how do law schools comply with the aba’s new mandate requiring significant instruction in...

How do law schools comply with the How do law schools comply with the ABA’s new mandate requiring ABA’s new mandate requiring

significant instruction in professional significant instruction in professional skills for all students?skills for all students?

Bend, OregonBend, Oregon

October 14, 2007October 14, 2007

Northwest Clinical Teachers Conference

SummarySummary The standard and interpretationsThe standard and interpretations What does the standard mean?What does the standard mean? What is the ABA accepting, for now?What is the ABA accepting, for now? What are schools doing?What are schools doing? Why should a school do more than Why should a school do more than

the ABA requires?the ABA requires? What are the implications for legal What are the implications for legal

education?education? Examples from the real world.Examples from the real world.

Standard 302Standard 302

A law school shall require that each A law school shall require that each

student receive substantial student receive substantial

instruction in five different topicsinstruction in five different topics

Standard 302(a)(1)Standard 302(a)(1)

The substantive law generally The substantive law generally

regarded as necessary to effective regarded as necessary to effective

and responsible participation in the and responsible participation in the

legal professionlegal profession

Standard 302(a)(2)Standard 302(a)(2)

Legal Analysis and ReasoningLegal Analysis and Reasoning

Legal ResearchLegal Research

Problem SolvingProblem Solving

Oral CommunicationOral Communication

Standard 302(a)(3)Standard 302(a)(3)

Writing in a legal context, including Writing in a legal context, including

at least one rigorous writing at least one rigorous writing

experience in the first year and at experience in the first year and at

least one additional rigorous writing least one additional rigorous writing

experience after the first yearexperience after the first year

Standard 302(a)(5)Standard 302(a)(5)

The history, goals, structure, value, The history, goals, structure, value,

rules and responsibilities of the legal rules and responsibilities of the legal

profession and its membersprofession and its members

Standard 302(a)(4)Standard 302(a)(4)

Other professional skills generally Other professional skills generally

regarded as necessary for effective regarded as necessary for effective

and responsible participation in the and responsible participation in the

legal professionlegal profession

Interpretation 302-2Interpretation 302-2

““Trial and appellate advocacy, alternative Trial and appellate advocacy, alternative

methods of dispute resolution, counseling, methods of dispute resolution, counseling,

interviewing, negotiating, problem solving, interviewing, negotiating, problem solving,

factual investigation, organization and factual investigation, organization and

management of legal work, and drafting management of legal work, and drafting

are among the areas of instruction of are among the areas of instruction of

professional skills that fulfill Standard professional skills that fulfill Standard

302(a)(4).”302(a)(4).”

Interpretation 302-3Interpretation 302-3 ““A school may satisfy the requirement for A school may satisfy the requirement for

substantial instruction in professional substantial instruction in professional skills in various waysskills in various ways

ExampleExample requiring students to take one or more requiring students to take one or more

courses having substantial professional skills courses having substantial professional skills

components. To be ‘substantial,’ instruction components. To be ‘substantial,’ instruction

in professional skills must engage each in professional skills must engage each

student skills performances that are assessed student skills performances that are assessed

by the instructor. by the instructor.

Interpretation 302-8Interpretation 302-8

““A law school shall engage in periodic A law school shall engage in periodic

review of its curriculum to ensure that review of its curriculum to ensure that

it prepares the school’s graduates to it prepares the school’s graduates to

participate effectively and responsibly participate effectively and responsibly

in the legal profession”in the legal profession”

What do these Standards and What do these Standards and Interpretations Mean?Interpretations Mean?

Standard 302(a)(4)Standard 302(a)(4)

Other professional skills generally Other professional skills generally

regarded as necessary for effective regarded as necessary for effective

and responsible participation in the and responsible participation in the

legal professionlegal profession

What is the ABA accepting for What is the ABA accepting for now?now?

At least a graduation requirement to At least a graduation requirement to

take one professional skills course take one professional skills course

other than legal writing and researchother than legal writing and research

More than one hour creditMore than one hour credit

Can be an in-house clinic or Can be an in-house clinic or

externshipexternship

What are schools doing? What are schools doing?

