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Written by Roy Black

The UM Law School is in a death spiral; we have plummeted in the law school rankings, falling to 77th while UF is 47 and FSU is 50. This is more than a little embarrassing. And FIU is hot on our tail and at a cheaper price. So the question is, what do we do about it? In my opinion, it is time to question long-held beliefs about legal education. It maybe uncomfortable, but the winds of change are upon us. We either bend and survive or break and die.

My solution is to radically reform the curriculum. I suggest we become the MIT of litigation. After the first year of required courses, we create a program designed to intensely train trial lawyers. Not with the usual clinical courses, or useless apprenticeships, but with rigorous courses, taught by experienced professionals, using mock trials and moot courts, to teach students how to litigate. This will make the UM law degree more valuable in the marketplace. When a law firm needs young litigators, we will be the first place they look.

No other law school does this; it is time for a new brand at UM. We should advertise as the school to learn trials. The vision should be a school go-to for the finest litigation education and experience.

UC Irvine School of Law

A radical change can be done. In 2009, The University of California started a new law school in Orange County and hired Erwin Chemerinsky as dean. He designed and implemented a top-notch, customized curriculum – “This is our chance to create a new and better version of a law school. I want students to leave here better prepared to [practice law] than I was when I graduated from law school, and better than I think other law schools do it today.” The school shot right to the top because it had no old guard holding it back.

Chemerinsky had taught for many years at USC and Duke law schools. He didn’t use their formats for the new school, but created new courses, more modern courses, to meet the needs of modern lawyers. He had the freedom to create something new.

The Problem

Recently a prospective client asked me for a young law school grad to handle a simple piece of litigation. I was embarrassed to admit there is no such animal. Unlike medical or dental school, law school does not train a trial lawyer. The training comes from years of practicing law. They were astounded.

Can you imagine a medical school or dental school graduating students who can’t practice their craft? How about an MBA who can’t read a spreadsheet? And this should come as no surprise, clients don’t want to pay for our training. They expect lawyers to have adequate training when they hire them.

Larry Kramer, the dean at Stanford law school: “Law firms are saying, ‘You’re sending us people who are not in a position to do anything useful for clients.’” Stanford is working on fixing that but like most law schools, this means a practical or clinical course or two. This is not enough. We need a school to specialize in one aspect of the practice and be the best at it.

We have the ability to do this. We have some of the nation’s best trial lawyers right here in South Florida. Let’s turn the classrooms into courtrooms. Let’s create learning labs for trial lawyers. Drop the Socratic method after the first year. Make it hands on training.

The Ratings

We rank 77 out of the 200 law schools in US News and World Report.

1,383 aspiring lawyers who took the LSAT told Kaplan Test Prep in its latest student survey, when asked “What is most important to you when picking a law school to apply to?” According to the results, 30% say that a law school’s ranking is the most critical factor, followed by geographic location at 24%; academic programming at 19%; and affordability at 12%.

The ranking have some importance but the motivation to change shouldn’t come solely from them. It comes from a vision of a better way to train lawyers. There is no reason to remain stuck in a system we can improve just because we have always done it that way. Change is hard but has great benefits. Let’s open our minds to envisioning a better school.

The Old Model

With all due respect to Langdell’s “casebook method,” it is no longer working. A growing number of legal educators have expressed dissatisfaction with the casebook model. In fact, just last year the Carnegie Commission on Higher Education released a report entitled “Educating Lawyers: Preparation for the Profession of Law,” which found that though graduates from top law schools acquire a wealth of intellectual grounding and substantive knowledge, they are conspicuously ill-prepared when it comes to representing clients. “What we saw in legal education,” says Anne Colby, a Carnegie fellow and coauthor of the report, “is that legal education is very much dominated by an academic orientation, rather than an orientation for preparation of a practice.”

Some say we need the old model because so many others benefit from it other than practicing lawyers. The CEOs of Fortune 500 companies, politicians, heads of government agencies and many others. Fine, but let them get their education somewhere else. There are plenty of schools to fill that need.

