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Monday, July 07, 2014

Is Rote and Mindless Legal Practice Our Standard?

Last week, I suggested that the legal academy could do with providing a more concentrated study of legal materials to prepare students for practice. I actually think the case could be made stronger: for many, not only is knowledge of the legal materials in a given doctrinal area our core competence: it is the central obligation of the legal academy to provide competence in legal doctrinal knowledge.

I chose criminal law as my central example. But my point was supposed to apply more generally to torts, contracts, family law, and so on across the curriculum. In short, the argument is that concentration in a particular practice area should not simply mean a wider range of courses, it should primarily mean greater interaction with the extant doctrine.

My claim is that the substantive version of "practice ready" does not require the academy to match practice. I think that is especially the case if the bulk of practice involves the equivalent of agency capture, so that the lawyer becomes divorced from the clients, and instead becomes part of a quasi-bureaucracy. That may be a feature of production-line litigation, and the criminal law may be more prone to that style of litigation than other fields (although tort law shares some of these characteristics). But equipping lawyers to recognize complexity and co-option when it occurs should be part of our teaching mission. Where judges and co-counsel fail to see the issues.

Here's what I think is the most powerful pushback against the doctrinal knowledge thesis: most lawyers are engaged in low-level practice. Low-level practice is more social work than law. Accordingly, lawyers don't need legal knowledge, they need people skills. If they do need legal knowledge, either it's really simple legal knowledge—how to enter into a contract—or it's already in the system—filling in the blanks in an estate plan. Legal practice just is dumb: it's rote and repetitive and doesn't require much beyond the stuff you learn for the bar.

There are two problems with this vision of practice. The first is it makes lawyers redundant, quite literally. Online forms can replace the cut-and-paste document, and specialty courts can provide a forum for self-representation: the Benthamite ideal of a legal system without lawyers. The second is that this is an image of a broken practice. I go to a lawyer to fill out my estate plan, not because I couldn't do it myself, but because I value their expertise in working out what the consequences are for doing it one way rather than another. I expect the lawyer to be able to tell my why I need to do it this way, what my options are, and what the consequences might be if I choose one planning device rather than another. Even at the level of a solo practice, that requires a lot of legal knowledge.

In the criminal sphere, the Court in Argersinger made this point in 1972: "We are by no means convinced that [the] legal … questions involved in a case that actually leads to imprisonment even for a brief period are any less complex than when a person can be sent off for six months or more."

Understanding where and why legal issues become complex is what makes someone a good lawyer. It explains why lawyers are necessary, non-fungible, individuals.

Now it could be the case that lawyers are, in general, not necessary, and that people could just as well represent themselves. That's Jeremy Bentham's ideal legal system. But I don’t think that is the case. I was struck by something that Ted Cruz said in his New Yorker feature, concerning his briefing of the Medellín case: the major issue is how to frame the case in a way that wins (classic parliamentary debating move, by the way). He knew that under the standard framing of the case, he would lose. But by changing the framing, he made it much more likely that he would win. This is what good lawyers do (I've had the privilege of working with some pretty good ones from time to time). Some of that is by framing the facts in a way that is persuasive. But some of it is understanding which issues to focus upon. If you don’t know the issues, you can’t frame the law or the facts in a way that is persuasive.

Perhaps criminal law is the wrong place to emphasize the importance of a nuanced and deep understanding of the law. I’m not sure that’s true: if so, the Court was wrong in Argersinger. I guess the point is, dismissing whole areas of practice as ones in which knowing the elements is enough seems a little flippant: what might be useful is to work out which bits of a given practice area could bear more emphasis. Some of these areas are traditionally recognized as hard and focusing on them in depth makes for good lawyers. Some may be hidden, or novel, and so we could do better at thinking about what doctrine lawyers need to know to practice in, e.g., veteran’s courts. And it may be that the practice of law in some areas is poor, perhaps because of administrative-style capture problems, but those problems can be addressed in school and students taught to think about them and their responsibilities, rather than just accept them.

We might think that certain types of practice involve capture by the courtroom workgroup, so that the lawyers serve each other and the judge, and don’t worry about the interested of the parties (including the state). But if that’s what practice-ready means, then so much the worse for the legal profession. The "happier" version of this dire picture (described by Malcolm Feeley in "The Process is the Punishment") is that low-level lawyers are glorified social workers, helping their clients through a hostile system. 

So I don’t think teaching to the Bar—the lowest common denominator—is making folks good lawyers. They may be ready for practice, but it is a practice that does not well serve the client or the profession. This is particularly true of practice in county and municipal courts. And even the best-intentioned of judges may not realize the legal problems their rulings entail. Judges need specialists to help guide them through the law. A good lawyer simply cannot expect the judge to know the law governing the case: the judge is a generalist, and has to be brought up to speed by the lawyer. In such circumstances, it’s enough to churn cases: the lawyer needs to explain the law, and the consequences of various decisions. Doctrinal knowledge is, for the most part, all the lawyer has at this point.

