AustLII Home | Databases | WorldLII | Search | Feedback

Legal Education Digest

Legal Education Digest
You are here:  AustLII >> Databases >> Legal Education Digest >> 2007 >> [2007] LegEdDig 47

Database Search | Name Search | Recent Articles | Noteup | LawCite | Author Info | Download | Help

Hyatt, W S --- "A Lawyer's Lament: Law Schools and the Profession of Law" [2007] LegEdDig 47; (2007) 15(3) Legal Education Digest 27

A Lawyer’s Lament: Law Schools and the Profession of Law

W S Hyatt

[2007] LegEdDig 47; (2007) 15(3) Legal Education Digest 27

60 Vand L Rev 385, 2007, pp 385–400

Many of you may wonder: ‘Why is he here?’ ‘What does he have to add?’ ‘He has practiced law for thirty-eight years; therefore, he has no role in an academic institution.’ You have all heard this before, and perhaps some of you have actually said it. Well, just consider me the consumer’s representative. After all, it is the law firms and law departments who hire, who consume, the product of the law schools.

But the reader should also consider me as one who is gravely concerned about legal education because I am gravely concerned about the practice — the profession — of law. And it is that concern that I wish to discuss with you.

Let us all acknowledge at the outset that the practice of law is under stress from both internal and external sources. Candidly and sadly, a primary cause of the stress is the rise of greed and a corresponding focus on ‘self esteem.’ Too often lawyers, and citizens at large, look at every situation as one in which there must be a winner and a loser. This win-lose mentality leads to a shocking decline in civic engagement. Therefore, one should readily acknowledge that a great deal of the problem of internal and external stresses in the practice of law rests on the bar and on its members. However, that determination is not the entire answer.

Perhaps we can also all acknowledge a growing disconnect between legal education and the practice of law. Hopefully, we can also admit that many professors, some might say most professors, embrace that disconnect because they feel, and because they exhibit, a disdain both for the practice of law and for those of us who practice. For some in the academy, it would be well if they could acknowledge that the issues with which many practitioners grapple are as intellectually challenging as those facing the scholar. Often the practitioner finds a solution only after her own scholarly inquiry.

Finally, all must overcome the odious envy of overpaid lawyers. We should simply acknowledge it as a fact and acknowledge as well that the demands upon the lawyer earning that wage go far beyond the accepted level of tolerance.

This disdain or distance is exacerbated as more professors enter faculties with advanced degrees in subjects other than the law and with an interest in highly specialised fields far removed from the practice generally. These professors bring an important ingredient to legal education and scholarship. But do they know and care about the law? Do they take the time to appreciate and to pass on qualities inherent in protecting the law? Some certainly do; some could not care less.

So let me begin my discussion by asking a very important question: How can one teach, indeed train, would-be lawyers when one exhibits by word and deed disdain for lawyers? Deflecting the question, many academics will answer that it is ‘the law’ and not lawyers with which he or she is concerned. It is scholarship, not teaching, that is one’s primary responsibility. Certainly professors are not concerned about the ‘greedy associates’ but rather the intellectual development of the law. Many law faculties will also say that ‘the men and women we turn out do not really matter.’ This is a reflection of the perception that the ‘big firms’ want warm bodies just as World War I generals needed troops for the trenches.

Impressively cynical, and sadly, at least in part, accurate, one should still ask, ‘Is this answer true enough? Is it truly valid?’ If one cares about ‘the law,’ which I do and assume, indeed sincerely believe, that the reader of this essay does as well, shouldn’t one care more about how it is practiced? To those who answer ‘no,’ to those who are ambivalent, or to those who only worry about the best and brightest in the class, I say: You undervalue — seriously undervalue — the purpose of a legal education.

The approach of so many faculty members, in identifying the best and the brightest students and spending an inordinate amount of classroom and particularly out-of-classroom time with this cohort is particularly alarming. First, in all too many cases, this special time is spent attempting to steer these ‘special’ students away from the practice and into clerkships initially and, ultimately, onto faculties. The emphasis is on an alternative to law practice rather than encouraging these exceptional students to become engaged in the practice of law and bring to that practice their special skills and capacity. If they were to do so, it would enrich the law as a profession.