The First Year

The core of the legal curriculum is covered in the first year of law school. Students take a wide range of legal subjects — procedure, contracts, torts, criminal law, evidence, constitutional law, corporate law, property law, administrative law, jurisdiction, labor law, commercial law and on and on and on. This is essential for the intelligent practice of law, and I don’t suggest it should be jettisoned. But the next two years are the ones open to new ideas. Let’s face it, most of us feel at least the third year was a waste of time and unnecessary. So let’s do something with those two years that work instead of treading water.

The Mission

Under my model, the students will learn skills that can be sold on the open market. Litigation is a precious skill that is always in demand. Many other areas of practice go up and down, but we always need lawyers with courtroom skills.

I have taught a course at the law school since 1973 using these techniques. I force students to try cases, then analyze with them what they are doing. This course is only two hours one day a week. It barely scratches the surface of what could be done. Gerry Spence did the same thing with his Trial Lawyers College out in Wyoming. Gerry used his own money to build courtrooms and performance spaces in barns on his ranch. Students would live on the ranch for a month while undergoing an intense trial practice seminar. They worked 18 hours day. Some mornings up far before dawn to see the sun rise while standing on top of a nearby mountain. It is boot camp for young lawyers. It is all hands on and it works. The school graduates lawyers with a whole new enthusiasm and skills for trial work. This is what the law school mission should be.

I remember teaching there the first year. I ran into Albert Krieger walking to the big barn for a program. Albert said: “Don’t drink the Kool-aid.” The college was so dependent on Gerry’s personalty and style that it dwarfed everyone and everything else. Of course that fit Gerry’s outsized personalty to a tee. He soon moved the concentration to psychodrama as it fit his vision of lawyering. No doubt the school was an intense experience. We don’t have to go that far but we can work the same pedagogy.

The Skills

First and foremost, teach the basics of trial practice. This means the rules of evidence and procedure. Then move to strategy and tactics. Once students have mastered the basics, then teach practical lawyering skills such as problem solving, negotiation, electronic evidence, trial advocacy, client interviewing. Then examine different types of practice, drawing from a variety of disciplines, including law, sociology, economics, and psychology. Add to the list all the forensic sciences. For each practice type, we read the best available empirical accounts, analyze some of the relevant law governing lawyers, engage in role-playing exercises modeled on typical problems confronted in practice.

It is time to push the envelope on interdisciplinary study. If a lawyer is specializing in business or tax litigation they need to know some economics. If criminal law, then some psychology. If patent law, then some engineering. If environmental law, then some environmental science. We need professors with those skills.

We need to teach the tools litigators use. Computers, video, Powerpoint, and every type of demonstrative evidence. We need to be on the cutting edge of technology.

And we won’t overlook writing skills. Each student should be required to write a paper after each mock trial on an issue of evidence or strategy or trial technique. The best ones will be published. The students will publish compilations of evidence decisions and evidence notes each week.

The third year should be more intense than the first two; just the opposite of today. Each student should be assigned a tutor, not a mentor, but a tutor based on the Oxbridge college model in England. For the third year, the tutor helps the student design a program of courses to fit individual needs. The tutor works with the student to create specific goals for the coming year, including targeting the substantive experience and skills needed to move on to the practice of law.

We also need coaches. The coaches assist in the transition to the real world, the actual practice of law. Effective coaches help students develop their professional careers by assisting placement in the right job and giving them the tools they need to succeed in business or government. Coaches can provide help with making career choices, building or managing a practice, improving marketing and rainmaking techniques, or cultivating executive or other high-performer skills. A targeted, effective coaching process understands human behavior and helps the student reach his goals.

CLE

Years ago, I was invited to speak at the South Carolina Bar Association convention. The South Carolina state bar is very close knit. They all go to the same law school and the school runs the CLE courses. What a great idea. We should keep a close association with the school. Why lose the connection to the professors, teachers, tutors and coaches? They can keep teaching and guiding us throughout our careers.

I note that UC Irving law school has a division called “Continuing Education, Distance Learning and Summer Session.”

Faculty

Our faculty will include teaching professionals plus leading lawyers from every sector, including prosecutors’ offices, public defender organizations, small, medium, and large private firms, corporate counsel offices, nonprofit organizations, legal aid, government agencies, and the judiciary.

