by Eunice Park
In recent years, support has been intensifying within the legal community for modifying law school curricula to create practice-ready students. The demand is for more attention to skills training, experiential learning, and developing practice-related competencies. This groundswell has arisen largely as a result of the economic downturn that has created fewer jobs, employers who no longer have the resources or desire to invest in training new lawyers, and increasing debt burdens on law school graduates, creating a very demanding legal market for the new admittee.
The proposed practical skills requirement for pre-admission is the California State Bar’s response to this demand. The changes will significantly affect law school education. Orange County’s oldest law school, Western State College of Law, has always emphasized practical skills. As the California Bar Task Force on Admissions Regulation Reform’s proposal goes through the final stages of approval, that emphasis is now going to be a more prominent part of legal education for all California bar applicants.
What Are the Requirements? The Task Force on Admissions Regulation Reform is recommending fifteen units of “competency skills training” to be fulfilled prior to admission to practice. In addition to “participat[ing] in a Bar-approved externship, clerkship, or apprenticeship at any time during or following completion of law school,” a candidate for admission may also take courses “designed to develop law practice competencies” to fulfill this requirement. Examples of skills suggested in the June 2013 Phase I Final Report include negotiation, law practice management and the use of technology in law practice, preparation of cases for trial during the pre-trial phase, including e-discovery, and professional civility and applied ethics—skills with which practicing attorneys are familiar, but which have not been part of the traditional law school curriculum. The classroom requirements are scheduled to be phased in beginning in 2017.
Impact on Legal Education: Theory Versus Skill? These new requirements may begin to minimize the divide between doctrine and practice, or theory and skill, which has characterized most of legal education in the United States. Traditionally, law schools have followed the Langdellian model of legal education, also known as the casebook method, which has been taught via Socratic method as famously depicted in The Paper Chase. Ironically, before Langdell’s innovation, legal training was mostly technical. Now, the pendulum is swinging back the other way, and the image of what is a typical law school education may be due for a new Hollywood treatment.
With the pre-admission requirements upon us, law schools will be graduating not only more students with experience in clinics, externships, and other experiential opportunities, but also students who have taken courses that integrate the “doctrinal” with the “practical.” An underlying goal of a legal education has always been to teach abstract conceptualization and critical reasoning skills. The practical skills aspects of lawyering should not now be viewed as a merely technical component that will subsume these fundamental intellectual skills. So while the pendulum is swinging back the other way, it should not return to the pre-Langdellian era either.
Rather, legal education should find an enlightened happy medium. The doctrinal material should provide a vehicle for teaching practical skills; the practical skills also should provide a vehicle for teaching doctrine. In an ideal legal education, the two will be inextricably intertwined, as complementary, virtually indistinguishable aspects of a law student’s experience. For prospective employers and the legal community generally, this pedagogy will train new attorneys who have the analytical, abstract skills foundational to lawyering, and also the practical skills to hit the ground running.
What a Skills-Integrated Classroom May Look Like: Examples From Western State Students at Western State have long had the opportunity to develop practical skills through criminal, civil, and judicial externships, the in-house Immigration Clinic, pro bono opportunities, and competition programs such as mock trial and moot court. The law school classroom, too, increasingly has become a site for acquiring practical skills.
Specialty-specific skills. Rather than relying solely on a case-driven pedagogy to discuss substantive concepts, professors are exposing students to the actual practical skills they will need to resolve real-life issues within a specialty. In Professor Monica Todd’s Family Law seminar, students maintain a binder with samples of common family law pleadings that they can access for quick reference as future associates. In class, students may, for example, complete their own Income and Expense Declaration, “one of the most common yet troublesome forms in the practice,” said Professor Todd, and then relate the I&E to financial implications of a divorce. As part of the assessment at the end of the course, students will be required to complete the Request for Orders package based on a realistic hypothetical case. And the end-of-the-semester assessment, instead of being based on a single high-stakes final exam, includes a requirement to complete a family law newsletter such as one students might prepare in their own future practices.
Integrated learning. Whereas traditional classrooms focused solely on the common law development of a topic via excerpts from cases, integrated classrooms not only discuss case law, but also incorporate legal documents and forms that allow teaching of substantive law from a skills perspective. For example, students in Professor Paula Manning’s Torts sections are taught both torts doctrine and litigation skills in the context of representing a client with a torts claim. “We use factually rich and complex client problems to teach students not just what the law is, but how to use it and how to think about it the way a lawyer would,” Professor Manning explained. “This allows me to teach every topic from a skills-based perspective, where the focus is as much on learning law practice skills as it is on learning the substantive law.” The problem will involve realistic documents such as medical records and product designs, as well as deposition transcripts, motions, answers, and complaints. Students then are asked to solve the issue using materials in the Torts textbook, which is part of the innovative Context and Practice Series of Carolina Academic Press (CAP) that helps students to “build practice skills and develop their professional identities,” as stated by CAP.
Students may, for example, conduct depositions of expert witnesses in order to learn how to prove strict products liability claims; or they may determine whether the standard of care has been satisfied by reviewing deposition transcripts, and then use the transcripts to support a motion for summary judgment.
Students at Western State can learn “transactional” skills as well, such as document drafting, and client interviewing and counseling, in doctrinal classes. Professor Edith Warkentine teaches doctrine but also “emphasizes deconstructing statutes and using a variety of visual aids to help students become experts in the application of the law to facts to solve a problem.” In her course, students engage in the role of a lawyer involved in a sales transaction, using samples of sales contracts and problems drawn from actual case files. “Students can focus on developing proficiency in reading statutes and solving problems,” said Professor Warkentine. Her secured transactions course similarly involves reviewing loan documents to prepare for a client interview or negotiation session.
These types of experiences create a student who is both better prepared to immediately participate in clinics, externships, and the other experiential opportunities Western State and other law schools offer, and better prepared for the eventual day he or she begins to practice law.
As the Task Force stated in its proposal:
In recent decades, law schools have made tremendous progress toward closing the practice-readiness gap. By increasing opportunities for clinical and other experiential education, and by offering new, innovative forms of course work that combine traditional doctrinal teaching with practice-based teaching, the legal academy has in many respects led the way on this issue. We wish to promote and build upon their example.
As the economy takes a turn for the better and more law schools emphasize practical skills in their curricula, the legal community can anticipate a generation of young lawyers who are prepared and eager to put their boots on the ground.
Eunice Park is Assistant Director of Legal Writing and Research at Western State College of Law and Assistant Professor of Lawyering Skills. References herein to products or services should not be considered endorsements. The opinions herein represent the author’s own.