Many schools require all students to Many schools require all students to

take one or more courses from a list take one or more courses from a list

of designated “skills” coursesof designated “skills” courses

This is the band aid approach to get This is the band aid approach to get

past the ABApast the ABA

Some schools require all students to take Some schools require all students to take

specified skills and values courses, in specified skills and values courses, in

addition to any elective coursesaddition to any elective courses

These schools provide one semester These schools provide one semester skills and values instruction to 1Lsskills and values instruction to 1Ls

Boston College: Introduction to lawyering Boston College: Introduction to lawyering

or professional responsibilityor professional responsibility Montana: PracticumMontana: Practicum Albany: Introduction to lawyeringAlbany: Introduction to lawyering Minnesota: Theory of practice and Minnesota: Theory of practice and

lawyering (under development)lawyering (under development) Harvard: problem-solving course (winter Harvard: problem-solving course (winter

break) (under development?)break) (under development?)

These schools provide skills and values These schools provide skills and values instruction during both semesters for instruction during both semesters for

1Ls1Ls

Southwestern: Laws I and IISouthwestern: Laws I and II

NYU: The lawyering programNYU: The lawyering program

Northeastern: Legal PracticeNortheastern: Legal Practice

These schools require students to These schools require students to take a one semester skills and take a one semester skills and

values course in the second year values course in the second year

Loyola, Los Angeles: Ethical Loyola, Los Angeles: Ethical

LawyeringLawyering

Emory: Trial TechniquesEmory: Trial Techniques

These schools provide multiple These schools provide multiple semester skills and values courses for semester skills and values courses for

1Ls & 2Ls1Ls & 2Ls

William & Mary: Legal Skills Program William & Mary: Legal Skills Program

Four semesters - 9 creditsFour semesters - 9 credits

Richmond: Lawyering Skills ProgramRichmond: Lawyering Skills Program

Four semesters – 8 creditsFour semesters – 8 credits

These schools provide multiple These schools provide multiple semester skills and values courses for semester skills and values courses for

1Ls & 2Ls (cont.)1Ls & 2Ls (cont.)

Florida International: Legal Skills and Florida International: Legal Skills and

ValuesValues

Three semestersThree semesters

William Mitchell College of Law: Writing & William Mitchell College of Law: Writing &

Representation: Advice and PersuasionRepresentation: Advice and Persuasion

Three semesters – 3 creditsThree semesters – 3 credits

This school does something This school does something differentdifferent

St Thomas, MinneapolisSt Thomas, Minneapolis

A structured mentor program pairs each A structured mentor program pairs each

student with a lawyer or judge through student with a lawyer or judge through

all three years of law school. Classroom all three years of law school. Classroom

components in second and third years components in second and third years

carry one credit each yearcarry one credit each year

These schools provide somewhat These schools provide somewhat comprehensive, structured, and comprehensive, structured, and

progressive instruction in skills and progressive instruction in skills and values to some, values to some,

but not all third year studentsbut not all third year students Vermont: General Practice ProgramVermont: General Practice Program Franklin Pierce: Webster Scholar ProgramFranklin Pierce: Webster Scholar Program Golden Gate: Honors Lawyering ProgramGolden Gate: Honors Lawyering Program Southwestern: SCALE ProgramSouthwestern: SCALE Program

Some schools provide somewhat Some schools provide somewhat

comprehensive, structured, and comprehensive, structured, and

progressive instruction in skills and progressive instruction in skills and

values to all students throughout law values to all students throughout law

schoolschool

More about them laterMore about them later

Why should a law school do more Why should a law school do more than the ABA requires?than the ABA requires?

Many of our graduates will be Many of our graduates will be representing clients shortly after representing clients shortly after graduationgraduation

Many of our graduates will be Many of our graduates will be

representing clients shortly after representing clients shortly after

graduationgraduation

Clients expect and deserve competent Clients expect and deserve competent

representationrepresentation

Many of our graduates will be Many of our graduates will be

representing clients shortly after representing clients shortly after

graduationgraduation

Clients expect and deserve competent Clients expect and deserve competent

representationrepresentation

Our graduates would rather be Our graduates would rather be

competent than incompetentcompetent than incompetent

Many of our graduates will be representing Many of our graduates will be representing

clients shortly after graduationclients shortly after graduation

Clients expect and deserve competent Clients expect and deserve competent

representationrepresentation

Our graduates would rather be competent Our graduates would rather be competent

than incompetentthan incompetent

Our graduates will not be competent unless Our graduates will not be competent unless

we do “more”we do “more”

How do lawyers become How do lawyers become competent?competent?

That is, how do they develop the That is, how do they develop the

ability to resolve legal problems?ability to resolve legal problems?

