April 19, 2010
Minding Our Own Business Forum: Yes to Skills Training, but Lawyering Skills First (or at Least Simultaneously)
Posted by joanheminway

Thanks to Usha, Larry, and Christine for getting this conversation started.  I agree, for the most part, with Larry's assessment.  As a faculty member at an institution that does not have a big role in feeding Big Law, however, I have a slightly different perspective on the relationship of legal education to firm practice.  Most of our students--over 60%--do move into private firm practice after graduation, but they most often work with regional and small firms.  These firms (especially the small ones) typically do not provide--and have never provided--significant formal legal skills training, which led us (and some other similarly situated law schools) to begin to implement broad-based legal skills training a number of years ago.

With that in mind, I want to focus here on Larry's third point from my perspective.  He raises some nice ideas about providing law students with a stronger business and technology skills background.  I agree.  This is important for Big Law practice and for other employment opportunities that our students will have.  But I think many of us, as legal educators, need to focus on an intermediate goal first: providing law students with the legal skills that they need to do meaningful work early on.  My students tell me, based on their summer positions and first-year experiences in practice, that many law students leave law school without having drafted a contract or litigation document.  Focusing on business law, they also note that students have not been exposed to a business entity chartering document (certificate or articles of incorporation, articles of organization for an LLC, etc.) or other governance documents (corporate bylaws, shareholder agreements, LLC operating agreements, etc.).  I admit that I find their observations somewhat astonishing.  I thought we had come further than that in legal education.  I know some of us have.  But we have a long way to go.

In my view (and at the risk of prompting accusations that I am limiting my colleagues' freedom to teach what they want), before we focus on teaching and supporting non-lawyering skills in legal education, we should ensure that every law school student engages in meaningful planning and drafting before leaving law school and (for us business law professors) that Business Associations or Corporations classes expose students to relevant documents and discuss real-life drafting questions and choices.  Business law students should know what board resolutions are--what they do, what they look like, and how they are structured.  Moreover, upper division students in specialized classes like Securities Regulation should be looking at actual registration statements and other filing forms (e.g., Form D); and students in Corporate Finance and Mergers & Acquisitions classes should be exposed to and drafting provisions for debt and equity instruments, merger agreements, and related documents.  Students should be in a position to work with these documents as they enter private practice.  (I am forced to recall here that my first assignment as a Big Law associate back in 1985 was to review and revise board resolutions for an M&A transaction . . . .  Luckily, I had been a legal assistant in the corporate law department of another private firm for the last two years of law school; I did not learn how to draft board resolutions in law school.)

It may be that the business and technology skills Larry mentions can be taught alongside the lawyering skills I touch on here.  I accept that as a possible solution.  Law schools can adopt these kinds of changes and innovate curriculum in different ways and still be successful in educating practicing lawyers.  There are models out there to look at, and more emerge each year.  But we are too slow to change.  Although I try to do many of the things I mention above in my courses, I have to pick and choose, since I have only 3-4 credit-hours in each course to cover theory, doctrine, and skills.  I do cut doctrinal coverage (depth and breadth) to cover some skills.  I find some of these choices uncomfortable.  Truthfully, a broader change in curriculum is needed to fully realize the benefits of the approach I advocate here.  We need to engage in that kind of change.

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