Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.
It took Harvard Law School roughly 130 years to try to "fix" its curriculum for first-year students and still the academics got it wrong. Instead of offering students more practical training for their sojourn through the law, the faculty and administrators of America's most famous law school instead decided to offer variations of the same tired curriculum that has caused generation after generation of lawyers to emerge from law school unprepared for the real world of the law. Maybe in the year 2136 they'll finally get it right.
Amid much fanfare, Harvard announced last month that first-year students would henceforth be required to learn more about statutory interpretation, international law and "problem solving" in addition to the old-school core courses like civil procedure, contracts and torts, which now will be shorter and presumably more concise. Why these changes as opposed to others? "There was a widespread feeling in the legal academic community that the traditional curriculum fails to introduce students to the modern regulatory state and fails in the first year to give them an introduction to reading statutes," Prof. Mark Tushnet told a Harvard periodical.
And why the new focus upon "problem-solving?" Because "lawyers increasingly do not just litigate and parse texts," Prof. Einer Elhauge told the Harvard Law Record, "but negotiate, theorize about the cause of problems and devise solutions to them that may or may not be legal." The improvements are as good as they go — I mean, any change that makes a first-year civil procedure course shorter is a good thing. Problem is: the changes don't do nearly enough to address the real problem with law school curricula in general and with the first-year course load in particular. The problem is not new. But it is obvious from Harvard's heralded push that it still manages to stump the best and the brightest law professors and administrators.
The dirty truth is that very little of what law schools teach baby lawyers prepares them for their first true test — passing the bar exam. And very little of what new lawyers have to study and master to succeed at the bar exam prepares them for the practice of law. That's why, in spite of the six-figure salaries first-year associates can pull down in New York and Los Angeles and other hot spots, rookie attorneys aren't worth spit (or, more precisely, don't know spit about how to successfully practice law). Forcing first-years to study more about statutory interpretation, or international law, isn't going to solve that problem.
Instead of simply juggling and re-mixing the lineup of substantive courses for first years, the Law School could have and should have beefed up its practical learning program. What laws schools need more of, and what first-year students specifically crave, are more courses about legal ethics, more lectures about how to behave in a law firm or at a public defenders' or prosecutor's office, and more opportunities to practice and hone legal writing skills. Scott Turow aside, law schools don't do nearly enough to train nascent lawyers how to write a decent memo to a partner, or a decent first-draft of a brief to a lead prosecutor, or a contract, or, heaven forbid, a clear, concise and appropriately threatening demand letter to opposing counsel.
Law students should receive more in-school and first-year training on how to handle clients and witnesses, how to take and defend depositions, and how to maneuver in a world increasing dependent upon electronic means of communication. They should receive from their law schools more instruction on how to survive and thrive within the structure of a larger legal organization, like a law firm or governmental office. They should be better prepared when they leave school for the perceptions that the larger universe has about lawyers, the legal system and the law.
This is what lawyers do and deal with each and every day regardless of where they practice or what their practice looks like. And yet law schools, including Harvard, have been notoriously behind the curve in preparing students for how to handle these chores. Think of it in military terms. Law schools are like those fancy military colleges that train future and current soldiers in lofty battlefield concepts. But the soldiers of the law — the students — don't learn how to fight in the trenches, how to engage in hand-to-hand combat, or even, really, how open up their MREs. And that has an impact upon all of us.
Law students who are poorly trained in the practical realities of the law provide poor service to their clients and to the court. They waste money by doing research that has to be re-done or writing briefs that have to be re-written. They make ethical mistakes that can imperil not just their own careers but the careers of those around them. I'm not advocating that law schools become more moralistic — don't want to have a dog in that fight — but I do believe that training-wheel lawyers should be taught lessons in law school that they will remember for longer than they remember what the burden of proof is for a summary judgment motion.
It isn't rocket science. And I know that law schools have over the past few decades begun to steer their curricula in this direction. It's just not happening quickly enough. Maybe that's because in the dense forest of academia legal scholars all talk to each other but don't pay enough attention to the view beyond the trees. Or maybe it's just because law school administrators believe it is someone else's job to train lawyers this way. Whatever the case, and despite the flood of new lawyers each year that pour out of these academic factories like wastewater, the system still is broken despite Harvard's latest lame attempt to come up with a fix.
By Andrew Cohen