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Tuesday, January 30, 2007

Teaching students to be "real lawyers"

It's an old and common complaint:  Law schools don't teach students how to be "real lawyers."  Cameron Stracher returns to the theme in this Wall Street Journal opinion piece.  He reports, "[t]here appears to be an emerging consensus that although law schools may teach students how to 'think like a lawyer,' they don't really teach them how to be a lawyer."  "One of the biggest problems with the current state of legal education," he writes, "is its emphasis on books rather than people."  In Stracher's view, part of the answer to the problems with legal education is a thoroughgoing shift toward clinical education; law schools, he thinks, should not be content with a few discrete, limited, short-term clinical classes, but should instead be more like medical schools, and provide "sustained clinical experience," "rotations," etc.

Now, there's certainly something to Stracher's charges.  That said . . .

I want to push back a bit when Stracher writes:

By giving students the false idea that being a lawyer is all about intellectual debate, we also drive the wrong students to law school in the first place. The hordes of English majors who fill our classes might think twice if they knew that economics and mathematics--with their emphasis on problem-solving--are the best preparation for a career in law. Flowery prose is seldom valued by an overburdened judiciary.

It is not (I hope!) philosophy-major / law-prof defensiveness to think that, while warnings about "flowery prose" are certainly appropriate, law remains a deeply humanistic, "liberal artsy" enterprise, as well as an arena for problem solving.   And then there's this:

Law is not brain surgery. It is a skill that can be acquired through practice and repetition. This is perhaps the most interesting lesson from Brian Valery, the over-ambitious paralegal: He fooled those around him who ought to have known best. In the late 1990s, I litigated against another paralegal who later pleaded no contest to five criminal misdemeanor charges of unlicensed law practice. What struck me about him at the time was how good he was at his job. He blustered, bluffed, threatened and cajoled with the best of them. He knew the law and argued it capably. But then again, he learned his trade the old-fashioned way: He practiced it.

I hope it isn't -- I don't think it is -- merely snobbish or anachronistic to cling to the view that, actually, Valery didn't learn the law, and didn't really practice it.  We can roll our eyes, as Stracher does, about the Ivory Tower, and about law profs who know their Aristotle but not their county courthouse, but, in my experience, the best lawyers -- the ones who had judgment, who really understood a case and the people and issues involved -- were those who also understood that, for all the "bluster[], bluff[ing], threat[s] and cajol[ing]," the practice of law is, at least in part, an intellectual enterprise and, in many ways, moral philosophy at the retail level.  Stracher says that Valery "knew the law" and "learned his trade."  But isn't there something to wrestling with the competing arguments whose resolution is reflected in the "law" that Valery knew, to understanding the context out of which that "law" emerges, and the goals that "law" is trying to accomplish?

Posted by Rick Garnett on January 30, 2007 at 10:51 AM in Teaching Law | Permalink

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Posted by Jeff Lipshaw Rick Garnett (Notre Dame, left) has a neat post over at PrawfsBlawg reacting to a Wall Street Journal op-ed piece about the purported failures of legal education in training students to be problem-solvers. The part to [Read More]

Tracked on Jan 30, 2007 12:21:17 PM

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It is quite obvious that someone who pleaded no contest to five criminal misdemeanor charges of unlicensed law practice lacked an internal view of the law.

Posted by: Snarky Snark | Jan 30, 2007 11:21:16 AM

Of course Stracher teaches at NYLS, which has an inferiority complex because most of its students go on to become “contract attorneys” and are looked down upon by 1) other lawyers; and 2) NYLS faculty. It doesn’t help matters that Stracher went to Harvard, whereas NYLS grads rarely (if ever) become faculty members anywhere.

What we are seeing is nothing more than shallow elitism, which the WSJ eats up hook, line, and sinker.

People with backgrounds in English do make good lawyers. They might not be able to write flowery prose, but they can 1) read prose; and 2) analyze it.

Let’s just call it for what it was: Valery committed a crime. He hurt some people. It is just as bad as someone that falsely claimed to be a doctor, airline pilot, or policeman. Starcher didn’t “know the law” or “learn” his trade. He bluffed his way though. The reason he looked respectable is that no self-respecting large law firm will allow its associates to NOT look respectable. So, they gave him a paper trail, but a pretty flimsy one at that.

Posted by: S.cotus | Jan 30, 2007 11:31:54 AM

Rick,

I share your desire to see the law as more than merely practical sophistry. Yet in a legal culture that values winning above all, isn't it hard to argue that Valery wasn't actually practicing law? Instead of dismissing the Valery example, therefore, I would suggest that his ability to successfully "practice" law is something of an immanent critique of the practice of law itself, a reminder that when law becomes nothing more than a vehicle for advancing partisan interests, "trained" lawyers do indeed become increasingly expendable.

