From many quarters one hears that law schools must alter their pedagogical model to teach students to work collaboratively because that is how law is practiced today. Proponents of this approach generally seem to prescribe replacing some substantial portion of what would otherwise be individual assignments with group projects and exercises. I find myself skeptical of these claims, for reasons that are both pragmatic and conceptual.
Let’s start with the practical objections. First, in my experience, students don’t really collaborate when they do a substantial group assignment, in the sense of working together on any great proportion of it. Instead, quite understandably, they tend to divide up projects and go off to work alone on their own pieces. Second, no matter how students work, group work poses serious problems of fair evaluation. Group members rarely put in exactly the same amount of work or produce contributions of identical quality. Shirking is always a risk, and sometimes it erupts into a serious problem that is difficult either to head off or to manage after the fact.
Third, when students work with each other and with material produced by other students, problems inevitably arise of variation in the quality of the working materials and consequently of the overall educational experience. My own encounters with this latter problem led me long ago to move in the opposite direction. In my litigation class, I provide each student with the same package of material, and every student moves to dismiss the same complaint, moves for summary judgment on the same set of papers, and so on. Comparisons are much easier and fairer, collective post-mortems are equally valuable to everyone, and I can be confident of the quality of the materials since they are provided by me, not by other students of varying motivation and ability.
More fundamentally, though, I wonder about the pedagogical soundness of the collaborative approach. If a team drafts a contract, one student might draft the force majeure clause and another the indemnification clause, but aren’t both students better off taking a whack at both clauses? Shouldn’t every student coming out of a litigation class have drafted the introduction to a brief, and a couple of argument sections, and the conclusion, and the statement of undisputed material facts? I’m not sure what is gained by the team concept here if it means that everybody does something, but nobody ever gets the experience of doing the whole thing.
Finally, I am skeptical that lawyers actually practice law collaboratively in any meaningful sense, even when they say they do. Teamwork certainly exists, but surely in legal practice good teamwork means a well-coordinated division of labor. A law firm isn’t Google (or at least the Google of our imagination), where a bunch of software engineers sit around playing Nerf basketball while brainstorming about pure ideas. In a law firm, will the whole team collectively draft every interrogatory and attend every deposition? Surely not – team members divide the work among themselves. Will clients pay for multiple staffing and brainstorming sessions? I doubt it. Nor does the “ability to work collaboratively” seem to me like a highly marketable skill. What is the hook? “My own work is mediocre, but I have a friend who is really good, and we work very well together, so hire us both?” No thanks, but can I have the name of your friend? Moreover, surely in many cases client privilege will preclude sharing information with other lawyers even informally and without billing.
It seems to me that what a lawyer needs to be able to say is something like this: “Hire me because I am really, really good at every aspect of what I do, and I will handle your problem from beginning to end, personally and skillfully. To the extent some issue should arise that exceeds the scope of my personal expertise, I have colleagues with the necessary knowledge and skills, and I will make sure every aspect of your problem is addressed by the best possible person.” But that’s not collaboration, that’s intelligent subcontracting, isn’t it?