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Tuesday, February 12, 2013

What We Talk About When We Talk About Skills

Based on some of the more vehement reactions to Eric Miller’s recent post, it seems to me that a lot of us are talking past one another when we use words like “practical” and “skills.”  “Skills” are like free speech:  everyone agrees it’s a good thing but no one can agree what it is.  On one end of the spectrum, one colleague tells me that, when he first started out at my school in the late 1970s, one of the Criminal Procedure professors (who has since retired) would ask students on the final exam:  “The courthouse for [the local] county is located on the corner of ______ and _____ Streets.”  Surely, no one advocates returning to the days when law school meant that students were supposed to memorize where the local courthouse was located, and those of us who are more inclined toward the conventional law school model do a disservice by claiming that that is the direction being advocated by reformers.  On the other hand, while the reformers surely do not seek to get rid of conventional law school training completely, I believe they tend to downplay the extent to which that training already encompasses “skills” training that is not just “practical” but absolutely essential for practice.  Reading, writing, and reasoning skills, which are covered by the conventional law school curriculum, are the sine qua non of being an attorney:  one cannot be an effective attorney if one cannot read, write, and reason.

But by the same token, one cannot be an effective attorney if one cannot, say, negotiate a plea offer or a business deal.  So it comes down to what can realistically be taught in three years and what must be picked up in practice.  And, yes, some skills must await practice to be developed.  The notion of a lawyer being “practice ready” upon graduation is simply, for lack of a better term, horseshit.  Firms may say they are unwilling to train law school graduates to practice law but the profession of law has always operated on an apprenticeship model.  The question has always been whether and to what extent on-the-job training ought to be supplemented by academic work; it has never been thought, at least I do not think it has, that the latter could or should supplant the former.  A firm unwilling to train new graduates must therefore be willing to forego the hiring of new graduates at all.

So the question is not “whether skills training?” but “what skills training?”  What exactly are the “skills” we are talking about that can realistically be taught, and should be taught, in three years of law school?  It is important to point out right off the bat that schools currently do offer what is denominated “skills” training, both through clinics and otherwise, beyond the conventional courses that focus on reading, writing, and reasoning skills.  Perhaps reading, writing, and reasoning skills are still given too much space in the law school curriculum.  But I do not think so, for two reasons.  First, I still encounter third-year students who have not picked up these requisite skills on the eve of graduation.  For them, there is not too much of the conventional courses that teach how to read cases, how to interpret statutes, how to see that one doctrinal line dovetails or is in tension with another doctrinal line, and so forth – there is too little of it.  Second, if one graduates practiced in the art of figuring out what the law is, one can pretty much figure out how to take a deposition.  But the reverse is not true:  if one has practice taking a deposition, but lacks the skills to be able to figure out what the law is, the next deposition in an even slightly different area of law will be a disaster.

So the question still stands:  what “skills” are we talking about that should be taught in law school that (a) are not already taught; (b) will not crowd out crucial classes in reading, writing, and reasoning skills; and (c) cannot be more easily picked up in practice?  And please be specific.

Posted by Michael J.Z. Mannheimer on February 12, 2013 at 07:39 PM | Permalink

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Contrary to your reductio ad absurdum premise, having students memorize where the courthouse is located is very much the direction being advocated by so-called reformers. David Segal's article is a case in point (punchline: "The answer — draft a certificate of merger and file it with the secretary of state.").

Posted by: anon | Feb 12, 2013 7:58:56 PM

A comment from a regular reader, which you are free to ignore or even delete: It may seem prudish and trivial, but I enjoy posts less and am less likely to be persuaded when the author includes words like "horseshit."

On the merits, I think you're right that we need more precision with respect to what kind of "skills" we're looking for. I'm sure there's substantial heterogeneity on that score, but we should tease it out.

Posted by: anon | Feb 12, 2013 8:18:47 PM

At my school, "skills" evidently includes training in meditation and mindfulness. So, I guess the range is from "Where is the courthouse" to Eastern religion. Of course, teaching skills will not stimulate the demand side of the market. BTW, on the Texas Bar exam when I took it was this: Draft an Indictment.

Posted by: Jeff Harrison | Feb 12, 2013 9:12:35 PM

If you want to know how much your law school values skills, just find out the salary and status of the skills professors and clinicians. That's where the rubber meets the road. Everything else is posturing.

Posted by: Tracy McGaugh | Feb 12, 2013 9:29:52 PM

When I was in law school, I took a class on Trial Advocacy that included how to give an opening statement, direct and cross examinations, and a closing statement. I think that's one example of skills training. Similarly, in a class in crim pro, skills training might include drafting or responding to a motion to suppress.

