Determining the Relationship between Academic Skills and Lawyering Skills: A Foundations Manifesto

As you can imagine, the word “manifesto” is used in a variety of contexts, some less convincing than others.

My primary intent in naming our program “Academic Skills” is to bring attention to the fact that there is a distinct set of academic skills unique to legal education, and these skills must be identified, practiced and honed for success in law school and, as a corollary, success in the profession.  These skills—including but not limited to the ability to decipher various types of legal texts, understand the nature and function of legal analysis, and construct analyses based in logic—are an essential component to the law school curriculum and should be taught accordingly.

On a related point, I also mean to convey that academic skills are relevant to all students, not just students who are “struggling” by one measure or another.  It is true that some students will need to engage more intensively in an academic skills curriculum than others, depending primarily on prior educational background (including not just the quality of that education, but the student’s undergraduate major and the intellectual practices of that major).  Nonetheless, every law student needs to master these skills, regardless of their particular path to doing so.  A critical role of academic support programs, accordingly, is to provide multiple entry points to that curriculum.

***

I have maintained for a while now that academic support programs are at the forefront of a larger shift in law school pedagogy: namely, the shift toward explicating what I refer to as the “hidden curriculum” of legal education.

(1) Great typographical design; (2) a book I would like to read.

In a recent presentation at DU Law, David Nadvorney of CUNY Law demonstrated the existence of a “hidden curriculum” quite succinctly.  He asked the faculty audience to describe the worst aspects of students’ academic performance.  The responses varied but clustered around the observation that while students might “know the law,” they don’t know how to apply it to specific facts in an organized, critical analysis.

Then David asked, “And where is that skill listed on the syllabus?”  The point being that in the majority of doctrinal classes, legal analysis is implicitly on the agenda, but not explicitly indicated on the syllabus as part of what students are supposed to be learning.

Indeed, under more traditional models of law school education, much of what we actually expect students to do when they sit down for a law school exam (or a summer internship, for that matter) is not taught directly.  Traditionally, doctrinal classes delivered substantive knowledge and students were expected to acquire legal analysis skills presumably by mimicking the analyses of their professors, or perhaps the analyses undertaken in the appellate judicial opinions students were reading as a source of the doctrinal law.

But these are not modes of explicit instruction.  They are not explicit in that students are not told that performing legal analysis is the part of what they are supposed to be learning (not just substantive doctrine), and they are not explicit in that the steps necessary for a comprehensive legal analysis are generally not named or systematically modeled and practiced.

And if we find that at least some students are (1) failing to learn the fundamentals of legal analysis required to perform well in law school and (2) graduating without the legal analysis expertise to make them “practice-ready,” then surely it is time to examine our teaching methods.

***

Explicating the hidden curriculum is important for at least one other reason.  Although I do not yet have the empirical data to back this claim up, my intuition is that this traditional mode of teaching—where there is an extensive “hidden curriculum”—is harmful to diversity and inclusiveness.

Why?  Indulge me in deploying a sports analogy.

If you are new to this blog you don’t yet know that I pride myself on illustrating my posts with images that relate only marginally to the subject at hand.

Let’s say you wanted to put together a basketball team.  If you had five players who had all played before, and let’s say their parents were basketball players too and had practiced and talked about the sport with their kids for years, you as the coach could probably skip a lot of the fundamental drills in dribbling, passing and shooting, and focus more on running plays, high-level conditioning, and preparing for games.

But let’s say you wanted to put together a team with players from diverse backgrounds, including some players who had never handled a ball before or laid eyes on a basketball court.  All of your players are athletic and theoretically have the potential to perform well, but they have different levels of skill and experience with respect to the particular sport.  If there is any hope of bringing these players up to the level where they can display whatever talent they may have, you would have to offer extensive opportunities for them to learn and practice the foundational skills of the game.  Otherwise only those players with prior experience will perform well and you will never know the full extent of other players’ talents.

So the idea is this: If you are teaching a diverse audience and you don’t teach foundational skills, then you are showing enormous favor to those who either have prior experience or are simply prodigies.  In law school, these would be students with a family history in the legal profession, whose undergraduate experience prepared them for the rigors of law school, and/or students with a natural aptitude for legal analysis.  But these are not the only groups we admit to law school, nor are they the only groups to whom we teach.  Rather, we are inviting students of diverse social and educational backgrounds to enter the profession—as we should.

And if we are going to extend this invitation, we need to teach like we mean it.

Good luck! (Splash.)

It is apparent that there are many folks within the legal academy interested in departing from the traditional, “sink-or-swim” approach to legal education.  In fact, the call to extend, integrate and explicate skills education is one of the central concepts of the Carnegie Report, which currently serves as the guidebook for many institutions in their efforts to reform and improve legal education.

But my question is this: What exactly do we mean by “skills education”?  In other words, what skills should we be teaching . . . and when?

Specifically, as indicated by the title of this piece, I am interested in the relationship between what we refer to as “lawyering skills” and “academic skills.” Not only to the extent that these skill sets may be similar, different or complimentary, but also how they relate to one another in terms of the ideal sequencing of instruction.

In looking at the relationship between these skill sets, let’s start by looking at what we mean by “lawyering skills” and where these skills are taught in the curriculum.

Concrete, practical lawyering skills are primarily taught in first-year legal writing courses and in upper-level law school clinics.  In addition, law schools are increasingly offering upper-level writing and analysis courses that offer simulated practice experiences to a certain extent.

In terms of first-year legal writing courses, the first thing to note is the shift from focusing exclusively on legal writing to a much broader focus on a wide variety of skills that lawyers employ in practice.  Thus, programs that used to be called “Legal Writing” or “Legal Research and Writing” are now called “Lawyering Process” or “Lawyering Skills” .

And the scope of skills taught in these typically year-long classes is quite vast.  A lawyering skills syllabus might cover the following topics in just the first semester:

–      Structure of the legal system

–      Reading and digesting various sources of law (constitutions, statutes, regulations and case law)

–      The role of precedent and the hierarchy of legal authority

–      Drafting a variety of documents, including a client letter, an internal office memorandum, and more informal communications like e-mails

–      Citation form

–      Legal research (a vast topic in and of itself)

In the second semester, additional topics might include:

–      Client interviews

–      Fact investigation

–      The persuasive voice

–      Arguments and counter-arguments

–      Advanced legal research

–      Motions practice (including summary judgment)

–      Drafting an appellate or motions brief

–      Oral argument

–      Negotiation

Typically, these topics are covered in the context of one or more (but generally no more than three) simulated problems per semester.

Thus, this first-year course exposes students to an incredibly rich array of skills.  Indeed, as interest in skills education has escalated, there has been increasing pressure on lawyering skills faculty to address the wide variety of documents written and skills exercised by lawyers.  Further, there is pressure to not focus exclusively on litigation-related skills, but also skills in transactional practice and mediation/ADR.

Providing such broad exposure to a variety of aspects of legal practice is both admirable and desirable, but it is a great deal to accomplish in a single course and necessarily results in coverage that is, from one perspective, more broad than it is deep.  (A preference for breadth over depth is also a feature of many doctrinal courses, where faculty often feel compelled to address all topics presented in their chosen casebook rather than treating selected topics in depth.)

Compare this pedagogical context to that presented in the other major locale of skill instruction: law school clinics.  The most significant difference is that clinical skills education takes place in the context of live-client representation.  This means that the practical lawyering challenges students face are dictated by the client’s needs, not by the parameters of a simulated problem or set pedagogical goals.  Thus, there is no guarantee that certain substantive doctrines or lawyering skills will be addressed in a given semester.  And this is appropriate.  Clinical experiences, which are typically reserved for the second or even the third year of law school, provide an opportunity to exercise the skills and knowledge acquired up until that point in a flexible, real-time setting.  In other words, clinics assume a foundation of competence; clinics are neither obligated nor designed to provide comprehensive generalized doctrinal or skills instruction.

My personal view—and one shared by many others—is that first-year lawyering skills classes and law school clinics do an outstanding job of teaching lawyering skills, and these courses provide some of the most valuable experiences students can have in law school.

But a related contention is that these courses do not (and cannot and should not) teach the foundational academic skills that are a prerequisite for successfully acquiring lawyering skills, nor can they provide opportunities for repeated practice and review (analytical “drills,” if you will) sufficient to prepare novices to become masters.  This is where an academic skills program comes in.

***

Meditating in the deep end.

