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Thursday, August 14, 2008
Menace 2L Society
One of my many great memories of John Langbein's Wills and Trusts class is how he warned us on the last day of class not to think we were now prepared to go out and handle estates matters. Knowing what you know now, he told us, "You are a menace to your clients." As he explained, we'd just scratched the surface of the field in the class (as intense as his class was, even); it would take years of apprenticeship to a senior practitioner to achieve basic competence on our own.
His warning has had me thinking recently about what it takes to make a law student or young lawyer safe to turn loose on clients. On the one hand there are skills: interviewing, drafting, negotiating, speaking, researching, bluffing, sympathizing, and so on. Despite some progress, here law schools still mostly mostly rely on young lawyers' supervisors and colleagues in practice to train them on the job. On the other hand, though, there's also doctrinal competence. Here, law school still claims it has some kind of comparative advantage.
But how much doctrine is enough doctrine? Part of Langbein's point was that even on the black letter, we law students were still babes in the woods--and that we didn't even know enough to know when we'd gotten in over our heads. This isn't just a problem of the young; the case reports are full of examples in which senior lawyers had blundered badly wandering into an area outside of their usual specialty. Lawyers who aren't familiar with bankruptcy don't know how the automatic stay works, and woe betide them when they don't even know there is one. Copyright has registration as a prerequisite to suit; tax and corporate law are chock-full of spring-gun doctrines.
Thus, here's a discussion question for the readership. What does a lawyer need to know to survive in your field? How much time do you need to spend with students to teach them everything they need to know about it? Not everything there is to know about it; everything they need to know about it so they can tell when to forge on ahead and when, like Lassie, to go get help.
Posted by James Grimmelmann on August 14, 2008 at 08:54 PM in Teaching Law | Permalink
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Comments
In my view, a one-semester class in a topic is generally more than enough to equip a student to survive in most fields from a standpoint of knowing the basics of the law. Of course, i am assuming that the lawyer recognizes that basic doctrinal knowledge of a field is never enough to go out and practice it unaided: there's a huge difference between having book knowledge and practical knowledge. And I'm also assuming a student is in an area of litigation. Wills & Trusts may be unusual because the lawyer is structuring deals and financial arrangements, not just taking litigating positions; there's a big difference between the two.
Posted by: Orin Kerr | Aug 15, 2008 10:22:23 AM
One of the gaping holes in the law-school curriculum concerns evidence. I'm not referring to the basic "evidence law" class, which largely concerns how to get/exclude authenticated actual evidence in court. Neither am I referring to the cases on the discovery process found in various civil procedure classes, and occasionally the professional (ir)responsibility class; again, these largely concern authenticated smoking-gun documents.
Instead, in law school nobody learns what evidence -- especially nontestimonial evidence -- is, or what it looks like, or how to handle it, or even how to find it. This is a critical problem for the 23-year-old kid with no real world experience who wants to become a "litigator" after law school. Of course, it doesn't help that most law professors don't have all that much more experience with the subject, either...
Posted by: C.E. Petit | Aug 15, 2008 11:06:02 AM
I agree completely. As a new graduate this post leads me to the next question of "is it worth $120,000+ to be a menace to the public?" If true, then I wonder:
Is there a moral hazard here when lawyers take the money of poor students knowing full well that even the best students they train are unfit to represent a client? Or the state issuing bar licenses to the same?
After all, one is paying the "institution" to become a competent lawyer. You seem to be admitting quite freely that this is simply not the case. That is, a law school graduate is by default incompetent.
Further, if I do not have a mentor after graduation, and I am on my own, then according to this base line competence level of menace, a new graduate would be morally obligated to not practice law without guidance. MRPC 1.1. Isn't that true? This seems rather unconscionable.
Say the system is not unconscionable; the current SOP is to let the profession fill in the learning curve gap of the new lawyer. This is fine if you’re from a top school at the top of your class because the best students get the best training at the big firms or state agencies, while the worst students, who need the most guidance, get little or no training. They are on their own. Seems an odd way to educate a profession, and protect the public from incompetent lawyers.
Posted by: George | Aug 16, 2008 7:39:11 AM
"What does a lawyer need to know to survive in your field?"
As a general matter, the most important thing a young lawyer needs to learn -- and which he almost certainly won't learn in school -- is how to translate the law's jargon and doctrines into information useful to the client. In the end, the client pays you not for technically elegant discourses on complicated abstractions, but instead for practical guidance as to what course of actual real-world conduct they should undertake.
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