Posted by: Orin Kerr | Feb 12, 2013 10:08:19 PM

In my criminal procedure class, I have the students do a mid-semester motion to suppress. Not only is it a check-in regarding how they're doing, but they can practice/attain/confront the following skills: (1) knowing what a pleading/motion is; (2) learning the mechanics of writing one (including bracket, caption, signature line); (3) learning how to shape the fact section in a compelling, relevant way; (4) learning how to analyze the law and deploy it effectively in writing; (5) applying the law to the facts to produce a compelling argument, and (6) understanding how abstract legal arguments make it into an actual case. Not only is this practical, but they're still dealing with understanding Fourth Amendment law, so its "doctrinal" as well.

Posted by: Steven R. Morrison | Feb 12, 2013 10:21:23 PM

To Anon. David Segal is a reporter for the New York Times. He does not represent the legal education reform movement.

I challenge you to name a single law professor or legal scholar who has advocated that law schools should teach how to locate the courthouse or anything that simplistic. The legal education reform movement is advocating more, not less. First, in addition to teaching doctrine, we advocate applying that doctrine to facts in problem-solving exercises in doctrinal classes. Educational research has shown that students learn more when they have to apply knowledge, and problem solving is what lawyers do. Second, legal education reformers advocate using better teaching methods. We want to make students active learners, rather than passive learners. Third, we want classes that combine doctrine and application of that doctrine. Yes, taking a deposition is a skill that should be taught to future litigators in law school. However, you cannot just teach the mechanics of taking a deposition; you have to teach it in the context of a legal subject. For example, why not combine a products liability class with a discovery class? Isn't it logical that someone who can take a deposition in a particular case, knows the law better than someone who has never applied that law? Similarly wouldn't a student understand contracts better if they have to draft contract clauses in first-year contracts?

There is much more to legal education reform, but this gives you an idea of what it is about. In sum, teach students to apply doctrine, and they will understand it better and be better lawyers.

Accordingly, Anon I request that you deal with the real issues, rather than setting up strawmen.

Posted by: Scott Fruehwald | Feb 12, 2013 10:35:17 PM

Steven,

That sounds like a fantastic way of integrating more skills training into a conventional doctrinal class, which I am fully in favor of. I may have to try that next time I teach Crim. Pro. My biggest concern is that, especially in Crim. Pro., there just isn't the time to spend on anything beyond the material I feel I need to cover. As it is, I have dropped the material on eyewitness identification -- in part because the Supreme Court seems to have "dropped" it as well. I used to spend one class session on the exceptions to the exclusionary rule; now, I feel I have to spend two (Orin's efforts in Davis to the contrary notwithstanding). But, hey, maybe the Court will get rid of the exclusionary rule altogether and we won't get to teach Crim. Pro. at all!

Posted by: Michael J.Z. Mannheimer | Feb 12, 2013 10:37:20 PM

Scott,

Thanks for the helpful comment. If I might, that sounds like three different articulations of the same basic idea: have students apply doctrine in real-life (or as close as we can get to real-life) situations. Perhaps I am being naive but isn't this what most of us are already doing? I cannot imagine teaching Evidence without having the students work through how the Rules apply to real (or at least realistic) situations. And by the end of the semester, my Crim. Pro. students are as familiar with the Simpsons and South Park as they are with Scalia and Souter after all the hypos I have them work through, based on actual cases or on fact patterns similar to what they will see in practice. Very often, I assign them a party to represent and require them to make their best argument and respond to the other side.

But is this what others are doing? Maybe that's part of the problem. I really have very little idea what my own colleagues are doing, much less law professors across the Nation.

Posted by: Michael J.Z. Mannheimer | Feb 12, 2013 10:52:52 PM

Michael,
Thanks for the answer. I've concluded that I can't afford NOT to do the motions exercise. I have cut some things out, but that's fine, because as a criminal defense attorney after law school, I had to learn so much law anew anyway. I cut out some Fourth Amendment stuff to make way for the motion exercise--there's a ton of it left, and the students get plenty so that they can issue spot when they're actual attorneys. For me and the students, the payoff of the motions exercise was immense. Their educational experience was better, they got a mid-semester check-in, and I got, in the end, more talented students. By the way, I used the Henry Louis Gates arrest for the subject of the motion to suppress. The police report is online, it's a simple, isolated case, and all I did was add that the officer went into Gates' home and observed a gun. This exercise had the added benefit of teaching about racial profiling (real or perceived) and police acting in good faith (or maybe not good faith), and it tied the course to real world events.

