Tuesday, September 3, 2013

Professor Robert Condlin on Legal Education Reform: A Reply Part II

This is Part II of my critique of Professor Robert Condlin’s article, 'Practice Ready Graduates': A Millennialist Fantasy.

The major focus of Professor Condlin’s article is the movement to produce attorneys who are practice ready. He writes, "The first of these objections has to do with the meaning of practice ready itself . . . Biglaw differs from small and medium firm practice, for example, government work from private practice generally, in-house corporate work from each of these, and all of them from prosecuting and defending criminal defendants, or representing clients in a neighborhood legal services office. Each setting involves different kinds of clients, different types of problems, access to different levels of resources and expertise, and the need for different types of remedies." While it is true that law school graduates will assume many different roles in the legal world, this fact has always existed. Law schools have had to prepare its graduates for jobs they may not have anticipated doing when they were in law school. I don’t see how this affects "practice-ready" graduates any more than traditional graduates. Law schools have dealt with these problems by having specializations, such as criminal law tracks, litigation tracks, corporate tracks. The same thing can be done with legal education reform.

He next asks, "If the concept of ‘practice’ could be given a single meaning, however, there still would be the question of what it means to be ‘ready’ for that practice." Of course, legal education reformers do not expect graduates to be ready to practice everything when they graduate. It takes years to learn how to handle complex litigation, a complicated merger, or a death penalty trial. To me, practice-ready means that a graduate is able to do the basic things expected of a lawyer in that type of practice and have the skills to grow as a lawyer. Part of the legal education reform movement is to turn out self-regulated learners.

Condlin asserts,  "Are they 'practice ready,' for example, if they can draft a coherent and logically organized legal document, irrespective of the quality of its analysis, or ask a series of understandable and logically ordered questions in an interview or deposition, irrespective of the questions’ helpfulness in the case?"  Absolutely not.  You cannot have a coherent and logically organized legal document in which the analysis is poor.  Similarly, the key to discovery or a client interview is to use doctrine, such as the elements of the cause of action, to help uncover the relevent facts in the case.  In other words, teaching skills is giving students the ability to express analysis in written or oral form and being apply to apply doctrine to practical situations, such as client interviews or depositions. 

He further charges that "Proponents of ‘practice-ready’ education do not seem to understand the difference between socialization and schooling. Socialization is the work-based process of internalizing the habits, values, beliefs, vocabularies, theoretical perspectives, stereotypes, motor skills, and mannerisms of a profession over time. A fully socialized individual is able to use the body of knowledge and navigate the system of norms, practices, and procedures that organize a profession to signal to others that he is an insider and should be treated as such. Becoming socialized in a profession is a long-term process, however, a consequence of repeated immersion in the tasks, relationships, and knowledge of that profession." This statement is completely wrong. First, he doesn’t cite to a single legal education reform scholar who has specifically made this mistake. Second, one of the major goals of legal education reform is to develop students’ professional identity, and there are several articles on this subject. (See here).

He also declares that "It [socialization] has a natural life cycle that cannot be accelerated or reproduced (except minimally) by facsimile experiences in schools." Yet, he doesn’t cite to a single study that says this cannot be done in a professional school setting. Rather, he states, "The problem, of course, is that the time frame of a law school course does not permit this process to play out to any significant extent." How does he know this; has he done a study on this? Maybe a well-designed program could overcome this problem. In any event, legal education reformers do not believe that a law student’s professional identity can be completely formed in law school, but that we are doing the students a disservice if we do not start that process.

Professor Condlin also attacks experiential classes: "But simulated question asking is to actual question asking what batting practice is to hitting in a actual game." Yes, but major league players still take a lot of batting practice. Traditional legal education gives no batting practice at all. He continues, "Real life questioning must take another person’s emotional and intellectual states into account, as well as the parties’ past history of mutual dealing, and the present circumstances that affect a person’s willingness and ability to respond fully and accurately. Simulated experiences can teach technique, but they cannot teach substance." I disagree with this statement, at least in part. A good teacher can overcome part of this problem by helping students become aware of how psychology works in the real world. Reflection can be included in clinics and experiential classes.  In fact, it is a major part of both general education reform and legal education reform.

He adds, "Law schools cannot prepare students to find mentors, coordinate paralegal assignments with other lawyers, share secretaries with partners, secure the best work assignments, work for the best clients, or do any of dozens of other such practical things "on day one of their first full time job." The problem with this statement is that no one in the legal education reform movement is advocating that graduates learn these skills in law school. Rather, we are advocating that graduates be able to apply doctrine to real world problems, be able to draft basic litigation documents, be able to draft contacts, understand what being a professional means, etc.

