Should Law Schools Focus on Lawyering Skills?

My thoughts on practice-based coursebooks - responding to Nick Wagoner's earlier post here.  I have no disagreement with what Nick said.  I do, however, disagree with the nationwide push toward making law schools into trade schools, the attempt to make the institutions less intellectual.  And I recently blogged here about the direction I would like to see schools go - echoing the vision recently outlined by the Dean of the law school at Boalt Hall (California-Berkeley).  Comparing law to another profession, would you prefer that your surgeon had spent more time taking courses on "counseling patients," and "medical clinic management," or more time studying cellular biology and organic chemistry? For my surgery, I would prefer the one who had a more intellectually rigorous program, not one that focused on role-playing exercises and rudimentary paperwork-completing skills.  I wonder if any other profession criticizes its theoretical wing like ours does. 

The most troubling aspect of turning the focus of law schools completely toward "skills" is that this is the seed of our institutions' destruction. When a consensus finally emerges that the whole point of law school is training kids in the mechanical tasks of lawyering - how to write a brief, how to give an opening argument, how to look up the law on something - people will then realize that law schools are not really necessary at all for teaching "skills" - these are better learned by "doing" and by repetition. A law school with a skills curriculum is a law school that is not worth the time or tuition, as the same skills would be better learned on the job in apprenticeships.  After we all switch to teaching mechanical skills, there will be a movement to abolish law schools completely.  The academic study of law will get absorbed back into the political science departments from whence it came, and lawyer training will be done the same way we train & license paralegals.  

My institution is already heavily tilted in the direction that others are now advocating. We are frequently reminded in faculty meetings about the Carnegie Commission Report and similar studies showing that legal employers wish the law schools would invest more in practical training.  I've always assumed this is because all firms would prefer, naturally, to hire lawyers with the equivalent skills of a fifth-year associate for the price of a first-year associate. I'm familiar with the general content of these studies and why they say we need to change.

My observation is that most students graduating from the bottom half of the law schools (those below the top 100 in USNews) have never read a single law review article, and have had zero exposure to the theoretical literature of their profession.  At my institution, all students have two required semesters of legal writing (consisting mostly of brief-writing skills), and most take both Trial Practice & Procedure and Appellate Practice & Procedure.  There is tremendous pressure for everyone to participate in moot court and mock trial competitions, and many do a semester in our clinic. We have a flourishing (well-funded) Center for Mediation and Dispute Resolution, which offers a panoply of courses in ADR, negotiation, client counseling, and so forth. We offer all-day workshops for credit between semesters on Deposition Skills, Prosecutorial Ethics, and Law Office Management.  Most of our paper seminars are taught by adjuncts - practitioners rather than faculty members - so almost all the students write their research papers on practitioner-oriented topics or doctrine, never theory.  The lower 45% of the class are required to take mostly bar courses (non-theoretical) for their last two years of law school.  We're very successful at turning law school into a trade school.  Yet that's not enough - we're still reminded regularly that we need to be far MORE skills-oriented and far LESS theoretical, even though I have trouble imagining how much space remains on the skills end of the continuum for us to occupy.

I'm not criticizing my institution - if anything, it's on the cutting edge, and other schools are playing catch-up to us in this regard. I am unconvinced, however, that the overall trend is healthy.

In terms of marketable skills, there is an inconsistency between what the firms say they want and what the firms do when they hire new graduates. The firms say they want "practice ready" associates and complain that the law schools are too theoretical; but when given the opportunity to hire graduates from the HALF of the law schools that are mostly practice-oriented and non-theoretical, they pass over them and hire associates from the top 100 law schools instead - year after year, decade after decade.  I know that some in the legal academy do not believe in rational markets or market discipline, so they would dismiss this as "all the firms are being stupid," or would say that the hiring partners at big firms are fooled by the prestige or brand names of elite schools.  It's really strange, though - that after decades in practice, the graduates from the "skills" schools do not seem to rise to the top of the profession enough to influence or change the hiring patterns.  One might expect at least some of the firms to realize that the "skills" schools are producing superior lawyers ("practice ready") and that some would switch to interviewing on their campuses instead of the elite schools.  It just doesn't happen - year after year, graduates find it easier to get jobs if their diploma is from a more elite (read: more theoretical) law school. The graduates from lower-ranked law schools are much more likely to find themselves unemployed and having to start their own solo practices. The hiring market has never backed up the claims that students are better off being taught lawyering skills instead of higher thinking about the law. Law firms overall prefer to hire students from schools that tilt toward legal theory. The shift toward skills is not a response to market pressure; it runs counter to the market. The push is coming from somewhere else.

