Learning How to Be a Lawyer (Not Just "Think Like a Lawyer")
~ written by Paige E. Kohn
Legal education needs to change. Many law schools have acknowledged this need, and some have taken steps forward, but a comprehensive commitment to reform is lacking. In general, legal education is still being taught as it has been since the doors opened at the first American law schools. Professors continue to employ the Socratic method, require one exam worth 100% of your grade at the end of each semester, and assign numerous case readings out of notoriously heavy books. Through such painstaking study one is supposedly rewarded by that golden, and long sought after, trophy of legal education: how to “think” like a lawyer.
Indeed, “thinking” like a lawyer is important. However, the problem is students are not sufficiently learning how to “be” a lawyer. Learning the law in today’s schools is the equivalent of a doctor learning the causes of disease in textbooks but never treating a patient, or a teacher learning the methods of instructing individuals but never teaching a student. Simply put, law school education overemphasizes theory at the expense of practice.
There is no reason this has to continue. The main obstacle is likely resistance to change by professors and administrators. The change need not occur all at once, however, as reforms can be phased in over several years. But, change must start now because law schools are not preparing its students for realities of practicing law. After three years of education, no student should enter the legal profession without counseling a client, drafting a complaint, or writing a basic contract. As law schools are currently structured, a student can miss out on all three of these fundamental lawyering skills.
A modified curriculum would balance theory and practice. This could be achieved by integrating practical exercises into most classes, requiring students to learn basic legal skills through realworld experience, reconsidering traditional teaching methods, and providing adequate preparation for the bar exam.
To accomplish these goals, law schools could begin by restructuring the first year curriculum. Schools should retain the main courses such as property, torts, and contracts, but each would be retooled to incorporate practical skills. For example, in criminal law students might learn both sides of criminal defense: client representation and prosecution. Students might counsel a hypothetical client through all steps of the typical process such as arraignment, plea-bargaining, and strategy. In contracts, students would draft the most common types like employment, purchase, and rental contracts. Students would learn how to adequately represent parties to these contracts like employers and employees. In property, students would draft easements, leases, mortgages, promissory notes, and deeds. Strategy and process would be learned by completing a real estate transaction from start to finish. The second year curriculum would be similarly restructured, with popular courses following the same model. For example, in business associations students would draft operating agreements, form hypothetical corporations, and advise corporate clients on complying with state and federal regulations. In addition to the typical courses, the curriculum would include a rigorous practical skills requirement that could be fulfilled through externships, legal clinic, or other meaningful work experience.
The third year would focus on advanced practical skills, preparation for the bar exam, and if desired, completing a concentration like environmental, employment, or corporate law. At this point, students are already well-versed in reading cases and taking law school exams, so more time should be spent on ensuring each student has training in case management, client counseling and interviewing, arbitration, settlement, negotiation, trial and appellate advocacy, the business of law, and billing. Students should be able to handle most common legal issues like drafting wills, traffic cases, divorces and custody disputes, employment contracts, and buying and selling property.
Through all three years courses in legal research and writing should be retained, and professional responsibility should be revamped to emphasize real-world ethical problems. The method of teaching students should also be reevaluated in light of current research. Before matriculation, students often hear horror stories about the Socratic method and the accompanying embarrassment of not knowing the answer. It is questionable whether this feardriven method is really the best approach to teaching.
Along the same lines, law school exams have not changed much over the years. For a majority of classes, students spend sixteen weeks reading cases and material without being evaluated until the final exam. Testing students earlier in the semester would allow the professor to gauge whether the class is learning the material and offer feedback to students. In combination with tests, students might also be evaluated on the strength of practical exercises.
For the law school exams that are retained, they should focus more on the realities of the bar exam. As currently structured, students are given ample time to analyze fact patterns. On the bar exam, however, students must read, analyze, and write essays much faster. Professors should devote at least a part of their exam to bar style essays and impose the actual time requirement. Including MBE multiple-choice questions would also be a great addition. The sooner students become familiar with the bar examination, the better prepared they will be.
Incorporating these suggestions will not be easy, but it will better prepare future lawyers. It will cost money, professors will have to work harder, and as with many changes, it might be not be perfect. Fortunately, many Ohio law schools, such as Case Western Reserve and Capital University have taken steps in the right direction. At Case Western, the law school implemented the CaseArc Integrated Lawyering Skills Program, which melds theoretical and practical skills through all three years of law school. Capital University has a strong legal research and writing program, as well as excellent externships and legal clinic opportunities.
Still, there is room for improvement, and whether one attends law school in Ohio or outside the state, no student should feel unprepared as he or she enters the legal profession after three years of school. Law firms, businesses, and the government should not have to teach new lawyers basic skills. This is the responsibility of law schools and after the significant investment and time students put into their studies, they deserve better.