Get the best professionals from each of these specialties and let them teach their unique talents.

Resources

The law school is a cash cow for the university. Law school tuition is rising four times as fast as the cost of an undergraduate degree, which itself is soaring. The law school subsidizes other parts of the university that don’t pay their own way. We pay 25% to 30% of our tuition dollars to the university. Instead we need to keep that money at the school to pay for these programs. Until we demand this, the school won’t have the resources to create a new curriculum.

Once this program gets off the ground, I think the school will get a lot of donations from law firms and lawyers. This money should be used first for the faculty to get the best teachers, then as rewards for outstanding students. We need to issue scholarships to top college graduates. Then we need to reward the best students from the first year who want to go into the litigation program. Whoever wins any national trial or moot court competitions should get scholarships as well. If we reward the best students, then we will have the best students.

Apprenticeships Not The Answer

Before the rise of law schools, lawyers were trained through apprenticeship. “Apprenticeship involved learning the law the way we expect someone today to learn plumbing: in the workplace, as a practical trade,” writes the Yale legal historian John Langbein. “You learn plumbing by working with, observing and imitating an experienced master.” But he makes a common mistake; this is not a trade.

Many believe that young lawyers can acquire trial skills working at a law firm under the tutelage of a practicing lawyer. This is not true. It is a job. Making money. Practicing law. Not an educational process. Sure a student can learn as a side benefit like we all do in the practice of law, but teaching is not the primary purpose and thus it doesn’t work. The students need professors dedicated to teaching, not competing in the business of law.

Legal education is a rigorous and disciplined opportunity to learn practical legal skills using professionals who are committed to teaching. This is a far superior way for young lawyers to gain these skills than by doing scut work for attorneys who are often too busy to teach them.

Final Thoughts

Gerry Spence calls lawyers the physicians of human rights. I wish I had written that line. It sums up who we aspire to be. In order to get there, we need the right training. How can we possibly represent people in court without the skills of a trial lawyer?

The law schools today do not train students to aid people in achieving justice. Students leave law school utterly unprepared to represent anyone in any sort of trial. In short, as trial lawyers they are nearly useless.

I have always been interested in education, teaching and learning. I have been a life-long student, always seeking something new. Since I have been teaching at the law school, I seek how to make it a better experience. But I don’t pretend to be an expert on this. Perhaps these ideas won’t work. But I think they will. Perhaps it is too much to ask for. But we should be willing to take the risk of doing a better job.

After all, do we want the school to go the way of Borders or prosper like Amazon?

One piece of irony. As I am writing this, The Daily Business Review published an article about the school upgrading its buildings. The opening paragraph of the article: “Juana Chacon labels the University of Miami Law School campus ‘tired.’  ‘It needs freshening up,’ said Chacon . . . .  UM Law School Dean Patricia White is aware of student complaints, as is the University of Miami board of trustees. For many years, school leaders have been exploring expansion plans at the small, 55-year-old campus, including building a new facility on campus, moving to an existing building in downtown Miami and taking over the top floor of another building on campus. The school was able to save up $30 million for this purpose from donors.”

They are worried about the buildings? I guess the school doesn’t get it.

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19 Comments to UM Law School

  1. Abe Laeser's Gravatar Abe Laeser
    July 27, 2011 at 1:39 pm | Permalink

    Roy,

    It is definitely NOT the buildings that count. I fully support a “barrister” system, where the classroom instruction comes first, and the practical experience follows. In tAbehe British system, however, there is that final date in Chambers when someone else decides if you are good enough to remain as a barrister, or must return to work as a solicitor. Not many firms really care about the barristers. They just want solicitors who will bill for their time, and not be too awful in the courtroom. With the exception of certain tort and criminal lawyers, the business of law is not geared to the courtroom, but to the paper-laden bullying that passes for litigation.