Posted by: Steven R. Morrison | Feb 12, 2013 11:06:33 PM

Michael,

The skills that should be taught in the second- and third-years should depend on what the students' future plans are. For example, a future transactional attorney should take a course in contracts drafting and a course on drafting corporate documents. Similarly, a student who wants to be a litigator, should take pre-trial practice, discovery, and trial practice. Likewise, someone who wants to be an estates attorney should take wills drafting and estate planning.

As far as miniskills are concerned, I agree with you that reading, writing, and reasoning are vital. Students need to practice these skills more, not less. For example, why can't first-year classes include a few short writing assignments? In addition, I believe that legal reading should be taught better in the first year, but this requires an entire article.

As far as reasoning is concerned, I believe that we should break legal reasoning into miniskills--rule-based reasoning, analogical reasoning, distinguishing cases, policy-based reasoning, and case synthesis. We should also teach these skills explicitly; no more "hide the ball." Studies have shown that law students do some of these skills well and some poorly. For example, students are generally weak in synthesizing cases so we need to have them practice this skill more.

For more on what the legal reform movement is about, go to the Educating Tomorrow's Lawyers website at http://educatingtomorrowslawyers.du.edu/. To find a new approach to teaching a first-year class, see http://lawprofessors.typepad.com/legal_skills/2013/01/an-innovative-contracts-course-at-uva.html . For a model of a third-year program, look at the one at Washington & Lee.

Posted by: Scott Fruehwald | Feb 12, 2013 11:17:34 PM

Scott, the assertion I was responding to was this: "no one advocates returning to the days when law school meant that students were supposed to memorize where the local courthouse was located." Nothing in this sentence specified a law professor, as you now add. David Segal is surely a human being.

Moreover, contrary to your apparent premise, I would say that David Segal is easily the most influential member of the "legal education reform movement." Without him, I am confident that Brian Tamanaha, Paul Campos, etc. would be getting absolutely nowhere. Your demand that the discussion be limited to law professors shows a strange belief that law professors are the center of the universe.

Posted by: anon | Feb 12, 2013 11:25:05 PM

Anon. You said "is very much the direction being advocated by so-called reformers." Reformers is plural. Can you cite to anyone in legal education reform other than David Segal?

Other than you, I don't think anyone thinks that David Segal is the "most influential member of the legal reform movement." (Can you cite to anyone who says this?) I can certainly say that Tamanaha and Campos don't think so. In addition, from reading his articles, it is obvious that Segal doesn't know much about legal education reform.

I didn't say law professors. I said law professors and legal scholars. Legal scholars is a broad term. Finally, law professors and legal scholars are not the center of the universe, but they are the ones who are studying legal education reform.

Posted by: Scott Fruehwald | Feb 13, 2013 12:13:07 AM

Scott, it is becoming clear that further conversation is useless. The conversation is now shifting to whether refuting a sentence stating: "no one advocates returning to the days when law school meant that students were supposed to memorize where the local courthouse was located, and those of us who are more inclined toward the conventional law school model do a disservice by claiming that that is the direction being advocated by reformers" requires more than one person expressing such a sentiment. The absurdity lies on three levels: First, as a matter of linguistic interpretation, I think there is no doubt the proposition is refuted with a single source. Second, when the person is a reporter for the New York Times, I think it is a reasonable inference that the sentiment is not unique to said person but encompasses at least some of his audience. Third, this is the kind of word game that only people who know they have already lost the debate play. I refuse to further participate in this farce.

Posted by: anon | Feb 13, 2013 12:48:26 AM

Scott:

In my experience few students get to pick the type of work they'll be doing. A student may well want to be a litigator, but if the first job he gets out of law school is trusts and estates, then a trusts and estate lawyer he will be.

So the specialization courses increasingly available in the second and third years of law school end up being a bit of a tease.

Posted by: brad | Feb 13, 2013 1:15:57 AM

As for the original question, I agree that legal reading, writing, and reasoning are critical. At least in terms of traditional law school legal materials (statutes, appellate cases, and the occasional federal regulation) the status quo is pretty good on the reading side. Ditto with legal reasoning with the same caveat. However, training in legal writing is much weaker.

There is generally a first year legal writing class -- in many places taught by people paid and treated as third tier staff -- behind adjuncts and tenured / tenure track professors. After that the bulk of writing is either on a final exam, which isn't really legal writing and isn't much of a learning exercise given the lack of feedback, or is more akin to academic writing than legal work product (in specialized seminars.)