How do lawyers become How do lawyers become competent? (cont.)competent? (cont.)

The first step is to learn the rules and The first step is to learn the rules and

procedures of lawyering. These procedures of lawyering. These

provide “scaffolds” that enable provide “scaffolds” that enable

beginners to gain a basic grasp on beginners to gain a basic grasp on

how to function in a variety of how to function in a variety of

practice situationspractice situations

““The prime task of the novice in the law is The prime task of the novice in the law is

to achieve a basic acquaintance with the to achieve a basic acquaintance with the

common techniques of the lawyer’s craft” common techniques of the lawyer’s craft”

(Carnegie, p.117)(Carnegie, p.117)

How do students acquire a basic How do students acquire a basic acquaintance with these common acquaintance with these common

techniques?techniques?

Textbooks on lawyering “articulate the Textbooks on lawyering “articulate the

conceptual models involved in the conceptual models involved in the

important skills that define effective important skills that define effective

lawyering: in developing evidence, lawyering: in developing evidence,

interviewing, counseling, drafting interviewing, counseling, drafting

documents, conducting research, and documents, conducting research, and

negotiating.” (Carnegie, p. 101)negotiating.” (Carnegie, p. 101)

Teachers help students improve their Teachers help students improve their

understanding of the conceptual models by understanding of the conceptual models by

allowing novice students “to work with and allowing novice students “to work with and

imitate multiple examples, using the conceptual imitate multiple examples, using the conceptual

models as scaffolds through which to models as scaffolds through which to

understand feedback, in order to guide their understand feedback, in order to guide their

assimilation of more skillful performance.” assimilation of more skillful performance.”

(Carnegie, p.101-102)(Carnegie, p.101-102)

How do students go from having a How do students go from having a basic acquaintance with the lawyer’s basic acquaintance with the lawyer’s

craft to being experts?craft to being experts?

In order to progress toward In order to progress toward

expertise, students need expertise, students need

opportunities to practice resolving opportunities to practice resolving

legal problems and receive feedback legal problems and receive feedback

from qualified observers, followed by from qualified observers, followed by

reflection, repetition, and reflection, repetition, and

progressionprogression

““Over time, the learner gradually Over time, the learner gradually develops the ability to see analogies, to develops the ability to see analogies, to recognize new situations as similar to recognize new situations as similar to whole remembered patterns, and, finally, whole remembered patterns, and, finally, as an expert to grasp what is important in as an expert to grasp what is important in a situation without proceeding through a a situation without proceeding through a long process of formal reasoning.long process of formal reasoning.

Sometimes called expert intuition or Sometimes called expert intuition or judgment, such ability is the goal of judgment, such ability is the goal of professional training.” (Carnegie, p. 116)professional training.” (Carnegie, p. 116)

Developing expert judgment takes a Developing expert judgment takes a

long time and much experiencelong time and much experience

It probably cannot be achieved within It probably cannot be achieved within

the three years of law schoolthe three years of law school

Law School can give students a solid Law School can give students a solid foundation toward developing expert foundation toward developing expert

judgment, however, judgment, however,

By teaching students concepts and By teaching students concepts and theories about effective, responsible theories about effective, responsible lawyering,lawyering,

By teaching students concepts and By teaching students concepts and

theories about effective, responsible theories about effective, responsible

lawyering,lawyering,

By providing students as many By providing students as many

opportunities as possible to practice opportunities as possible to practice

solving legal problems with supervision solving legal problems with supervision

and guidance,and guidance,

By teaching students concepts and theories By teaching students concepts and theories

about effective, responsible lawyering,about effective, responsible lawyering,

By providing students as many opportunities as By providing students as many opportunities as

possible to practice solving legal problems with possible to practice solving legal problems with

supervision and guidance,supervision and guidance,

By helping them understand their strengths By helping them understand their strengths

and weaknesses as novice lawyersand weaknesses as novice lawyers

By teaching students concepts and theories By teaching students concepts and theories

about effective, responsible lawyering,about effective, responsible lawyering,

By providing students as many By providing students as many

opportunities as possible to practice solving opportunities as possible to practice solving

legal problems with supervision and legal problems with supervision and

guidance,guidance,

By helping them understand their strengths By helping them understand their strengths

and weaknesses as novice lawyersand weaknesses as novice lawyers

By teaching them how to continue learning By teaching them how to continue learning

from experiencefrom experience

What are the implications for legal What are the implications for legal education?education?

