What They Don’t Teach Law Students: Lawyering

The article offers what is really an academic critique of law school education. In effect, it says, "wouldn't it be so much better if we could just dispense with all that abstract case-law analysis and get on with teaching prospective lawyers how to draft contracts, how to try cases, how to handle client interviews, how to give strategic advice for doing acquisitions, how to negotiate personal injury settlements or divorce arrangements, how to represent clients before federal regulatory agencies, how to handle equity and debt funding for business ventures, and all the other things lawyers do." And it answers that question by saying, in effect, let's have experienced practitioners teach students in lieu of those who have been professors all their careers and who emphasize abstract academic writing as a primary means to career development, let's dispense with the classic core curriculum that teaches old cases like Hadley v. Baxendale as part of a student's foundational training and put in its place a lot of clinics where someone can guide students in how to negotiate, document, and close deals and in how to try cases, etc., and let's generally adopt an approach to legal education that allows students to be "client ready" by the time they first set foot in a law office on graduation. How is this to be achieved in a practical sense? The article does not say. It posits the problem and suggests that there are theoretical alternatives to the current system without offering answers.

To learn to practice law well is a huge undertaking. Here is crude guide:

1. Learn issue-spotting. This is analogous to a doctor learning how to diagnose maladies. If you never see what the legal issues are in a given situation, you will have no clue about what is or isn’t important in a deal or in a dispute. A do-it-yourselfer in law most often falls short here: he will fill in the form as instructed but will fail to see the traps and pitfalls along the way or will fail to spot strategic opportunities for doing something better just because he is flying blind. A law student will do better in having been trained to spot the issues in ways that academic knowledge affords. A seasoned practitioner will do all that and much more in being able to guide clients based on having been through real-world experiences involving those issues many times before. It is basically a combination of brains, foundational knowledge, and experience. Ultimately, you need all three if you are to practice law well.

2. Learn to communicate well, particularly in writing. Law is often about words, their meaning, and their impact. As a lawyer, you often need to persuade, or to reassure, or to cajole, or to intimidate, or to do whatever the occasion calls for in serving the legitimate needs of clients. If you can’t speak well, and if you can’t write well, you will be an inferior lawyer. Conversely, to be a skilled lawyer for many purposes, you need to master the art of both oral and written advocacy (I elaborate on this here: http://grellas.com/articles.html).

3. Learn to think strategically. Law can involve many complex areas. The student will have a grasp of the theoretical complexity. The inexperienced practitioner will have some sense of how that complexity works in practice. But only a partner-level lawyer will have a consistent ability to take all that complexity and be able to handle it strategically - that is, be able to see the big picture, to understand how all the component parts fit in, to identify what matters most for a given situation, and to know how to sort through it all intelligently and efficiently to help achieve a client’s goals.

A new grad in law will be at a serious disadvantage if he lacks a solid grasp of critical legal principles that are taught precisely by the case system. You won't be a great practitioner if that is all you have but you will likely be a poor one if you lack it. You will also be better for having done moot court or law review (or both) because these will help you master the art of communicating. But, even if a new grad comes in ideally equipped in all these ways, there is no bypassing the apprenticeship part of law, the learning by doing. In my experience, it takes about seven years for a new grad to grow from green lawyer into a highly efficient and strategic lawyer. That is what it means when a lawyer becomes a partner.

Can the apprenticeship part effectively be merged in with the academic part during law school? In limited ways, yes. But it can't displace the academic part without serious loss to the student. The current system of legal education is full of problems and flaws but the solution does not lie is dispensing with or severely minimizing the case system of learning legal principles. In the end, you can fault it all you like but I still say, "three cheers for Hadley v. Baxendale." In the end, this remains a foundational part of good lawyering.

This goes to the heart of what education should be about. Foundations and theory, or vocational training.

1) The case method is a great way to teach concepts. Working with hypotheticals and seeing how rules interact is extremely useful, and something I greatly missed in my engineering education where I spent 4 years just watching some TA do derivations on the board.

2) Schools don't teach outdated law as the article seems to imply. Sure you read some old cases in the process, but some of the basic areas of the law haven't changed that much! To take the example of Hadley v. Baxendale used in the article, it was true in 1850 that damages for breach of contract are limited to those that were foreseeable by the parties, and it's still true today! When I took contracts, our book started with Hadley, but went on to describe several cases that arose in the dispute between Texaco and Pennzoil when they were both trying to acquire Getty.

3) Law school doesn't leave you any more unprepared to practice law as engineering school leaves you to practice engineering. Indeed, law school does a much better job teaching you to "think like a practicing lawyer" than engineering school does to teach you to "think like a practicing engineer." The problem is that a lot of the courses that teach you lawyering skills are elective, and people would rather take "law and social change" or something fluffy like that. At our school we have extensive clinic offerings, and my friends and I are doing everything from poking around in a Superfund site to helping defend criminals. And the professors aren't all eggheads. My tax ethics and business associations professors are partners at local law firms, my telecom and environmental law professors practiced in the field for years before coming to teach, my clinic professor was general counsel at a major corporation, etc.