March 15, 2004
Bashman: To Think Like A Lawyer
by Guest Contributor
Howard J. Bashman is an appellate attorney living in the Philadelphia area. He maintains How Appealing, “the Web’s first blog devoted to appellate litigation.” – Ed.
Once upon a time, to become a lawyer in the United States one would “read law.” I’m not precisely sure what that entailed, but it probably involved working as an assistant to a practicing lawyer and learning first-hand how the practice of law is conducted. Long ago, the process of internship and “reading law” that once sufficed to confer admission into the practice of law was abolished in favor of attending law school.
The Nation’s first law school was founded more than 200 years ago. Certainly much has changed since then in the way the law is taught. But as time has passed, one criticism of formal legal education in this country has grown louder -- law schools fail to teach students the skills they need to engage in the practice law. Instead, law schools tend to focus on teaching students “how to think like a lawyer.”
What does it mean “to think like a lawyer”? Are you thinking like a lawyer if, upon entering into a McDonald’s restaurant, you note many high-fat menu offerings, observe several obese customers, and then an endless parade of dollar signs begins to flow through your mind? Perhaps. But thinking like a lawyer, most law professors would say, involves spotting legal issues from a complicated fact setting. Spotting issues remains important in the practice of law, but much more important is understanding how best to help clients solve the problems they present and how best to achieve the goals that they desire.
Because most law schools do nothing to ensure that graduates are equipped with the skills necessary to engage in the practice of law, in one respect little has changed from the apprentice system of yesteryear. As in the past, today lawyers fresh out of law school typically must work for more experienced lawyers to learn the skills necessary to engage in the actual practice of law.
My criticism of law schools extends beyond their failure to teach law students how to be lawyers. As recent news coverage reminds us, too many lawyers cannot draft an intelligible sentence. In theory, law schools should not be where students finally learn to write, but in practice it is often the last hope in that regard.
Beyond ensuring that new lawyers possess the nuts and bolts necessary to serve clients, it would be wonderful if law schools could impart to graduates healthy doses of common sense and good judgment. Some lawyers bring lawsuits (visit here for some examples) that justifiably cause the general public to view the legal profession with contempt. And it is difficult to defend the state-sponsored monopoly that is the legal profession when lawyers are able to line their pockets with millions and billions of dollars in fees by unfairly capitalizing on the injuries and suffering of their clients. Am I suggesting that many lawyers are paid far too much? Indeed I am.
Nevertheless, the documents on which this Nation was founded entrust lawyers and the legal system with the power to take away a person’s property, liberty, and even life. And that same legal system allows lawyers to recover compensation for clients who have been injured or wronged, to gain the freedom of wrongfully imprisoned individuals, and to achieve release from death row for convicted criminals who do not lawfully belong there. Also, people ought not overlook the significant contributions to a better Nation that the legal profession has delivered, including most notably the ruling fifty years ago in Brown v. Board of Education abolishing the practice of legalized racial segregation in the United States.
As with so much in life, what one gets out of law school depends directly on what one brings into it. I was one of those rare people who really enjoyed law school and who also happened to do quite well academically while there. Also, appellate litigation, which has always been the central focus of my practice, is one of the very few practice areas for which law school actually provides nearly adequate training.
Law schools should continue to focus on teaching students how to think like lawyers, but law schools should disavow disdain for teaching students the skills that they will need to possess after graduation in order to engage in the actual practice of law. No one holds medical schools in disdain for teaching doctors how to care for their clients. Indeed, we wouldn’t settle for anything less. The same can and should be true of law schools.
March 15, 2004 12:14 AM
Just a quick thought -- I think Howard's essay is wonderful, but I don't know if the problem is so much that law schools avoid teaching the skills lawyers need, but that they don't know how -- they *try* to teach legal writing, but I don't know that they've figured out how to do it well. The new law school dean here at Harvard held a town meeting last spring after she was hired and was asked if she was going to do anything to fix our first year writing program (called FYL -- "First Year Lawyering"), which no one (students or faculty) seems particularly impressed with. She said that this was a challenge, because she didn't know of any school that had really gotten it right -- how do you teach legal writing in an engaging, successful way? I don't think it's because they're not trying. Similarly, regarding common sense and good judgment -- we have ethics classes, there's the professional responsibility requirement here, I've found that professors try to incorporate talk of this stuff into the curriculum -- but again, how does someone teach good judgment to people who don't already have it? *Can* a law school class teach people disposed to lie and cheat and do whatever they can to get ahead that they shouldn't, or is law school too late? Or are there solutions outside the box -- maybe classroom doesn't work, but required externships, clinicals -- are those the answers? I think Howard poses the right firts question -- why aren't law schools focusing more on these skills? -- but the hard work, I think, is once you decide you want to teach these things, how in the world you go about doing so.
I respectfully dissent.
Professor Bashman's greatest criticism seems to be that law schools are not teaching their students the kind of "common sense" and judgment that would avoid fatty-food lawsuits and awards of attorney fees numbering in the "millions and billions." But this criticism doesn't seem to fairly apply to young lawyers of my generation. Why, then, are law schools and new law graduates receiving the criticism?
