Tuesday, February 20, 2007

Teaching People To "Think Like Lawyers


Behind the firewall, today's New York Times prints "A Skull Full of Mush" from Ann Althouse. (Er... I mean it prints an editorial called "A Skull Full Of Mush"....)

Professor Althouse reminds us of the fictional Professor Kingsfield of The Paper Chase who defends his law school teaching methods by declaring "You come in here with a skull full of mush, and you leave thinking like a lawyer." She relates this in the context of a conference in which the author of that book rejected the Kingsfield approach to legal education in favor of one which allows students to develop their own narrative. (I'm not sure what that means and Althouse doesn't explain; I suspect she chose to use that particular phrase without providing any context because, standing alone, it sounds so wishy-washy. If that's the case, though, what can I say? She's "thinking like a lawyer.")
We law professors tend to worry about seeming like Professor Kingsfield. But we ought to worry less about that prospect and more about preserving and respecting our own tradition of teaching from the cases.

The students who come into our law schools are adults who have decided that they are ready to spend a tremendous amount of time and money preparing to enter a profession. We show the greatest respect for their individual autonomy if we deny ourselves the comfort of trying to make them happy and teach them what they came to learn: how to think like lawyers.
One of the best student experiences I had in law school was being taught by J.J. White, who was probably the most like Professor Kingsfield of any professor at UM. He knew his material cold, and I had the impression that he spent more time reviewing cases and preparing for each class than did most of his students. He did instill some fear, because you knew that if he called on you and you were not prepared (or were wildly off the mark) you were likely to experience some embarrassment. Some students hated him, but I doubt that there was one who wasn't inspired to work hard and think hard. His politics were obvious, but they didn't factor into his grading.

Had every professor at UM been like him, I would have had to work a lot harder and I would have learned a lot more. Instead, I found that he represented a certain class of older professor who had high expectations for students, had a tremendous amount of knowledge and self-discipline, and wished to impart knowledge of the law. Perhaps some of the more socratically-inclined younger professors eventually develop a similar set of teaching skills, but I was left with the impression that for many of the younger set the term "socratic method" was shorthand for "I don't have to have a lesson plan or prepare for class because I can fill an hour by lobbing questions at students". Some were all about ideology, caring a lot less about whether students came to learn the material than if the students ended up sharing their perspective on the material. Which isn't to say that they're necessarily dishonest - I suspect that they believed their positions to be correct, even if the nation's legislatures and courts hadn't (and still haven't, and aren't ever likely to) come to their senses.

Is there is a sense in which learning to write for such a professor is learning to "think like a lawyer"? You either develop skill in fashioning an argument you don't agree with or you get a lower grade - and is it not true that at times lawyers have to raise potentially meritorious arguments that they don't personally agree with in order to protect the interests of a client? (See? Skip over the "potentially meritorious" part, and it's an important lesson in "thinking like a lawyer.") Well, you might be able to make that argument if the professor is intentionally grading down correct answers on the basis of ideology which, Supreme Court advocacy aside, isn't an approach particularly compatible with "thinking like a lawyer". Maybe it's a lesson in "writing for your audience" - also an important legal skill? Er, maybe I shouldn't have to work this hard to make excuses for bad, lazy teaching. In these cases it wasn't the student who had the "skull full of mush".

In retrospect, when I look at what taught me to write like a lawyer, it wasn't the wretched student-led writing program that UM then inflicted upon its 1L's. It was a clinical class in criminal appellate advocacy, taught by a practitioner. The instructor opened the first session by telling us that whatever we had been led to think constituted "good legal writing" by virtue of law school instruction was largely incorrect, and over the course of a semester demonstrated that he knew what he was talking about. It's much harder to pinpoint how I learned to "think like a lawyer", although I can assure you that not every law professor I had contributed to that process (save, perhaps, as sardonically noted above).

I'm not going to argue that "thinking like a lawyer" means you have to shut up if you don't know what you're talking about. But knowing when to sit down and shut up is a part of good advocacy - whether because you've won the point and continuing would be beating a dead horse, because you risk exposing the weaknesses of your argument if you continue speaking, or because you're starting to sound like you're being arrogant or bullying. (At the same time, sometimes being provocative is a good way to induce your opponent into overplaying his hand.) When I post here, I rarely get a good back-and-forth in the comments, but I enjoy that as an opportunity to improve my knowledge and the way I think about the issues under discussion. (Yes, folks, all rumors to the contrary aside, lawyers tend to be more argumentative than the average person, and to approach debate as something to enjoy, not something to dread. That's not something you learn in law school, but it is something that helps take you there.)

