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