    Bottom line: Your cause is just, but they do care more about the buildings. // ABE

  2. July 27, 2011 at 3:29 pm | Permalink

    At risk of revealing my identity, I have been saying for more than two decades that lawyers need to be trained more like doctors. There is nothing in a legal education that approximates the residency requirement where young doctors are immersed in treating patients in a hospital setting, supervised by training physicians. The hours are long, the work is grueling, but the young doctor emerges through the fire with a wealth of experience and having completed the greatest practical learning experience that has ever been devised. While it is possible to compare a first year PD or prosecutor’s experience at a large city office with residency, not all lawyers go through that valuable experience, and the training is limited to criminal law. It is not by accident that the unofficial Motto of Harvard Medical school is “learn one, do one, teach one.” There is little in the legal profession that approximates that type of clinical experience. Considering the recent article on what a big money making operation law schools are, I don’t see change coming easy.
    PS. Gerry’s kool-ade was easy to drink.

  3. Anonymous's Gravatar Anonymous
    July 28, 2011 at 12:22 pm | Permalink

    you realize that all those changes you suggest would not have any affect on those rankings you are so worried about? and actually may result, in the short term, in a significant fall? your response would be, so what, if legal education reform makes better young lawyers. you may be right, but you then realize why your entire premise – sinking rankings – is utterly irrelevant to the larger point you make. that point is silly – that a law school is in a death spiral because the rankings (which undoubtedly you have no idea how are calculated by some failing magazine) – decline (or other schools move up, whichever the case may be).

  4. Guest's Gravatar Guest
    July 28, 2011 at 6:23 pm | Permalink

    Fascinating read. But you mean “Oxbridge college model” not “Oxfam.” Oxfam is a British based charity.

    Also, Abe Laeser – in England & Wales you don’t start out as a solicitor and then train to become a barrister. You decide which career path to pursue and then run with that, admittedly many barristers realise they aren’t good enough and re-qualify as solicitors.

  5. Your soon-to-be student's Gravatar Your soon-to-be student
    July 28, 2011 at 7:42 pm | Permalink

    I will be a student in your class at UM in the fall. I, along with many current law students, completely agree with your views. We often feel we are wasting our time learning forgettable information in useless classes taught by out-of-touch professors. We are bogged down by unnecessary requirements and outdated traditions. Law school is the number one thing impeding our legal education.

    I strongly believe that your ideas will work, but I also fear that you ask for too much. UM and most existing law schools are too entrenched and risk averse to implement the system you suggest, so new institutions must challenge and compete with the broken law school model. UC Irvine takes several steps in the right direction. But, revising legal education is not enough – it needs a revolution.

  6. Joey's Gravatar Joey
    July 28, 2011 at 8:49 pm | Permalink

    It makes too much sense for the profession to adopt. If law schools gave law students actual skills, it would be earth shattering. Of course, it will hurt their cash cow method of large classrooms, teaching nothing useful.

  7. Eric's Gravatar Eric
    July 29, 2011 at 11:11 am | Permalink

    Roy-

    “Death spiral” is a serious exaggeration. I don’t think most alums are satisfied with the current ranking of UM Law, but go back and look at the history of UM Law’s U.S. News rankings. The school has been moving back and forth between the mid 60′s and the mid 80′s (2nd Tier) during the last 10 years. A “death spiral” would be evidenced by a continued drop year after year into the 3rd Tier which simply hasn’t happened.

  8. nsk's Gravatar nsk
    July 29, 2011 at 12:06 pm | Permalink

    Eric is correct. The invocation of “death spiral” is a catchy lead-in to this editorial piece, and hardly accurate.

    The reality is that many – if not most – UM graduates stay in south Florida after graduation and enjoy legal careers which are completely unaffected by UM’s ranking. As long as UM is ranked above its cross-town rivals FIU, Nova, Barry, and St Thomas, UM graduates will continue to be respected by south Florida law firms. After a few years of practice, the name of one’s law school stops mattering.

    Make better lawyers through intensive law school litigation training – sure. But to expect a corresponding rise in rankings demonstrates a lack of understanding of ranking methodologies.

  9. July 29, 2011 at 7:52 pm | Permalink

    Roy, great suggestion. In my 3 years at UM law school, I benefitted from only 2 courses. First, the course taught by Bruce Rogow, the title of which I do not recall, but it was fascinating to me to realize that a UM law professor could be brilliant, cool and so totally 3 dimensional, after every one else teaching was a douche bag and a chip off the Nixonian bloc. (one exception was Minnette Massey) Secondly, Phil Hubbart’s “Criminal Trial Workshop” which literally changed my life because he gave me the confidence to compete. Everything else was bullshit.

