this article, only hire from those top schools. If the firms were to stop with their prestige obsession and look at a much broader variety of schools, they'd realize there actually ARE law school grads who know how to practice. It's just they might not come from the Harvards, Yales, and Columbias of the world and may just come from the Drexels, CUNYs, and Northeasterns of the world. Yes, more law schools need to change, but so do the hiring practices of legal employers.

Posted by: David S. Cohen | Nov 20, 2011 11:09:47 AM

Despite appreciating this article's pro-skills slant, I was irked by how the article dismissed instruction on legal reasoning. The article seems to reflect a non-lawyer's misunderstanding of law. While contracts drafting courses are great, the author does not seem to understand that a lawyer will still have to have a good understanding of "Contracts" to draft a contract. The lawyer will also need to understand professional responsibility, legal analysis, evidence, civil and appellate procedure, etc., to know the ramifications of a contract and plan in such a way as to avoid pitfalls.

As an Applied Legal Storytelling scholar, I was also annoyed with this quote, "Still others crossbreed law and some other discipline, a variety of scholarship that seems to especially irk John G. Roberts Jr., chief justice of the United States." By blending another discipline with legal practice, Applied Legal Storytelling scholars have provided practitioners with a means of engaging in the best practice. Applying Legal Storytelling involves another discipline, but as the term "applied" denotes, this theory demonstrates the actual practical application of these two disciplines. For instance, my own article provides examples of actual techniques that can be used to make an appellate brief more persuasive.

Similarly, if a professor were to write an article blending psychology and law, the result could also be advocacy for a better practice. For instance, let's say a writer explored how child protection judges and lawyers re-traumatize children and parents with post-traumatic stress when they hit the trauma button and yell. Such an article could have a number of practical uses. It could lead the child's attorney to a variety of resources that would help the attorney to mandamus the judge. It could lead to CLE on how to cope with lawyers and judges who use abuse tactics to handle a CPS case. It could lead to better judicial practice and so on. The possibilities are endless.

Posted by: Cathren Koehlert-Page | Nov 20, 2011 8:35:26 AM

The Times article paints with a broad brush in an effort to portray a complicated issue as simple. Complicated: How best to train students for a learned profession with widely diverse practical requirements and significant, but varied, market pressures. Simple: Law schools suck.

I doubt anyone has ever thought that even an excellent law school program would create fully practice-ready lawyers. My father, an old lawyer himself, used to say that a lawyer under 30 is an embarrassment. Important aspects of practice--judgment, intuition, persuasiveness, just to name a few--can be learned only in practice. Law schools can do a lot, but the profession is responsible for bringing new lawyers up to peer quality.

Experienced lawyers are no longer willing to accept responsibility for that training, citing client unwillingness to pay for those hours. But this training has always been an essential part of law practice. The profession needs to acknowledge that the billable hour regime has failed.

The reality, which would make for a long(er) and boring(er) Times article, is that legal education and training is complex and difficult. Students must work hard in school to build a foundation upon which to develop more advanced practical skills. Then they must learn those advanced skills after Bar passage, by working with more seasoned lawyers in a real-world context, where real clients rely on them for help.

Posted by: J | Nov 20, 2011 7:12:55 AM

It is likely that students would benefit from a shift in doctrinal courses toward a more active learning style, but many students would resist the greater effort entailed in creating their own knowledge as opposed to learning it from the "sage on the stage." The legal profession likes to blame the law schools for not producing whatever it is that the law firm desires, but the profession suffers from a lack of clinical progression such as British solicitors and barristers tend to enjoy. We do not expect medical school graduates to be able to perform neurosurgical techniques until they have completed a rigorous internship and residency, yet three years of law school is expected to turn all students into Demosthenes, Solon and Cicero.

Posted by: Steve Bailey | Nov 20, 2011 5:42:18 AM

I agree that skills training has come a long way since I graduated from law school in 1983. Back then Professor Burnham's idea of taking time in contracts class to look at actual contracts seemed revolutionary.

While it's true that law schools can do more, the NYT article seems unrealistic in expecting new graduates to be "practice ready." Just as new M.D.s require more training after graduation, new J.D.s should be allowed a period of on the job training. Clients and firms may not want to shoulder the expense, but it's wrong to expect legal education to carry the entire burden.

Posted by: Teresa Bodwell | Nov 20, 2011 12:59:22 AM

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