Skills for law students.

Author:Van Patten, Jonathan K.
 
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  1. 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. (1) Law schools have been challenged to make legal education more relevant to the practice of law. (2) 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." (3) 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, (4) 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. (5) 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! (6) 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. (7) Strong stuff. And the criticism of how law schools have been going about the business of training lawyers is not new. (8)

    The ongoing discussion of what law schools should be doing has also involved lawyers who have experienced pushback from clients. A New York Times article on how law firms are dealing with client resistance to legal bills made the following observation:

    [F]or decades, clients have essentially underwritten the training of new lawyers, paying as much as $300 an hour for the time of associates learning on the job. But the downturn in the economy, and long-running efforts to rethink legal fees, have prompted more and more of those clients to send a simple message to law firms: Teach new hires on your own dime. "The fundamental issue is that law schools are producing people who are not capable of being counselors," says Jeffrey W. Carr, the general counsel of FMC Technologies, a Houston company that makes oil drilling equipment. "They are lawyers in the sense that they have law degrees, but they aren't ready to be a provider of services." Last year, a survey by American Lawyer found that 47 percent of law firms had a client say, in effect, "We don't want to see the names of first- or second-year associates on our bills." (9) One result has been increasing in-house training by the law firms before the newly hired associates are allowed to work on actual cases. (10)

    The American Bar Association, through its accreditation process, has weighed in on this discussion with the adoption of new standards requiring the completion of "experiential" courses totaling at least six credit hours. (11) Included in this requirement are now "simulation" courses that would approximate the experience of working on cases, albeit without the presence of actual clients. (12) Michael Roster, writing in a recent ABA Journal column, pushed this idea even further with his "audacious" proposal:

    By 2018, every graduate from a U.S. law school will have the knowledge and skills currently expected of a second-year lawyer or higher and as such can function as a midlevel associate, a solo practitioner, an agency or judicial officer, a junior faculty member or in similar capacities. To achieve this proficiency, every student will have had courses or comparable experiences involving all of the following: traditional substantive law, client skills, social service, advocacy and dispute resolution, government and administrative processes, and teaching and scholarly inquiry. (13) In order to arrive at this outcome, Roster would reform the law school curriculum to bring it more in line with other professional schools, with an emphasis on skills training:

    Every profession has certain substantive knowledge at its core (basic sciences in medical school, for example). But professional school graduates then need to acquire the more advanced knowledge and skills that are required to practice their profession. Professions by definition can't be reduced to a series of rules but involve learning how to constantly make difficult trade-offs and judgment calls. And to assure law school graduates have these skills doesn't make law school a trade school. Rather, it's what any professional school should, at a minimum, be doing. (14) I agree with this, but it should be noted that the program for medical education is not simply four years of medical school. In fact, the medical profession's long-standing judgment is that the medical student is not ready for full-time, unsupervised practice until approximately eight to nine years after entering medical school:

    Part of the reason why a facile suggestion that law schools be more like medicals is not particularly helpful is based on a general misperception that medical schools have traditionally taught practice skills. This is not true. Just as law schools have traditionally been viewed as places of scholarship and research, not as trade schools, medical schools too have eschewed practice skills for an emphasis on the science of medicine. Just as law schools assumed that students would learn practice skills when they began practice, medical schools assumed that students would pick up practical skills during their last two years of medical school in clinical rotations, or during postgraduate supervised residencies working in hospital wards. It is only within the last ten years that medical academics have reconsidered this practice and have only recently begun developing curricula containing direct skill instruction. (15) The extended time required to become a fully functioning medical professional confirms that a long-range view is needed for legal education.

    I find much to agree with in Michael Roster's proposal, preferring his practice-oriented viewpoint to the more bureaucratic emphasis of the ABA on measurement of outcomes. Before going all in on any particular reform, however, I believe it is prudent to assess how well the law schools have been doing in the teaching of legal skills. Without defending all that has gone on under the name of the Socratic Method, I believe that law schools do a better job with legal skills than they are given credit. My purpose with this Article is to reflect on the type of skills that have been taught and to suggest that recognizing and preserving these basic skills will aid the much-needed reform of legal education.

  2. BASIC SKILLS FOR LAW STUDENTS

    Although there is an enormous amount of information conveyed during three years of legal education, law school is ultimately not about information. It is primarily about how to think like a lawyer. No lie. Critics would say this is, at best, a conundrum because how can one claim to think like a lawyer without being taught to be a lawyer? The short answer is that law school is the beginning of a process. Certain analytical skills, or habits of mind, must be developed. A lawyer is a problem-solver and a counselor. There are many things that a lawyer does that can also be...

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