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As part of this ongoing discussion, however, I posed the idea that law schools teach substantive law, but they don’t teach the significance of that law. In a torts class, for example, one can learn of the elements of intentional torts, negligence, and all kinds of civil wrongs that people perpetrate on one another. What I suggest is missing is even the briefest discussion of what to do when, as a lawyer, one is sitting across a desk from a client who is describing one of those personal tales of woe that could be easily torn from the pages of an appellate opinion. I realize that teaching students about all that makes up tort law takes up a lot of time. Each potential client’s story is likely to have nuances that can’t be sorted out in lectures. Still, is there no room for some litigation aspects? No references to checklists, litigation guides or standard practice treatises?
We can teach people to think like a lawyer, but we seem to struggle with teaching students to act like a lawyer. By the way, try Googling “think like a lawyer” sometime. There is no standard definition, but it seems the common themes include detailed analysis and a mind that can appreciate nuance. The (future) lawyer would have a better mind to synthesize case law into a coherent statement of the law. For more on that, see Thinking Like a Lawyer: The Heuristics of Case Synthesis by Jane Kent Gionfriddo (via SSRN). She posits in the abstract that while this is a necessary skill for common law problems, “many lawyers aren't able to do so well enough for sophisticated law practice.” Go figure.
Note that the bar exam (at least the one I took and passed some 30 years ago) doesn’t test the ability to think like a lawyer as much as it tests what one learned in law school and more likely the bar preparation course that immediately followed. Teaching some level of related legal bibliography in substantive law classes is one way to do it. A class in advanced legal research is probably another, at least as a way of exposing students to tools beyond the basics. Advanced legal research is not a very efficient means given how often the class is taught, and the limited enrollment compared to the size of the student body. I know some schools teach a practice class. Somehow, though, we seem stuck with a teaching system that forces students to pull all the parts together and figure it out on their own. The big firm apprentice system works, I suppose, even with the grumbling that graduates are not “practice ready.” Law schools could do more for the graduates who are solos, though. Isn’t it professional, after all, to teach how the law works beyond what it merely is? [MG]"
We can teach people to think like a lawyer, but we seem to struggle with teaching students to act like a lawyer. By the way, try Googling “think like a lawyer” sometime. There is no standard definition, but it seems the common themes include detailed analysis and a mind that can appreciate nuance. The (future) lawyer would have a better mind to synthesize case law into a coherent statement of the law. For more on that, see Thinking Like a Lawyer: The Heuristics of Case Synthesis by Jane Kent Gionfriddo (via SSRN). She posits in the abstract that while this is a necessary skill for common law problems, “many lawyers aren't able to do so well enough for sophisticated law practice.” Go figure.
Note that the bar exam (at least the one I took and passed some 30 years ago) doesn’t test the ability to think like a lawyer as much as it tests what one learned in law school and more likely the bar preparation course that immediately followed. Teaching some level of related legal bibliography in substantive law classes is one way to do it. A class in advanced legal research is probably another, at least as a way of exposing students to tools beyond the basics. Advanced legal research is not a very efficient means given how often the class is taught, and the limited enrollment compared to the size of the student body. I know some schools teach a practice class. Somehow, though, we seem stuck with a teaching system that forces students to pull all the parts together and figure it out on their own. The big firm apprentice system works, I suppose, even with the grumbling that graduates are not “practice ready.” Law schools could do more for the graduates who are solos, though. Isn’t it professional, after all, to teach how the law works beyond what it merely is? [MG]"
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