I feel compelled to share this really great article on law school education from the New York Times.
It’s funny too.
It doesn’t give all the solutions but David Segal, the journalist, is quite good at pointing out some of the problems. And it covers a range of issues concerning legal education’s failure to prepare students for actually practising law.
Below are 3 extracts from the article, which you can read in its entirety here:
“Law schools have long emphasized the theoretical over the useful, with classes that are often overstuffed with antiquated distinctions, like the variety of property law in post-feudal England. Professors are rewarded for chin-stroking scholarship, like law review articles with titles like “A Future Foretold: Neo-Aristotelian Praise of Postmodern Legal Theory.”
“We should be teaching what is really going on in the legal system,” says Edward L. Rubin, a professor and former dean at the Vanderbilt Law School, “not what was going on in the 1870s, when much of the legal curriculum was put in place.”
“Another problem…there are few incentives for law professors to excel at teaching. It might earn them the admiration of students, but it won’t win them any professional goodies, like tenure, a higher salary, prestige or competing offers from better schools. For those, a professor must publish law review articles, the ticket to punch for any upwardly mobile scholar.”
It is my observation that while graduate schools are beginning to wisen up and focus on how people will be doing things as much as what they will be doing, law schools globally seem behind the curve. This means that business school curricula now contain extensive courses the preparation of great business leaders who are prepared for the psychological and ethical challenges. Yet law schools still focus 99% of their attention on learning law – content as opposed to process. There is growing dissatisfaction as lawyers globally realise they have not been adequately prepared for the challenges of the legal profession. This is leading to a rise of services such as Lawyer Coach, which arise to meet the needs of lawyers actively seeking training in the skills they did not receive while studying. Granted, some of these are skills only suitable for lawyers with developed careers. However there appears to be a growing number of lawyers who agree that we MUST start including leadership work, including further courses on ethics, into standard law school curricula.
There is so much that South African Universities can learn from developments in the US and UK where law schools have been around so much longer. Yes, South Africa is different in some respects and it’s a unique legal system in a country that is partly third world and we shouldn’t just follow Eurocentric models yaddah yaddah…but it also makes no sense to re-invent the wheel. The SA legal system is based on a mixture of Roman-Dutch and English law and our legal education system is also very similar to that in Europe. Therefore, if these countries are discovering that their legal education systems are failing to prepare lawyers for the challenges of lawyering in the 21st C, we need to sit up and take notice.
While many of our university law departments do have legal aid clinics which allow students practical experience at lawyering, there is still much work to be done on creating more innovative curricula.
As Magda Slabbert, Professor of Jurisprudence for Unisa points out in her paper on the Requirement of Being a Fit and Proper Person:
“Formal education in the law does not prepare lawyers for the moral challenges of the profession. The ultimate aim of legal training is to enable the student to become a successful attorney or advocate. Knowledge is important in order for the lawyer to be able to make a convincing case for either side in a dispute. –
“What this sort of learned cleverness does not require is either a developed capacity to judge what is right or a disposition to seek it”
(from Eshete A “Does lawyer’s character matter?”)
So what’s happening in the US that we can learn from? Below are a few points from an article you can read in its entirety here.
- Legal educators from more than 30 law schools across the country have joined together to make experiential legal education the norm and not just an afterthought.
- Northeastern University School of Law offers an interesting example because, almost 50 years ago, it pioneered a cooperative model of legal education that integrates theory and practice by requiring students to fulfill all the traditional classroom work while also spending a year immersed full-time in practice settings as diverse as law firms; judges’ chambers; and prosecutor, public defender and legal aid offices
- The group was formed to ensure that law graduates are ready to join the legal profession with a full complement of skills and ethical and social values necessary to serve clients and the public interest, now and in the future.
- The symposium will bring together lawyers, judges, students, legal educators and others to begin to forge a new model for legal education and the profession.
