FOR more than a century, the dominant mode of pedagogy in American law schools has been the Socratic method, first introduced by Dean Christopher Columbus Langdell of Harvard Law School in the late 1800's. As long as the primary goal of law schools was to train students to "think like a lawyer," the dialogue-based Socratic method has served law schools fairly well.
In recent years, however, law schools have faced increasing pressure to train students not only to think like lawyers but to behave and perform like lawyers. Particularly since the recession, clients have become increasingly unwilling to pay the hourly rates of recent law school graduates who often knew little about practice and were effectively being trained on the job. Legal employers, in turn, have become more reluctant to hire associates without experience. This has left new lawyers in classic "Catch-22," and has put pressure on law schools to make students more practice-ready upon graduation, as well as offer post-graduate programs such as incubators, residencies, and fellowships to ease graduates' transition into the employment market.
But the calls for reform in legal education long pre-date the recession. In 1992, the ABA's "MacCrate Report" (1) made a variety of recommendations for "narrowing the gap" between law schools and the profession. And in 2007, two influential reports--commonly referred to as the "Carnegie Report" (2) and "Best Practices" (3)--exhorted law professors to infuse their teaching with practical skills and professionalism.
In order to serve the needs of the next generation of law students as well as the changing needs of the legal profession, law schools must strengthen their ties to the practicing bar. And law school faculties, in turn, must strengthen their ties to practice. My own foray back into practice proved to be extremely beneficial; but it remains, unfortunately, an anomaly.
The Limited Practice-Oriented Focus Among Law Professors
Although some institutions have embraced reform, law schools as a whole have been slow to change. This is due in part to the ostensible tension between a focus on "practice" and "research":
Like all professional schools, law schools are hybrid institutions. One parent is the historic community of practitioners, deeply immersed in the common law and carrying on traditional of craft, judgment, and public responsibility. The other heritage is that of the modern research university... [A]s American law schools have developed, their academic genes have become dominant. (4) Numerous lawyers and judges have criticized legal scholarship for becoming increasingly abstract and irrelevant to the modern practitioner. (5) And survey evidence shows that law students want professors' teaching geared toward the realities of practice, and that practicing attorneys regret that they did not get better training in these areas while in law school. (6)
To some extent, law schools can rely on part-time adjuncts or visitors to provide practical training and assign their full-time tenure-track faculty to traditional doctrinal courses. But the Carnegie Report rejects this division and urges schools to adopt an approach that integrates "each aspect of the legal apprenticeship--the cognitive, the practical and the ethical-social." (7)
The notion of an "apprenticeship" implies the presence of a master or expert to which one can be an apprentice. Not surprisingly, the reform literature has widely acknowledged that law professors can and should serve as models of competent and ethical lawyering. (8)
The problem is, not only do most law professors not practice law, but many have not done so in a long time, if ever; (4) they did so under fairly homogenous conditions--no more than several years doing mostly research and writing at a large firm; (10) and they often did not particularly enjoy the experience (or else they would not have left practice to teach). (11) Indeed, the current trend is to hire law professors with less practical experience than ever before. (12)
In order to better match law students' need for apprenticeships with law faculty's general dearth of apprentice masters, doctrinal law professors will need to gain more practice experience. But how? The sabbatical--typically a one-semester leave made available to full-time faculty every seven years--could be an ideal opportunity for law professors to obtain this experience. But relatively few law school allow sabbaticals to be used to gain practice experience (as opposed to conducting traditional research), and even few professors avail themselves of the opportunity.
In a survey I conducted via the American Bar Association's Associate and Assistant Deans' listserv, just over one quarter of respondents indicated that their institutions permitted law professors to utilize their sabbatical leaves to engage in practice. Strikingly, only one in ten respondents indicated that any professors at their schools had actually taken a practice-based sabbatical within the last five years. Although the sample size was fairly small and the survey relatively informal, the data was consistent with the fact that practice-based sabbaticals are sufficiently rare and distinctive to constitute fodder for articles in law reviews (13) and the media. (14)
Lessons Learned During My Practice-Based Sabbatical
Admittedly, self interest sparked my curiosity about this issue. Although I continue to do some litigation consulting, it has been a decade since I practiced fulltime. Moreover, I teach and write about criminal law, and I regularly train my mock trial students on how to conduct criminal trials. Yet, with the exception of a criminal defense clinic I participated in as a law student more than fifteen years ago, all of my litigation experience has been in the civil arena. As I approached eligibility for my first sabbatical, I wanted to use it to volunteer with a prosecutor's office.
Fortunately, the Office of the District Attorney for Orange County, California already had in place a program that was very much in line with what I wanted to do. Their Trial Attorney Program, or "TAP," is designed for civil attorneys seeking to obtain more trial experience than they typically would in their standard practices. TAP attorneys spend a few months as a deputy district attorney, and typically handle misdemeanor pre-trial motions and trials, felony preliminary hearings, and case resolutions through plea bargaining. As far as I know, I was the first law professor in at least a decade, and perhaps only the second one ever, to participate in the program.
Going into the program, I expected that the exposure would (1) deepen my understanding of workings of the criminal justice system and of the ethical and strategic challenges of criminal practice; (2) enrich my teaching of criminal law, evidence, and trial advocacy; (3) enhance my credibility with students; (4) provide new material for scholarly articles; and (5) broaden my professional network, thereby boosting my ability to help students with career advising and better integrate my institution with the local practicing bar.
The experience not only met but exceeded my expectations in all respects. Below, I highlight just a few of the ways in which my time in practice made me a more "value added" professor than can better prepare my students for the real-world challenges of practice.
Modeling Lessons on Real-Life Disputes
Consider the following case I handled while working in the juvenile division. (15) The respondent, seventeen years old, was accused of petty larceny for taking several bottles of alcohol from a supermarket. A few blocks from the supermarket, he was struck by a car while skateboarding across an intersection. The police initially responded because of the accident, but when they arrived at the scene, they saw a shopping basket from the supermarket and bottles of alcohol strewn across the street. One officer went to the hospital to speak with the minor, who had been transported there for treatment of his injuries. A second officer was called and sent to the supermarket to review the applicable surveillance tape. The tape showed that, just minutes before the accident, someone matching the minor's description and carrying a skateboard took several bottles from the alcohol aisle, placed them in a shopping basket, and exited past the checkout aisles without attempting to pay.
At the trial, my two witnesses were the officer who spoke to the minor in the hospital and the officer who went to the supermarket. Although the case initially seemed straightforward from my perspective as a prosecutor, a clever public defender quickly complicated things.
The second officer reviewed the supermarket surveillance tape, but he did not preserve it. It was erased in the ordinary course of business by the supermarket thirty days later, and so was unavailable to be introduced at trial. The defense (16) sought to exclude the officer's testimony about...