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.
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.
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.
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.
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.
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.”
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.
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.
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.