Law School vs. Lawyer School

The American Bar Association’s Task Force on the Future of the Legal Education met this past weekend to discuss what is seen as an urgent need for bold changes in the legal education in the United States, as reported in a New York Times article

According to this article, some of the suggested changes are described as follows:

Many recommended reducing the core of law school to two years from three to cut costs. Others suggested that college juniors should be encouraged to go directly to law school, the bar exam should be simplified, accreditation standards should be relaxed to allow for more experiential learning, and states should establish training for the legal equivalent of nurse practitioners.

The cost of a legal education (this is especially true in the United States), a public that cannot afford lawyers’ fees and a growing global community are some of the challenges being faced. However, one aspect of this article that especially resonated with me was the discussion surrounding law graduates’ lack of practical knowledge. While there was definitely a very steep learning curve when I entered the profession, I am still grateful for the countless hours of theory, philosophy, analysis and critical thinking that was a very large part of my legal education. I think that those very aspects of my education make me a better lawyer. There is a difference between training a person in the law and training a legal practitioner. The solutions discussed by the American Bar Association all have to do with how to train lawyers, as is its mandate under the task force mentioned above, but were does this leave law as an academic discipline?

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Comments

  1. Susan Cartier Liebel

    Unfortunately, law schools have traditionally focused on turning out ‘employees’. Therefore, they catered to the BigLaw employer and what they wanted…students who could be shaped in their own image. They neglected the other critical part of the equation, what the student needed to be a fully functional practitioner in any economic environment.

    Now they are getting hit with market forces and having to turn the titanic around before it sinks.

    The focus of law school should NEVER have been on the employer to the degree it was because it left the majority incapable of fending for themselves.

    When law schools refocus on their students and ALL the possibilities a full-fleshed out education can provide, then they’ll have hit on the right formula which satisifes the student first and then the employer if that’s what the new grad wants. To not have strongly emphasized practical skills was a fatal mistake. First the students have paid a very high price, now the law schools are paying and will continue to pay a high price until they revamp their own business models.

  2. Arthur van Maurik

    Indeed LAW schools teach law, but forget completely that the new (and existing lawyers) are also entrepreneurs. Lawyers very often have no idea about marketing & sales, there is no business development thinking and there is no idea who the clients are and what the clients thin about wat lawyers do.
    Everybody knows hiring a lawyer costs a lot of money. Sometimes the lawyer is the only one making money in a conflict.
    My suggestion is that Universities also need to prepare their students to become a business man or woman. Offering a course in Business Development could help the new lawyers to make a better start and create demand for themselves also if they grow into the larger law-firms. It could create a new look at the “business”lawyers also are.
    How well do you take care of your clients? They pay your salary, nobody else

  3. There should be a finishing school (something like my father has – Gerry Spence’s Trial Lawyer College) that teaches a lawyer how to find the truth in the case and in oneself, how to face one’s own demons so those demons don’t influence how the case is handled, to always prepare as if absolutely going to trial from day one. The people need compassion. They crave authenticity.

  4. In general, the problem with law school is NOT the length, but rather the method–namely, the casebook method. The idea of having a lawyer school instead of a law school goes all the way back to an 1947 article by U.S. Circuit Judge Jerome Frank.

    >>Jerome Frank, “A Plea for Lawyer-Schools,” 56 Yale L.J. 1303 (1947). (This article is available through Westlaw.)

    >>”Reconstructing Langdell,” 13 Ga. L. Rev. 1 (1997).

    >>”Living with the Case Method,” 36 Vill. L. Rev. 517 (1991).

    >>”The Elephant in Law School Classrooms: Overuse of the Socratic Method as a Obstacle to Teaching Modern Law Students,” 85 U. Det. Mercy L. Rev. 293 (2008).

    Apparently, very little has changed since Frank’s article.

  5. Everyone who claims that the key problem(s) that new lawyers face after graduating from law school is the result of the manner in which law is taught at law school should be required to set out what he or she claims are really problems.

