Cassidy, R M --- "Beyond practical skills: nine steps for improving legal education now" [2013] LegEdDig 7; (2013) 21(1) Legal Education Digest 24

• Beyond practical skills: nine steps for improving legal education now

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Beyond practical skills: nine steps for improving legal education now

R M Cassidy

Boston College Law Review, Vol 53, 2012, pp 1515-1532

In a series of studies over the past two decades, reports commissioned by the American Bar Association (ABA) and the Carnegie Foundation for the Advancement of Teaching have concluded that our nation’s law schools are failing to prepare graduates adequately for the practice of law. Proposed reforms include providing more practical skills training for our students and adopting teaching practices that focus more effectively on simulated client experiences.

Traditional law school assignments – whether papers or examination – are typically completed by students working alone. Yet the practice of law, regardless of the setting, is much more commonly undertaken as a group activity. Lawyers work in tandem with other lawyers, paralegals, social workers, accountants, and expert witnesses, such as doctors, scientists, and engineers. Therefore, law schools must do a better job of preparing lawyers to work collaboratively. Group projects and presentations should be routinely incorporated into course requirements, just as they are so commonly utilised in business schools. As Professor Gerry Hess has noted, working in a group increases a student’s appreciation for diversity, decreases their sense of isolation, and helps them learn to mediate conflict.

The MacCrate Report identified problem solving as one of the ten most important skills for attorneys. Yet traditional law school pedagogy based on the Langdellian case method teaches a very specific and particular type of analytical reasoning. The case method presumes that lawyers, as social ‘scientists’, can study appellate decisions to uncover legal principles, classify and organise these principles, and then develop a structure that will allow them to apply the doctrines to a more general set of facts in order to reach a solution to legal questions. This process of conceptualisation and categorisation – so heavily emphasised in law schools for the past years – employs an inductive form of reasoning and teaches students to reason from specific examples (i.e., appellate decisions) to universal propositions. A problem-oriented approach to law teaching, by contrast, forces students to employ a more deductive reasoning strategy. Rather than being presented with an end product of a case – the appellate decision – students are given the raw material of facts and are asked to identify objectives, strategies, and potential solutions.

It is important to distinguish a ‘problem’ from a ‘hypothetical.’ The latter, ubiquitous in legal education, employs a very specific factual scenario to illustrate a single legal doctrine. For example, in an Evidence course a professor might provide the students with a short vignette to illustrate the excited utterance exception to the hearsay rule. The question students are asked to grapple with is whether an identified out-of-court statement meets the requirements of the particular exception. Answering the hypothetical still requires inductive reasoning – asking the students to apply a discernible legal principle to a set of facts. Problems, on the other hand, work in both directions, with multiple legal issues and compound facts. Problem solving is ‘the process by which one starts with a factual situation presenting a problem or an opportunity and figures out the ways in which the problem might be solved or the opportunity might be realised’.

In many so-called ‘podium’ courses, law students are first exposed to problems during the final examination. The classic ‘issue spotter’ – where students are asked to study a set of facts, discern the possible legal issues, identify alternatives, and propose solutions – demands both deductive and inductive reasoning strategies. The irony here is that such exposure comes primarily at the end of the semester through an evaluative instrument rather than a teaching opportunity. The students typically do not work through the problem with the instructor and with classmates to learn from their application of facts to law (rather than law to facts). This is easily fixed. Faculty members can present students with problems at the end of each section of the syllabus to help them process the material studied to date and review these problems with the students either in class or in smaller study groups.

Our graduates increasingly will be practising in a global environment. The social, political, economic, and legal consequences of globalisation must be better understood and addressed in legal education. As the interconnectedness between countries grows, an exclusive emphasis on domestic law inadequately prepares our graduates to counsel clients who will do business globally (such as through e-commerce, trade, international business transactions, investments, and banking). Yet transactional lawyers are not the only attorneys who practise globally; all sorts of legal problems cut across national lines, including marriage and divorce, adoption, human rights, and the management of estates and international trusts.

A greater exposure to foreign laws not only will prepare our graduates to practice in a global environment, but it will also equip them with a deeper understanding of the choices made by our own legal system.

