Maccrate Goes to Law School: an Annotated Bibliography of Methods for Teaching Lawyering Skills in the Classroom

• Publication year: 2021

77 Nebraska L. Rev. 132. MacCrate Goes to Law School: An Annotated Bibliography of Methods for Teaching Lawyering Skills in the Classroom

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Arturo L' opez Torres*

MacCrate Goes to Law School: An Annotated Bibliography of Methods for Teaching Lawyering Skills in the Classroom

TABLE OF CONTENTS

I. Introduction .......................................... 133
A. Organization and Classification .................... 135
B. Methodology ...................................... 135
C. Selection and Exclusion ........................... 135
II. Discussion ............................................ 136
III. Lawyering Skills ...................................... 138
1. Problem Solving ............................... 138
2. Legal Analysis and Reasoning ................. 145
3. Legal Research ................................ 152
4. Factual Investigation .......................... 157
5. Communication ................................ 159
6. Counseling .................................... 172
7. Negotiation .................................... 175
8. Litigation and Alternative Dispute Resolution
Procedures .................................... 181
9. Organization and Management of Legal Work . . 188
10. Recognizing and Resolving Ethical Dilemmas . . . 189
11. An Integration of the MacCrate Skills .......... 192
IV. Index of Author's Names .............................. 199
V. Index of Subjects ...................................... 204

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I. INTRODUCTION

The question of whether law schools should teach lawyering or practical skills is longstanding (fn1) and steeped in debate.(fn2) Although the debate continues today, most, if not all, law schools have incorporated skills training into their curriculum by offering a variety of clinical or practicum courses that contain lawyering skill components. While doing an excellent job of teaching practical skills, clinical programs are able to teach only a few students at a time and require a significant dedication of ongoing financial resources.(fn3) Moreover, much of the federal funding to support clinical programs has dwindled in recent years.(fn4)Other modes of skills training are needed to supplement clinical instruction. One proposed and feasible solution is for law professors to integrate more practical skills training into traditional law school courses.(fn5) This bibliography compiles those law review articles that explore the teaching of lawyering skills in the traditional, non-skills oriented law courses.(fn6)

Although opinions may differ about what constitutes lawyering skills, these differences are usually a matter of semantics. Typically, the literature enumerates the same basic set of lawyering skills regardless of the source. For example, one author may use "problem solving" to identify a skill, while another might use "problem formulation." (fn7) Rather than spending time debating terminology, this bibliography adopts the ten fundamental lawyering skills outlined in the

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MacCrate Report (fn8) to organize the bibliographic entries. The reasons for this are threefold. First, in drafting the MacCrate Report, the committee conducted a comprehensive review of the literature on the subject, and one may readily assume that the committee developed the ten fundamental lawyering skills based on this review. Second, the MacCrate Report goes to great lengths to define and articulate each skill. Moreover, commentaries providing further information and background on a particular skill follow each interpretation. Finally, the American Bar Association issued the MacCrate Report in 1992, and this recent publication date reflects contemporary terminology. Most legal professionals are familiar with the report and its language.

There were no studies found which attempt to collect articles from the existing body of legal literature on lawyering skill methodologies in the classroom or like setting. It is logical to conclude that little, if any, research has been conducted to examine or classify skills-based articles that focus on skills development in the traditional law school courses. Moreover, with an increased emphasis on skills training in recent years, it is reasonable to direct attention to the legal literature to determine to what degree, if any, this relatively nascent emphasis has been pedagogically recognized or developed.

This bibliography contributes to the literature by distinguishing and examining articles that purport to incorporate lawyering skills training in traditional law school courses. It pinpoints needs or deficiencies in the legal literature. Consequently, it identifies potential lawyering skills that are ripe for discussion or in need of development for particular subjects within the law school curriculum.

This bibliography provides law professors information on how to incorporate skills training into substantive and other nontraditional, skills-related courses. The annotations also serve as a vehicle for the exchange of teaching ideas and techniques among legal educators which, in turn, may enhance the effectiveness of classroom teachers.(fn9) With better teaching, everyone wins-the profession, teachers, and most of all, students.

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A. Organization and Classification

The MacCrate Report's ten "Fundamental Lawyering Skills"(fn10) provide a ready-made organizational scheme with which to arrange the selected articles. This bibliography does not classify the entries beyond the ten skills, although the MacCrate Report breaks down each skill into various elements.(fn11) Entries are classified according to skills explicitly or implicitly considered in the article. The entries are arranged alphabetically within each category by author.

Many articles address two or more of the ten MacCrate Report skills. When this occurs, the citation is cross-referenced in each category it addresses. However, the annotation appears under the predominant skill discussed. If the piece contains four or more skills, it is placed in the final category-Integration of Skills-immediately following the ten lawyering skills. The annotations note any unique features conveyed by the article, such as teaching techniques or methodologies, course descriptions, course materials, and class assignments and exercises.

B. Methodology

Sources consulted for this bibliography are sources traditional to most United States law school libraries. For example, these sources include: INDEX TO LEGAL PERIODICALS, Legal Resource Index (electronic companion to CURRENT LAW INDEX), JLR (Journal and Law Review) database in WESTLAW, and the ALLREV (Combined Law Review File) library in LEXIS. Understandably, the JOURNAL OF LEGAL EDUCA-TION was a fertile source for items pertinent to this bibliography and, consequently, each volume of this publication was reviewed for relevant articles. The initial bibliographic search turned up several hun-dred items. Each was reviewed to make sure it contained the necessary criteria for selection. Additionally, articles cited or discussed in these pieces were checked for possible inclusion.

This bibliography is current as of August 1997. A Uniform System of Citation (15th ed. 1991) was modified to include the author's full name, unabbreviated periodical title, and page length of the article. An alphabetical list of authors and a subject index follow this bibliography.

C. Selection and Exclusion

Articles selected for this bibliography must meet two principal cri-teria. First, the entry must, in some way, consider lawyering skills. Articles about pedagogical generalities or non-skills related teaching

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techniques were excluded.(fn12) Second, the skills must be discussed within a pedagogical context. For inclusion, therefore, an article must contain two elements: (1) a discussion of at least one of the ten Mac-Crate lawyering skills, and (2) a description of how the professor teaches or instills the skills in the classroom.(fn13)

Selection is limited to periodical sources readily available in the United States and Canada. This has no reflection on the quality or relevance of materials published outside the United States and Canada or the non-legal literature. Additionally, book chapters and treatises are not included. Although conference, workshop, and meeting materials may be relevant, these types of materials are excluded due to their ephemeral nature.

Since law professors are the targeted audience, it does not include sources outside the law literature or items written by non-law professors. Also omitted are items discussing general educational objectives, curricular reform, or extracurricular teaching (e.g., moot court competitions), and items that do not describe specific classroom examples or experiences.

Although I have aimed for comprehensiveness, it is possible that I have inadvertently overlooked some excellent pieces and, for that, I apologize in advance. Readers are invited to call any relevant work to my attention for possible inclusion in a future update. Readers should also treat this bibliography as a starting point and are invited to read the text of any items of interest for themselves.

II. DISCUSSION

The main purpose of this bibliography was to review the existing body of legal literature and glean law review articles that examine the teaching of lawyering skills in the context of the traditional law school courses. Relevant articles were grouped according to the MacCrate Report's ten fundamental lawyering skills.(fn14)

This bibliography identified 204 articles which met the selection criteria. Of these, 22 articles effectively combined four or more skills into one course, highly integrating them so that they may not be easily classified into individual skills. The remaining 182 articles were distinctly classified into one of the ten MacCrate lawyering skills.

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