To be a lawyer is to provide a service: a personal service via the tools of law. To properly provide any service, the lawyer must know what tools are available and understand how to use them. From books we can learn and understand everything about spectrometers and fMRIs, about boxing and mixed martial arts, and about law and the administration of justice, but such knowledge is not sufficient for success in the use thereof. Just as we can know everything there is to know about bats and echolocation, about sharks and their electroreceptors, or goldfish and their infrared and ultraviolet vision, we can never experience these sensations for ourselves. The same applies in the practice of law; some things can only be taught through experience.
The first step in overcoming this valley is understanding. Two terms: first-person facts and third-person facts. First-person facts are those sensations filtered through your own personal perceptual experience; no one can ever experience color, taste, touch, sound, pain, or the practice of law the way that you do. Third-person facts are those communicable via language from others about their respective first-person experiences. The valley between first-person facts and third-person facts is not unmanageable, but it is ever-present in every interaction.
The medical field traverses this valley through admission requirements. On average, medical schools require between 12 – 24 hours of clinical experience prior to admission. The trades require plumbers and elections to shadow journeyman and master tradesman, to attend trade schools and obtain licenses, and to work an additional two years as a journeyman under a master tradesman before becoming a master tradesman themselves. HVAC technicians follow a similar path.
For admission to law school, one need only take the LSAT and achieve an undergraduate degree in anything. For more information on how significant of any indicator the LSAT is for future performance, please see “What Predicts Law Student Success?” by Alexia Marks and Scott Moss of the University of Colorado Law School, where they conclude that the “LSAT is over-weighted compared to other, less univariate academic metrics such as a broad view of not only UGPA but college quality and college major; work experience truly is the positive that many believe it to be, with work in teaching especially positive.” From my personal experience, I have taken the LSAT, I currently attend law school as a third-year-part-time student, and I work as a law clerk. I excelled at the LSAT: I scored 175 out of 180. I am doing well at law school: my GPA is 3.57: top 11% of my class. And yet, I struggle as a law clerk daily because the LSAT and law school have not adequately prepared me for the practice of law.
Every law school has three responsibilities: (1) prepare every student for the bar exam; (2) secure gainful employment for those graduates admitted to the bar; and (3) prepare every student for the practice of law. Law school accomplishes the first through classroom instruction and testing on bar exam materials in a bar exam format; the second through networking and outreach, through mentorship programs, and through On-Campus Interviews; and the third through clinics, and indirectly through on-the-job experience received by students hired through OCIs. This first responsibility is a necessary one: passaging the bar. The bar exam is the threshold we all must cross to become a lawyer. This variable, however, is not sufficient for success as a lawyer. Nevertheless, such is prioritized above all else. For example, consider the 1L curriculum: Civil Procedure; Contracts; Torts; Real Property; Criminal Law; Constitutional Law; Legal Writing and Research. Only one of these courses teaches a general skill concerned with the practice of law: writing and research. The remaining subjects are the highest tested areas of law on the bar exam. Classes that come later: rules of evidence; lawyering skills; law office management; clinics; and externships.
This law school curriculum falls short in preparing students. They are thrown to the books immediately upon admission, and like new drivers behind the wheel, the student’s have not learned to tame their focus and recognize what matters and why. Just as we can spend all of our lives learning everything there is to know about a car and be unable to drive it, we can spend all our lives in treatises, hornbooks, and restatements without the skills necessary to give these laws life. The practice of law teaches more about the law than the study of any of the law’s branches. The practice of law puts the student in the driver’s set and shows them why each of the vehicle’s respective parts matter.
Law schools can and should emphasize the practice of law earlier in their curriculum, and even more importantly, in admission. Law schools generally, and more specifically, William H. Bowen School of Law, can set ‘clinical-hour’ requirements for undergraduates seeking admission. These undergraduates can receive first-hand experience in the practice of law while assisting law students and lawyers in the service of the public.
As part 1 in a series, this post is intended to flush out a problem. In part 2, I will elaborate on one possible solution.