    Let’s use an analogy. I doubt anybody in the “first world” will complain, seriously, that most just graduated medical doctors aren’t competent to perform open heart surgery. I suspect it’s likely that none attempt, either. On the other hand, most are competent to tell the difference between a dead person and a zombie. Choose your own legal task equivalent.

    I’d quote Shakespeare, here, but why bother.

  6. Jonathan Westphal

    “Everyone who claims that the key problem(s) that new lawyers face after graduating from law school is the result of the manner in which law is taught at law school should be required to set out what he or she claims are really problems.”

    OK, I’ll bite.

    (1) There is no evidence that the “Socratic Method” is a particularly effective pedagogical method;
    (2) Unlike other disciplines, the vast majority of law professors have no experience teaching, nor any education on how to effectively teach, prior to becoming law professors;
    (3) Using final essay exams for 100% of a students mark, then distributing the grades on a curve, is, to be charitable, not the best way of accurately assessing and representing to future employers students’ grasp of the subject matter;
    (4)”Teaching students to think like a lawyer”, to the extent anyone even knows what that is supposed to mean, is made difficult by the fact that most tenured law professors have little if any real experience in the practice of law themselves. Law school rather teaches students to think like law professors – the extent to which this is valuable in the real world can be debated;
    (5) Legal research and writing courses tend to be a bit of an afterthought at most law schools, despite the fact that one of the main demands of law practice is well developed legal research and writing skills.
    (6) Law professors are in general rewarded for their production of legal ‘scholarship’, which can sometimes be of rather dubious value, rather than for excellence in teaching.

    There are more, but given the dismissive tone of your post, why bother?

  7. Are we going to continue to play the fiddle while Rome is burning? We have a serious access to justice crisis and these debates will be meaningless when we wake up and find that we have become irrelevant to a large chunk of society. I very much enjoyed the theory, philosophy and critical thinking that was part of my law school experience, I was also grateful for the opportunity to work in a clinic in which I learned how hard many people have it and how the legal profession at its best is a helping one. We need to see ourselves as public servants and to use the privilege bestowed upon us to make access to justice real for more people. Practical learning focused on helping those who have difficulty accessing the legal system could be a way to do that.

  8. I reply to Mr. Westphal.

    Assertion (1) :

    There is no evidence that the “Socratic Method” is a particularly effective pedagogical method;

    Response: Every competent lawyer-practitioner or lawyer-academic who has graduated since law schools began using the “Socratic method” is that evidence. Those who are more than merely competent are even better evidence.

    What is your contrary evidence? Your assertion isn’t it.

    Assertion (2):

    Unlike other disciplines, the vast majority of law professors have no experience teaching, nor any education on how to effectively teach, prior to becoming law professors;

    Response: What are your comparative disciplines? (What is your reference class?)

    Even granting your assertion is factually accurate, what conclusion are we to draw from that and what is your evidence that that conclusion would be correct.

    Assertion (3)

    Using final essay exams for 100% of a students mark, then distributing the grades on a curve, is, to be charitable, not the best way of accurately assessing and representing to future employers students’ grasp of the subject matter;

    Response: Putting aside the affect of the curve (which won’t fail a student who has passed) exams are a very good way of testing a student’s ability to perform under pressure. I appreciate that it isn’t the case that all aspects of law require the student to perform under pressure other than that of a time limit.

    Perhaps your point is that closed book exams aren’t a good way to indicate what a person’s knowledge of the law is. Assume you are in court and an issue of evidence arises – perhaps you want to object to a question the other lawyer asked. Do you think you’ll always be given to look up whether you’re right? Or perhaps you think solicitors don’t have that problem. Do you think you’ll always be able to tell your client “I call you back?”. (By the way, someone whose knowledge far surpasses mine has made the point that, in may ways, solicitors have to know more law than litigators. Think about that.)

    Assertion (4)

    “Teaching students to think like a lawyer”, to the extent anyone even knows what that is supposed to mean, is made difficult by the fact that most tenured law professors have little if any real experience in the practice of law themselves. Law school rather teaches students to think like law professors – the extent to which this is valuable in the real world can be debated;

    Response: You have not been following Slaw for very long if you are implying that I see any valid meaning in the “Teaching students to think like a lawyer” shibboleth. The rest of the assertion is (4) is a restatement of (1) – (3).