Posted by: Kevin Heller | Jan 30, 2007 11:48:38 AM

I think it is a bit of an oversimplification to say that legal culture focuses on “winning.” Usually it focuses on advancing a position, which in many cases doesn’t require a definitive legal victory and a definitive loss for the opposing party.

It is hard to know what Valery was actually doing. My guess is that he was bluffing a lot. But, perhaps if we had specifics, we would know better.

Unless we think that the government can take care of everyone’s needs perfectly, the practice of law will always involve advocacy for the interests of an individual.

Posted by: S.cotus | Jan 30, 2007 12:33:31 PM

The lurking lemma in your argument, Rick, is that one does not learn about the philosophical and moral underpinnings of the law through the practice of law, and that the classroom is the only place one can become critically familiar with such aspects.

But that assumption is so obviously false that to say it aloud practically suffices to refute it.

As far as the WSJ's opinion that economics is better preparation than English, I agree that that's nonsense. The notion that English students learn to write "flowery" prose, i.e. verbose and purple, while economics students learn to write well-crafted, efficient arguments without flourish, reflects more ignorance about what most English professors consider good writing than awareness of what will help in law school. Has he never read Strunk&White? Also, Stracher apparently doesn't realize that English majors occasionally interpret the texts they read, and argue about which interpretation better fits, which sounds kind of similar to what lawyers supposedly do.

Of course the best preparation is a philosophy degree. Everyone knows that.

Posted by: JohnQ | Jan 30, 2007 12:40:21 PM

John! Ha! I think art is!

Whatever the case, I am actually surprised at Stracher’s ignorance, though the atmosphere at NYLS might explain it. I mean, where the hell did he get off saying that English majors do nothing but write “flowery prose.” Does he even know what any lawyers -- besides temps doing document review -- do?

Posted by: S.cotus | Jan 30, 2007 1:24:27 PM

S. cotus, what did NYLS ever do to you that you bear it such a grudge? Still smarting over a rejection letter? In any event, a quick check of his bio page would have shown you that Stracher has years of private practice experience, including stints in-house at CBS and as a law firm partner. Also, his time studying creative writing might have been a tip-off that the "flowery prose" line was self-deprecating.

Posted by: James Grimmelmann | Jan 30, 2007 1:43:27 PM

James, at least as the line was quoted, I think Stracher might want to study creative writing a little more if the remark was intended to be self-deprecating. It seemed serious, if deliberately provocative, to me at any rate. Maybe an econ major is around to help us with the interpretive question...

Posted by: JohnQ | Jan 30, 2007 2:14:28 PM

James,

I don’t have a personal grudge against NYLS, but every member of the faculty and every student that attends there has indicated that the professors have an abnormally low amount of respect for the students. After all, the faculty pretty much all attended ivies, and NYLS has comparatively low admissions standards. NYLS faculty advise students to transfer! That speaks reams about the quality of NYLS.

Secondly, it is rare, but not unheard of for a partner at a large firm to become a professor. Most of the times, professors are drawn from people with less than 5 years firm experience.

Finally, LSKS, his old firm, is not that large a firm. Because it is so small, I checked the BIOs of all of their partners and associates. Not a single one went to NYLS!

Now, of course, people should judge a law school for its merits, but most people do not want to send their kids to NYLS. The professors, in turn, look down upon the students that “settled” for NYLS, and, in turn, they think that the practice of law is some kind of vocation, devoid of analysis, philosophical inquiry, or thinking. So, he concludes that a person that lied, cheated, and defrauded people was really just "practicing" by some loose definition of the word, and therefore not as great a harm was done.

Posted by: S.cotus | Jan 30, 2007 5:18:41 PM

S.cotus: "EVERY member of the faculty and EVERY student that attends there has indicated that the professors have an abnormally low amount of respect for the students"

(capitals added)

I think we don't have to take seriously an anonymous poster who makes absurd, patently false (and not to mention offensive) assertions that "every" student and faculty member of a school shares the same gripe. I'll consider believing something he says if he comes out of hiding and tells us how he "learned" this information. My guess is that he "learned" it the same way he "learned" his info re Stracher (who's a really decent and thoughtful guy, from my limited exposure to him): he made it up (i.e., the absurd assertion, "Starcher didn’t “know the law” or “learn” his trade. He bluffed his way though.")

Posted by: Scott Moss | Jan 30, 2007 10:27:40 PM

That ugliness aside (couldn't help myself), onto the merits:

Starcher has a point about many law schools neglecting practical skills; I graduated having absolutely no idea what discovery was, for example, even though I took every litigation course I could find -- and I think that reflects a major problem in my legal education. But he goes too far in bashing the intellectual side of legal education, for three reasons:

(1) For much legal practice -- e.g., anything involving briefwriting -- intellectual depth of research and writing ability matters a huge amount. I've seen plenty of lawyers win motions they shouldn't because they were better briefwriters.