Another aspect of the focus on the best and the brightest is that many students are treated differently when they are presumed inadequate. This presumption of inadequacy may be because of race, social class, gender, or other reasons. And yet, in many cases, it is the less-focused-upon students that ultimately become the core of successful lawyers in firms, large and small, throughout the United States.

However, the main point I wish to make simply focuses on where the professor seeks to steer her best students. Many of those best students should be steered into the practice of law with an injunction that it can be a most rewarding and valuable service as well as a personally and financially rewarding vocation.

Let me share my sense of what the purpose of legal education should be. I should note that this discussion is not simply a reflection of one practitioner but is based upon a series of interviews with a host of practitioners, general counsel, academics, and business people.

Some argue, with conviction and persuasiveness, that the goal of legal education should be to teach the student to ‘think like a lawyer.’ One could observe, of course, that the oft-heard phrase ‘thinking like a lawyer’ would require another extensive article to define what it truly means. But assuming that there is some general consensus on what it means to think like a lawyer, one could ask, ‘Is that enough?’

This view of the purpose of legal education is good as far as it goes, but it is overly simplistic. Looked at as an academic exercise in ‘lawyer think,’ the entire process may become a self-fulfilling prophecy of producing men and women who may have highly skilled academic acumen within a narrow channel of teaching and testing but no capacity to deal with the realities of the practice of law in a meaningful, professional way.

Legal education is only as good as its end product: men and women who employ that education in the profession, in business, and in their daily lives. A measure of success is how well these graduates execute the ‘traditional skills’ of a lawyer. These skills are those most commonly described as ‘thinking like a lawyer.’ However, the intermediate consumer and the ultimate consumer, the public at large, also look, or certainly should look, for far more. They weigh the quality of the education by the standards of professionalism that the graduate embodies and should discern whether a way of acting like a lawyer is as ingrained as the habit of thinking like a lawyer. Anyone can be taught to think a certain way. Being a lawyer — being a professional — requires far more.

It is also this ‘quality,’ rather than the particular actions that might result from ‘thinking like a lawyer,’ that one should mean when talking about being a professional. It is a ‘certain tone or quality’ that the intermediate and ultimate consumers should be able to rely upon.

The conference that prompted this essay was about new approaches (but approaches nonetheless) that are consistent with the vital aspect of today’s law school: scholarship and high-quality research. In no way do I reject this aspect of legal education. I am talking about something not inconsistent with the importance of scholarship and research, but rather about something that in many ways is so old-fashioned that it is too often out of fashion today. That is leadership and character.

When I began my teaching career as an adjunct professor in the mid 1980s, I kept on my desk a copy of an article by Dean John Wade on the role of a law professor. That article repeatedly reminded me that the test of an effective professor had three prongs, reflecting teaching, scholarship, and public service. Said from a different perspective but making a similar point, Paul Cadenhead, a distinguished member of the Atlanta Bar now retired but still standing for high-quality professionalism, commented that the role of a lawyer should be reflected in three stages: ‘preparation, practice, and payback.’ Both of these well-regarded men were making clear that leadership and character are inherent parts of being a professional.

Let me hasten to add, however, that I am not asking law schools to teach the specifics of the practice, the trade craft if you will, or to ‘teach’ character. There are many reasons that it is not the responsibility of the law school to do so. First, it is not the professor’s job or purpose. Second, it is not consistent with the true objective of a law school. Third, law schools do not have the time to undertake such a broad responsibility. Fourth, and I say this with great respect, in many cases, if not in most, law schools professors do not have the requisite skill sets to teach the actual specifics of the practice of law.

What can the law school do to address the problems that I have identified? I have selected four essentials out of what could be a much larger list: (1) professionalism and integrity; (2) the ability to read and to understand people; (3) the ability to solve, not just spot, problems; and (4) an understanding of the multidisciplinary nature of most transactions.

