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.