(2) Even if practical skills matter a lot, a law school's comparative advantage is in teaching the intellectual side, which you can't learn nearly as easily from practice. Despite learning zero re depositions in law school, I ended up being able to take a pretty good deposition in practice after watching a few; I wouldn't have been able to write a good brief in practice after just looking over a few briefs.

(3) I'm unpersuased by Stracher's "Turing machine" argument that if someone can fake it effectively, then legal education is faulty. I know a lot of parents who could fake being a pediatrician and succeed wildly except in the 0.1% of cases in which a child has something rare. Does that mean Stracher or I should be OK taking our kids to Ima Faker, M.D., rather than to a real doctor?

Posted by: Scott Moss | Jan 30, 2007 10:33:45 PM

Scott, I don’t care if you were offended or not. I am offended by lots of things. Perhaps I should not have spoken in absolutes, because I have not had private conversations with all members of the faculty and all the students. But the ones I have, without exception have expressed the same thoughts about the school.

I find it hard to believe, on the other hand that you had no idea what discovery was. You took civil procedure (usually required.) You also said you took litigation courses. Heck, I only took two, and I knew quite a bit about discovery. Moreover, most summer associate positions involve some involvement with discovery.

To suggest that someone “won” a motion” because they shouldn’t have because of writing is vague. While the difference between legal style and substance has been of interest to me, people have not been able to explain how style will change “the law” as it impacts one litigant. You probably should post a copy of the briefs, and indicate the error so we can see what you were talking about. Sure, it is nice to tell war stories, but very often it seems like people are just complaining about a result they don’t like.

Congrats on telling us that you can take a good deposition.

Posted by: S.cotus | Jan 30, 2007 11:08:44 PM

FWIW, about a decade ago, the dean at NYLS mentioned to me that he questioned whether his students should in fact be attending law school. specifically, he thought that, from the standpoint of their own best welfare, it was a poor choice for many of them.

It sticks out in my mind because I thought it a very odd thing for a dean to say to an outsider.

Posted by: bill | Jan 30, 2007 11:52:50 PM

Okay, so I am not going crazy. That attitude, is, indeed, present at NYLS, even on a dean-to-dean level.

Posted by: S.cotus | Jan 31, 2007 2:10:25 AM

I don't think that questioning whether a student should in fact be attending law school, and whether attending law school is really in their best interest, counts as being condescending towards the student. I may not be law faculty, but in my time in law school I certainly knew a few students who probably shouldn't have been there. Some of them even came to the same conclusion prior to graduation.

Posted by: Patrick | Jan 31, 2007 9:38:46 AM

Patrick, As law dean one is responsible for most everything at the law school, including admission. The law school tells prospective students that they *should* attend the law school. Yet, somehow this dean believed that most (if not all) of the admitted students should not have attended.

Us lawyers think that practicing law is the highest form of existence. To say that someone “shouldn’t” do it, is an insult to that person’s soul.

Posted by: S.cotus | Jan 31, 2007 10:59:00 AM

I think I pretty much agree with Scott's substantive post. I'm really not that persuaded that law school should be changed radically to introduce a lot more "practical" skills. I think it's a good idea to try to incorporate some practical focus within classes you're already teaching - I have my students write memos to the senior partners or opinion letters to their clients, for example - but I think focusing on how to take a deposition or produce documents would do a serious disservice to our students. We could train them to be very comfortable making objections to form, but without the "intellectual" or "academic" training, how would they know what questions to ask? The significance of the questions derives entirely from substantive law. And what about cases that raise novel issues? In my experience, it was pretty common to get a case that presented an issue for which you couldn't find a good answer. And "winning" on those issues is about understanding how to analogize to favorable situations and distinguishing unfavorable ones. I don't know how one would know how to do that by going through a practically focused curriculum.

I'm not suggesting that one could not learn to read cases or to fit broad pieces together on her own. I suspect some people could do that - just like some people could learn any discipline on their own. But learning it in a structured environment is much more efficient. Moreover, the argument that someone could learn it on their own is hardly an argument to focus more on practical skills. Between the two - practical skills or "academic" skills - I think it's fair to say that practical skills are much more easily acquired outside of school.

Posted by: Mark McKenna | Jan 31, 2007 11:32:24 AM

Mark just said what we all know. Law schools teach about the “fabric” of the law. These are the argument that real lawyers make in court. By the time a student graduates law school, they should be able to understand complex bodies of law, make arguments, and be ready to tackle other areas. Sure, some “practical” experience helps, because it gives people little “practice tips” but it does little else.

Then, someone lies about going to law school. A firm doesn’t catch it, because, perhaps, he never had to act as a lawyer or perhaps clients were unable to detect his lack of intellectual discipline.

