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| | | -- By MeiqiangCui - 16 Feb 2012 | |
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< | Holmes said when we study law, the object of our study is prediction. “If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict.” The Path of the Law, 10 Harv. Law Rev. 457 (1987). However, in terms of training students to predict as the bad men, the legal education seems to have a long way to go. | >
> | A law school student lives in the casebook world. But wait, there are more facts to be considered! | | | | |
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< | The Two Missing Factors From the Legal Education | >
> | Last December, when I was hurrying down the street to classes, I suddenly felt that I ran into a totally different world. There were patients waiting in front of a pharmacy store to get medicines, the elders walking slowly with their shopping carts, and young parents having briefcase in one arm and small child in the other. All of these seemed to have little to do with casebooks and outlines I buried myself into. I could not help asking myself: if there is the real life, then what I was studying for all these months?” | | | | |
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< | First, as pointed out in Courts on Trial by Jerome Frank, the most unpredictable part of litigation is the finding of facts. Yet in law school, all the facts are neatly listed in the opinions and ready to be used for legal arguments. In the real world, a trial lawyer needs to brainstorm all the potentially relevant facts, evaluate the costs of collecting evidences, and predict the possibility that a certain fact can be proved. Without sufficient evidences, the fact, for prediction purpose, does not exist. For example, in a patent infringement dispute concerning certain highly complex microchips, there were only three authentication firms in China who had the instruments and competent experts to analyze the technologies. One party can exert enormous pressure on his opponent by engaging all the firms beforehand. Under this circumstance, asking whether the alleged infringing product actually falls into the protection scope of the patent makes little difference, as it is a fact that cannot be adequately proved to the court. | >
> | Disconnection to one’s surroundings and the society is a common problem for law school students. Our schedules are generally so tight that we claim to even lack the time to read newspapers. In the mean time, most professors train us by giving the facts that they deem legally important, and require us to assort them according to the elements of rules. Such training further reinforced the assumption that only facts that are “legally” relevant count. However, other factors, such as the social background when the dispute happens, the economic and psychological impact of a potential decision, and the specific litigants and judge handling the case all play a significant role in predicting the outcome of a lawsuit. | | | | |
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< | Depending on the civil
procedure, there may be other ways to deal with this situation.
Requests for Admissions under Rule 36 of the Federal Rules of Civil
Procedure, for example, might be indicated, along with evidence of
the contrary party's action to make appropriate third-party testing
unavailable. Appointment of a court-appointed expert might also be
an appropriate approach under the
circumstances. | >
> | Individual differences influence the outcome of a lawsuit. | | | | |
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< | Second, a substantial unpredictable factor in litigation is the individual differences among judges, but the current legal education does not emphasize the skill of how to look into people’s minds. The judgments are studied in a way as if they are objectively formed under the commands of established rules, and have little to do with the judges’ specific characteristics. A trial lawyer, to the contrary, will do everything he can to better understand the judge. During the years I worked at a Chinese firm, if we were assigned a judge we had never worked with, we would research all his speeches, publications and judicial opinions to have a general idea about him. | >
> | A trial lawyer usually will do everything he can to better understand the presiding judge, since the judge’s individual working style matters. During the years I worked at a Chinese firm, if we were assigned a judge we had never worked with, we would research all her speeches, publications and judicial opinions to have a general idea about her. We would also contact the lawyers who appeared before her to talk about their experiences. For example, the Civil Procedure Law provides that both parties have a 30-day evidence production period, and may move to extend for another 30 days as of right. Thereafter judges have discretion with respect to further extensions. If a judge tends to clear the cases out of her docket quickly, she may order the case to be dismissed; another judge, who would like to decide the cases based on merits, may allow it to proceed. If the client’s sole purpose is to keep the case alive so as to have more bargaining power at the negotiation table, knowledge about the individual judge would be crucial. | | | | |
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< | This would be routine
practice everywhere. | >
> | Similarly, a trial lawyer would collect information about her opponents. Different opposing counsels may adopt profoundly different strategies for similar disputes. For example, many senior patent examiners, after establishing the patent examination system in China and retired from the State Intellectual Property Office (“SIPO”), found their own patent agency firm. The firm enjoys a huge advantage in defending in patent invalidation disputes, as lawyers there are widely regarded as authoritative in interpreting the Examination Guidelines. Moreover, because SIPO uses a quasi master-apprentice system, and the Chinese culture emphasizes respect for one’s teacher, patent examiners feel considerable pressure when invalidating a patent prosecuted under their teachers’ names. | | | | |
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< | We would also contact the lawyers who had experience with him to inquire about his working style, which is important for issues where the judges have discretion. For instance, the Civil Procedure Law stipulates that both parties have a 30-day evidence production period, and may move to extend for another 30 days as of right. Thereafter the judge has discretion as to further extension. If a judge tends to clear the cases out of his docket quickly, he may order the case to be dismissed, while another judge, who would like to decide the cases based on merits, may allow it to proceed. If the client’s sole purpose in initiating the lawsuit is to keep the case alive so as to have more bargaining power at the negotiation table, the individual working style of the judge matters. | >
> | Social background of a dispute also counts. | | | | |
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< | Indeed. And, as you
say, these are steps working lawyers take wherever their resources
permit. You always want to talk to or work with someone who knows
the judge. | >
