July 24, 2009
Teaching skills by teaching naked
Posted by Gordon Smith

In my latest post on legal education, I diagnosed the supposed problem with legal education in fairly simplistic terms as follows: law schools should teach more skills. Recognizing that the call for more teaching of skills inevitably entails less teaching of substantive law (including the skill of legal analysis), I suggested that "this sacrifice is largely unnecessary and probably counterproductive." In this post, I follow up on that assertion and add a few thoughts about more promising avenues for teaching skills.

Michael Woronoff, who is a practicing lawyer in Los Angeles and an adjunct professor at UCLA, has offered some helpful nuance on the skills debate in his recent remarks at the AALS Mid-year Meeting in Long Beach. (You can download his remarks here.) Michael asserts that legal training consists of the transmission of three categories of information: substantive knowledge, practical skills, and expertise.

Michael and I agree on the importance of substantive knowledge, and we both cite the Carnegie Report in support of the notion that law schools do a pretty good job of transmitting such knowledge. Michael also makes some interesting points about the shortcomings of law schools in teaching substantive law to students who want to be transactional lawyers, but I will save that issue for another post. The more general point is that training in substantive law is valuable, and if you propose to cut back on that training, I believe you have a pretty heavy burden of proof.

Which brings us to the issue of skills training. Again, I rely on Michael to provide the framework for our discussion. He observes that most people who talk about the need for more "skills training" in law schools seem to be talking about a combination of practical skills and expertise. The trick to thinking about skills teaching is to "distinguish between the types of skills that law schools can teach and those they cannot."

Exactly right.

Michael's view is that law schools cannot reasonably be expected to teach expertise. Most law professors are not expert practitioners, and even if we were, students wouldn't have the time in three years to develop expertise after learning the fundamental principles of substantive law. Moreover, "almost any attempt by law school to replicate real practice will necessarily be much too artificial."

All of this leads Michael to conclude that law schools should focus on what he calls "practical skills." This term comprises both "the ability to perform tasks necessary for the practice," such as drafting and negotiating for a transactional lawyer, and "an understanding of the context of the practice," such as "the ability to understand the language and structure of transactions and the rationale behind these structures."

Excellent. I agree that law schools can -- and should -- teach such skills. But if you have been paying attention, you see that we have come upon a bit of a quandry: how can we add such skills training without diminishing the quality of our teaching of substantive law?

Michael chides me for my plan to include at least one case study in every chapter of my Business Associations casebook:

So you’re talking about something like 14 class sessions spent on business case studies. I’m a big believer in business school case studies in law classes, and have spoken on their value before. But these cases are just not an efficient means of transmitting knowledge, and as I mentioned earlier, there is insufficient time to teach enough of the substantive law in the basic BA course as it is. So unless you add hours to the course (again, which I would be in favor of), I think you will lose too much by adding case studies.

In my own defense, I did not suggest that adopters of the casebook teach every case study. I have never done that for the reasons Michael suggests, even though I am not certain he is correct in his objection. (See more on that below.) The point, rather, is simply that we would make case studies more available.

In any event, Michael does not find attempts to integrate skills training with substantive courses particularly attractive. He has a different idea about teaching practical skills: "we should add new courses, which allow students to see how to practically apply substantive law they have already learned." Michael points to Rob Illig's M&A course, which Rob described here on The Glom, as a model for such a course. Michael also likes the idea of "adding a first year “Introduction to Business” course, in which students can learn basic business, accounting, finance and economic concepts early in law school to provide better context for future substantive courses." (By the way, I have taught such a course to second-year students, and it can be very useful.)

The problem with this part of Michael's analysis is that bit about adding new courses. Earlier in his remarks, discussing the importance of substantive knowledge, Michael complained that law schools didn't devote sufficient hours to basic courses and that students don’t take enough of the right elective courses to enable them to "become true experts in their future field of practice." I am sympathetic to these concerns, which is why I am less excited about adding new skills courses than I am about exploring new methods of teaching the traditional, substantive courses.

Which brings me to the issue of "teaching naked." (Thanks to my colleague Lynn Wardle for directing me to this article.) That's the way José A. Bowen, dean of the Meadows School of the Arts at Southern Methodist University describes teaching without technology:

More than any thing else, Mr. Bowen wants to discourage professors from using PowerPoint, because they often lean on the slide-display program as a crutch rather using it as a creative tool. Class time should be reserved for discussion, he contends, especially now that students can download lectures online and find libraries of information on the Web. When students reflect on their college years later in life, they're going to remember challenging debates and talks with their professors. Lively interactions are what teaching is all about, he says, but those give-and-takes are discouraged by preset collections of slides.

If you are a longtime reader of this blog, this line of reasoning may sound familiar to you. Last year, I wrote about moving my PowerPoint slides in Business Associations outside of the classroom ... and the mini-existential crisis created by the move. While I am not at all in favor of a heavy-handed dean removing computers from the classroom, Bowen is right about the potential effects of PowerPoint on student engagement. Nevertheless, in my experience, PowerPoint can be useful in the classroom in two circumstances:

  • Explaining concepts that are difficult for students to grasp from the reading materials. Last semester, I taught Corporate Finance out of Bill Bratton's casebook, which is very challenging for most students. We used class time to work through the most difficult concepts.
  • Generating class discussion. When reading law, I tend to map relationships. Lot's of boxes and arrows to show how people or concepts are connected. PowerPoint is very helpful in setting up a class discussion, and the diagrams are a useful point of reference throughout the discussion.

Unless these things are happening, however, I am all in favor of moving PowerPoint slides outside of the classroom. Class time is usually too valuable for lectures.

I am also moving away from Socratic method in upper-level classes. This post is already too long, so I won't dwell on this point, but the main observation here is that Socratic method is not a very effective means of transmitting substantive law, even if it is useful in teaching legal analysis.

In my view, students can usually get a pretty good handle on the substantive rules by reading the casebook and relevant regulations or statute, then listening to a 10-15 minute lecture online. The best students still have questions, but I am striving to make the class period a time during which students can apply the substantive law using problems, cases studies, simulations, etc. My hope is that such a class would not only answer their questions, but also provide them with better training in the practical skills that Michael identifies.

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