Legal knowledge is also a competitive advantage in the office. When a new attorney arrives who has studied lots and lots of cases above and beyond the classes (as a research assistant, on law review, and so on), they spot issues the less well read do not (I've been on the receiving end of that experience). They are immediately more valuable to the upper level-associate or the partner (or the judge): and that goes double for small firms as for big ones. That’s value added. Having only a Bar-level knowledge is value-subtracted, because it places lawyers at a competitive disadvantage to the better read and more thoughtful lawyer.

I recognize that, after a while, lawyers get up to speed and stay up to speed, in part because they specialize. But I’m not judging things by the third or fourth year associate who has already specialized: if practice-ready means something, it could mean that the first-year associate actually knows something about the doctrine and can add something to the case.

For better or worse (better, in my opinion) we are part of the academy, and are interested in producing not simply "skills" but knowledge.  When challenged, we should double down on the idea that law schools produce knowledgable lawyers, and legal knowledge is not an elite skill, but a grassroots skill. It creates value in the office, the courtroom, and the conference room. And, as luck would have it, it's the value those of us with the time to study and think about the law have the greatest competence to impart.

Posted by Eric Miller on July 7, 2014 at 01:30 PM | Permalink

Comments

"I recognize that, after a while, lawyers get up to speed and stay up to speed, in part because they specialize. But I’m not judging things by the third or fourth year associate who has already specialized: if practice-ready means something, it could mean that the first-year associate actually knows something about the doctrine and can add something to the case."

What exactly do you mean by this? Do you mean Loyola should become a place where young lawyers know a lot about search and seizure doctrine because they've taken two classes on it and written a student note, even if that means they don't take Evidence? Law schools are operating with limited resources and are probably one year too long. They are never going to be able to create lawyers who know a lot about enough doctrines, especially in an extremely broad practice area like criminal law, to be worth hiring. Experienced lawyers go to CLE's and bar associations, have listservs, or read trade publications for new developments in the caselaw- they don't rely on the associate they just hired for 45K/year to tell them how the state intermediate appellate court just interpreted the gun possession statute.

Law schools can do two things well with the limited time/resources they have: (1) they can teach students how to understand new areas of law (i.e. thinking like a lawyer), (2) they can give them enough definitional knowledge to pass the bar without an expensive test prep class. Trying to do anything else is gambling with someone else's money.

Posted by: BoredJD | Jul 7, 2014 3:18:10 PM

Eric,

"Low level practice"? "the lawyer becomes divorced from the clients, and instead becomes part of a quasi-bureaucracy"? "Where judges and co-counsel fail to see the issues"? What are you talking about?

I don't mean to offend, but it does not appear that you know what lawyers do all day, nor how useless recent graduates are. No law students (even those who read more than the case books) arrive ready to add value to the practice of law unless they can write and edit. The ones that are the most dangerous are the ones who think they know something about the law.

Law students are qualified for one, and only one job -- to be an associate justice on the U.S. Supreme Court. Unfortunately, they're not hiring. The rest of us have to work for a living, and it's not all boring, but it's not all Perry Mason.

There's a difference between TV law and real law.

The law is not the tough part of practicing law. The facts are the tough part of practicing law. a good lawyer develops facts given the law.

Posted by: Jojo | Jul 7, 2014 5:41:51 PM

Yes, with all due respect, law schools seem to be in the business of trying to create appellate clerks, not lawyers.

Posted by: JD2 | Jul 8, 2014 12:33:24 AM

Eric, this appears to reflect a narrow view of what lawyers do. All it addresses is advocacy in the classic "lawyer as warrior" metaphor. It doesn't address lawyers as dealmakers or lawyers as counselors. (Any lawyer with any experience on the transactional side of the house would tell you that 98% of contract law doctrine - more or less - has nothing to do with the practice, and a deeper dive into the doctrine for purposes of "nuanced and deep understanding of the law" would be a waste of time.)

Having said that, your point about "knowledge" versus "skills" is moderately well-taken in the dealmaking and counseling spheres; "moderately" because the either-or framing of the issue overstates the dichotomy, as "either-or" in real life as opposed to academic arguments tend to do (NB: I just posed an either-or dichotomy myself!). What great dealmaking and counseling lawyers do is walk and chew gum around that putative dichotomy - have wonderful technical skills as lawyers but an additional ability to raise their perspective to a meta-level in which legal consequences are only one of the various concerns to be resolved. Experience (in the sense of cycles of learning) is critical both to technical and meta abilities, but knowledge - of literature, social science, physical science, medicine, you name it - in a far broader sense than deep dives into legal doctrine is the source of the latter.

Posted by: Jeff Lipshaw | Jul 8, 2014 7:43:25 AM

"There are two problems with this vision of practice. The first is it makes lawyers redundant, quite literally. [...] The second is that this is an image of a broken practice."

You seem to be arguing "We shouldn't look at the law this way because it would be bad for lawyers." Or to use a metaphor, "There is a problem with this vision of the Emperor's clothes, it is an image that he is in fact naked." Hopefully this was just a poor choice of wording.

As to the question of how to make lawyers more practice-ready, the sciences have already given a model for this. Classroom education + labs. Why doesn't a 3 credit T&E class come with a 1 credit T&E lab where students practice writing wills, analyzing wills for issues, have mock client counseling exercises, and the like?

Posted by: Derek Tokaz | Jul 8, 2014 11:46:24 AM

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