March 15, 2004

Bashman: To Think Like A Lawyer

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.