I am an unusual academic, in that I practiced for 14 years before coming to teach full time in 2002. I’ve been there and done it – multi-national firms, medium firms, partner in a small one. Along the way, I’ve mentored students from law schools ranked from number one on down to very near the bottom. While they obviously differed, apart from students who went to Baylor, almost none of them were remotely prepared to practice law.
When I became a professor, I had no real idea about why this was so. Law school had been 15 years earlier, a lifetime ago. Once I began to teach, however, I soon had a theory, I think a good one, as to why students are woefully prepared: we waste their time.
Let me give you some examples.
I taught property. The first time I taught it, I spent a fair amount of time on future interests, the rule against perpetuities, and related law. Then, I thought: I’d never seen any of this stuff in practice. So, I asked graduates in the family law and estate planning areas, and learned that virtually none of what we teach them matters.
Wait, you say, reading those little blurbs and noticing whether or not there is a comma, and understanding whether it’s a reversion or a remainder builds a valuable skill set. I’m not sure about that, but let me give you the benefit of the doubt. Why can’t that same skill set – close reading skills presumably – be taught through reading commercial leases, real estate documents, or the like?
In contracts, we spend enormous time on consideration. I recall litigating consideration once, and so it has some relevance, but performance, breach, and remedies are far more often litigated, and the skill of closely reading contracts is, obviously, a central skill for writing, negotiating, and litigating contracts. Can’t we teach the skills about reading cases while focusing on issues that are actually frequently litigated in this century?
I could go on. I will.
In our writing programs, we have students write 25 or 50 page briefs about one or two issues. That never happens in the every day world of a litigator. We get 10 or 15 pages, maximum, and need to make our points and get out. There are lawyers who write appellate briefs, but most suits are disposed of prior to trial on motion, those that go to trial are seldom appealed, and those that are appealed often have specialists tending to the appeal. So why so much emphasize on post-trial appellate practice? Why not more on summary judgment?
Don’t get me wrong. There is value to learning what might happen if an 80 year old lady got pregnant by a five year old. I am just not sure the cost of not covering other subject matter that teaches the same skill sets is outweighed by the benefit of hazing students with this odd material.