Commenting on Roger's recent post on a no-frills law school, Jason Mazzone offered an interesting and provocative claim:
In thinking about what practitioners can and cannot add to legal education, we should also keep in mind the diminishing returns of practical experience. Beyond a quickly-attained point, more experience in practice doesn't correlate with stronger legal skills to impart to students. The reality is that legal practice isn't that hard (and in any event much of what lawyers do is repetitive). There are things to be learned to become a skilled lawyer but there is no great mystery about any of it. Once one has taken one deposition, the second isn't difficult. Law is thus radically different from medicine (the field that is often invoked by those who think that only experienced lawyers should be teaching). If I'm having a surgical procedure there really are good reasons for me to pick the surgeon who has done the procedure 100 times over the surgeon who has done it five times. But a lawyer who has written five wills is perfectly adequate to prepare mine as his sixth. As with anything, more time doing something allows one to capture some additional benefits: better judgment, greater speed, a network of colleagues. But those aren't things that can be taught to law students anyway. The "highly talented experienced practitioners" that the N-F Law School seeks to recruit could thus easily be lawyers with two or three years experience.
I think that on one level, Jason has a point: law students are learning Stage 1 lawyering skills and a practitioner with a few years of experience can probably impart many of those skills. But a couple of his comments are worth a little more consideration.
1. Once one has taken one depostion, the second isn't difficult.
I suppose that I'm not in a position to judge this. I was primarily a criminal lawyer and my civil experience included defending one deposition, and second-chairing the taking of another. But I second-chaired the deposition after very extensive trial experience and watching this experienced practitioner suggested to me that there is a wide degree of quality difference between a poor deposition, a good deposition, and an excellent deposition. For example, people just learning deposition skills are happy just to get the questions out. But the taking of depositions is not a mechanical task; different lawyers generate different answers - both to the same questions and the additional (or nuanced) questions that the better lawyer knew to ask.
2. If I'm having a surgical procedure there really are good reasons for me to pick the surgeon who has done the procedure 100 times over the surgeon who has done it five times. But a lawyer who has written five wills is perfectly adequate to prepare mine as his sixth. As with anything, more time doing something allows one to capture some additional benefits: better judgment, greater speed, a network of colleagues.
From the point of view of criminal lawyering, extensive practice absolutely improves quality. For example, Philadelphia courts use preliminary hearings to establish prima facie cases. The first job for a new defense attorney is to conduct cross in these hearnings - and it takes scores of these hearings to substantially improve a lawyer's technical skill set. But the best preliminary hearings are conducted by lawyers with a lot of trial experience who understand the relationship between initial testimony, case theories, jury instructions, and closing arguments. And experience is essential for developing strategic skills - both at trial itself and in navigating a case toward trial. More experienced lawyers get better settlements and better verdicts - not every time, just as not every surgery requires an exprienced surgeon, but often enough that a skittish consumer (with money) would prefer an experienced attorney. That doesn't mean that all experience lawyers become excellent; it's just that few lawyers become excellent without experience.
Perhaps transactions, or as Jason suggests, estate law, is different. Maybe a person who has written five wills is as good as one who has written a thousand. But I doubt it. As Jason notes, judgment is a product of experience - and one that I think most clients would do well to pay for. But there's more. For example, there is that matter of knowing the law.
It turns out that most lawyers learn law - and particularly, legal pitfalls - through experience. Wills and divorces slam right into arcane areas of tax law, evidence law, and civil procedure - but this may not be evident to the junior practitioner. It's only with the hundredth divorce settlement that some lawyers discover a particuarly vexing part of the federal income tax code, for example. As anyone who has practiced in the area of secured transactions probably realizes, BARBRI coverage - might we call that the equivalent of five cases of experience? - does not prepare a business lawyer for a life of practice. It seems to me that this difference in legal knowledge is relevant to whether a person is an excellent professor.
And what about the human component of lawyering - understanding and managing clients, colleagues and adversaries? This is much more than mere judgment. Experienced lawyers have concrete people skills - borne of multiple failures and successes. And precisely because this knowledge is learned almost entirely inductively - through repeated experiences - it is extremely difficult to pack into a two year practice arc.
I'm curious whether other readers think that there are dramatic skill differences between lawyers with a couple of years of practice and those with substantially more. If so, are those differences best understood as being about judgment, speed and a network of colleagues - or something more? Are law students far enough along to benefit from distinctions between the more and less experienced lawyer? And finally, do adjunct faculty fulfill the needs of students in this respect -or is there added value in having highly experienced lawyers on the full-time faculty?
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