    Assertion 5

    Legal research and writing courses tend to be a bit of an afterthought at most law schools, despite the fact that one of the main demands of law practice is well developed legal research and writing skills.

    Response: I am happy to accept, for argument’s sake, the assertion that “one of the main demands of law practice is well developed legal research and writing skills.” I’d have written “a litigators’ practice” or a “recently graduated lawyer’s practice”, but we’ll put that aside. In the few law schools with which I am familiar, the courses you refer to aren’t “afterthoughts” of any type, in my view and experience. They weren’t in the early 1970s when I was first formally a student and weren’t, again, in the past few years when I was again formally a student.

    I’ll state that, while I never formally taught as a law professor, I was well-positioned to comment on the adequacy of what was offered, at least in Ontario. If you don’t believe that assertion, check what’s available about me on the web. (That’s also a response to your concluding assertion.) I suspect you didn’t because, if you had, you’d not have written what you did as you did.

    If your point is that what you experienced was inadequate, you’ll have to explain why. If that’s not your point, then what was it?

    Assertion (6)

    Law professors are in general rewarded for their production of legal ‘scholarship’, which can sometimes be of rather dubious value, rather than for excellence in teaching.

    Response: Let’s assume, for argument’s sake that that assertion is correct. It says absolutely nothing about the teaching ability of any law professor.

    Your last assertion:

    There are more, but given the dismissive tone of your post, why bother?

    Response: If you “bother”, it’s because nothing you wrote is evidence of anything relevant to what I wrote. It is, to me, evidence that you were and are unhappy with your experience in law school, or perhaps your experience since then.

    Yes: there are professors who aren’t good at teaching. There are also practictioners who are worse. However, the “dirty little secret” about law is that much of it isn’t “rocket science” and doesn’t require a good teacher except in the sense that a good teacher makes the subject interesting. What it does require is hard work.

    Once you leave law school, that means doing what amounts to homework – I realize that’s a dirty word so I ought to have used an asterisk or two – because doing today’s work means you have to prepare tonight for tomorrow. That’s a competent, conscientious, lawyer’s life and obligation.

    On the other hand, I claim I was accepted into law school because they needed another goalie for the school’s hockey team, graduated because they didn’t need me any more, and I got my articling position because I promised to keep my GAA under 3, so who knows.

  9. David, while thinking quickly, or being able to recall information quickly is a valued skill in law, it is only one of a multitude of skills necessary and beneficial for the practice of law. This makes it all the more puzzling why law schools continue to use 100% finals as a tool to asses a student’s understanding of the material, and ability to apply and communicate that knowledge. Having graduated back in the 70’s, and likely having pursued a masters more recently, its possible that you forget that most law school exams consist of superficial issue spotting in unrealistic timelines, which is a great skill to have, but should not be focused on for each and every exam through 3 years of education.

    Perhaps it is the fact that most lawyers, especially the older lawyers in our bar, have experienced but one educational discipline, i.e. graduated from political science, history and went to law school, that means that they do not see the inability of law to adapt, evolve and change with the changing needs of the market, 100% finals and the socratic method being examples. Having had the luxury of studying in a multitude of disciplines, I was shocked and appalled by the lack of innovation and progression and the general ignorance of technology that is evident in the way law schools execute their curriculum. I say this having attended one of the top rated schools in canada., known for progressive thought.
    Perhaps another perspective is this; would those who stand up for the effectiveness of the status quo in law school feel the same if they were spending the 20-30 thousand per year in tuition that students now face rather than the 3-5000 that older generations spent? I see a huge increase in price, but a very small change in the way education is delivered.

  10. Steve,

    “would those who stand up for the effectiveness of the status quo in law school feel the same if they were spending the 20-30 thousand per year in tuition that students now face rather than the 3-5000 that older generations spent?”

    I would. I do not purport to speak for anybody else.

