An interlude on skills

My thanks to the various commentators for their discussion of the posts. In light of those comments, I thought I'd take a quick break from the series as I planned it to address the issue of skills training. I am not unsympathetic to the argument that law schools should teach skills relevant to being a lawyer. On the contrary. But I also think this proposed course does teach skills that are of long term relevance. So let me sketch that out:

First, it seems to me that we need to agree that there are many "real world" activites that people with law degrees engage in: I have a law degree (and a PhD) and, depending on the time of day I work as a journal editor, a department administrator, a scholar, and a teacher. That may be excessive. But I know people with JDs who work in law firms, in government agencies, in corporations, in not-for-profits, and as writers. Those different occupations require a number of different skills, some of them arising from what people learned in law school, some not so much. The point is that a law school is not  training people for just one kind of career (or a single career) and thus should not just train students in a particular, narrow set of law-related skills.

At the same time, law school should train students in law-related skills. And law schools do have a variety of skills courses already that are intended for that purpose. Maybe they aren't effective, maybe those courses could be expanded, maybe students should take them more seriously. All of those things are possible. Regardless, those skills courses are already there; the course I am proposing is not intended to replace them. It is intended simply to supplement them.

As that suggests, I do think that the course I proposed does provide students with training relevant to a legal career. 

So what skills are relevant to a legal career?

An astonishing number of years have passed since I practiced law in Chicago in the late 1980s and early 1990s. But when I practiced law I worked at a firm that did civil rights and employment law cases and I worked on a number of different trials. I helped try enough cases to be a member of the federal trial bar at the time I stopped practicing. I worked on small hearings that lasted less than an hour and at least one large class action trial that lasted nearly a month. We tried cases before judges and jurors.

A cynic might note that if I was any good as a litigator I would still be a lawyer, and that's probably fair enough. But the fact is I had quite a lot of federal litigation experience. Even assuming the world of trial work has changed a considerable amount since I was practicing, it seems to me there were a number of different skills necessary to do what the lawyers in my firm did that are probably still useful.

Most obviously, we had to know the rules of procedure and evidence. We had to be able to do legal research, and write it up persuasively. We had to understand the ethical issues that arose in our work. Law school has ways to train people to do that work already, but the course I propose would reinforce many of them: Writing is a part of the work for that course, legal research is part of the work of that course, reading court records is part of the work for that course, debating ethical issues is part of the work of that course. Those are fairly practical skills, and in my experience it is easier to hone those skills when you are trying to solve an actual problem than when you are merely doing an assignment for legal writing (obviously, other people may be more serious students than I was and may have gotten more out of classes than I did). 

But there were other sorts skills that I used frequently in my few years of practice, and some of those skills (or others like them) are taught in the class I propose. When I was practicing, the type of law we did involved reading and understanding and sometimes challenging statistical analysis. It also involved reading reports by experts in a variety of fields, from testing psychology to physiology, and assessing those reports (and trying to find other reports that challenged them). On a couple of occasions, I spent several days reading old newspapers on microfilm tracking down events that had happened years before. On another occasion, I had to turn to some historical studies to support an argument we made in a brief.  To do our work we had to be able to read, and understand, corporate records, personnel records, police reports, medical examiner reports, and that sometimes meant we had to find studies that helped us understand what we were reading.

Two points about that: On one hand, we were bringing a wide range of skills that were not strictly speaking legal to bear on our legal work. On the other, we were continually having to educate ourselves about those skills (and related fields), because neither my boss or I were trained in all those areas. (My BA is in Ancient Greek; I assure you I did not do much work with statistics or budgets or autopsy reports in college.)

So in my experience, practicing law as a trial lawyer involved some obvious legal skills and a wide range of other, more academic skills. Perhaps that's no longer the case, though I'd be surprised. But assuming that some of those sorts of activities remains part of what trial lawyers and litigators do, the course I propose engages them.

Obviously, of course, not all lawyers are trial attorneys. But transactional attorneys, or lawyers who work on mediation, also need to be able to use a range of "non-legal" skills. Their work may involve reading economic reports and data, or digging into corporate accounting,  or trying to understand the software system their client has developed. And so they need to be able to study those things, or (more likely) to be able to teach themselves how to study them, and the course I propose tries to teach the ability to teach oneself.

So to the extent that problem-based learning helps students learn to teach themselves how to work with unfamiliar materials, it seems like a valuable addition to legal education to me.