There are of course professors who do what Steven Morrison does and assign legal writing as part of a doctrinal class, but it is very labor intensive and so many professors skip it. Were schools to mandate that all or most classes include at least one graded writing assignment of a legal nature, with feedback, the "practice readiness" of that's school's graduates would go through the roof.

Posted by: brad | Feb 13, 2013 1:36:12 AM

As someone with about a decade of litigation experience, I'm often shocked at how bad (many) young lawyers' writing is. I'm talking poor organization, overly repetitive, bad sentence structure, sometimes even bad grammar. Yes, it takes years of experienced to develop a polished legal writing style. That's not what I mean. But there's no reason (or there should be no reason) that a new law grad can't produce a competent brief or memo.

So to answer Michael's question, legal writing because:

(a) although it's not already taught, it's not taught well enough;
(b) it won't crowd out writing classes because it is a writing class; and
(c) it doesn't matter if it can be picked up more easily in practice because it's crucial to practice on day one.

Posted by: Litigator | Feb 13, 2013 10:19:44 AM

As a new lawyer, here are a few things that boggles my mind about law school.

I still cannot believe that in my 1L contracts class, I never saw a contract. Why isn't any class time used to go over different types of contracts and typical terms/language that should appear?

In civil procedure, don't you think it would be a good idea for students to actually draft a complaint, answer and get some discover motion practice under their belt? Even having a clerk from the court come into the class and describe how to file a lawsuit would probably be better time than going over Pennoyer v. Neff.

In Employment/Labor Law, why arn't their exercises in drafting NDAs or negotiating CBAs?

In IP Law, why isn't any time spent on understanding the USPTO and it's website. i.e. How to file patents and trademarks and respond to Office actions?

In business associations, why arn't we tasked with drafting articles of incorporation or operating agreements?

These are just a few things, that I as a young lawyer, wished I had some exposure to in law school. Hope these suggestions help you understand what skills your consumers want and need.

Posted by: Daniel | Feb 13, 2013 10:59:54 AM

Daniel,

Not all experiences are necessarily like yours. I teach Civ Pro, and my students see complaints, answers, and basic discovery requests. They are also required to draft either a complaint, an answer, or a set of interrogatories and doc requests. They get oral and written feedback on this. They also do a number of 30 min in-class writing assignments more in the vein of typical law school essays on whatever subject we are currently studying and they take a mid-term. In short, they write quite a bit. Some of it is quite practical, some of it is designed to prepare them for the final. I wish there was a way to meaningfully prepare them for summary judgment motions during a Civ Pro class, but I haven't been able to fit it in, and I suspect that is the sort of extremely complicated undertaking that you have to learn while in practice. I certainly learned it that way.

Posted by: anon | Feb 13, 2013 11:12:21 AM

For what I regard as an especially thoughtful inquiry into what law schools can do to hasten the point at which graduates are able to provide cost-effective legal service to clients, see Gillian K. Hadfield, Equipping the Garage Guys in Law, 79 Md. L. Rev. 484 (2011).

Larry Rosenthal
Chapman University School of Law

Posted by: Larry Rosenthal | Feb 13, 2013 11:21:38 AM

The best skills exercise I've ever received involved a professor taking the first writing assignment of the semester, identifying troublesome sentences from students' papers (wordiness, lack of clarity, etc), and putting them up on an overhead projector so that the whole close could analyze the sentence, figure out what was wrong, and write a better version of it. We did this exercise for two full weeks, and it was by far the most productive two weeks of education I've ever had. It was also my junior year of undergrad -- nothing I had in law school came close.

If you want to enhance skills training at law schools, the focus needs to be writing. There's the obvious, that lawyers write a whole lot, so this is something you should get some practice at. But more importantly, being a good writer makes you a good analytical thinker. When you look at a sentence and have to ask yourself "What the heck does this even mean? What am I trying to say here?" and then revise the sentence to make sense, you're also revising your ideas. You can have a tenuous grasp of a concept, and even conflicting ideas, so long as they're up in your head, but the moment you commit those ideas to paper you have to think about them more seriously. And, the more clear and concise your writing is, the more you're forced to think about and understand what you're writing about.

In my 1L writing class, we received very little feedback, and certainly nothing on the level of a line-by-line critique, and this is despite the professor having two TAs to help out. I recall only being required to revise our end of the year motion argument, but there may have been a second assignment that also required revision. And that's for an entire year, not just one semester.

At no other point in my three years of law school did I receive feedback on a writing assignment, nor was a revision of a paper ever required. Civ Pro required writing a complaint (and two other short writing assignments), but the feedback was only very generalized.