  10. Anon's Gravatar Anon
    July 30, 2011 at 12:24 pm | Permalink

    UM’s problem isn’t the lack of “real-world” training. That assertion is almost uniformly applicable to all law schools, including the U.S. News Top 25. UM grads are surprisingly unimpressive (as compared to UF’s, much less top private law schools in the Southeast). UM law seems to foster an image that it is the ivy-league of Florida. Students misleadingly believe that their “ivy-league” education sufficiently prepared them with the legal research and writing skills needed to shape and create legal arguments, and as a result, UM students are generally self-entitled and work ethic is amiss. The school doesn’t worry too much about it because alumni presence in the local area is strong. Admittedly, this is a generalization. UM should focus on training their students to become better writers, recruiting top-notch professors, developing interdisciplinary programs between the MBA and medical school, etc., and frankly, teaching their students professionalism in the workplace. Not all lawyers will become litigators and focusing on a specialty so early in your legal career (law school itself!) seems confining. Doctors don’t pick a specialty until they learn the basics. In the legal profession, the basics are writing, research, oration, and importantly, professionalism. UM should focus on that first.

    @risk: UM considers itself a national private university. It should compare itself to those schools. The “this is good enough” belief is apparent in UM’s curriculum.

  11. H.T. Smith's Gravatar H.T. Smith
    July 30, 2011 at 4:45 pm | Permalink

    Roy,

    As a graduate of UM Law School (1973) and Director of the Trial Advocacy Program at FIU College of Law, I believe that you have instigated an important conversation that all stakeholders in the legal profession need to think about and participate in. Your views about legal education are seen by some as provocative, others as controversial, and yet still others as cutting-edge. Clearly, the challenges for the 21st Century lawyer are much different. So this question flows naturally, “shouldn’t the legal education for the 21st Century law student be different”?

    I am one of the lucky ones in legal education. Teaching Trial Advocacy gives me the opportunity to have my students listen to how to try a lawsuit, watch how to try a lawsuit, then practice and practice and practice how to try a lawsuit–at the law school and then at the Criminal Courthouse. When they graduate, they are ready (obviously at the beginners level) to be passionate, principled advocates protecting the future, family, finances, and freedom of their clients.

    I really hope this conversation continues. The public and the legal profession really need the best and brightest minds–inside and outside of academia–to fully explore what changes are necessary for the effective and affordable delivery of high quality legal education going forward.

    Life is good!

  12. young lawyer's Gravatar young lawyer
    August 2, 2011 at 12:09 pm | Permalink

    I do think you have some great points. I graduated from UM LAW a few years ago and run my own firm. I litigate, and I love it. Thankfully, I worked on my trial skills through the mock trial team and lit skills. While that helps at trial, it doesn’t entirely prepare one for the mundane parts of the case, getting to trial. In any case, what I did not receive ANY instruction on whatsoever, is dealing with clients, running and firm and being successful. I feel like I am reinventing the wheel. Thankfully, I studied business in undergrad and grad school and worked in the business world. But still, why won’t anyone share their thoughts on how they became successful? Obviously, a great part is being a good lawyer, understanding the law, fighting for your clients etc. However, there are a lot of very intelligent lawyers who don’t ever really succeed. I think UM needs to teach these practical skills and perhaps offer a class on the BUSINESS of being a lawyer. This applies whether one is an associate at some huge, worldwide firm or runs one’s one small practice. Can’t UM LAW hire that wonderful Miami-Dade College graduate, Cesar Alvarez, or have you, Roy, teach the business of being a lawyer?! I’d come back!

  13. young lawyer's Gravatar young lawyer
    August 2, 2011 at 1:30 pm | Permalink

    Haha! I made a few errors. I guess I was writing too quickly and trying to get back to real work to make some $$$!!

  14. August 3, 2011 at 4:34 pm | Permalink

    Agree with Abe and Roy, but US News should not define law schools. I have been teaching trial skills at UM law for well over 20 years. Litigation Skills direcor and former head of NITA Lonnie Rose is doing a great job and is putting together a certificate in trial skills program, which addresses some of your concerns.