Ultimately, this is a symptom of a larger problem happening at colleges and universities everywhere.  As Professor Benjamin Ginsberg has described in his wonderful book The Fall of the Faculty: The Rise of the All-Administrative University and Why It Matters, undergraduate institutions nationwide are replacing academically rigorous courses for "life skills" courses on subjects like event planning, how to keep a journal, social networking, and so on.  The reason: colleges and universities have shifted toward hiring professional administrators (managers) to run things rather than intellectuals, and these management types think students should take courses that make them more like the managers themselves - event planners, strategic-plan drafters, fundraisers, etc.  Law schools are merely coming late to the "skills" game that Ginsberg describes as infecting (and gradually ruining) even prestigious schools like Cornell and Johns Hopkins.  Every year, the legal textbook publishers send me more review copies of "problem solving" texts to replace the traditional books that get students to read lots of cases.  I anticipate that the trend will continue, but I believe that the dumbing-down of law schools (as typified by the new stuff the publishers are sending us) will result in the dumbing-down of the legal profession.

 

UPDATE (in response to a comment I received): I have posted elsewhere (years ago) about my support for specialized law schools, especially religious law schools.  Nevertheless, the push to turn law schools into trade schools is not about specialization; on the contrary, it's a get-on-the-bandwagon thing.

Comments

[Andrej Starkis]

The question isn't whether law schools will be trade schools, but what trade they are schools for: lawyering, or being law professors at other law-professor trade schools.

None of the folks defending the academy by firing the "trade school" bomb seem to have been the least put off by the fact that for many decades law schools didn't turn out lawyers--and were proud of it (even if they didn't let on to the students whose money they were taking under false pretenses).

What the "doctrinal" faculty don't understand is that real skills-based education ("training" if you prefer that word) is not the "role-playing exercises and rudimentary paperwork-completing skills" straw man they attack. Their argument is flimsy and superficial. They prevail only because of the existing power structure in legal education and their still-firm grip on its levers.

[BL1Y]

"The firms say they want "practice ready" associates and complain that the law schools are too theoretical; but when given the opportunity to hire graduates from the HALF of the law schools that are mostly practice-oriented and non-theoretical, they pass over them and hire associates from the top 100 law schools instead - year after year, decade after decade."

A firm has the choice between taking a brilliant student with a theoretical background, or a mediocre intelligence with a practical background. Of course they take the former. You can teach skills, but a firm can't improve your underlying intelligence. What firms are saying is they want the option of both highly intelligent students and a practical curriculum. Why are there no elite practice oriented law schools?

[Alex R.]

It is disappointing to read a post like Prof. Stevenson's that so carelessly equates a focus on teaching doctrine in context -- what I think of as the best kind of "skills" training -- with a "dumbing down" of legal education. My disappointment is heightened by the fact that the post's author gained at least some experience actually practicing law before joining the academy.

I just can't accept the proposition that teaching students how to think about crafting a brief -- from structuring an argument to using facts to characterizing the law -- is somehow not an "intellectual" endeavor. It may be one that many law professors are ill-suited to understand, but the fact that it is marginal to the experience of many law professors does not mean it is intellectually marginal or unimportant. I would say the same thing about preparing for a deposition, or a court appearance. These are skills, sure, but to be successful at them requires intellectual rigor, analytical sharpness, and, yes, familiarity with many things we associate with skills training -- what objections can be made under your jurisdiction's rules, or how to resolve a dispute that arises at a deposition, etc. I am just tired of the false distinction commonly made between the intellect needed to understand complex legal theory and that needed to be a great practicing lawyer.