These are examples of what is missing and the consequences of that lack. I am not suggesting that there is a need for special courses to teach these qualities; in fact, I would urge that there not be. Rather, let me pick up a comment from Robert D. Cooter’s remarks at the symposium on the future of legal education in his presentation on Law and Economics: He said that he realised that the Law and Economics movement had reached a significant point of success when the subject disappeared as a distinct topic and instead was found throughout the curriculum itself. Likewise, the qualities necessary to be a professional should be embedded not like raisins in a loaf of bread but like the yeast that permeates the entire loaf. From twenty-plus years of teaching, I know that to do this is not only possible but also will be well-received. But one must have the ability and especially the willingness to try.

At the outset, it would be interesting to ask the reader: Does your law school teach professionalism? Is it taught by a senior faculty member, or is it pushed off to a junior who finds herself or himself; ‘stuck;’ with teaching such a course? A more important set of questions would be: Does your faculty see the topic as contradictory to the practice of law, and what subtle and not-so-subtle signals do you send to your students in class and after class about the topic of professionalism? Finally, what do you value as the standard(s) of a professional? Professionalism, as I use the term, does not mean compliance with the Code of Professional Responsibility or similar codes and statutory prescriptions.

There is a significant difference between ethics and professionalism. The simplest yet most descriptive distinction is as follows. Ethics set out how we are to act — what we are to be — because there are rules telling us how to do so. Professionalism, on the other hand, defines how we should act even when no one is watching, or more importantly, when no one is enforcing a rule.

Professionalism reminds us that fidelity and loyalty to clients are to be balanced with the lawyer’s obligations to the procedures and institutions of the law and the administration of justice broadly defined. Professor Evan McKenzie, writing in a different context, provided an interesting observation: ‘The law school focus on abstract rules and adversarial interests does not prepare lawyers to understand the role of law in a community or in personal relationships. This produces lawyers who are unprepared to appreciate the complexity of roles ... in a common interest community.’

A lawyer should have at least four commitments: to the client, to integrity, to the profession, and to the community. The commitment to the client is all about roles and relationships.

Two eminent jurists have paraphrased this commitment briefly but completely. The late judge Richard S. Arnold wisely observed: ‘Sometimes a client needs a friend, instead of just an advocate, to place a situation in perspective. So the true definition of zealous ... should encompass some form of restraint.’

Said a different way, Justice Hardy Gregory of the Georgia Supreme Court, in his discussions of professionalism, noted: ‘There is a time to take a stand, and there is a time to find a way. Good lawyering is knowing the difference.’

Justice Gregory’s comment is reminiscent of a line that the Reverend Dr. Martin Luther King, Jr. borrowed from a well-loved spiritual: There will be ‘a way out of no way.’ Is not that the mark of a great scholar? Is not that the mark of a great lawyer? When one finds a way out of no way, one is using all of the scholar’s and the lawyer’s skills. One is not simply looking for the opportunity to ‘beat’ someone else, but rather is seeking creative solutions that reflect the qualities of a professional, including the use of character, integrity, and judgment.

What does a professional owe a client? I suggest that Judge Arnold and Justice Gregory and many others would say faithfulness, competence, diligence, good judgment, balance and a willingness to say, ‘That is not the thing to do.’ This conclusion leads us to a discussion on the commitment to integrity. Professor Stephen Carter, in his book Integrity, claims that one with integrity has both a responsibility to say ‘no’ and a responsibility to ask ‘why?’ He points out that one can be honest without having integrity but one cannot have integrity without being honest. Too often these concepts are nowhere to be found in any classroom discussion on any topic.

One may teach these concepts without ever using the word ‘integrity’ and without compromising the substantive point of the lesson. However, when one fails to teach the importance of integrity, in the profession and in the practice of law, one helps to perpetuate the all-too-common stereotype of the lawyer who has no integrity at all. Integrity requires that one discern right from wrong and that one act on that discernment without regard to the cost to himself or herself. A person of integrity is a whole person, the same yesterday, today, and tomorrow.

