Jackson, H E --- "Analytical Methods for Lawyers" [2004] LegEdDig 22; (2004) 12(4) Legal Education Digest 8

Analytical Methods for Lawyers

H E Jackson

[2004] LegEdDig 22; (2004) 12(4) Legal Education Digest 8

53 J Legal Educ 3, 2003, pp 321–327

Notwithstanding the expansion of the law school curriculum, the characteristic mode of evaluation for legal education remains examinations that present complex fact patterns for which students are expected to divine applicable legal doctrines, identify legally relevant facts, and evaluate the relative merits of potentially competing claims.

All this is well and good. After a year or two dedicated to these pedagogical objectives, students start to think like lawyers. But simply thinking like a lawyer has never been enough. Students must be taught how to reduce their research into clear and effective prose in forms most common to the legal profession: the memorandum, the brief and various types of pleadings. Students must also be instructed in how to present the analysis in a variety of interpersonal settings, from closing arguments to negotiations between opposing parties. Finally, there are all the practice skills covered in the breadth of clinical offerings that constitute an increasingly important part of the modern law school curriculum.

But law schools should do more. In the legal world and beyond, analysis and argumentation are increasingly quantitative. Lawyers must work in a world in which arguments are framed in quantitative terms and the evaluation and presentation of data are critical to effective advocacy.

Having participated along with several other members of the Harvard Law School faculty in the creation of a similarly spirited course — Analytical Methods for Lawyers (AML) — the author is extremely sympathetic to their proposal for curricular reform. Quantitative skills are essential to lawyers in the twenty-first century. Many very capable students come to law school without extensive training in quantitative analysis. The experience at Harvard is that students who lack a quantitative background are acutely aware of the deficiency and readily enroll in courses that promise to demystify concepts and techniques that are clearly important to practising attorneys.

Considerably more attention should be given to the question of how students should be drilled in and tested on their knowledge of quantitative methods. The optimal introductory course should include a broader coverage. For example, in the case of AML at Harvard, the course is built around a nine-chapter textbook. Chapter 1 introduces students to decision analysis, a set of techniques traditionally taught to first-year MBA students. Chapter 2 expands on decision analysis to introduce basic game theory and strategic challenges raised by incomplete information. Chapter 3 presents an overview of the function of contracts and a toolbox for designing effective agreements — contracts that will accomplish clients’ objectives and avoid common pitfalls. Chapter 4 turns to analytical skills typically associated with business courses and practice: accounting and the interpretation of financial statements. Chapter 5 offers an introduction to the field of finance. Chapter 6 presents a primer in basic microeconomics. Chapter 7 is an introduction to the field that has become known as law and economics, the hallmark of which is attention to the effect of law on individuals’ and firms’ behaviour. Finally, chapters 8 and 9 turn to empirical techniques. Chapter 8, ‘Fundamentals of statistical analysis’, begins by introducing the basic elements of descriptive statistics, including various measures of central tendency and variability, with a particular emphasis on the value of visual presentations of data in histograms and other graphic formats. Chapter 9 concludes the treatment of empirical methods with an introduction to multivariate analysis.

Requiring law students to take a mandatory course in quantitative skills has two problems: first, it wastes valuable classroom hours for students who already possess the necessary skills; second, it greatly complicates the pedagogical challenge to the professor who must teach to a class full of students with widely different needs and interests. A better approach is to make the class optional, but to take steps to help students decide whether they are lacking skills in particular areas. Ideally, the curriculum would be designed to allow students to enroll only in those modules where they lacked basic skills. So the ideal course in analytical methods would be an optional series of modules from which students could select whatever components they require.

A further practical question is when such a course should be offered to students. At Harvard the choice was to locate the course in the spring term so that student can take it during the second half of their first year. At that point the students know something about legal doctrine and civil procedure and are beginning to understand the various roles that lawyers are called upon to play in both litigation and transactional settings. Accounting and finance provide important background for corporations classes and other commercial courses. Knowledge of statistical methods is useful in upper-level courses on employment discrimination and many other areas of public policy analysis. The strong recommendation is that the course not be postponed until late in the second or third year of law school lest these students be needlessly disadvantaged in other upper-level courses.

One of the assumptions in developing AML is that reliance should not be placed on a single final examination to assess student performance. A four-hour-per-week format has been used by dividing each week of classes into two lectures with one session devoted to the review of a written exercise that the students must submit in advance and on which they are graded each week. Over the course of the semester, students are expected to complete 10 to 12 such exercises, which together account for about a quarter of their course grade. The experience has been that regular written exercises and prompt feedback are the best way for students to internalise new analytical skills.

A separate practical concern relates to the issue of who should teach a course on analytical methods. The concepts covered in the textbook used are either already known or easily enough understood, so that most instructors who teach commercial, corporate or economic courses would find themselves entirely comfortable presenting most of the topics covered.