The reaction from some quarters is strange, it is “blame the law schools.” From NYLS (which, as I said above, is filled with bitter people who know that many of their grads, at best, will be doing document review after they graduate) the word comes that law schools should be less intellectual – and more practical – because, it seems someone “got away” with not going to law school because he worked as a paralegal.

While his firm has returned a lot of money, it may very well be that he malpracticed as well. But, in his field it may not be immediately obvious whether he did or not, and since his firm is likely to simply repair the any damage done, court decisions are unlikely.

Posted by: S.cotus | Jan 31, 2007 12:19:51 PM

There's also a broader point to be made here about the role of lawyers in a democratic society.

Assuming that lawyers constitute an influential class with an effect on government in great disproportion to their actual numbers, and assuming that lawyers have a disproportionate impact on the accepted realm of legal possibilities in a society (i.e. the set of possible legal reforms considered feasible by politicians and the public), the importance of educating lawyers to think broadly and deeply about the law, and the values implicated by it, becomes obvious.

Put differently, the importance of the legal profession extends beyond the practice of law, and therefore so too should legal education.

Posted by: JohnQ | Jan 31, 2007 12:23:12 PM

John, And, not surprisingly, NYLS faculty seem to think that their students will never reach their full potential as members of that influential class. So, the dean says they will never get their ticket taken at the gate of the influential class (despite having paid for it), and one professor seems to conclude that since his students are not making it, we should just give up on the whole thing and learn how to file stuff.

Posted by: S.cotus | Jan 31, 2007 12:29:07 PM

Scott's example that he was able to become a pretty good brief writer is inapt. That's mostly because the one practical task you do in law school is write briefs - at least 2-3 at my law school. But that aside, I think a "practical skill" that would be useful is a drafting class - contracts, wills/trusts, etc. A second practical skills class that would be useful (at least for those who students who are going to practice at a large law firm for some part of their careers) is a class on financial markets, corporate structures, capital formation, bond issuances and the like - a sort of survey course on how corporations are structured and how they raise funds. I find that this type of knowledge would be beneficial for both corporate attorney and litigators.

Rick:

I think Strachter is correct that law schools could better emphasize that tight analytically sound argumentation is -- as a practical matter -- more useful than "flowery prose." Law is sometimes an intellectual enterprise, especially for those - like yourself - who have the luxury of practicing as an academic specialist rather than an advocate. But with the exception of the rarefied practice of constitutional appellate litigation, the day-to-day practice of law does not afford for much in terms of starry-eyed intellectual debate. A client presents a problem - and that problem must be solved. And whether law schools prepare students for that type of experience is not clear.

Posted by: Alex | Jan 31, 2007 2:04:23 PM

I think theatre is the best preparation for law school, because every day in class I have to act like I care.

*Just kidding!*

I do think Stracher is on to something, even if I don't quite agree with everything he says. My background is theatre *and* computer science. (Don't ask.) If you look at various computer science programs in the U.S. there are two camps: the theoretical camp--where you're likely to learn a great deal about the structure of programming languages and become a Scheme master, dreaming about recursion all day; and the practical camp, where you're just as likely to have classes on advanced SQL database administration.

The point being, law school is biting off more than it *should* chew. In an effort to protect their academic good standing in spite of their under-education (I think law profs. should be PhD's, like most other profs.) law professors wax philosophic about "law". Meanwhile, practicing lawyers, jealous because they aren't law professors, lament the fact that law schools don't provide enough practical education. Where are the law students? Yawning in the back row.

Why do all law schools have to do both? Why not have schools with a reputation for theory (Yale?) versus schools that bang out top notch practicing attorneys (Your School Here?). Obviously, no school should be exclusively one or the other, but I don't see anything wrong with having schools *focus* on one versus the other, and letting students decide what they would like their focus to be, either.

It works in *many* other fields--why not legal education?

Posted by: Dave! | Jan 31, 2007 2:46:56 PM

As a law professor who takes a rather practical and concrete approach to teaching about the law, who continues to practice law on the side, and who regularly writes for a practitioner audience, as well as for academic venues, I nonetheless am convinced that the primary purpose of a legal education is not to convey the nuts-and-bolts of practice but to immerse students in the fabric of the law. They will have decades in which to develop the skills of nitty-gritty practice, but most will never again have the time to come to appreciate the simultaneously integrated and complexly-varied web of doctrine and theory that underlies the law. While a shift to even more skills-oriented teaching undoubtedly would enhance the basic practicing ability of lawyers in their initial few years in practice, by moving the unavoidable apprentice period back into the law school years, the accompanying loss of study devoted to the nature of law and legal theory ultimately will result in an impoverished profession, with lawyers being less able to draw upon the richness of legal doctrine and theory to well-represent clients other than in routine matters.

Posted by: Greg | Feb 1, 2007 4:42:10 PM

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