Some schools are providing Some schools are providing

somewhat comprehensive, somewhat comprehensive,

structured, and progressive structured, and progressive

instruction in skills and values to all instruction in skills and values to all

students throughout law schoolstudents throughout law school

Liberty University School of LawLiberty University School of Law

Requires a “lawyering skills” course Requires a “lawyering skills” course

in all six semestersin all six semesters

““The development of proficient The development of proficient

communication skills is a focus of the communication skills is a focus of the

LU School of Law curriculum.”LU School of Law curriculum.”

Case School of LawCase School of Law CaseCaseArcArc program. program. A three year program that seeks to A three year program that seeks to

provide a completely integrated provide a completely integrated approach to teaching law and approach to teaching law and lawyeringlawyering Pervasive teaching of knowledge, skills, Pervasive teaching of knowledge, skills,

and valuesand values Each course builds on prior coursesEach course builds on prior courses ““Graduated Complexity”Graduated Complexity” Team teachingTeam teaching Problem-based learningProblem-based learning

CaseCaseArc Arc Program (cont.)Program (cont.)

First YearFirst Year 5 credits5 credits

Second YearSecond Year 2 credits each semester2 credits each semester

Third Year: CapstoneThird Year: Capstone Intensive research project and “a Intensive research project and “a

reality-based experiential program”reality-based experiential program”

DaytonDayton

Lawyer as problem solver programLawyer as problem solver program

Students are required to participate Students are required to participate

in one of three “curricular tracks”in one of three “curricular tracks”

Advocacy & Dispute ResolutionAdvocacy & Dispute Resolution

Personal & Transactional LawPersonal & Transactional Law

Intellectual Law, Cyberlaw & CreativityIntellectual Law, Cyberlaw & Creativity

Dayton (cont.)Dayton (cont.)

Each track at Dayton includes:Each track at Dayton includes: Mandatory courses in dispute resolution Mandatory courses in dispute resolution

and values and ethicsand values and ethics Participation in an externshipParticipation in an externship A clinic or capstone course that brings A clinic or capstone course that brings

together skills, theory, research and together skills, theory, research and writingwriting

Mandatory skills proficiency tests are Mandatory skills proficiency tests are being developed!!!!being developed!!!!

CUNYCUNY The curriculum emphasizes the The curriculum emphasizes the

integrated teaching of knowledge, skills, integrated teaching of knowledge, skills, and values during all three years of law and values during all three years of law schoolschool

Specific requirements includeSpecific requirements include 2 semester lawyering seminar for 1Ls2 semester lawyering seminar for 1Ls

8 credits8 credits 1 semester lawyering seminar for 2Ls1 semester lawyering seminar for 2Ls

Multiple optionsMultiple options 2 semester clinic or concentration for 3Ls2 semester clinic or concentration for 3Ls

12-16 credits12-16 credits

University of the District of Columbia: University of the District of Columbia: David A Clarke School of LawDavid A Clarke School of Law

2 semester lawyering process course for 2 semester lawyering process course for 1Ls1Ls 5 credits5 credits

Law and Justice course for 1LsLaw and Justice course for 1Ls 1 credit (includes a 40 hr community service 1 credit (includes a 40 hr community service

requirement)requirement) Legal Reasoning course for 1LsLegal Reasoning course for 1Ls

2 credits2 credits 2 Semester Clinic for 2Ls2 Semester Clinic for 2Ls

7 credits (multiple options to choose from)7 credits (multiple options to choose from) 2 Semester Clinic for 3Ls2 Semester Clinic for 3Ls

7 credits (multiple options to choose from)7 credits (multiple options to choose from)

Nova SoutheasternNova Southeastern

Four semester lawyering skills and Four semester lawyering skills and

values course for 1Ls and 2Lsvalues course for 1Ls and 2Ls

Clinic for 2Ls and 3LsClinic for 2Ls and 3Ls

MercerMercer

Woodruff CurriculumWoodruff Curriculum

Legal Profession course for 1LsLegal Profession course for 1Ls

Legal Analysis course for 1LsLegal Analysis course for 1Ls

Workshop on client interviewing and Workshop on client interviewing and

counseling for 2Lscounseling for 2Ls

Workshop on dispute resolution for 3Ls, Workshop on dispute resolution for 3Ls,

followed by law of lawyering coursefollowed by law of lawyering course

What are other schools doing?What are other schools doing?