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Monday, April 1, 2013

Our target should be the students, not law schools

When Charlie Rose writes about the intertwining of law theory and practise (see here, this blog 1 April 2013), when earnest legal education reformers sign off on lengthy reports that bewail the gap between casebook law classes and the real world, when law firm practice managers complain that their new graduates are bright but useless, they are preaching to the converted and no one else.

There’s no mass law student movement clamouring by petition, or by social media for a more practical legal education.  That’s hardly surprising because so many law schools don’t do anything to show that practise for practice matters.  Moreover, out in that real world of practice, poor problem definition, bad advocacy, inept negotiation, and drafting by precedent- not -understanding are the daily fare.

There’s no mass legal academic movement calling for more ‘practical law’ in their classes either.  Why is that not surprising?  Today’s entry legal academics are ever more likely to be ‘successful theorists’ who have avoided or quickly escaped from the world of everyday legal practice.  Casebook explanations – driven as they are by appellate decisions – drive everyday fact contests underground.  Moreover, to ask those teachers to bring real practice into their classes is to ask the impossible: they can’t do it.  They lack the experience and they lack that talent.

But they are not to blame.  They are as much servants of the system as we are.  The difference is that they sit at the inner table and we, the trade crafters, sit far, far away, nearly out of sight, and certainly out of mind.

True enough there are some Law Schools that have made their trial competition teams a big part of their promotion to potential students.  True too that coaching a team or teams of highly motivated, enthusiastic, knuckle down, ‘I want to win’ competitors is a great experience for all those involved.  But also true is that this great adventure reaches only a tiny fraction of today and tomorrow’s law school population.

Moreover this trial competition stuff is not cost effective unless it attracts more students to the school in an overcrowded market: ie. its raison d’etre for the school is its marketing pull, not its learning outcomes.

Since we believe in the value of intertwining legal principles with law practice skills then we had better be clear on the content of that value for the actors in our system.  As a law teacher of principle and practical skills I assert that students understand better, learn more, and so are better equipped for professional practice when they experience the principles in an environment such as a student moot or trial competition, that is closer to a ‘live’ context than the default  ‘teacher exposition and student tutorial’.  Specifically I want my students to see, hear and feel how appellate or statutory principle comes to life when it encounters human stories. In short, ‘case analysis’ is not just an element of a trial practice class, it is the basis of becoming a lawyer who can prevent and solve client problems, be those of a transactional or litigation type.

But what I, or you, might assert is of benefit to students as future lawyers runs a distant last in the race for student attention today. Most students focus upon grades.  Those are the means to the barely understood end: a job. The oft-noted means for improving grades (the how to study guides, student discussion groups, practice questions etc.)  do not highlight the pay off from intertwining legal principles with practical applications.  If the mass of students know anything about mooting and trial competition it is that both are time demanding, and hence devour social, study and sport time.  The rational student avoids our world.

Fortunately we can reach out to the students directly.  We can take our world to them and we can market it as a grade-improving tool. Using the internet, and pooling our skills, we – the congregation of advocacy and ethics teachers – can deliver to any law student, anywhere, audio visual illustrations of principle and tradecraft in action. Teachers like Charlie Rose and Wes Porter have been taking the ‘advocacy’ teaching into the ether for quite a while.  Do a Google search and see how many views some of their short, clear, crisp presentations have had.  Now imagine how easily we could take some of the fundamentals of evidence and procedural law and turn them into short You Tube clips with voice over to explain the key points.

We can use our trial competition members as the actors, using very short scripts, that illustrate in stepwise fashion, how principle and skills mesh, how both are important, how recourse to the audio visual is a truly valuable law teaching and learning tool.  We can show, as watching CourtTV or going to court without a skilled mentor or reading court transcript out of context cannot, the interweaving.  We can, so easily and cheaply, shed real light on dark places in the students’ comprehension.

To put it another way:  we can die waiting for our academic colleagues to implement tethered courses.  But we can start tomorrow to achieve a defacto tethering for every student of  ‘legal principle’ and ‘the law in action’.  The facts in these You Tube vignettes, as they raise substantive legal questions, go beyond evidence and procedure.   The sky, not the parking lot of our home institution, is our limit. Then we can die laughing at our success.

Hugh Selby © April 2013.


  1. Indeed! Audio visual clips are an educative tool that we are yet to fully realise. Hopefully, it won't take long before evidence and procedural law is also taught this way. And yet, I cannot see that it could comfortably take the place of in-person practical classes. The energy and charisma of some of the law and advocacy teachers I have had the fortune to experience cannot be fully conveyed through a visual medium alone. When it is done well - the coach and mentor enter in to a sort of 'dance' - beautiful to experience and beautiful to watch - I can't imagine a better method of learning but I ultimately agree that we just aren't using audio visual mediums enough.

  2. I agree with Hugh, to an extent. We can make a tremendous difference if we focus directly on students. We can leverage technology to pool resources and provide fantastic teaching experiences for students.

    But law schools must also change. I disagree with Hugh about the absence of a "mass law student movement clamouring by petition, or by social media for a more practical legal education." Law students and prospective law students are demanding transparency in legal education. They want to know what their tuition is buying. They want to know the actual legal employment statistics for their school.

    And they are voting with their feet. Law school applications in the US have been trending downward for the past few years. This year's drop is, at least to this point, almost catastrophic.

    The legal education system as it currently exists is not sustainable. I don't pretend to know whether the answer is fewer law schools, smaller class sizes, moving to a 2-year program rather than a 3-year program, limiting student loans, replacing tenured faculty with adjuncts, and so forth.

    What I do know is that very few law schools can afford the luxury of producing graduates who know how to "think like lawyers" (whatever that means) but don't know anything about how to practice law. Some law schools are already making the necessary structural and curricular changes to focus on experiential learning in addition to theoretical learning.

    If the bench, bar AND prospective students are demanding such changes, I think there is good reason to focus on what law schools are doing as well as what individual faculty members can accomplish on their own.