Yet, frequently the antonym of integrity — what I would call ‘applied situational ethics’ — is the touchstone in the classroom as well as in society. The consequences, however, are draconian, for with ever-changing context and situations, the student and then the young lawyer change. The young lawyer comes not to know which him or her is actually him or her. Burnout is expedited, dissatisfaction increases, and with the loss of reputation comes a loss of ability. After all, what comprises our capacity to persuade, to bring a deal to closure, or to solve a problem ultimately rests on our credibility, our respect, and our innate persuasiveness. These contexts all fluctuate as one changes in the face of applied situational ethics.

I have had professors ask me why some of their excellent students are now so unhappy in the practice of law despite the fact that they appear to be extraordinarily well-paid and seem to deal with very interesting and exciting legal challenges. A great and enduring, if very regrettable, answer is that the young lawyer has fallen victim to the consequences of this situational ethic alternative to integrity.

One extraordinarily successful and keen evaluator of the practice and practitioners pointed out that ‘lawyers learn nothing about interpersonal relations, management, and the arts of leadership’ in law school. He went on to lament lawyers’ lack of character, their inability to read and understand people, and their lack of related skills. Among these skills are anger management, the ability to negotiate, and the ability to convince another party (note I did not say ‘adversary’) of one’s position.

Inherent in the case method is a failure that affects both the ability to read and understand people, and the ability to solve, not just spot, problems. Certainly one can argue that a professor cannot teach common sense nor develop in a student the ability to be ‘a people person’ when that student does not come into the classroom with a minimal level of people skills. However, the creative structures in legal education can go a long way toward enhancing pre-existing skills.

One commentator lamented that too frequently professors find it difficult to teach transactional law because they have never done transactions. The case method ‘is dependent upon a reiteration of what is in the case book, not how to get to yes,’ he observed. This is all part of the standard approach in law school of spotting, but not solving, problems.

Spotting issues is, of course, important, but that is only the beginning of the process.

Just as Mike Rubin made the comment that most law students are not taught how ‘to get to yes,’ I would observe that the little monogram ‘Getting to Yes’ simply sums up many of the concerns in this essay. That book, one of the bestselling books of all time, sets out a system of negotiation that is designed to be nonconfrontational and one in which all parties can find that they have won something. Most law students scoff at such an approach.

I experienced this while teaching negotiations at Vanderbilt University Law School. Students would roll their eyes when I made the argument that truly successful negotiations were not predicated upon causing the other side to lose. I finally resorted to a book by famed sports agent Leigh Steinberg, entitled Winning with Integrity, to provide credible support for the basic principle that solving problems in a nonconfrontational manner was an essential part not only of being a professional but also of being a successful business person.

The amount of success, economic or otherwise, achieved by abandoning or ignoring one’s values cannot compare to the degree of success, satisfaction, and fulfillment achieved by applying those values to the process.

In today’s world, most legal transactions — certainly those faced by the vast majority of lawyers — are no longer single-shot transactions reflecting one area of the law. The complexity of today’s world and every transaction, whether personal, governmental, business, or otherwise, is too multifaceted to approach issues as if they were susceptible to legal analysis based upon a single area of the law. Perhaps this point harkens back to Bob Cooter’s comment that Law and Economics permeates the curriculum, and thus, the movement has succeeded. Perhaps I am merely asking for the application of ‘Law and Reality,’ since in reality, few questions facing today’s lawyer are unidimensional and clearly cut from a single strand of legal reasoning. When problems are approached in the classroom as if they stood all alone, we are shortchanging both our students and the profession.

In conclusion, I would make one final point. What I am asking to be taught is consistent with the best of scholarship and teaching. In fact, it defines great teaching. One can teach what it means truly to be a lawyer as one teaches courses of personal scholastic interest. One can teach principle and practice in the same classroom setting. And that, I truly believe, is what practitioners of law are asking of teachers of law. As you teach and expand the law, teach what it means to be a lawyer as well as how to think like one.

AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback