Idea For February 2014
Just the Facts Ma'am
In the January Idea of the Month, Sophie Sparrow noted that legal research and factual investigation are among the top skills lawyers need to be successful. While many students graduate without enough upper-level experience in either legal research or factual investigation, most do understand what "law" is. Surprisingly, however, many upper-level students have difficulty determining what "facts" are. They can easily confuse inference, conclusion, characterization, and speculation with fact. A very simple exercise, which I adapted from a National Institute for Trial Advocacy exercise I observed, can help students identify the differences. Although I have used this exercise in Legal Writing and Pretrial Advocacy, it can be used in any course in which a class goal is to focus students on factual details.
Washburn University School of Law
Article For February 2014
James Moliterno, A Way Forward for an Ailing Legal Education Model, 17 Chapman Law Review 73 (2013).
In this article, Professor Moliterno makes some interesting observations and describes the modified 3rd year program at Washington and Lee.
Initially, the article dispels the notion that the reason legal education is "in trouble," is due only to current economic events of the last decade. Instead, Moliterno suggests that the "root of the problem" is really the late nineteenth century reforms of legal and medical education and the dichotomy of approaches adopted by the reformers in those two fields.
Whereas medical schools decided their mission was to produce doctors and reformed their education process accordingly, legal education instead mimicked the model found in graduate schools such as philosophy and history and decided the mission of law schools was to produce professors.
Moliterno suggests that the current crisis is the result of that mistaken course, which was embarked upon much earlier than the recent economic upheaval. He points out that legal education traditionally did and continues to do one thing brilliantly; it teaches the critical thinking skills necessary to analyze appellate opinions. Rather than denounce this, he applauds the excellence achieved in this arena but suggests that the problem is we currently do it for all three years rather than for only two years. We should not do away with the third year of law school but rather should use that third year to teach a different skill. The skill of practicing law.
He uses Washington and Lee's third year model as an example of this change and summarizes the entire process as including a mandatory year of experiential education. The article describes the specific methodologies employed by Washington and Lee in detail.
What is innovative about the article is that it tangibly identifies and labels the pedagogical goals of this reformed third year curriculum. The basic goal is for the students to mentally transition from critical thinking to learning law the way lawyers do.
This involves more specifically, learning law, acquiring a business sense, practicing as part of a team, managing projects, solving problems, and generating and implementing plans for clients. The students describe the reformed third year as an intense immersive experience. In fall every third year student takes a litigation immersion class where they do everything from client intake interviews to pleadings to trial; in spring they take a transactional immersion class where they represent either buyers or sellers in a multimillion dollar transaction and develop and handle all the typical documents involved.
Early empirical data based in part on the (LSSSE) survey show marked increases in third year student engagement and student preparation for class. Read the article and at least think about what Professor Moliterno is saying. What was comforting for me is that his article suggests a reform that is not only a way forward for American Legal Education but is also entirely consistent with legal education reforms in China, India, Pakistan, and western and eastern Europe. That similarity, it seems, is no coincidence but reflects a universal commonality about law and its practice in an era of globalization and, at long last, the incorporation of adult learning theory.
[Read fulltext at Chapman Law Review website]
Washburn University School of Law