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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