I am not sure that J.J. White ever told my class that he was going to make us "think like lawyers". (He did tell us that law firms regarded us as fungible, and he also correctly forecast that most of my classmates on the political left would prove to be "limousine liberals", casting aside plans for careers in public service for a six figure law firm salary. He was right on both counts.) Had he done so, I would have believed him. But the professors I recall hearing that from, usually as a defense of their dubious teaching methods, didn't have a clue how lawyers think. They knew how to think like a law professor, and perhaps even to think like a Supreme Court Justice they once clerked for, but that was about it. For somebody who admitted hating practice, being unsuccessful in practice, and having a whopping two years of law firm experience in which he admitted the closest he got to courtroom advocacy was literally carrying bags for a partner, to tell me he can teach me to "think like a lawyer"? That's a joke. (And, of course, it happened.)

For the most part the claim, "You're learning how to think like a lawyer," is a cop-out. It's a cover for bad teaching that can't be defended in concrete terms. My challenge for Professor Althouse: Please provide a clear definition of what it means to "think like a lawyer," and which law school teaching methods have been legitimately established to establish those skills.

7 comments:

  1. “Some were all about ideology, caring a lot less about whether students came to learn the material than if the students ended up sharing their perspective on the material. Which isn't to say that they're necessarily dishonest” - The hell it isn’t. The fact that some of them “may” have been (at best) “willfully ignorant” of the fact that they were teaching ideology and not law is no excuse for the fact that they were taking paychecks to teach law and failing to do so. Masquerading as a qualified instructor (law professor) when you are not and you have no intention of becoming one may not be a crime, but it is certainly dishonest. Put another way, would any of them have been willing to admit that they were pushing their ideology (adopted by the courts or not) rather than teaching either the current state of the law or providing the best possible arguments for both sides of an issue?

    I actually have more respect for the ones who were upfront about their dishonesty. One of the professors at the U of M Law School (I’m sure you remember) was quoted in the NY Times as being “happy that (she) had been granted tenure, because (she) will now, finally, be paid to write.” My educated guess would be that she knew perfectly well that her job description established her primary duty as being teaching. She just didn’t care. Her goals were 1) self aggrandizement, 2) writing, 3) indoctrinating her disciples. Actually, I shouldn’t pick on her; she was the most honest of the bunch. That priority list applied to at least a full third of the professors I had at the U of M Law School, most of whom would have denied it vehemently.

    I think the easiest way to decide which professors helped you learn to “think like a lawyer” is probably to try to remember which professors’ lessons or phrases most often slip into your mind while you were practicing law. Some of the answers (for me at any rate) are surprising. While I was taking it, I though that Prof. Westin’s Criminal Law class was interesting but purely theoretical (bordering on metaphysical and useless in the “real world”), in hindsight he is probably the professor whose arguments and theories I have most relied on/paraphrased . . . other than Prof. White’s.

    CWD

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  2. To be fair, the "I'm paid to write" attitude infests pretty much every department of U of M, not just the law school. Undergraduates are largely seen as nuisances to be fobbed off onto graduate students.

    I remember Aaron and I comparing our first Torts exams; mine ended the usual insane fact-pattern with "Who is potentially liable, and for what causes of actions?" Aaron's ended with "How would the law passed in reaction to these incidents change the theory of tort law?"

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  3. He and I had the same instructor, I had blocked that question out . . . sounds more like learning to think like an editorialist or lobbyist than a lawyer . . . at least your exam actually asked a question regarding the practice of law . . . and one that had an objectively measurable answer.

    How much of a role do you think the school you attended impacts your employability; and how big a role do you think it played in the quality of the law you practice?

    I realize that I’m in sort of a weird “double niche” area of the law but I’ve always felt that the reputation of the school helped get you foot in the door, but that people (like me) who attended “theory” based law schools actually started out behind the curve when it came to actually "practicing" law.

    CWD

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  4. My favorite bit of law school exam weirdness was on an enterprise organizations midterm, where in a class entirely devoted to corporate law the exam presented a question on partnership law. "Why did you do that, given that we didn't study partnership law", a student asked. "I wanted to see how you would apply corporate law by analogy."

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  5. How much of a role do you think the school you attended impacts your employability; and how big a role do you think it played in the quality of the law you practice?

    The school impacted my employability hugely; remember, I didn't stay in Michigan (where it would have been a positive). If I'd gone to UM my degree would have been much more portable.

    It helped my ability to practice law immensely, though, since I had access to a lot of clinical programs y'all didn't. I didn't have the awesomeness of learning contracts from J.J. White, but I did learn trial advocacy from alumni who were experienced trial lawyers, retired judges and otherwise non-academics.

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  6. About that trial advocacy stuff.... Do you still get away with "I'll take that as a yes" during your cross-examinations? ;-)

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  7. Ha! I wish. Although I do need to send you my 'Bigfoot' opposition to a motion.

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