  15. August 13, 2011 at 5:17 pm | Permalink

    The big question for me is whether we are to classify legal education as an intellectual pursuit or a professional endeavor. Law schools need to decide whether they’re preparing students to become Atticus Finch (legal scholar) or Roy Black (legal professional). In my mind, Roy Black pays $50,000 a year for a professional legal education that prepares him to navigate the courtroom, the boardroom, the balance sheet and the front office. Atticus Finch pays $8,000 a year to become a legal scholar.

    Where law schools became so profitable– “cash cows” as Black called them– was existing in the gray area between these two educational philosophies. Because so many Atticus’ went on to become big earners, they could argue that tuition cost should be pegged to the economic potential of the degree. But thanks to a failing economy, what we uncovered was an Atticus education at Roy Black prices. We didn’t prepare Atticus for anything but a highly insulated, lockstep legal career. Atticus’ intellectual pedigree might make him a rich man when times are good– but when times are bad, you better believe Atticus wishes he got more than the letter of the law for $150,000.

    (Love the comments H.T.)

  16. AnneD's Gravatar AnneD
    September 26, 2011 at 2:21 am | Permalink

    I like your ideas about changing law school, and I completely agree that too many law school grads are useless. However, I’m confused about something you said. How is it that “we always need lawyers with courtroom skills” when only 3% of civil cases actually go to trial?

    If a future lawyer wants to practice criminal law, then she absolutely needs courtroom skills. But for civil work? Really? It seems to me that a year of intense training in Alternative Dispute Resolution would be much more benficial.

  17. Jason's Gravatar Jason
    April 25, 2013 at 6:51 pm | Permalink

    2 years later, have things improved any?

  18. January 19, 2014 at 5:04 pm | Permalink

    Late to the game but the one crucial element missing from this entire conversation has to do with the admissions “game” which Miami Law appears to reject out-of-hand at the expense of an increase in rankings which would increase yield, quality of inputs (and likely outputs as well), reputation in and out of Florida, etc. Miami is also a private school with higher tuition than in-state options for all applicants which means it needs to revise its business model accordingly to be competitive.

    Specifically, Miami Law makes continues in 2013 to make the following major errors:

    1) The class size of approx. 300 per year is quite simply, for a private school, outrageous — in any economy (this kills the quality of students as measured by LSAT and GPA range, the offer and acceptance rates, employment rates, etc.);

    2) Scholarship offers contain unreasonable stipulations that are not aligned with the marketplace (specifically every private school in the Top 20 and most public schools);

    3) Offers of admission are granted to freely to applicants who are clearly eligible for large scholarships at top law schools and are utilizing the school only for leverage (the waitlist option would protect offer numbers/percentages);

    4) Recent classes of students speak very poorly of the school and these students are typically below the median which in a class of 300 is 150 students who are often of lower quality coming in and will not likely represent the brand well in the marketplace even if hired;

    The solution to transformative legal education may be warranted, but such a transformation will never be accepted by the local, regional or national marketplace of employers if Miami Law doesn’t concurrently adapt to marketplace realities from a business model perspective. Literally, all the school needs to do aggressively in the short term is significantly reduce the class size, utilize scholarships in a strategic and competitive manner, decrease the admit rate, increase the matriculation rate, and develop a much higher quality of student through a balance of both rigorous theory and practice. It’s frustrating as an alumna of Miami undergrad to see a gross lack of understanding of managing the brand at all levels. Sports aside, the university is living in the past and the undergraduate and graduate schools are lackluster at best. A brand needs to be carefully cultivated but perception alone is not enough in the legal arena. Substance prevails. There is no reason why Miami Law can’t be considered equal to or better than the Boston College, Wake Forest, William & Mary’s of the world…and with a commitment in the near and long term to substantive changes…maybe even the George Washington’s and Vanderbilts of the world.

    It’s time the Miami Law alumni base — in mass — start approaching and supporting the school in efforts the correlate with rankings and not turning the school into a lower tier trade factory. The benefits of increasing objective and subjective prestige will pay off quicker than one might realize.

  1. By on July 28, 2011 at 9:15 pm

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