> | How a case will come out also depends on the social background when the dispute happens, together with the external impact of the potential results. The impact of the social background is most obvious in constitutional disputes. The Supreme Court has constantly cited national consensus as an important reference for their opinions concerning same sex relationship, death penalty, and abortion etc. Another example would be People v Goetz, where the court ruled that the defendant’s conduct constituted self defense when he shot four armless black youths in a subway car, who asked him for five dollars. People v Goetz, 68 N.Y.2d. 96. The whole opinion, while it talked at length about the definition of “reasonable person” under the MPC and state penal code, does not make much sense until one reads the supplemental background information. The tragedy happened in 1984, when the crime rate among blacks was disproportionally high, and the New York City was considered one of the most dangerous cities in the States. Most likely, the court was influenced by the prevalent notion of racial discrimination, and the potential dissatisfaction against the court for failing to protect people’s safety should the case come out the other way. | | | | |
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< | A Tentative Approach to Improve the Legal Education | >
> | A tentative approach to improve our legal education | | | | |
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< | What do the above observations mean for the legal education? I think the answer depends on what roles law schools want to train their students to assume. If the aim is to prepare the students to predict the operation of law as the “bad men”, a reformation is urgently needed. | >
> | Since the outcome of a lawsuit depends on multiple factors such as the specific counsels, the judge, and the social background, to name a few, law school students should develop their ability to integrate such facts to their legal arguments, and use them to shed light on facts that can directly fit into the elements of rules. Thus, I think we can start to improve out legal education from the following perspectives. First, it will be easier for 1Ls to understand the function of laws by giving them less court opinions but more materials about the economic, social and cultural background of the cases. Students will be able to better understand why law is said to be a weak social control and how it interacts with other forces to shape people's behavior. Second, the students cannot study law while isolating themselves from the society. Clinics, internships and externships should be more readily available, so that we can observe the actual operation of the rules, appreciate the consequences produced on people's lives, and learn to sense the subtle factors considered by courts but are not articulated in the opinions. Third, we need to change the solitary study mode to one involving more teamwork. While one may easily fall into the illusion that she is supposed to focus on the law and nothing else, three or four 1Ls together naturally draw from their life experiences to discuss the social meaning of a court opinion. | | | | |
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< | One wouldn't build an
entire plan around a side-comment made in a talk to law students
almost 120 years ago, right?
The 1L curriculum builds a good foundation for the students to comprehend the overall structure of the legal system, horns their analytical skills, and enables them to identify legal issues from fact patterns. While the students are more and more adept at reasoning, their ability to cope with the unpredictable factors, namely the facts and the individual differences, has not improved. The reason is that they hardly need to do so in order to be academically successful. The statements in the fact patterns are assumed to be true and accurate. The professors’ perspectives, while are of interest, are certainly not dispositive. Without the two uncertain factors looming over head, a law school student can happily rely on logic to predict the outcomes.
Assuming (a) the logic
predicts outcomes, and (b) that exams or other evaluations of student
performance, require outcome prediction. I don't think either
predicate holds, however.
To introduce such factors into the legal education system, I suggest that externship should not only be mandatory, but also constitute the major part the second and third year law school experience. After the first year’s foundation training, the students already possess the basic skills of legal research and writing. It is time for them to gain hands-on experience by working under the instructions of experienced attorneys.
Maybe. But perhaps this
depends too heavily on the teaching quality of the "experienced
attorneys," some of whom may be good mentors and instructors, and
some of whom will be poor ones. Which drawbacks of the
apprenticeship system did you consider before coming to your
conclusion? None is discussed here.
As a matter of fact, there are seven states nowadays offering law office study programs, including New York and California. In New York, a student in the law office study program needs to spend only one year in a law school, pass the first year exams, and spend the next three years working under the supervision of a judge or lawyer. Upon satisfactory completion of the three-year practical training, the student can sit for the state bar exam, and practice as an attorney (see http://www.nybarexam.org/Rules/Rules.htm#520.4). A similar program can be adopted in the law schools.
Why should law schools
adopt a program that can be used by students on their own? What
available evidence shows how well it works? What would be the law
school's interest in duplicating otherwise-available approaches that
would cost it much money?
Moreover, by requiring the students to do internships for the remaining two years, the law school expenses can be greatly reduced.
You mean to have law
schools charging high tuition for a path that will not involve paying
the mentors and which students will be getting nothing for that they
couldn't get without paying tuition? This doesn't seem likely, does
it?
More students from diverse background will be able to afford the legal education they dream of.
But then the law school
will not be cutting expenses so much as it will be losing revenue.
What's the economic model you're talking about? It appears to vary
from sentence to sentence.
A diverse body of attorneys will be better equipped at grasping the various factual issues and the individual differences. For example, a lawyer from a troubled neighborhood probably has a deeper understanding about the psychological issues of a juvenile offender comparing to one who is from an affluent family and graduated from an Ivy League law school. He is more likely to build a connection with the offender, get him to talk openly about why he committed the crime, and how he feels about it. In other words, he may be in a better position to assess what kinds of facts could be relevant, and how to present them to the judges.
This draft is really two different essays joined by force. The first
concerns the difficulties involved in fact-finding. It might be
expected to lead to efforts to improve our ability to find facts,
presumably by educating students differently with respect to social
cognition. The second essay advocates the replacement of most
academic legal instruction by apprenticeship. It provides a confused
economic account of the working of such a proposed system, considers
no information historical or contemporary about the strengths and
weaknesses of apprenticeship training, and neither articulates nor
deals with any objections or counterarguments.
In 1,000 words, it is probably impossible to do justice to both
ideas, so the most important route to improvement is choosing one.
From there, the directions of development most important to the
production of a stronger essay have been indicated, however poorly,
in my interlinear comments.
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