I have witnessed firsthand how a criminal law course is enriched by a comparative discussion of how other countries define the crime of rape. Similarly, some contracts professors may incorporate a discussion of the United Nations Convention on Contracts for the International Sale of Goods (CISG) in their discussions of the law of sales. These efforts should be continued and intensified across the curriculum.

Good judgement is perhaps the most important and highly valued character trait a lawyer can possess. ‘Judgement’ is the ability to deliberate well – to accurately assess a complex situation, to recognise and identify alternatives, and to select the course of conduct most likely to achieve the desired ends. This is an iterative process – it requires sensitivity to the salient features of a factual situation, an appreciation of the multiplicity of concerns at stake, and an ability to perceive, evaluate, and assess the probability of various outcomes and obstacles.

Although some may argue that one cannot ‘teach’ good judgement, that is only partially true. We can all help model good judgement for our students. Judgement can be fostered by having students work closely with more experienced lawyers and watch what they do. Certainly the vehicles in the curriculum that are the most conducive to modelling judgement are clinics and externships, where students work closely with experienced faculty members or carefully selected practising lawyers in solving live-client problems. But these are not the only places in law school where judgement can be emphasised and modelled.

Faculty should more regularly utilise practitioners in their podium courses to model practical judgement. For example, in a civil procedure course, a faculty member could invite to class a panel of distinguished practitioners involved in a recently settled mass tort action to discuss how the plaintiff class was structured and certified and what considerations went into negotiating an acceptable settlement.

A legal career – even the most stable and fulfilling – is peppered with difficult clients, bad bosses, long hours, and hard cases. Depression is four times more likely for lawyers than other professional groups in the United States. One factor potentially contributing to this alarming statistic is that young lawyers are left to grapple with important issues of professional identity on their own, without any conceptual framework to guide them.

The Carnegie Report recommended three apprenticeships essential to the professional formation of lawyers: the intellectual or cognitive apprenticeship, the apprenticeship of practical skills, and the apprenticeship of identity and purpose. With respect to the final apprenticeship, students need to explore the core commitments and values that underlie the legal profession.

A weekend ‘professional formation’ retreat might help fill this gap. Students, faculty, and select alumni would come together in an informal setting to discuss some of the core competencies and values underlying the role of lawyers in our society. Willing and empathic faculty and alumni would lead the discussion as facilitators.

A two-day professionalism retreat may only scratch the surface of these important questions. But if we want the conversation to continue throughout practice, we must begin it during law school. One approach to this deficit is to offer weekend professional identity retreats twice per year and to strongly encourage (if not require) participation by any law student who does not intend to enrol in a clinical or externship program.

The legal profession has become increasingly mobile. One of the key findings of the ‘After the JD’ studies is that attorneys in the United States ‘change jobs more often today than they did in years past’. Forty per cent of today’s law school graduates will change jobs within three years of graduation. In the five-year period between 2003 and 2007, lawyers in the ‘After the JD II’ study held on average two different jobs. Perhaps more significantly, lawyers are switching jobs between and among practice settings: 52 per cent of lawyers in the ‘After the JD II’ study changed practice settings at least once by their seventh year after graduation.

How, if at all, should law schools respond to this sharp rise in lawyer mobility? First, we should help our students make thoughtful choices about their job decisions, so that they are less likely to be surprised or disappointed about the law practice environment in which they start their careers. In addition to helping all of our students think about their first job after law school, we should expose them to a broader conversation about career trajectories in the law, which will better equip them to assess professional opportunities as they arise throughout their careers. Each of these objectives can be accomplished by offering a ‘Career Paths’ course (e.g., ‘Planning and Managing a Legal Career’).

A ‘Career Paths’ course can enable students to construct a framework for assessing their professional skills and values. These so-called ‘Career Paths’ courses seem to be offered routinely in MBA programs, typically by a faculty member in a Business School’s Organisational Behaviour Department. Yet such courses remain uncommon at law schools. The goal of a careers course would be to have students engage in a self-assessment process that will help them clarify their professional interests, skills, and values. After such a self-assessment, students would study the demographics of the legal profession, career options in different labour markets, and key competencies in various professional roles. They would also examine work-life balance issues in various sectors of the industry and the likelihood of being able to integrate successful careers in particular specialties with other personal and professional goals. The ultimate objective of the inquiry would be to help students create a professional development plan that will provide them with a framework for assessing career options.

