March 17, 2004

Law Schools Not Teach Lawyering?

by Nick Morgan

Nate Oman chimes in with this response to Professor Solum's, "What Do Law Schools Teach":

    The problem is that legal educators sometimes -- and legal practioners almost universally -- take it as an ideal that law schools ought to turn out lawyers. I think that this is a mistake.

I'm not exactly sure why Oman thinks a theoretical background makes for a better lawyer, but I've always assumed that understanding the basic theoretical and political principles of legal doctrine would be helpful in spotting the jurisprudential leanings of a certain judge, and shaping one's strategy accordingly. (This advantage, I presume, is much weaker in transactional practice.) Nevertheless, I think the choice properly lies with students whether they prefer to round off their training academically or with practical experience, as Tony Jensen suggested.

March 17, 2004 01:06 PM | TrackBack
Comments

Nate does have a point about the comparative advantage of law schools. The advantage in theory is
real enough, but it's next to useless. Where the schools' real advantage lies is in teaching doctrine.
Yes I'm suggesting that law professors should actually teach “the law.”

Abstract “soft” theory is great . . . in theory. But in the real world it serves little purpose. What does a
matrimonial lawyer care about high theory? A slip-and-fall litigator? “Hard” theory, including strategy
and tactics, is something else of course.

Many problems stem from the fact that most legal academics have never practiced, or have practiced
only briefly. Law professors generally have poor lawyering skills and no perspective on what it’s like to
be a “real lawyer.” Consequently, law schools are terrible at teaching practice skills. Take writing, for
example. One class in first year and a couple of papers are supposed to teach you how to write as a
lawyer? Please. I did more writing in my first 6 months of practice than I did in three years of law school --
and four years of college.

Fortunately, the practical skills come in practice. Firms know that first-year associates don't know how
to do anything and they expect to teach those things. It would be inefficient for law schools to teach
those things. "Document Review","Witness Collection" and "Privilege Log" are not classes law schools should offer,
yet those subjects take up a lot of a junior litigation associate's time.

There is one area in which law schools have a comparative advantage. Law professors generally have
good actual knowledge of the law. They could try teaching more of that. Call me old fashioned, but I
think that we can do with less Law & ___ and more "Complex Civil Litigation", "Federal Courts", or
“Scientific Evidence.” (Yes, I practice civil litigation in federal court). These are very difficult subject to
learn hands-on. They’re slightly more important in practice than "Law and Literature." Many law
schools don’t even require students to take Evidence!

Unfortunately, the trend has been to move away from doctrine and “hard” theory towards soft
interdisciplinary courses and mushy theoretical classes. They’re basically zero value added classes. I
know many people who've graduated from prestigious law schools who know absolutely nothing about
the law. Oh, they can think like lawyers -- they can play "it depends" -- they just don't know what "it"
depends on. It’s sad but true that many elite law school grads learn “the law” for the first time at Bar/BRI.

Posted by: Dennis at March 17, 2004 10:41 PM

"There is one area in which law schools have a comparative advantage. Law professors generally have
good actual knowledge of the law. They could try teaching more of that. Call me old fashioned, but I
think that we can do with less Law & ___ and more "Complex Civil Litigation", "Federal Courts", or
“Scientific Evidence.” (Yes, I practice civil litigation in federal court). These are very difficult subject to
learn hands-on. They’re slightly more important in practice than "Law and Literature." Many law
schools don’t even require students to take Evidence!"

Dennis,

I completely agree, although a lot of those procedural courses (Fed Courts, Complex Lit, Evidence) are only as good as the professors that teach them. Evidence can sometimes be the red-headed stepchild of law school where it's shuffled off to professors who would rather be teaching something else. The professor I had for evidence -- while good at other subjects I'm sure -- was horrible. I actually learned more about evidence from BarBri.

On the other hand, the professor I had for Civil Procedure and Federal Courts was terrific and I received both an excellent understanding of the procedure and a very interesting exposure to underlying constitutional theory. I was, however, quite disappointed that there was no Appellate Advocacy course at my school and the Trial Advocacy course was a joke.

Keeping in mind that my school had a relatively small total class size (about 120 students graduating each year) -- Complex Litigation and Federal Courts were two of the most under-enrolled classes at the school with only about 10 students taking Complex Lit in a given year and 18 or so taking Federal Courts.

The problem is that it's ultimately up to the individual student to figure out what area of law he or she will practice and what courses will suit them best.

Posted by: Brian at March 18, 2004 12:22 AM

Dennis: Dude. Word!

I agree whole heartedly with you. I have supervised many associates in 30 years as a lawyer, and been one myself. I can tell you that what I have wanted from them is the ability to identify relevant legal and factual material and to summarize them in plain english.

They are not lawyers, and they do not think like lawyers when they graduate from law school. It takes about 8 to 10 years to turn them into real lawyers. But they need to have a mastery of the doctrine to be able to understand the grammar of the law and to be able to do the work that they will be doing for the rest of their careers, and to communicate with other lawyers and judges.

The theories of law professors are of no value in the practice of law (I stopped reading law journals years ago; every once in a while I pick one up in order to remember why I quit) and the theories of associates are even less valuable. I used to threaten associates with bodily harm if they put theories in a memo. Sometimes, I told them just to copy the cases and use highlighter on the relevant passages.

Nick: Litigators need to know the judges politics, that is true, but usually that is which trough the pig gets slopped from. Transactional lawyers usually know more law than litigators. And the litigators were always stealing empty offices.

Posted by: Robert Schwartz at March 19, 2004 09:16 PM

Robert,

Are you serious? Associates would actually write theories into briefs? Would they cite law review articles? I'm fresh out of law school, and I would never dream of doing something like that -- maybe an appellate brief in federal court or an amicus brief.

In fact, I remember during my first year I got into an argument with my writing instructor when I remarked out loud to the class that putting an "overarching theory" into why the judge should rule in our favor in a brief was absurd. A trial judge doesn't want to read theory, and the reason why they should rule in one party's favor is because of the facts and law.

There are a lot of horrible writing programs in many of the top law schools in this country. It's really a shame.

Posted by: Brian at March 19, 2004 10:23 PM
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