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June 2014 - Pedagogy of the Practical Kind

by Tom Campbell

The lack of emphasis on skills training is the single most important element missing from legal education today. This conclusion is based on a number of telling factors, including the Carnegie Foundation for the Advancement of Teaching Report (2007) on law school education, other literature in legal academics, responses obtained from discussions between the Fowler School of Law at Chapman University and law firms, and the informed opinion of our faculty and boards of advisors.

The Carnegie Foundation for the Advancement of Teaching Report outlined many issues and problems associated with American legal education today, but the most powerful criticism was that too many law schools give only casual attention to teaching students how to use legal thinking in the complexity of actual law practice. Unlike other forms of professional education, most notably medical school, legal education typically pays little attention to direct training in professional practice. The result is to prolong and reinforce student behavior and habits rather than teaching lawyers-to-be how to address specific problems faced by potential clients. The typically unbalanced emphasis on a predominantly book-based perspective in law schools creates serious problems as students move into practice, the report concluded.

Law students need a curriculum that moves them back and forth between understanding and enactment, between analysis and experience. Among the skills considered most necessary to successful practicing attorneys are the abilities to:

  • write and present verbally;
  • interview witnesses with sensitivity and tact;
  • manage time and stress;
  • make an excellent first impression on a client;
  • show consistent reliability in work habits;
  • condense and focus material; and
  • propose solutions for, not simply identify, problems.

The consequences of the currently dominant form of legal education have already become evident in the law firm-client relationship. In fact, one major U.S. corporation recently implemented a very concrete policy as a result: “[We do] not allow first or second-year associates to work on any of our matters without special permission because they‘re worthless.”

We reached out to many law firms in Southern California, asking what skills training was needed to supplement our curriculum in order for graduates to be more immediately useful as professionals. We received a landslide of responses, all focusing on the integration of practice with substance. Here are a few samples of the responses we received, verbatim (though without attribution to the specific firm or attorney), from three separate firms:

One of the primary skills we look for in a young associate is writing ability. ... Almost every law school has some type of writing course or program, but we nevertheless still see many incoming associates who lack the ability to write in a clear and cogent manner. ... Additional skills to consider would be deposition training and trial presentation and document review software. ... Finally, accounting/corporate finance training would also be a plus.

The three main buckets of skills required are the following: (1) intelligence/quality of legal training, (2) interpersonal skills (with clients and colleagues), and (3) multi-tasking/time management.

[T]raining that focuses on conducting an effective client interview, maintaining the client relationship, would be very helpful. I think that training about working with staff of government agencies may also be helpful. Additionally, training on alternative dispute resolution and negotiations would be helpful and a useful skill no matter what field your students go into.

Other comments, from over a dozen firms, were quite similar. Based upon the responses, it was clear that a consensus had formed about the need for this kind of training in law schools.

Our assistant dean for career services reports that skills training is consistently identified as a necessity from the point of view of the firms that interview and hire our students. In meetings with students, we have received consistent requests that our law school train our students in more practical skills. Below are some ideas, based on our school’s approach, of ways legal education institutions can serve both students and potential employers of those students.

  1. Laboratories. One-hour “practice lab” components can be added to selected upper level courses. We have added labs to Securities Regulation and Land Use courses. Each lab is taught by an experienced attorney with background in the field. Tom Crane of Rutan and Tucker teaches the securities lab. Hong Dao Nguyen of Best, Best and Krieger teaches the land use lab. Zebulon Law of Law and Lewis teaches the wills and trusts lab.
  2. Practice Writing Requirement. Students are required to take a minimum of two courses that require them to research and write a paper just as one would be required to write in a legal practice. Students in these courses produce lawyer-quality work product.
  3. Practice Foundations. Not every attorney goes to court. Many become transactional attorneys, helping clients create businesses, develop property, or solve tax and estate problems. We have created a new three-unit course entitled “Practice Foundations–Transactions” to introduce students to the skills needed for these types of law
practices. It will eventually be a required course for all second-year students. We are one of very few law schools to require students to work with and understand transactional practice.
  4. Professionalism Requirement. Students must attend a minimum number of hours each year in programs aimed at helping students develop professionalism. By this we mean ethical practice, networking, pro bono involvement, and simple but essential skills, such as how to make a favorable impression on a client, or in court.

Law students are very bright and hard-working. Every one of them knows she or he will have to make a positive impression in a difficult economic environment. What we can do for our students is to prepare them for that real world by offering them the best skills training we can while they are with us.

Tom Campbell is Dean of the Fowler School of Law, Donald P. Kennedy Chair in Law, and Professor of Economics, Chapman University. He can be reached about this article at tcampbell@chapman.edu.

 
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