Tuesday, August 29, 2006

Swanner: What Should They Teach at Law School?

This post is part of the series of guest posts addressing various authors' views of what should be taught in torts courses.

Dave Swanner is a plaintiff's attorney with the second trial related blog in the country, SCTrialLaw.com. He's a sole practitioner and used to teach interrogation for the Army.


Hmmm...... How about how to be a lawyer? I think that would be a good start. The Socratic method was fine in 1900, but by 2006, don't we have better learning methods?

I went through a year of Contracts class and never saw a contract. I went through a year of Estates and Trusts and never saw a single will or trust document. I sat through an Employment Law class and have no idea how to file or defend an Employment Law action.

I sat through a full year of Corporations, yet had not seen any of the basics of incorporating a business or the typical problems facing a business that they might need a corporate lawyer for.

Seriously, shouldn't law school do more than teach you the law? Shouldn't it teach you to be a lawyer? Medical school teaches their students how to be doctors. Business schools teach their students how to run businesses. People with degrees in education learn how to be teachers.

The socratic method allows a large number of people to be taught by asking them to divine the messages of the cases and then the professor runs through hypotheticals changing the facts to see how that would change the case law. 

I went to law school in the pre-internet days. Where the black letter law was not available. We spent a lot of time reading cases. I think that's important. But what is also important is learning how to apply the rules in the book to real life.

I think after the basics are learned, that the class can work on group projects. Bringing an action and defending an action. You can learn things from both sides. What would those group projects entail?

The plaintiff's side reviewing a series of cases, to determine which ones they want to represent. One of the ideas being, for the students to learn some of the rudimentary functions of case selection. Whether there are damages, liability, and an ability to collect. It also would not hurt to be able to assess the potential client as well. Some people are their own worst enemies and submarine their own cases.

Once a case was selected, both sides could pick from potential witnesses. Specially prepared 'depositions' can be provided to them based on which witnesses that are picked. The facts could be balanced so that neither side has a slam-dunk.

Then based on the witnesses and depositions, the plaintiffs side can identify their damages, and what is needed to do a case workup for their client. The defense can focus on liability aspects and what will be needed to do a case work up on their side.

The sides can prepare opening statements and closing arguments. If there is time, you could role play the witnesses and have either the teacher or the class vote on who would win and what the verdict should be. Or for real fun, bring in some volunteers from the real world, pay them $50 for the afternoon and have them listen to both sides and watch them deliberate.

I am talking about more than doing a mock trial as in moot court. I'm talking about learning how to do a case workup. How to learn what's important, what's not important, what some of the pitfalls are and what can be done about them. Packaged the right way, this can be done without an emphasis on the oratory skills. I want the students to learn what they should be doing, even if they have don't yet have the experience to perform at a high skill level.

I used to teach interrogation for the Army (this was back when we followed international law and were aware that torture didn't work). Our instruction was half platform instruction and half roleplaying. Actively role playing interrogations was a much better way to teach the students than lectures. We had pre-packaged information for the students to learn, but that wasn't too challenging. After all, they were still student interrogators.

I've attended may fine ATLA seminars where they have had sample information, pre-packaged information, including witness statements, expert reports, photographs... to give everyone a balanced program to work from and that everyone would be working on the same sheet of music.

I think law school should do more than teach the law. Law school should teach their students how to be lawyers.

http://lawprofessors.typepad.com/tortsprof/2006/08/swanner_what_sh.html

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