Sunday, December 4, 2011

In response to NYT article, one solo says law schools should continue to focus on theory not "skills"

Although I think law schools can and should do more to teach student practical legal skills, I also happen to agree with this post from in which solo practitioner Carolyn Elefant says that the thrust of a legal education should continue to emphasize theory and analysis over the nuts and bolts of practice which can be better carried-out by software anyway.  Give students good analytical skills and they'll be able to figure out the rest on their own. An excerpt from Solos Don't Need a Separate Education:

You’d think that as a solo, that I stand lock step with the position that law school doesn’t prepare students for the practice of law, particularly for solo practice. But I don’t (even though I do appreciate the shout-out from Victoria Pynchon in Forbes). No, I’m not an apologist for legal education like the academics quoted by Scott – certainly there are many ways to inject reality into the legal educational process. But as a solo – and from what I see all too prominently in solo practice – is that introducing students to forms and how-to’s and checklists won’t do much more than produce human (and more expensive) versions of LegalZoom.

. . . .

The experts quoted in the New York Times article use tasks like filing a corporate certificate or drafting a contract or completing forms or drafting a complaint as an example of the “skills” that law school needs to teach. Yet why do we glorify these tasks that can – and in fact, are performed by computerized, quasi-lawyer services like Legal Zoom. In fact, those solos who aren’t able to do more than fill out forms for clients are either (a) going out of business because they can’t compete with lower priced online services or (b) relegated to volume or unbundled service delivered online which though rewarding or compatible with work life balance, may not generate enough revenue to pay the bills.
. . . .

What’s worse about skills training, however, is that misguided notion that solos need a special curriculum and that they’re not served by what’s currently taught. This misconception pervades both the academy (where Jeff Kahn at Concurring Opinions suggests that there’s no one-size fits all education for Skadden lawyers and solos) and practicing lawyers (Victoria Pynchon takes issue with the relevance of merger checklists when solos focus on bankruptcy, foreclosure and divorce). Are we not all lawyers? Don’t solos need strong analytical, issue-spotting and writing skills?

. . . .

No, law school isn’t perfect but I’m not so sure that there’s a need for structural overhaul either. Most schools hire adjunct professors who are practicing lawyers and offer opportunities for hands-on training through clinics, moot court, internships and skills courses. Integrating practical skills (for example, contract drafting into Contract Law) would improve law school further, as would incorporating discussion of ethical issues into substantive law classes instead of ghettoizing it as an independent unit void of context. But other than that, we – particularly we solos – need to ask whether in a world where knowledge and judgment command the most value, we really want to focus on skills. In short, we should be careful what we wish for – because we just might get it and regret it.

You can read the stuff I've left out here.


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Really? Deposition skills? Trial skills? An understanding of business and management? Negotiation skills? The strategy and tactics of a billion dollar piece of litigation or even a $10,000 slip and fall at Ralphs'? Law professors appear to believe that the "practice" of law entails primarily the filling out of forms or copying complaints, answers, motions, demand letters and the like from someone else's form files.

When "software" can practice law, whoever develops it will have created the most sophisticated set of algorithms since god shaped a couple of dumb lugs out of dust in the Garden of Eden. Legal theory prepares a lawyer to analyze the legal remedies and obligations imposed on an individual or organization and how those remedies and obligations might entitle that person or organization to relief (or to a meritorious defense). It also guides business decisions in the face of rules, laws, and regulations. In order to advise business, an understanding of legal theory is hardly adequate to the task of applying that legal theory to an enterprise attempting to make a profit and obey the law at the same time.

I'm a huge fan of legal theory and academic research because I, like many law students, law professors and lawyers am a hopeless egg head. Let's consider dropping the third useless year of law school and replacing it with the vital information necessary to apply one's theoretical knowledge to the real world problems of the people who seek help from lawyers. Business, counseling skills, management, strategic thinking, marketing, accounting and the like.

To assume legal education provided by people who have never practiced law (or practiced it for so short a time they couldn't possibly have mastered their profession) is, frankly, insulting, to the thousands of men and women who sweat blood for their clients every working day of the year.

Posted by: Vickie Pynchon | Dec 4, 2011 10:48:47 PM

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