Tuesday, August 31, 2010

Integrating Lawyering Skills in the Property Classroom

I've been following the debate over on Prawfs Blawg regarding Bruce Newton's paper entitled "Preaching What They Don't Practice:  Why Law Faculties' Preoccupation with Impractical Scholarship and Devaluation of Practical Competencies Obstruct Reform in the Legal Academy."  There have been a number of interesting posts on Prawfs Blawg regarding the ABA's recommendations for reform and possible ways to work practical skills into the academic curriculum.  Certainly not a new debate, but definitely interesting.

I thought I'd post a little bit about the Real Estate Transactions class that I'm developing as I teach this semester.  I posted this summer about my search for a book, and ended up adopting George Lefcoe's Real Estate Transactions, Finance and Development.  This is a really interesting area in terms of books -- they are all very different and I could have easily been happy with several others.  I just received a preview copy of the book by James Durham, Debra Stark, and Thomas White III (Commercial Real Estate Transactions: A Project and Skills Oriented Approach) and it also looks great.   I also toyed with the idea of teaching from the ABA's A Practical Guide to Real Estate Transactions, but ended up putting it on reserve as a supplement.

What I'm trying to do is work lawyering skills into the class as a means of reinforcing the legal concepts.  Real Estate Transactions is a little funny because it isn't a doctrinal class, but it does include doctrine.  But I'm also not teaching a drafting class (not that there's anything wrong with that).

So I explained to the students on the first day that we would first build a foundation before getting to the meat of commercial real estate transactions -- we needed to be on the same page about standard contract law before we could move into this more specific type of contract.  On the first day, I gave them an actual, very complicated purchase and sale agreement for an operating shopping center.  I had them make lists of concepts that were unfamiliar to them, then I compiled those lists into a master list that we will work our way through the semester. 

We then spent a few days working through some material from Tina Stark's Drafting Contracts book, talking about the differences between reps and warranties, covenants, conditions to obligations, etc.  They looked through my sample contract and found examples of those types of provisions, and we talked about them.  I gave them the option of drafting a few simple provisions and then gave them written feedback outside of class.  In class, we spent 15 minutes debriefing to further reinforce the concepts.

Yesterday, I gave them a real residential lease and we talked about the analytical skills that transactional attorneys use to spot business issues, evaluate risk, and then mitigate risk.  Today, they broke into pairs and negotiated certain provisions in the contract, role playing the landlord's attorney or the tenant's attorney.  After each negotiation, we debriefed about the content of their negotiations, what each party was trying to get, what kind of compromise was mutually acceptable, and what terms are enforceable.

Thursday the real work specifically on commercial real estate transactions will begin.  But I think that these first two weeks have been a great investment of time.  They seem very comfortable with the ideas of balancing risk, aligning incentives and control, and crafting appropriate standards, which I think are pretty important in commercial real estate transactions.  The negotiation exercise in particular is one that I think I will use throughout the semester because the students were very engaged as they argued with one another, and seemed to learn a lot during the debrief from the other students.  It also proved to be a great jumping off point for me to work in the substantive points that I wanted to make about landlord/tenant law.

So far, I think that my attempts to integrate lawyering skills into an "academic" class, as a means of teaching the substantive law, have been successful.  Next semester I will teach Property, which I believe will be a bigger challenge given that it is a fundamental doctrinal course. 

I'm very interested in how other Property Profs are addressing this debate.  Do you think that lawyering skills should be taught in separate courses by a separate faculty (as advocated by some on Prawfs Blawg) or should they be more integrated in the academic curriculum (as I am attempting)?  Thoughts?

Tanya Marsh

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I tend to think that law schools need to teach stuff (doctrine, etc) and skills, and that the two need not be taught at the same time. This said, I do think that it is possible to mix both well. Tanya, you say that Real Estate Transactions is not a doctrinal class. Whether or not that is true depends on how it is taught. But I think that even if it is largely taught as a transactional/documents class, the students should pick up some important doctrine along the way. Similarly, even if the first-year property class is largely doctrinal, I think it is possible to bring in some lawyering skills fairly easily. Statutory interpretation, which is often neglected in the first year, can be taught via the FHA. And you can give student some exposure to basic documents – leases, deeds, etc. – in a way that compliments the doctrine. I also have my Property students do a title search, which would certainly qualify as a skills exercise, but that also gives students a much better understanding of how the title system works.

Posted by: Ben Barros | Sep 1, 2010 10:44:09 AM

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