Sunday, February 12, 2017

"Skills for Law Students"

Here's a new article on legal skills training in law school by Professor Jonathan K. Van Patten (South Dakota) just published by the South Dakota Law Review at  61 S.D. L. Rev. 165 (2016). From the introduction:

Teaching skills to law students has been an enduring issue in the law school community, as it should be. The recent decline in the number of law school admissions nationally has stimulated a return to discussion of curricular reform. Law schools have been challenged to make legal education more relevant to the practice of law. While not disagreeing with the need to offer “skills” courses, I have been ambivalent about the terms of the debate. There is an implication that traditional classroom teachers are not teaching skills. It is something like the designation of certain football players as “skill players.” What does it mean when it is said that the quarterback, running backs, and receivers are the “skill” positions? What are the rest, non-skill players? Feeling similarly disrespected, my usual response has been to assert that we all teach legal skills.
At times, the debate has also involved mischaracterization of what legal educators do. A typical assertion is that the curriculum, especially in the first year, is grounded in theory: “Law schools have long emphasized the theoretical over the useful, with classes that are often overstuffed with antiquated distinctions, like the variety of property law in post-feudal England.” The implication is that theory is not useful. I think that most first year professors would characterize what they teach as foundational, not theoretical. Students are taught what they need to know (terminology and concepts) and what they must be able to do (analytical skills) before moving on to the next level of courses, much like the study of human anatomy comes before the study of surgery.
The mischaracterization is compounded in some quarters. There is a widely held belief that virtually no one in law schools teaches legal skills. Some are bold enough to assert this is because law school professors have no practical skills to teach:
Believe me when I tell you that Georgetown taught me next to nothing about how to be a lawyer. The law schools say it is really about “teaching you to think like a lawyer.” The reason law schools offer up this lie is because the great percentage of “law professors” have never tried a case, have minimal experience in the trenches, or came straight from academia. Look at the resumes of these “law professors.” When I review a “law professor” background, I see such articles as “Law and the 20th Century Application Of Human Gravitational Fields To Mobile Phones.” They almost never write about how to solve getting a temporary restraining order without notice, or how you can file an ex parte application, etc. I'd kick their ass in court. They use the same lecture notes each year, preach from the same casebook of stale cases, and get paid $150K or more to teach six hours per week. What a job!
This sentiment, with only slightly less anger, has been expressed from within the law school community:
So people who have never been trained to teach or to do academic research, and who know almost nothing about the practice of law, are expected to teach other people how to practice law, and spend approximately half their time doing academic research. This by itself is a prescription for disaster, but the situation is made considerably worse by the traditional methods of classroom instruction and evaluation used in law school--methods that most legal academics continue to employ.
The so-called “Socratic method,” which involves a professor cold-calling a randomly chosen student and quizzing the student about the facts of an appellate court case, is an absurdly inefficient way to teach people about law. It fills the first-year classroom with significant amounts of fear and anxiety, which anyone who knows anything about educational theory will tell you are exactly things you want people not to experience when they're trying to learn something. And it fills upper level classes with boredom and detachment, as everyone but the student on the spot zones out and surfs the internet on their laptops.
Strong stuff. And the criticism of how law schools have been going about the business of training lawyers is not new.


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