Further, there are a host of other practical skills that I think are taught by the course I propose. When I was a lawyer I spent a lot of time interviewing clients and witnesses, sometimes in the formal settings of depositions or interrogatories, other times in other settings. Oral history work is not identical, but it does help train people to do that sort of work and prepare for that sort of work.

Likewise, it is true that lawyers of most types work in groups, at least sometimes. And group work does take skill, particularly when the group involves experts or clients or both. Sure, you can learn teamwork playing sports in college, or being on a community orchestra in your spare time. But decades of committee work in a variety of professional settings suggests to me that the ability to work in groups effecively is a skill that is easily lost if it is not practiced consistently. So why not do some work in this area in law school?

Additionally, the course I propose offers some training in presentations of various sorts. Again, that seems to me to be a fairly basic skill for lawyers, regardless of type. And the course suggests something important about presentations that is, perhaps, not given as much thought in law schools as it could be: an effective presentation depends not only simply on having the right skils, but also on knowing what type of presentation is most effective in particular settings or to make particular points.

Finally, I think it is important that the course I propose is designed to teach people about law in context. It is probably trite to say law does not exist in a vacuum, but let me say it anyway. Legal results happen in historical moments, to particular people, in specific social or economic circumstances. And those legal results have consequences. That may not be a skill, but I think it is lesson that law students should grapple with at some point in their training.

Comments

[anon]

"The point is that a law school is not training people for just one kind of career (or a single career) and thus should not just train students in a particular, narrow set of law-related skills."
With respect, I think this statement is a clue to what is going wrong in legal academia.
To be sure, the practice of law requires proficiency in many skills. These very same “skills” are also employed, to a greater or lesser extent, by almost every other field of academic study. The notion that there is a "narrow set of law related skills" is contradicted by nearly every paragraph of your post, because effective lawyering often entails using the same tools and skills for acquiring knowledge as one or more of those other disciplines. On that point, we must agree.
But, we can’t agree that the principal purpose of a law school is to provide a "liberal arts education.” Your point – “law school is not training people for just one kind of career” - is reminiscent of the age-old defense of a liberal arts education. However meritorious when presented to college students, this argument just doesn’t apply to the sort of graduate school legal education sought by the overwhelming majority of law students.
The notion that students attending law school intend to “pick a career” after graduation is unrealistic. That is not the reason the vast majority of students attend law school, and that isn’t what the vast majority of law students expect from a legal education. For the vast majority of law students, the purpose of a law school education is to prepare to participate in the legal institutions of our society. In my view, it is the failure to understand this simple truth that has caused the law academy to veer so seriously off track. And, it is one of the reasons students are staying away in droves
Of course, law schools don’t exist solely to serve the needs and intentions of students. Law schools also owe a responsibility to the society at large. Law schools exist primarily to prepare law students to serve the needs of a nation for ethical, competent, accessible and affordable legal services. I would submit that legal academia has failed in accelerating respects in this as well.
The solution for law schools is to focus on the core mission of a law school. The view that law school is an appropriate home for the pursuit of every academic discipline that claims to “intersect” with the law (i.e., every academic discipline) should not continue unabated.
It is simply not enough to say that by engaging in any rigorous academic endeavor that might be helpful to prepare oneself for the practice of law one is "preparing" to participate effectively in the legal institutions of America. That argument is quite easy to make but is thus in reality quite irrelevant. It simply proves too much to be of much value. We now have meditation classes in law schools. We can argue that this is justified, because lawyers who are calm and can concentrate will do a better job. But, there is no end to this sort of argument. There is no limiting principle.
So, we need some standards. Some limits. The question, I would propose, is not whether a skills course would be of some benefit to a future lawyer (i.e., researching and writing about any topic at all), but whether a legal education would be of material benefit to a person performing the skills utilized in the course (in a way that skills taught in a general curriculum would not). In other words, would a person performing the tasks called for in a given skills course be considered to be doing at least “JD advantaged” work in the marketplace? (Noting here that it is anyone’s guess about the true value of a category of employment labeled “JD advantaged” – the label appears itself to be just another misleading dodge to disguise abysmal job prospects in the law for so many graduating from so many law schools).
Applying this standard, your proposed course presupposes "a mix of graduate students in history (or other social sciences) and law students." Thus, although a JD might be of some benefit, you implicitly acknowledge that the work in this course could be done by persons who never set foot in a law school.
Probing further, of the three specific projects you’ve mentioned, it seems to me only one could be even loosely thought to be a “JD advantaged” position. (The “projects” were: 1. Uncovering the history of the “stand your ground” statute in Florida, 2. Assembling an archive and describing a university’s role in a famous desegregation case; 3. Undertaking an investigation at a congregation’s request into a local church’s role during civil rights disputes in the 1950s and 1960s.).
In fact, having built a course around the book Gideon’s Trumpet, we are prompted to ask: was Anthony Lewis legally trained?
Are all the problems in the legal academy attributable to this one course proposal, to this one effort to have students research the history of a statute, the history of the activities of a church, the history of the response by a university to some issue? No. Of course not.
There are “skills courses” better suited, however and IMHO, for a law school. The course proposed, it seems to me, is better suited for another department of the university, probably the history or journalism department. Law students, should they choose, should be able to attend such courses – not the other way around.
Finally, all this having been said, these courses sound interesting, illuminating and valuable. I have no doubt that students would benefit from participating in these courses. Law students would benefit from studying Greek and Latin as well. But, alas, such courses, while helpful, are not in tune with preparing law students to serve in their chosen field. If we allow the law school community to drift further and further away from its mission, then a degree beyond law school will become necessary, because law students will be as bewildered and unprepared to contribute to the legal community after law school as they were after college. Again, will one course cause this effect? No, of course not.
But one set of attitudes already has.

