Sunday, May 5, 2013

The Biggest Problem in Legal Education: The Mismatch Between How Law Schools Teach Their Students and What Lawyers Do In Practice

Legal education reformers often criticize traditional legal education because it prepares attorneys to be appellate lawyers and legal philosophers rather than practitioners. It is indisputable that most law school classes focus on appellate practice and that advanced classes (seminars) mainly concern philosophy and theory. Even first-year legal writing classes focus on appellate practice in the second semester. The question then is whether this type of preparation is adequate for the future lawyers of American, or do law schools need to take a different approach to legal education? Is there any educational research that helps us answer this question?

Education research can help us answer these questions. According to one education scholar, "We have learned more about how the mind works in the last twenty-five years than we did in the previous twenty-five hundred." (Daniel T. Willingham, Why Don’t Students Like School 1 (2009)).

Long-term memory is one of the key parts of learning and thinking. Students need to develop ways to retain knowledge in their long-term memories, and they need to develop ways to easily retrieve knowledge from their long-term memories for use in their short-term memories where thinking is done. A single bit of knowledge is stored in a neuron in long-term memory. Complex knowledge is stored in chunks–a single entity, which is an interconnected cluster of neurons. From a neurobiological viewpoint, the neurons are connected by synapses, the process by which the firing neuron sends a chemical signal called a neurotransmitter across the synaptic gap to other neurons. When enough chunks are interconnected, they can provide knowledge organization (or schemas) for an entire domain (such as physics or contracts).

Organization in long-term memory is in relation to how the material is learned, including the context and function of the way the material is being learned. For example, a student could organize a series of cases on due process and personal jurisdiction by the state involved, by whether the court found jurisdiction or not, or by the reasons for finding or not finding jurisdiction. Which of these organizational techniques would usually aid learning best with a civil procedure question? Superficial knowledge organizations, like organizing personal jurisdiction cases by the state involved, do not lead to effective learning because retrieval of that information is difficult in the context in which it is needed. (Organizing cases by state does not help retrieve the information needed when the context is how courts found or did not find personal jurisdiction, as would be necessary in writing a brief.)

Experts organize by recognizing the deep patterns in the knowledge. For example, a law expert would organize a series of cases by the types of reasoning a court used, then organize on a sublevel by the similarities and the differences among the cases. Therefore, professors should teach their students how to recognize deep organizing patterns in material.

Another difference between expert and novice knowledge organization is the number and quality of connections between bits of knowledge. Novices usually have few connections among neurons. Consequently, they often do not make connections among related pieces of knowledge. Experts have many more connections. A professor should show their students to view knowledge from multiple angles in order to create more connections. Showing how to organize knowledge into different organizations also helps students create connections. For example, a professor could have his students organize a set of cases by the doctrinal principle behind the cases, then by the theoretical principle behind the cases.

In sum, "students performed better when their knowledge organization matched the requirements of the task, and they performed worse when it mismatched." (Ambrose at 48) (The information in the four paragraphs above is from Susan Ambrose, How Learning Works 40-65 (2010) and Duane F. Shell et. al., The Unified Learning Model 1-17 (2010).)

Based on the above, one should be able to see the problem in legal education. Legal education mainly teaches students to be appellate lawyers and legal philosophers. The typical lawyer is not an appellate lawyer or a philosopher. Thus, law schools do not teach their students in a way that is best for the knowledge retrieval they will need as practicing attorneys. For example, students learn contract principles in law school, but the typical first-year contracts class does not teach students how to use this knowledge to draft a contract. When a lawyer starts to draft contracts in practice, she will be lost because of the way she has contract law stored in her long-term memory. In other words, the way that contract law is stored in a law student’s long-term memory does not transfer well to drafting contracts. Similarly, Torts may help a student write an appellate brief on a torts question, but the typical Torts class does not provide the knowledge organization to make it easy to draft interrogatories in a torts case. The torts doctrine is not organized in a manner in long-term memory that will transfer easily to drafting interrogatories.

In conclusion, a major problem with legal education is that it is not taught in a manner that allows lawyers to easily retrieve needed knowledge from long-term memory. In other words, law schools generally do not teach their students to be fluent in contact drafting, drafting interrogatories, or many of the other essential skills of lawyers. This must change if legal educators want to produce practice-ready attorneys.

(Scott Fruehwald)

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