I'd also like to add that my experience was very much like Daniel's. Contracts did not involve reading a contract. Wills, Trusts and Estates did not involve reading a will. And to anon@11:12's point, yes, not everyone had law school experiences like ours. But, it's a problem that anyone did.

Posted by: Derek Tokaz | Feb 13, 2013 2:53:02 PM

To Derek and Litigator:

I have taught legal writing as well as writing to undergrads. K-12 doesn't spend enough time teaching writing. If students haven't mastered the 5 paragraph essay before college, a few assignments aren't going to catch them up. Similarly, 3 memos in legal writing can't teach them how to write a coherent sentence/paragraph plus case synthesis.

Teaching writing is hard work, much harder than Socratic. Even if profs are willing to put in the work, many students aren't. If you push them, they punish you on your evaluations.

Posted by: Anon prof | Feb 13, 2013 5:04:42 PM

"So the question still stands: what “skills” are we talking about that should be taught in law school that (a) are not already taught; (b) will not crowd out crucial classes in reading, writing, and reasoning skills; and (c) cannot be more easily picked up in practice?"

First of all, what kind of students are we talking about? I ask because the assumed skill set that we assign to a 3.8 GPA economics major from Amherst is quite different than the assumed skill set for a 2.6 GPA sociology major from Podunk U. Let's be honest here: a lot of the lower-tier law schools are admitting a lot of people who are not really qualified to be in a three year program that terminates in a J.D. Some of them are "smart enough" in theory, but lack basic skills and background education. Others have the skills and education but not the brains.

It's possible to train smart, uneducated people; it's possible to train mediocre and highly educated people. It's almost impossible to train mediocre, uneducated people.

Second of all, requirement "c" is ridiculous. Certainly one CAN pick up almost anything in practice--provided that one is highly motivated, well trained, lucky enough to have a mentor who is skilled, etc. The question isn't whether it's *possible in theory* to use practical learning. The question is whether, for an average population, it is sensible to derogate the instruction to the population of practicing attorney.

Third, the answer. As described, it differs by population. Lower end students would probably benefit most from grammar, writing, and basic English. Replace all electives with extra legal writing and you'd improve things 100%.

Higher end students would benefit from structured eduction in analysis. What is your client's predicted outcome? Ideal outcome? BATNA? What are the chances of each outcome occurring? Why and how did you reach that determination? No course can substitute for years of skill, mind you--but I often see people who don't even have basic tools of evaluation. teaching the basis will get folks on the right track to expand through experience.

Posted by: Erik H. | Feb 13, 2013 5:16:44 PM

Anon prof wrote:
"Similarly, 3 memos in legal writing can't teach them how to write a coherent sentence/paragraph plus case synthesis.

Teaching writing is hard work, much harder than Socratic. Even if profs are willing to put in the work, many students aren't. If you push them, they punish you on your evaluations."

That's why the mandate has to be universal. If every class has to have at least one graded legal writing assignment with feedback, that'll be at around 30 legal writing assignments over 3 years. Students will either learn to write or flunk out.

Posted by: brad | Feb 13, 2013 5:32:44 PM

Anon prof,

I agree that primary education is lacking on writing skills, as is college. And I agree that it's hard work. But, as for students punishing professors for adding serious writing assignments? I'd have to see some legitimate sources to back that up.

If you assign a 10 page paper and hand it back a month later with only a half-dozen comments and a check or check-plus to indicate how the student did, yes, you will probably get some bad evaluations. But, if you give the same assignment and hand it back 2 weeks later, with 2-3 comments per page and an additional page of general notes and a 30-45 minute meeting with each student to discuss their writing, I doubt you're going to get killed come evaluation time. And before I get the standard reply of "it'd be so expensive to do that! Ohmagersh, you're going to drive tuition up!" my MFA profs do this, and they get paid way less than law professors.

Posted by: Derek Tokaz | Feb 13, 2013 5:46:41 PM

I return papers within a week with at least 3, but often 7, comments per page. I meet with every student for at least 30 minutes, often 1 hr. (Each semester, there are 3 assignments, so it's a lot of work.)

But, all that feedback makes it clear to many students that they aren't going to earn an A. Students want good grades more than they want to learn (because GPA, not learning, is what gets them a job).

When I teach legal writing, my evaluations are terrible, even though (or because) students learn a lot. When I teach anything else, my evaluations are great because the below-median students don't know they are below-median when they complete the evaluation.

Posted by: Anon prof | Feb 13, 2013 9:25:17 PM

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