A Reflection on the Legal Education

-- By MeiqiangCui - 16 Feb 2012

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.

The Two Missing Factors From the Legal Education

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.

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.

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.

This would be routine practice everywhere.

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.

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.

A Tentative Approach to Improve the Legal Education

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.

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.