Teach this class!(inclusion of Pretrial Practice courses in law school curricula)

• Author: Eckert, Hope

As legal education moves away from its "Paper Chase" persona, the need emerges to integrate the traditional Socratic approach with "the experience of practice." (1) Pretrial Practice courses serve as a bridge from the theoretical to the practical, focusing on both fundamental skills and effective learning methods. This article provides an argument for the inclusion of Pretrial Practice courses in law school curricula, as well as an overview of how the course works and how it connects the educational process to general practice.

INTRODUCTION

"Honestly, this was probably the most valuable class I have ever taken in law school ... This is a must for any student!" "Fantastic, practical experience."

These comments from students in last spring's Pretrial Practice class validate the vision I had when I asked to teach the course for the University of New Mexico School of Law. (2) My desire to teach this course arose from my own experiences as a law student in the late 1990s, when I felt that there was a gap in that education. Although I appreciated traditional theory classes and their importance, I was constantly seeking opportunities to "practice" law through externships and other real world experiences. But when those opportunities arose, I found I lacked basic knowledge and skills, from an understanding of the progression of a case to writing a complaint, preparing and responding to motions, and getting a case resolved. I wished there had been a course to teach me these steps so that I did not have to scramble to figure them out in real cases. What I was wishing for was Pretrial Practice.

My personal experience and perceived need for Pretrial Practice is borne out by research. Academic research supports the conclusion that Pretrial Practice should be an integral part of law school curricula. Research into what types of skills should be taught in law schools, as well as what methods of teaching best facilitate student learning, help illustrate Pretrial Practice's role.

Pretrial Practice has added value when viewed from a law firm's perspective. While law firms may not expect recent graduates to enter the practice with all of the necessary skills, certain expectations do exist. According to the oft-cited survey by Garth and Martin, (3) over 90% of law firm partners surveyed expect new graduates to enter the workplace with oral and written communication skills. (4) Despite the fact that "[s]uccess seems to require that a lawyer possess these skills at the outset, but they do not primarily come from law school today." (5) In years past, law firms appeared to have a higher tolerance for a lack of these skills, and they appeared to have more time and resources to allow new attorneys to develop such skills. (6) Any assistance the law school can provide to equip students with practical skills will be seen as a benefit not only to the student, but to their potential employers as well. Pretrial Practice is a valuable tool towards this end.

LEGAL EDUCATION NEEDS AND EFFECTIVE PRACTICES

Following the MacCrate Report, (7) a new focus on teaching practical skills has emerged in law schools and legal education scholarship. Educating Lawyers traces the history and direction of attempts to "more intimately connect[] theoretical understanding with practical competence." (8) While some commentators focused attention on the lack of practical skills being taught in law schools as early as the 1920s, law schools impeded those efforts because of their desire to distance themselves from the old apprenticeship model and fit into an academic one. (9) The MacCrate Report is credited with providing a major boost to advocates of preparing students for the actual practice of law. (10) This effort was furthered in 2007 with the publication of Best Practices for Legal Education (11) and its focus on placing the teaching of practice at the center of legal education.

The MacCrate Report identified ten "fundamental lawyering skills" essential for competent representation. (12) One of the suggested purposes of the report was to be a tool for law schools "as a focus for examining proposals to modify their curricula to teach skills and values more extensively or differently than currently." (13) The skills identified were: problem solving, legal analysis and reasoning, legal research, factual investigation, communication, counseling, negotiation, litigation and alternative dispute-resolution procedures, organization and management of legal work, and recognition and resolution of ethical dilemmas. (14) Thus, the natural and necessary response to the report and the skills upon which it focuses is the integration of Pretrial Practice courses into all law school curricula.

Best Practices (15) explores law school curricula, where they are lacking, and makes recommendations for not only what types of courses to teach, but the best methods with which to teach them. Best Practices is very direct in concluding that not only is it the law schools' responsibility to prepare students for the practice of law, but that they are falling short in this duty. (16) Among several suggestions for organizing law school instruction is the integration of "teach[ing] of theory, doctrine, and practice," noting that law schools traditionally emphasize theory and doctrine over practice. (17) The integration of Pretrial Practice is a logical and effective response to Best Practices' findings and recommendations. (18)

Another piece of the curricula-evaluation puzzle, the Law School Survey of Student Engagement (LSSSE), approaches law school education from the students' perspective, determining "what practices lead to student learning." (19) The overriding conclusion of the survey is that students learn best and are most satisfied when actively engaged in the educational process. (20) The survey provides law schools with information on the "extent to which law students engage in effective learning practices," which helps schools identify areas for improvement. (21) Based on the survey, it is clear that Pretrial Practice courses should be incorporated into all curricula in order to meet many of...