[ERD]

Anon., fair enough, though I think I talked more about why the skills I discussed were relevant to people who would practice law then your comments perhaps credit.

But I'm struck by an assumption in your comments: how many students in law school do you think got degrees in liberal arts, as opposed to business or some other skill-based major? My experience, and I teach only legal history courses in a law school, which means that I am presumably preaching to the converted, is not many.

I might also note that when I went to law school in the early 80s, at a school that defined itself as a practice oriented, skill focused school, I thought a fair amount of 3rd year law school was repeating stuff I already learned. So my own experience of law school was not that it was teaching me a range of useful professional practical skills, it was teaching me the same handful of skills over and over and over in very similar ways. I would have welcomed a chance to branch out in my third year and try to wrestle with some things I'd learned and add them to some new things. I would also have welcomed hearing a different perspective on things, from people who had not been trained to think of them as lawyers.

I think we both agree on the need for ethically trained, thoughtful and engaged lawyers who are trying to work in a community to make it a fairer place. In fact, I thought that was why I thought the course I proposed would be a good idea.

[anon]

"how many students in law school do you think got degrees in liberal arts?"
Perhaps fewer now. I'd defer to the stats. I do recall the reasoning that was used to defend philosophy majors, etc. "A well rounded education will prepare you for any career." There was truth, of course, in that adage. I doubt that it is less true these days.
Of note: enrollment in history courses in law school may not be influenced by the number of students who received a liberal arts education!
"I thought a fair amount of 3rd year law school was repeating stuff I already learned"
There has been much discussion here in the FL about a two year JD. Perhaps there are better ways to use the third year. My view is that the failures of the past do not support adopting ANY proposed remedy to what ails the law school community.
"I would also have welcomed hearing a different perspective on things, from people who had not been trained to think of them as lawyers."
Wow. I guess that puts to rest the notion that one purpose for a law school is to train one to "think like a lawyer"!
Here is the heart, I think, of our disagreement. You would have welcomed (longed for?) in law school a different way of thinking about issues, challenges, and the problems facing society in general and individuals in particular.
I don't think our students suffer from a want of different perspectives. The vast majority are in law school to learn the "perspective on things, from people ... trained to think of them as lawyers." Clearly, that wasn't your preference, then or now.
There is a decided attitude or preference in the legal academy of late for folks who think that hearing from persons trained to think about issues as lawyers do is monotonous and tedious, and that hearing from persons trained in almost any other discipline is preferable and of greater value.
That attitude, in my view, is the problem, not the solution to the current crisis in legal academia.
Again, this is not to say that your work and interests are a "problem" per se. It is only to comment on the direction you propose in law school education.

[Ellen]

Law schools must ensure that students have solid communications skills: written and oral. Most graduate seriously lacking in these areas because of the limited time spent on them in law school and the lack of status LRW has among the doctrinal faculty and the nature of the assignments/exercises designed to teach them.

They also need some solid business skills (accounting, management) to both manage a firm and advise clients. Law schools need not teach these; let students take courses in other departments within the university or even at other schools and apply the credits toward the JD.

Too much time is law school is spent covering concepts and areas t

There has been a lot written about the lack of tech skills most associates have -- can't use basic programs like Excel -- and thus cost their employers and clients money and time Law Technology Reports had a story about the "tests" some clients make associates take to measure their tech skills. (I think Kia Motors is one of the companies that does this.)