Sunday, July 21, 2019
Historically, legal education has been slow to change. The Socratic method dominated (and may still dominate) instruction in spite of teaching experts criticizing its effectiveness. Assessment only recently entered law schools' radars when nearly every other department on University campuses utilized it. Many schools act like formative assessment and curriculum wide assessment are the new iPhone with infatuation followed by falling back into normal routines. Many find it easy to criticize legal education, but can the bar exam bear some of the blame by also evolving slowly?
Law schools know, or at least should know, they need to teach more practical legal skills. From the Carnegie report and beyond, schools heard skill development was necessary. Newly admitted attorneys needed more practice interacting with live clients and practicing in simulation style classes. Many would argue that certain skills, for example negotiation, are applicable throughout practice while another doctrinal class may cover materials alumni will virtually never see from clients. I have many classmates that have never, and will never, handle a secured transaction. The ABA responded to that argument (and a few others) with an increase in practical skills requirements.
The increased requirements help students become more practice ready when entering the profession. However, alumni still have to enter the profession through the bar exam. The bar exam doesn't test the "soft skills" of negotiation, mediation, legal research, or most of the other skills listed in the Carnegie report. The NCBE conducted a practice analysis a few years ago, and one major skill employers wanted was improved research and writing. The NCBE determined a bar exam component on research and writing was impractical, so we still have the traditional essays and MBE. The MBE and essays require memorization of significant amounts of material with highly specialized forms of legal analysis. Not the same type of legal analysis for practice. When the bar exam is an obstacle, some students make logical choices to take more doctrinal classes instead of practical skills classes.
The need for skills isn't the same problem as problematic instruction methods, but the mentality permeates both issues. If the bar exam is perceived to require the same thing now as it did many years ago, then why change teaching methods or curriculum requirements? We can all make the science based arguments why practical skills can ingrain information better, but overcoming years of perception is difficult. Not only that, students perception of the a particular bar class versus a skill can easily tilt in favor of the class. Students tell me all the time they know how to negotiate, so why take the class. The ABA and some legal educators are trying to move law schools in a more fundamentally sound direction. However, the bar exam setup makes changing legal education even harder.
The problem will only get worse. A recent blog post on the Legal Skills Professors Blog discussed a Forbes article that says new lawyers need "[e]motional intelligence, creativity, cognitive flexibility, and the ability to work collaboratively with others." Practicing law is changing. California may allow online legal services that are performed primarily by computers. Our alumni need a wide variety of skills to thrive in practice. However, I am worried the bar exam as it is constructed will continue to prevent legal education from evolving to produce the best entry ready lawyers possible. I hope the new NCBE study will provide drastic changes, but similar to law schools, I believe the NCBE will be reluctant to change.