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Misconception About Lawyering Skills in Law School Curriculum

A law student related to me a conversation with a law professor at a school other than mine. The law student is one who, like many, is aware of the movement to reform law school education to better prepare students for practice. She expressed her gratitude for such reform. The law professor’s response was something along the lines: “Are we sacrificing the Socratic method for paralegal training?” My jaw dropped when I heard that. Apparently, some in legal academia have not realized that the kinds of skills at issue are beyond paralegal skills.


Here are a few skills that I would never entrust to a paralegal: (1) preparing an engagement letter to govern the agreement between my firm and the client; (2) drafting a complaint, answer, motion, or anything that I filed in court; (3) developing, in light of the claims pled in the complaint and the defenses in the answer, a discovery plan that determined (a) what information could be gathered informally, (b) for information that had to be obtained from an opponent or third party, the discovery tool best designed to seek the information, the order in which these tools should be used (e.g., written discovery tools before deposition); (4) performing an evaluation of the value of a case so as to be prepared for settlement discussions; and (5) how to take a deposition and, if opposing counsel makes speaking objections or otherwise misbehaves, how to deal with that lawyer. I would like to continue the list, but the reader should get the point.

Any lawyer who entrusts such tasks to a paralegal is shirking his role as a lawyer. The effective handling of a lawsuit is more art than science. I respect good paralegals, but they are not supposed to be performing tasks that require the legal training and judgment that only a lawyer will have.
And my point goes beyond civil lawsuits. Do lawyers really have paralegals draft contracts for clients? Is that not a skill that could reinforce many of the contractual doctrines the professor teaches—and in the process gives the student valuable experience, so that her first contract is not one done on the job.
The law professor comment tells me that we need to perhaps do a better job explaining what we mean by “skills” training. We also may want to realize that change always meets resistance—and the professor who made the comment may not want to incorporate preparation of work product. If that’s the case, all we can hope is that in time the validity of Carnegie and Best Practices’ recommendations will become clear to doubters.
 
--Professor Ben Madison, Regent University School of Law

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8 comments:

  1. I wish to add one important aspect to this conversation. Throughout various legal internships, I have had the privilege of working with excellent paralegals that did know exactly what they were doing. With that being said, the ultimate responsibility will ALWAYS remain with the attorney.

    For solo practitioners, which many more are appearing, practical skills are all the more important. These attorneys may not have the financial ability to pay a paralegal and may have to rely on interns, volunteers, etc.

    Also, for those that do have paralegals, I feel it is the ethical responsibility of every attorney to be the last set of eyes viewing any document that his or her name will be attached to. Therefore, even in the event that paralegals are drafting some of the above mentioned documents, the attorney must still understand the practical skill in order to formally approve of it prior to submission. In fact, the attorney's license could depend upon this final supervision.

    In conclusion, regardless of whether paralegals are or are not involved, future attorneys need to learn (at the bare minimum) the basic practical skills required for practice while still in school. Otherwise, many new attorneys, especially those that cannot benefit from a large firm position, might as well hang a "legal malpractice" sign in addition to their law shingle.

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  2. Prof. Madison,

    Great stuff. Here is my take. A client hires an attorney to represent them in a given matter and attain a given (hopefully) outcome. The Socratic method is a fantastic tool for teaching one type of skill set (i.e. thinking on your feet, reasoning under pressure, preparing well, gleaning information from case law) but it does not attempt to teach the more practical skills that attorneys use every day in law practice. Those practical skills need to be learned eventually and will either be learned in law school or in law practice. I think the reason why many law professors chafe at these reforms is because they don't have those skills to impart and therefore have no value to add to the students.

    Keep up the great work Prof. Madison!

    Jess R. Monnette

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  3. It is ironic that they resist the very changes which could strengthen their students. The theoretical side of the equation which includes the hallowed Socratic method does have its usefulness, but the theoretical is of little value when the practical is not taught. As an undergrad, I had the privilege of taking two prelaw courses. One professor taught a class in which we received a general overview of what law school was like. We watched Paper Moon, Liar Liar, and a Time to Kill, and we wrote papers on how we felt and in answer to a logic riddle. Another professor took me under his wing and told me that he wanted to show me what it was really going to be like. He started a small informal class for the prelaw students who wanted to give up their lunch hour in exchange for his knowledge, and he taught us how to read cases, brief cases, pick out the rule of law, apply it to a factual situation, and analogize. He told us that there were many other things that we would need to learn but to always value the nuts and bolts, calloused hands on approach.