Employment patterns for lawyers entering the profession have changed dramatically in the past ten years. The percentage of recent graduates joining small firms (two to 25) or starting their own law practices has increased over the past decade. The ‘Law Practice Management’ course is an important vehicle for exposing students to some of the critical business issues they will confront in the practice of law. Yet fewer than one-third of US law schools appear to offer such a course in their curriculum.

The ‘business’ of being a lawyer is not something that we should assume our students will be exposed to gradually in a large firm setting, with an extensive safety net of senior lawyers, accountants, public relations personnel, and human resources staff to support them as they learn. A rigorous Law Practice Management course would cover topics such as fee arrangements, billing, and collections; creating and maintaining systems for conflict-of-interest checks; business development and marketing; records retention and management; long-range strategic planning; and information systems technology for lawyers.

To realise fully the changes called for in the Carnegie Report, law schools must continue to broaden and deepen their clinical and externship offerings, make sure those programs are on sound financial footing, provide contracts and privileges to clinicians sufficient to attract and retain highly qualified faculty, and bridge the professional and cultural gaps that exist at many institutions between clinical and so-called ‘podium’ faculty.

Several studies have documented the alarming lack of practice experience possessed by faculty members entering the legal academy. A 1991 study reported that at the ‘top seven’ law schools in the United States, only sixty-three per cent of the faculty possessed prior practice experience. Faculty with substantial practice experience have more real-life examples to draw from in fashioning problems and simulations for their students, are better positioned to serve as career mentors, and will be more capable of participating meaningfully in the formation of professional identity through retreats and co-curricular activities.

A second focal point during the hiring process should be a candidate’s interest in and capacity for innovation in the classroom. A candidate interviewing for a position to teach a podium course (e.g., Contracts or Family Law) typically is asked to explain how they would approach the course and what teaching methods they would employ. We should recruit and hire only those candidates who possess the energy, excitement, and innovative spirit necessary to challenge the status quo and envision what truly is possible in legal education.

Hiring faculty members with more practice experience will for some conjure up images of legal academy as ‘trade school,’ a pejorative label that undoubtedly contributes to faculty divisiveness on the important subject of curriculum reform. By now, however, it should be beyond peradventure that law schools are both graduate schools in the humanities and professional schools; faculty members have a responsibility both to contribute to the advancement of intellectual discourse about the law and to train their students as future practitioners.

It has been five years since the Carnegie Report Educating Lawyers called for an ‘integrated’ approach to legal education that teaches professional skills and ethics across the curriculum. The fact that the legal academy has been so slow to respond since 2007 is not surprising – a fully integrated approach to teaching professional skills (such as the medical school model) will require major resource reallocations, realignment of teaching responsibilities, redesign of courses, and a change to graduation requirements. Although I fully support such a comprehensive approach, the pragmatist in me knows that it will take years to accomplish.

Some modest, interim reforms that are perfectly attainable in the short run and can be undertaken now to better prepare our graduates for the practice of law. Individual faculty members and administrators who support the ideals of the Carnegie Report should undertake these initiatives immediately, without waiting for the results of faculty studies and fundraising initiatives.

We are all in charge of our own classrooms and do not need to wait for permission to improve our pedagogical methods. Experimenting with new methodologies will not only improve the educational experience for our students, but it will also reinvigorate and re-energise us as teachers.

My proposals are not substitutes for a thoughtful, integrated approach to experiential education. I certainly hope they will not be used to placate reformers and avoid the very hard work that lies ahead. Yet considering that it may take decades to realise the full promise and potential of the Carnegie Report, none of us should be content to let the perfect be the enemy of the good. Our current students deserve our best efforts to make progress now toward improving the professional education of lawyers, even if it means proceeding in a piecemeal fashion.