Professor Condlin also declares that "‘thinking like a lawyer" is the ultimate practice skill. I agree. He goes on to state that "Both in presenting their own work and evaluating the work of others, lawyers use a set of skills they refined (and sometimes learned for the first time) in law school: reasoning analogically, spotting and analyzing issues, synthesizing principles, devising ends-means strategies, interpreting texts, marshaling reasons and evidence to support arguments, and the like. These skills underlie and direct even the most mundane law practice tasks, from scanning a deposition transcript for issues to argue; reviewing a contract for errors and omissions; eliciting witness testimony to support a theory of the case; interviewing a client to determine if he has a claim; choosing a strategy for gaining leverage in negotiation; or making an argument of any sort to an adversary, mediator, bureaucrat, colleague, client, witness, judge, or clerk. Each of these tasks begins with and is grounded in an analysis of the background legal constraints that govern the event under discussion and define the parties’ options. Without an accurate understanding of these constraints and options a lawyer’s behavior would be only coincidentally effective." Again, I agree. My question is whether traditional law school teaching accomplishes these goals well. For example, a study funded by the Law School Admissions Council concluded, "students’ case reading and reasoning skills do not improve as a result of law school instruction." (Dorthy H. Evensen et. al., Developing an Assessment of First-year Law Students’ Critical Case Reasoning and Reasoning Ability: Phase 2, http://www.lsac.org/lsacresources/Research/GR/GR-08-02.pdf, *1 (Law School Admissions Council 2009)) The study also found that law students have difficulty synthesizing cases.

Skills classes include all the thinking skills that Professor Condlin mentions above. The only difference is that we advocate teaching these skills explicitly, rather than using the "hide the ball" approach.

He also asserts, for example, that skills professors teach "boiler plate" questions in client interview instruction. However, skills teachers recognize that skills cannot be taught separately from doctrine.  Every time a skills teacher has a practice interview, a practice deposition, a practice trial, a practice appellate brief, these are put into as real life a setting as possible. He continues, "To be truly effective, the lawyer’s inquiries and analysis would need to be adapted to the circumstances of the case, and to make those adaptations he would need to understand the legal norms that govern the situation and the wide variety of ways in which they could be interpreted and used. There is a direct connection in interview questioning, in other words, between ideas in the head and questions out of the mouth. Questions are the end product of an analytical process that is no less important because it operates below the surface and is taken for granted." I don’t think any skills professor would argue with this statement. I believe that most skills professors take this into consideration when planning problems and overseeing students.

Next, he states, "Becoming practice ready also requires an understanding of lawyer role as much as a command of lawyer skills." Yes. Skills professors understand this, and they try to incorporate this consideration into their classes.

Professor Condlin also remarks that skills have had a hard time being adopted in the law school curriculum. (First, I would disagree with this statement because all law schools have legal writing programs and most clinics.) He notes that "If past curricular reform efforts have been concerned principally with issues of law, politics, and morality, therefore, and have been based on ideas borrowed from other mature disciplines or critical jurisprudential schools of thought, skills instruction has a different focus and a different pedigree. . . . For the most part, it [skills training] accepts the moral and political beliefs of the existing legal world as a given and focuses on how best to achieve instrumental success within that world. Its analytical categories are technical more than political, and its perspective is personal more than systemic. It is a field without its own distinctive Freud-Marx-Jesus debates (and more importantly, without its own Freud, Marx and Jesus), which is to say that it is a field that is not yet completely conceptualized, connected, and grounded." Now we see the problem. Law school concerns politics. Skills are not political, instrumental, or jurisprudential (although they could be) so they have no value in the law school curriculum. They do not involve fairness or justice.

In the end, Professor Condlin objects to having law school focus on teaching students how to be practical lawyers because skills teaching does not focus on politics. He certainly does have a different view of law school than those in the legal education reform movement. However, I think that by focusing on politics, Professor Condlin has undermined his emphasis on "thinking like a lawyer." How does his view of law school being focused on politics go with the "think like a lawyer skills of "reasoning analogically, spotting and analyzing issues, synthesizing principles, devising ends-means strategies, interpreting texts, marshaling reasons and evidence to support arguments, and the like." These mechanisms are what makes law different than politics.

Professor Condlin is also wrong that teaching skills cannot have an effect on justice and fairness. Which is a better to further racial justice: teach a philosophy course called Critical Race Studies or teach a course on racial discrimination litigation that includes a significant skills element?

In sum, Professor Condlin has misunderstood the part of the legal education reform movement that wants to improve the delivery of teaching and learning. First, the legal education reform movement predates our current economic woes; for the most part, its purpose is not to help law school graduates obtain jobs; and it is not fueled by a desire to shift the costs of education from practitioners to law schools. Second, skills classes are not mechanical or superficial. They incorporate doctrine and draw on traditional law school learning as well as learning in other fields. Third, much of what Professor Condlin advocates is shared by legal education reformers. Finally, Professor Condlin and legal education reformers have a fundamentally different view of the purpose of law school. I prefer the view that law schools exist to prepare lawyers to serve society.

(Scott Fruehwald)

P.S. I find it strange that Professor Condlin mentions CLS as one of the areas that has been successfully integrated into the law school. CLS strongly attacks legal education and the existing hierarchy of status in the current law school.  It supports legal education reform, not maintaining the status quo.

P.S.S. I also find Professor Condlin’s emphasis on the Freud, Marx and Jesus debates curious. I thought Freud had been discredited long ago. I don’t see how learning Marx helps one think like a lawyer. Finally, I don’t think Jesus is a common topic in jurisprudence classes.



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