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An Open Secret In Legal Education

As part of the coursework for Legal Problem Solving (LPS), all students contribute a post to this course blog. Students develop posts from a weekly journal entry, which also is required coursework. The purpose of journal entries is to invite deeper, personal reflection on the subject matter in LPS, reflection being a key component of content understanding and mastery. This course explores how human centered design and other creative problem solving methods and mindsets inform three areas: (1) the delivery of legal services, (2) how we solve clients' (legal) problems, and (3) how law students can intentionally shape their professional journeys. Each student post will touch on one or more of these three areas.

This LPS post is by Matthew Washnock,Vanderbilt Law School class of 2019.

You teach yourselves the law, but I train your minds. You come in here with a skull full of mush; you leave thinking like a lawyer.

The Paper Chase

The shortcomings of legal education are an open secret. As an undergraduate considering a career in the law, I was constantly warned by well-intentioned professors, career counselors, family members, and practicing attorneys that I should think twice before attending law school. Such warnings were not without merit. The legal profession was still recovering from the 2008 Financial Crisis, and law school had never been more expensive. Students today graduate with historic debt burdens while facing a profession undergoing tectonic changes. Given that law students incur an average debt of $90,217 from public ​schools, or $130,349 from private schools, one would think that the legal academy would be channeling these ever-growing revenue streams into providing a correspondingly more valuable legal education.

However, this is not the case. Despite complaints from employers that entry-level attorneys are hugely expensive to train, “not profitable,” and constitute a “significant burden to the firm for the first three to four years” that they are practicing, there has been little effort to update the legal curriculum. Nearly every firm that came to campus during my 1L year to give career advice to students bemoaned these shortcomings while emphasizing that recent graduates do not adequately understand the business of law. The fact is that law schools, while great at teaching legal theory and issue spotting, systematically fail to equip students to convert these skills into an actual profession. As a family friend put it, “I graduated from Harvard Law without knowing how to actually file a lawsuit.”

Law schools pride themselves on training their students to “think like a lawyer." In fact, the more prestigious the school, the more confidently its website, dean, professors, and admissions counselors will espouse this claim. For instance, the University of Chicago, the fourth-ranked law school in the authoritative, yet oft-derided U.S. News and World Reports’ rankings states “[t]his is what sets us apart from other law schools: we have an unabashed enthusiasm for the life of the mind—the conviction that ideas matter, that they are worth discussing, and that legal education should devote itself to learning for learning's sake, not just for earning's sake.”

I believe that this claim is earnest. Law schools and their administrations believe that they are providing students the best possible education and equipping them for “legal practice in the 21st century.” They extend endowed chairs to top legal scholars, fund conferences and symposium on emerging legal issues, and encourage students to take new courses that examine the future of the field. In short, the academy is aware that the legal profession has changing needs and is attempting to equip students to be successful practitioners in an industry that looks very different than it used to.

However, these efforts will always be inadequate if the antiquated foundations of legal education remain unchanged. While there is no single definition of what “thinking like a lawyer” actually means, it is roughly understood as shorthand for analyzing cases and statues, extrapolating principles of law, and communicating a coherent application of these principles to fact patterns.

While this “case method” provides skills that are essential to the practice of law, and has effectively conveyed essential domain knowledge to a century of young lawyers, it does not constitute a complete legal education. The truth is, thinking like a lawyer only gets students so far. “If they can’t write, if they can’t speak well, if they can’t think strategically, if they can’t work in teams, and if they can’t relate to other people, all the thinking like a lawyer in the world will not help them become good lawyers.”

The very phrase “thinking like a lawyer” highlights the gulf between the traditional law school curriculum and life as a practicing attorney: the transition from “thinking” to “doing.” Nancy Rapaport, the former dean of the University of Houston Law Center, wrote eloquently about this deficit in her piece Is "Thinking Like a Lawyer” Really What We Want to Teach?:

Why are we so fixated on the “thinking” process, rather than the “doing” process? No one expects a doctor to “think” like a doctor when she leaves medical school. We expect her to be a doctor. The same is true of those who have been trained as engineers, research scientists, car mechanics, and air traffic controllers . . . Every profession depends on the use of inductive and deductive reasoning, but it also depends on the person’s ability to do something after reasoning out what the problem is.​​

- Nancy Rapaport

Ms. Rapaport asserts that the composition of law school faculties is partly to blame for this focus. She states that if one is to look though the staff directories of America’s top law schools, a significant majority of law professors have spent fewer than five years as practicing attorneys. As a result, these professors are less likely to provide practical insights and will approach their instruction more as members of the legal academy than as senior members of the bar.

As one Vanderbilt Law School alumnus told my 1L Torts class, “As you’ll probably notice after you graduate from a school like Vanderbilt, the kids who are getting all the A's and making law review end up becoming professors, while those of us who were in the middle of the curve are the ones making partner.” This observation, while certainly a generalization, speaks to an obvious obstacle to updating legal education: the faculty and administrators at top law schools are those who thrived in the traditional case-based, issue-spotting exam approach to teaching the law. What is more, since many of them lack substantial experience as practicing attorneys, they shape the structure of legal training around success on law school exams rather than the everyday practice of law.

The simple fact is that training students to solve real legal problems, understand the business of delivering legal services, and frame legal issues from a client’s perspective should not render a law school course “unusual.” Creative problem-solving, collaborative group ​work, and communication exercises should be as central to a legal education as IRAC and the traditional first-year curriculum.

The reality is that advances in technology are changing more than just the industries served by the legal profession. Technological innovations and the lessons of the 2008 Financial Crisis are challenging the hegemony of the billable hour and are driving clients to demand routine legal services for a fraction of the cost. As a result, non-traditional legal service providers are stepping up to satisfy the demand for more efficient, transparent, and affordable legal work.

Inefficiently run law firms risk ruin as the Walmarts and Amazons of professional services muster the capital and technology to industrialize and streamline the practice of law. In this environment, it is not merely enough to have the capacity to “think” like a lawyer. Instead, the comparative advantage of a well-educated lawyer will be determined by his ability to empathize with a client, find creative solutions to their problems, and efficiently deliver a comprehensive package of legal services.

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