    That said, I am so thankful that Regent is approaching classes from a skill and practical level as well as theoretical. With depression rates so high among law students and that depression compounded by the fear of malpractice, these courses which give us the opportunity to get our feet wet and experiment with the tools of the trade without putting anyone at risk is invaluable. It might not be as glamorous as keeping a student on her feet for twenty minutes, peppering her with questions, but that student who has been trained in skills as well as theory (yes, even paralegal skills since not all of us will have paralegals!) will be far more likely to bring honor to her law school and to God.

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  4. I personally find it amazing how legal education in the United States is grounded in the status quo at most law schools and fails to focus on the necessary practical skills that lawyers are expected to perform in practice. Being equipped to "think like a lawyer" and engage in philosophical policymaking is great to an extent, and it is important to have students learn how to apply legal concepts in such a way as to devise creative solutions on their feet during a trial. However, most of the work in the legal profession consists of performing the menial tasks that the law professor in question dismisses as "paralegal work." As future attorneys in the legal profession, learning these skills should happen in law school in an environment where an actual client's life and well-being is not on the line. Law schools throughout the country need to have a fundamental shift from the Socratic method and embrace a curriculum which invites students to apply their legal minds to practical work products. I am proud to have attended Regent Law because professors here have placed a greater priority on students gaining practical experience.

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  5. This conversation that you had with another professor amazes me. I understand the Socratic method and the typical law school experience but I must say that would not prepare me for real life. I have truly appreciated classes that provide me with hands on skills. The several oral classes that I have taken and the classes that require me to do work that I would do in real life is really what I am learning from. I can sit and read/learn cases all day but if I am not able to actually do something hands on I am really not understanding how it works in real life. I understand that in real life you have personnel that will help you out but as you mentioned there are things you want to do yourself and there are things that I would want to know how to do myself even if someone else could do it for me.

    I was under the impression the point of going to school was to learn how to do something and apply it in real life. If I or other students do not learn the skills just learn the concepts what is going to happen in the real world. A whole lot of messing up is one thing. I much rather have a professor mark up my work in red pen and teach me then have a judge or someone in the real world rip my work apart and just tell me that it is not going to cut it.

    I am glad that I can say I have had plenty of practical experiences. Those experiences are going to be what helps me in my future and I am glad that I did not have a learning experience that just involved hearing about how things work in the real world. I am very glad Regent Law has placed a high priority on practical experiences. I think that is what is going to make better lawyers for the future.

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    1. Absolutely! Unfortunately, there are many out there that still believe as the professor did that relayed his conception that practical skills were "paralegal" training skills. I was, as you, baffled. The good news, however, is that through those such as Professor Madison, and other dedicated professors at Regent and many different law schools, the tides are changing. Radical changes, such as moving away from the Socratic Method (which has been in use for over a century now), takes time. If it happened overnight, I would worry. Because nothing good and true occurs overnight. With patience, perseverance, and the assistance of those dedicated to reform, legal education will see a new day.

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  6. I have heard and had several conversations on the topic of teaching lawyering skills in law school, but I had never heard it compared to teaching law students to be paralegals.

    I believe law school requires both the Socratic method, and skills courses. At the beginning of an internship I had after 2 years of law school, I remember working with the paralegals in the office and thinking how much more they knew about the legal process and the court system than I did. As I have reflected on that, and have received additional training in lawyering skills during my final year of law school, I have come to the opinion that a combination of lawyering skills and the Socratic method are necessary for law students to be as prepared as possible when they leave law school.

    It is the Socratic method, learning the law, and learning to think and reason "like a lawyer" that makes law school different from the training I believe paralegals receive. I also believe the Socratic method training must come first in law school so that students can begin to approach cases "like a lawyer." After one learns to think like a lawyer, the student also needs to know how to behave/act like a lawyer - meaning how to actually handle a case. Without the practical addition of lawyering skills, law students must either training on the job - affecting their client's lives, or delegate tasks to those who have learned some lawyering skills - their paralegals.

    By providing solid training in the law as well as lawyering skills, law schools produce lawyers rather than paralegals -- because graduates leave with an understanding of both how the think like a lawyer and how to act like a lawyer.

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    1. I am glad you made this comment. I also believe that the Socratic method is valuable, but I see the immense value in practical skills. Like most things in life, you need a balance of both to produce a good lawyer (in my humble, inexperienced law student opinion!). I myself am someone who normally resists change, but I recognize that the legal reform movement is making necessary changes to legal education. After all, better prepared law graduates will better serve judges, firms, and other employers--ultimately clients. However, I hope legal education does not throw out the baby with the bath water by failing to recognize the value in the Socratic method, which is to teach students to think on their feet and to analyze issues and cases. I am grateful to have received a wonderful education using both elements--the Socratic method and practical skills--at Regent.

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