    That doesn’t mean I am against new teaching methods and using technology. Lecturing where one does nothing more than repeat what one said last year, and the year before, is easy. Designing a course that explains the signficance of what one is teaching – say in contract law where the course is based around the proper approach to drafting a contract – is much better for most students than the lecturer merely standing (or sitting) in front of the class declaiming rules which rarely mesh.

    This is where I get to (gleefully) offend some in the legal profession, as well as some who aren’t in the profession, with the same comment. There is nothing inately difficult about most of what makes up the subject matter of “law”. Where it is difficult in that sense, it isn’t because of anything that’s uniquely “law”.

    If you (the generic “you”) say that to a mixed audience – especially if you put it: most of law’s subjects are easy and where they are not it isn’t because of something unique to law – you prick the egos of some who have a law degree and offend those people who tried but failed to get into law school, or failed law. They hear: “you’re not smart enough” or “I’m smarter than you are because it was easy for me … because I made it and you didn’t”.

    My first time around, the dean was famous for having referred to the law school as the best law school in the Commonwealth. Wags noted that that it wasn’t even the best law school in North York. Some of the high schools taught “commercial law” in their secretarial and business courses to the those were streamed into 2 and 4 years courses because it was thought they weren’t smart enough – or otherwise well-enough equipped – to take the 5 year courses designed to prepare one for university study. (If you heard a snicker in my tone, you didn’t mishear).

    My second time around was the school closer to the Harbord Bakery. It’s also closer to other places, too.

    Do you believe that making all of the exams take-home & open book and changing nothing else about the current manner by which law is usually taught in law schools would change Mr. Westphal’s views?

    By the way, it’s my experience that a course with exams, only, takes much less work to pass than a course with essays. I’m assuming that the exam is “proper”. I use “proper” to mean the question is based on material that formed part of the assigned reading in the course for exam purposes. I admit that I might be biased since my approach to essay writing tends to be on the extreme side of obsessive.

  11. As 3 days have passed and, (1) in my view, neither of my interlocutors have replied setting out what it is they claim is wrong with the Socratic Method, (2) I have admitted that I plan to offend, then (3) I am going to offer my view on what it is they find wrong with the Socratic Method. It’s also my view of what underlies most of the complaints I hear about the use of that method, apart from the sometimes underlying “and I was embarrassed by the questioner because I was made an example of in front of the class”.

    They’re not spoon-fed the answer. They’re asked to figure it out themselves from the bread crumbs scattered in front of them. They’re asked, heaven forfend, to work out the answer from principle. Imagine that. Students who now, mostly, have at least one undergraduate degree, and sometimes have a post-graduate degree, being asked to think not just parrot.

    I told you I planned to offend.

    The fact is that the Socratic Method is work for the teacher, too. One has to listen to the answer given and shape one’s response accordingly. It’s much easier just to say “X” is the answer. I was discussing the complaints of students about the Socratic Method with professor friends, at dinner, tonight. One said he’d heard a speaker say that all students learn from from being spoon fed is the shape of the spoon. I wondered whether that depended on where the spoon was put.

    The discussion we’re having, here, isn’t new. Here’s a link to a 2011 iteration, elsewhere, not so long ago, in the Opinion section of the NY Times along with the article that initiated the discussion. Here’s some other links: on the Volokh Conspiracy here – which includes links to posts on the “how to think like a lawyer” mantra; one whose heading is “why does the Socratic Method upset people so much“; and two to relevant essays on the Stanford Encyclopedia of Philosophy: here and here.

    I chose the last two entries assuming that the mere reference to “philosophy” might offend, too.

    By the way: about the article in the New York Times that Ms. Lay referred to in the posting that started this thread. I finally got around to it. It has nothing whatsoever to do with the Socratic Method. It’s the stock law firm complaint that law schools aren’t producing minnows the firms can toss into the water unescorted; the trade school vs law school dispute. Imagine that.

    (I also bought a wooden Round Tuit, today – in Fremantle Westen Australia – for a friend whose just been appointed to the bench – but that has nothing to do with this discussion.)