[Ben Madison]

Professor Stevenson's warning to avoid law schools becoming trade schools is well taken. Those who read Carnegie to recommend that law schools should go in that direction, I believe, are not being fair in what the Report advocates. First, the Report recommends law schools continuing to develop rigorous analytical (and academic) skills--something the authors of the Report believe law schools generally do very well. Second, the Report encourages a broader range of teaching methods that tie doctrinal concepts to practice tasks. Here is where many seem to think all Carnegie wants law schools to "dumb down" teaching to show how to fill in forms, etc. Conversely, one can reinforce doctrinal teaching with tasks that a lawyer would do to show HOW the doctrine will matter. For instance, after covering statutes of limitations analysis in an upper level pretrial litigation class, I have students prepare an interoffice memo from them (as an associate) to a Senior Partner figuring out--in a relatively complicated fact pattern involving several claims, the SOL terms, the accrual dates, how tolling applies, and ultimately what the latest date would be as a safe date for filing suit. The process, I've found, cements in their minds (well, most of their minds) the material we've covered. I particularly like tasks that require students to make strategic choices such as good lawyers know how to make. For instance, I'll ask them to develop a strategy that they will share with the client for handling the case (if a plaintiff, a "plan" to gather evidence informally and through discovery to prove each element; or, if a defendant, how to sput a vulnerable area in a P's case and prepare for summary judgment). At least in the past three years that I've taught a class that intentionally sought to respond to Carnegie's challenges, the value of taking these approaches has proved valuable.

So . . . while I certainly agree we should not become trade schools, I don't think that's what Carnegie's recommending and the course in which I've tried to employ practice skills as described above have proved, in my mind, better courses for the additions.

[Haskell Murray]

I agree that law schools should be careful not to lose the academic study of law, but I have two thoughts to add.

First, I am not sure if this reflects reality: "My observation is that most students graduating from the bottom half of the law schools (those below the top 100 in USNews) have never read a single law review article, and have had zero exposure to the theoretical literature of their profession." I am a new professor, so I am sure you have a better feel on this than I do, but at my school, Regent (which is outside of the top 100), students are assigned law review articles in quite a number of courses. But maybe that is because we are one of the religious institutions you refer to in your update. (However, I also assign law review articles that do not address or incorporate religious issues).

Second, I am willing to wager that the hiring practices of large firms – like the two I worked for – has more to do with school prestige (as you mention) AND perceived (natural) intellectual horsepower of the students (measured in part by median LSAT of the school’s student body), than it does with curriculum. I wonder, for example, how firms have responded to W&L's third year curriculum or how they would respond if one or two schools, even further up the rankings, added more skills courses.

[Beau Baez]

The real question is what type of skills-based curriculum should exist, since law schools exist to prepare students for the practice of law. Some version of the Socratic method reigns in almost every classroom, and there is value in helping students become clear thinkers. But certainly not three years of using the same approach to the exclusion of other important skills. I don’t teach contracts, but I find it odd that most 1L students never see a contract in their first year Contracts course. Would that Contracts course be less intellectual if three or four hours of classroom time were spent looking at a few contracts and possibly spending a bit less time discussing the mail box rule. As long as faculty consider coverage the sine qua non for rigor then we will never incorporate skills into our courses. The key is integration of skills into our current courses, not necessarily creating separate skills courses.

The BBC reported this morning on a new skills course in the Cambridge MBA program: a course on improvisation. The course teaches the skills used in comedy clubs, but for the purpose of improving team performance. The appropriate use of humor is an important skill, so why not use it to make law students more effective in the practice of law. Of course it means that students will not be able to take some other courses, like animal rights or the taxation of lunar minerals, but if they become more effective advocates let’s introduce improvisation into the law school curriculum. Three years of legal education is a long time and we have the ability to improve legal education without making it less intellectual.

This past semester I taught Business Associations (4 credit course) and decided to teach it with a skills focus. I placed students into small groups and had them prepare memos, in class, on problems I gave them. I also required them to subscribe to the Wall Street Journal and write a discussion board post each week on an article of their choice—they also had to comment on one other person’s article. We did not cover as much material as I have in the past, but I believe that students will retain more of the knowledge they were exposed to. I hope that these new skills will better serve them than one more semester of using the same approach they mastered in the first year.

[John Steele]

Dru wrote:

"Comparing law to another profession, would you prefer that your surgeon had spent more time taking courses on "counseling patients," and "medical clinic management," or more time studying cellular biology and organic chemistry? For my surgery, I would prefer the one who had a more intellectually rigorous program, not one that focused on role-playing exercises and rudimentary paperwork-completing skills."

I think that most people would prefer the surgeon who had taken a lot of practical skills courses in surgery (courses with plenty of instant feedback by skilled surgeons). I know that I would.

As much as I respect Dean Edley for his elite vision, we can't use Boalt or Yale or Stanford as a guide to how all schools should teach. We need to have a lot more flexibility so that schools can specialize to serve the needs of society.