- There is growing recognition across the legal profession and in legal education that business as usual is not acceptable and the time is now to provide more and better educational opportunities for law students, who are the profession’s greatest assets. The alliance is adopting innovative curricula that combine theory and practice to help students puzzle through the challenges and ensure that the profession remains vibrant, dynamic and relevant. This group of legal educators is committed to educating students to hit the ground running, with experience helping clients, collaborating with colleagues, resolving disputes, facing adversaries, drafting documents and interacting with judges, so that these lawyers are ready to solve legal challenges right away.
It has always been frowned upon to feed lawyers, but it was always considered worse to interact with lawyers. To touch lawyers. But for me interacting with lawyers is the only way to truly show what lawyers really are, and they are beautiful and amazingly intelligent animals. These interactions are opportunities to share with the world the other side of lawyers. A curious playful animal that sometimes enjoys a nose scratch just like many other species of animals do. The bottom line is people will save what people love, and with lawyers’ current image, it is hard to love lawyers. But what if there was a way to show the world that lawyers are capable of being loved? Well that’s what my life’s journey and work is all about…
Ok, so I plagiarized the above paragraph. I’m sure you’re smart enough to figure out what the original paragraph was about.
Thinking that all lawyers are aggressive, out to make a quick buck, and are morally dubious is an example of what Edward de Bono terms “Adversary Thinking”. With adversarial thinking each side takes a different position and then seeks to attack the other side. Each side seeks to prove that the other side is wrong. This is the type of thinking established by the Greek Gang of Three (Socrates, Plato and Aristotle) two thousand four hundred years ago.
Let’s not fall into Adversary Thinking. I don’t want to engage in this debate at the level of “you are wrong and I am right”. In other words you say “lawyers are sharks” and I say “lawyers are not sharks”. Instead let’s engage in Parallel Thinking, described by De Bono as follows:
With ‘parallel thinking’ both sides (or all parties) are thinking in parallel in the same direction. There is co-operative and co-ordinated thinking. The direction itself can be changed in order to give a full scan of the situation. But at every moment each thinker is thinking in parallel with all the other thinkers. There does not have to be agreement. Statements or thoughts which are indeed contradictory are not argued out but laid down in parallel. In the final stage the way forward is ‘designed’ from the parallel thought that have been laid out.
Let’s agree that some lawyers are sharks. No doubt about it. There are indeed morally bankrupt, devious, greedy and exploitative lawyers out there. Let’s move past this to a full scan of the situation and begin to ask why the profession in general tends to be so misaligned. Let’s ask how current situations might be contributing to creating money-hungry and unscrupulous lawyers. Let’s widen our view not only to include ‘good’ lawyers and ‘bad’ lawyers but some of the categories in between: intimidating lawyers, obnoxious lawyers, incompetent lawyers. Let us ask questions, all manner of questions to learn more.
- What might we be missing in the way we educate lawyers?
- In what way might the structure of various parts of the legal profession be contributing to this problem?
- How are lawyers affected by the fact that most law firms still resemble the form of law firms in the United Kingdom 100 years ago?
- How might the fact that law is still a largely male-dominated profession be contributing to the problem?
- In what way does the dominant thinking pattern in law, black & white, right or wrong leave very little room for new forms of legal solution, such as mediation?
- It’s understood by many that being wrong in the legal world is seen as failing. How might this mindset prevent lawyers from exploring their full creative potential when drafting contracts or looking for ways to resolve clients’ disputes?
Like it or not, the average Joe is going to have to have contact with lawyers in his lifetime. You will have to feed the lawyers at some stage whether it’s getting an ANC drawn up, buying a house or starting a business. You may find that actually dealing with a lawyer is an opportunity to change your mindset about lawyers in general. But perhaps not. More often than not people hold a construct or belief and then look for evidence of it. Beware of what negative views of lawyers you may be holding when you walk into that consultation.
I’m hoping that the work I do around the transformation of law will allow me to dive deeply. To probe the depths of this habitat of “sharks” and develop an understanding of why they act as they do. I’m ready to dive. Without a cage. 😉