Should Law Schools Teach Skills?
Over a month ago, my colleague Bob Ambrogi posted about the Carnegie Foundation report indicting legal education for failing to teach about real cases and trends and practical skills. And the debate over the role of law schools in preparing students for the reality of practice continues to rage in full force, with a diverse coalition comprised of both law professors and practitioners advocating for substantial reform.
Up first is Professor Ann Althouse, a guest columnist this month for the New York Times, with her piece, Skull Full of Mush (2/20/07). Althouse writes that law schools disrespect law students by focusing too much on theory and unreal hypotheticals instead of using real cases and facts to teach students to think and practice like real lawyers. Another academic, Professor James Maule of Mauled Again, follows with a lengthy post that includes multiple links to other critiques of legal education and the need for reform. Maule doesn't advocate for teaching skills per se; rather, like Althouse, he endorses teaching about real cases, thinking about how how a particular analysis would impact clients or considering the ethics implications of a decision, instead of teaching ethics in the abstract, as a separate part of the curriculum. From Maule's post:
What's needed is a change in the structure of the traditional doctrinal
courses. It's not enough to learn that the law requires one thing or
another. It's important to consider whether the parties will act in
accordance with it, to understand what the options are when the
theoretically correct legal answer does not match the actions of the
client or some other person, and to appreciate how one's approach to
the matter can influence how the client deals with the matter. It is
more important to understand how the law came to be the way it is than
it is to advocate some law reform that has little if any chance of
seeing the light of day in a committee let alone a court or
legislature. Professional responsibility issues need to be incorporated
into substantive courses and not stashed in the corner in a separate
course, because in practice those issues do not arise in a vacuum. Some
of my students bristle when I raise professional responsibility
questions in my tax and decedents' courses, because "that stuff is in
another course." Well, it ought not be. The same problem exists with
respect to digital technology. Most law faculty continue to omit
discussion of cutting edge legal issues arising from the existence of
legal technology, perhaps because they don't understand it and don't
have the time to learn about it because they're under pressure to crank
out ten more articles for tenure. It's only in my decedents' course, my
students tell me, that they are challenged to consider the legal issues
arising from the use of digital signatures on wills, revocation of
digital documents, and the issues arising from the disposition of the
decedents' email and email accounts. To put it bluntly, law faculty
need to prepare students for practice in the twenty-first century.
The lawyers with more practice experience, however, want legal education to go even further and not simply teach what it's like to think and practice as a lawyer but how to actually function as one. Susan Cartier Liebel of Build A Solo Practice (who's also taught a law school course on this topic for seven years) has written extensively about the need for law schools to teach practical skills. And in this post, she features a letter by trial lawyer, Mark Solomon, who is also a partner in the The Billable Hour, who writes that one reason that so many law students grow frustrated in law school is due to the lack of practical training. From Solomon's letter:
The real source of discontent among law students, I’m afraid, is the utter failure of law schools to educate our future attorneys in the profession. Law schools do a wonderful job of laying the foundations of a practice with core courses in constitutional law, contracts, torts, criminal law and the like. Some schools have valuable trial advocacy programs, clinics, and local practice courses. But law schools leave their graduates literally and figuratively without a roof over their heads. That is the source of the law students’ sense of disconnect with the real world.
My connection to the real world is through my clients. Law school didn’t teach me how to get clients, how to market my services to the public I was trained to serve. How do I open a law office, what supplies and resources do I need in my office, what should my office look like to appeal to my clients and my need for a comfortable workspace? Do I need malpractice insurance, how much, where do I get it and what should it cost to buy? What business records should I be keeping? How do I balance my books?
Considering the draconian penalties that are routinely imposed upon lawyers who inadvertently make even the smallest mistake in their escrow account, it is incomprehensible to me that at least one semester of the required curriculum of every law school isn’t devoted to law office accounting. Marketing and management courses are equally essential to a complete legal education.
So where do I come down on all of this? I do agree with professors Althouse and Maule that law school ought to examine practical issues and incorporate ethics into every aspect of the curriculum instead of ghettoizing it as a stand-alone course. In fact, I craved this type of education back in law school, when I sat in the back of the class, forever asking questions about whether a particular practice was ethical or how this provision or that of the tax code impacted individual behavior (my efforts weren't well received; pretty soon, professors simply stopped calling on me).
But the absence of real life issues from law school isn't as acute as it was back when I was a student, in large part because of blogs. Today, more law professors are blogging than ever before, and they're sharing their views on the intersection between legal theory and real world cases. That doesn't excuse the failure of law schools to formalize this kind of approach within legal education, but it certainly has a mitigating effect.
But while I'm willing to go as far as Althouse and Maule, you might be surprised to discover that as someone who's spent the past four years blogging about how to hang a shingle, I'm not a big fan of skills training in law school. Sure, I think that law schools should offer these classes as options, in the same way that law schools offer clinics or trial advocacy or moot court, but I don't believe in mandating them. For me, the best part of law school (and any school, in general) is that it afforded me the luxury of avoiding the nitty gritty of the real world (with the exception of the law firms where I worked during the summer) and to spend time pondering the meaning of a judicial opinion or exploring how precedent developed. As a student, I knew that I had my entire career to argue cases, to deal with clients and to worry about how I'd earn a living.
I think in many ways, we oversell the importance of skills training. There's always time to learn skills on the job. But when is the last time when, as a busy lawyer, you had a chance to savor the reasoning of a really well written Supreme Court decision or contemplate its impact not just on your client but on public at large? To me, that's what law school is, or ought to be for.
I'm quite sure I'm in the minority here, so let me hear your views below.
Posted by Carolyn Elefant on February 21, 2007 at 07:57 PM | Permalink
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