Fatty food lawsuits, as far as I know, were probably filed by a group of older, experienced plaintiff lawyers with mouths watering (pun intended) after watching the success of tobacco, asbestos and other successful class action litigation. It may be true that these attorneys lacked common sense and judgment, but they are products of an older generation, and certainly not my generation.
My counter to this article would be that it is not "our" generation (law graduates over the past 5 years or so) which is in need of common sense, but those lawyers who have already been practicing for decades. Indeed, all the evidence I've observed points to my generation of lawyers as being the ONLY ones with common sense. I spot, for example, a new trend among young lawyers of rejecting the lifestyles (or lack thereof) traditionally demanded of them by big law firms. (A vile tradition, notably, created and preserved by older generations of lawyers). My own law firm is a perfect example of this, which is large, and successful, but gave up a long time ago the notion of treating associates like slaves.
More and more of my colleagues are looking older, hiring partners in the eyes, and consequences or not, figuratively saying, "You can have my talent and brilliance to expand your business if you want. But I'm not giving up my wife and kids in exchange for the 'privilege' of working here. So either change your demands, or I'll go to the next shop." I've seen it. I've done it myself.
Part of the problem might be that teaching nuts and bolts is potentially just as boring to professors as learning them is to students. A step in the right direction might include crafting client-oriented problems for exams and class time--problems that incorporate the same issue-spotting challenges, but under the looming question "how do you fix your client's problem." Although I worry, sometimes, that Jeremy is right to suspect that "Learning about the law is fascinating -- but practicing law, not so much?" what I look forward to most in my practice is the strategic thrill of handling complex problems that present a host of issues--procedural annd substantive, issues of what the client can afford, etc. Analyzing a hypothetical problem on an exam should reflect more than a student's ability to make motion / appellate style arguments. It should demand the student's growing awareness of the client-centered essence of legal practice. And that awareness won't develop if it's not taught in class.
Well, Howard is technically wrong on one point: "reading law" has not been abolished. In fact, I know a handful of lawyers who qualified to sit for the bar exam the hard way: sitting in an attorney's law office in the spare time between answering phones and typing memos to "read law." It may not be preferred, and it may be impossible to get recruited for a job that way, but it does happen.
I don't quite grasp Mr. Bashman's primary point. First, he straw-mans the notion of "thinking like a lawyer." A good law school instructs its students in how to analyze, critique, attack, and improve arguments. The key to such a skill does not lie in a "law & X" class, and it does not center on massive torts. It merely is the ability to understand the possibilities in a situation, to make an informed decision, and to act.
The practical side of law school is extremely important, but, taken to its extreme, it has a limited use. If the rules change or if a different tact is required, a student instructed primarily in the vocational skills may have a difficult time adapting.
If 'common sense' involves rejecting McDonald's style suits, most students do possess such sense. If they don't, it's kind of hard to imagine how a school would address such a weakness. Imagine the classic insult: book smart but lacking in common sense.
"Good" law schools equip their students with a basic framework of how the courts work (including procedural aspects) and--more importantly--with a sense of how to adapt and change to different court systems and factual circumstances.
I teach, but before I taught I practiced. I hung out my own shingle, because I didn't want a boss. As for Mentors, I rented an office from an older experience attorney who said he would also offer me advice. I did misdemeanors, divorces and minor cases involving business and some torts. The law school I attended didn't teach me to write, I already had that skill. It didn't teach me to think. Perhaps, it was preprogrammed into my brain; or I learned it as a child from listening to adults argue. Law school did teach me considerable quantities of legal information and allowed me opportunity to practice using my reason to solve legal problems. Including civil and criminal procedure, the ethical code of lawyers, constitutional law, and a great deal of the law concerning commerce. I learned business in Graduate school and working; and I think it the best preparation for law school (assuming one learned how to write earlier). I think that the professors at my law school (Chase College of Law, N.K.U.)did all that could be done in a law school setting. That said I believe that improvements can be made. So I think that Bashman is simply wrong. Wrong to assert that Schools are some how responsible when their former students file shocking lawsuits. Wrong to assert that Law Schools should teach students how to write a simple sentence. Wrong to assert that by entrusting "lawyers and the legal system with the power to take away a person’s property, liberty, and even life" lawyers are somehow responsible for changes in society. Lawyers role is that of an advocate, they make arguments. Primarily it is the juries who decide the facts and secondarily judges who admit evidence, supervise the arguments of the lawyers who are responsible for the changes. So that lawyers are best prepared by learning a kind of argumentation that is persuasive in legal arguments. The good law school does that. My law school did that well through using the much disparaged Socratic method. My advice to law students is to join moot court or law review, both if possible. Also, if you can sign up for a clinical or take a clerkship with a local attorney. Yes, when you leave law school you still have a lot to learn; but acquiring the knowledge base cannot be neglected. So read those cases and hornbooks.