One way of thinking about an academic skills curriculum is that it teaches the same skills taught elsewhere in the law school curriculum (close reading; precise, organized writing; logical analysis) but through a different methodology.

What are the key features of this methodology?

(1) Narrower focus and slower pace.

Academic skills programming—whether delivered through workshops, individual counseling, or in a classroom setting—has the advantage of not being obligated to cover an entire body of law over the course of the semester (as doctrinal courses do) nor a broad array of practical lawyering skills (as lawyering skills/legal writing classes do).  In the absence of these mandates, academic skills instruction can focus on depth rather than breadth of coverage.

Thus, students can spend an entire session or more closely, carefully and slowly dissecting a single judicial opinion or statute.  This slower pace can, in turn, facilitate the acquisition of skills that students will be applying in other courses.

One of the complaints I hear most frequently from the 2L and 3L students I work with (and I work with them primarily on practicing syllogistic reasoning—that is, IRAC analysis—in a variety of factual and doctrinal contexts) is that they wished they had learned this earlier.  And of course they did learn core legal analysis skills in the first year, but I suspect that they did not retain or develop confidence in these skills because they did not have sufficient opportunities for repeated practice of those skills.

(2) Graduation from more simple to more complex challenges.

As a result of this slower pace of instruction, there is also time to gradually move students from more simple to more complex analytical challenges over time.

A shortcoming I see in legal education (and even in the calls to reform legal education) is the lack of attention paid to building students’ substantive knowledge and skills over time, from foundations to mastery.  Instead, we often focus on where we want students to be at the end of law school (“practice ready”) and throw them into the deep end at the beginning of their education, assuming they will figure it out as they go along.

In academic skills programming, we (ideally) have the time and opportunity to step back to more simple problems when necessary, or to break complex cases down into their constituent parts.  Once students have mastered the basics, we can move on to more complex challenges.

(3) Emphasis on practice, practice, practice . . . and more practice.

A belief in the efficacy of active learning techniques is key to the work of academic support.  This is based on the theory that active modes of learning support greater retention.  See earlier post at https://susannahpollvogt.wordpress.com/2011/01/.

(I should note that while the image for “Dale’s Cone of Learning” pops up frequently, there is some controversy over whether this can properly be attributed to Edgar Dale and whether the diagram’s claims are supportable.  On an anecdotal level, I have experienced great success with active learning techniques, but I certainly need to do further research into the question.)

While there are ways that doctrinal courses can make greater use of active learning techniques, and lawyering skills and clinics use active learning all the time, academic skills programs are again in a unique position to combine active learning with instruction in foundational skills, assuring that students achieve mastery in the basic skills required for them to acquire and apply higher-level skills.

(4) Copious formative assessment.

One of the primary critiques of the traditional model of legal education is the culmination of the semester in a single final exam that determines a student’s grade for the entire course.  While there is movement toward incorporating more formative assessments in doctrinal and lawyering skills classes, academic skills programming is again well-situated to provide copious formative assessment because of the amount of practice exercises students perform over the course of the semester.  This way, students have an idea early on whether they are “getting” what they are supposed to be learning in law school.  If they are not getting it, academic skills faculty can intervene prior to that student taking final exams.

(5) A focus on self-assessment.

The use of multiple exercises throughout the semester also provides fertile ground for self-assessment.  Self-assessment (where students evaluate their own work against a grading rubric) is useful for a number of reasons, including that it permits more frequent assessment because the professor is not required to review and comment on all exercises and, more importantly, it teaches students to critically review and evaluate their own work.  This, in turn, encourages students to internalize and take ownership over standards of performance.

***

My ultimate contentions are as follows:

● An academic skills curriculum is different than a lawyering skills, if not in content then in the mode of instruction.

● Foundational academic skills instruction is a necessary prerequisite for students to ultimately master advanced analytical and lawyering skills.

● Some students will have acquired these foundational skills prior to entering law school, but between the changes in undergraduate education and the diversity of undergraduate experiences, we cannot expect a uniform level of ability in any given student body.

● Academic skills instruction is key to the law school curriculum because it supports diversity and inclusiveness and, by closely monitoring acquisition of skills and intervening where required, academic skills faculty support the development of mastery that is required to graduate uniformly competent, “practice-ready” lawyers.

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