Academic

Famous trial attorney Gerry Spence has started a blog and has something to say about the state of American legal education - here’s an excerpt:

The trial of a case, in its simplest form, is telling a story jurors can understand.  Yet most lawyers are taught little, if anything, about communicating with others.  They are taught to deny their feelings and, at last, have so long shielded themselves against their feelings for that many find it nearly impossible to get in touch with them. Yet justice is a feeling and jurors (as do we all) make their decisions based on their feelings.

Most lawyers know little about classical literature and history, have never written a poem, have never painted a picture, have never stood before an audience and sung a song, have never been permitted to confess their pain or their love, and, in short, have been denied the stuff of personhood.  One need not write poetry or paint pictures to be a successful human being.  But some intimacy with the arts and the language and its use and with right brain functions of feeling and creativity are essential to the development of the whole person.  Little wonder that lawyers, disabled by all of the stifling, mostly useless mental exercises they have suffered, have trouble relating to jurors much less to the rest of mankind.

Is it not a miracle that after having been defrauded of their education at the hands of the entrenched in our law schools that American lawyers haven taken on the fraudulent mindset of their educators who have defrauded them?

Spence has a lot more to say, but I think that this provides the gist of his complaint. What, at least to me, is not entirely clear is what he is calling for. I could be very wrong, but it seems that he is calling for an end to what I would describe as classic legal education and that he would like to see more of an interdisciplinary approach that brings insights from other fields. 

I have a couple of points that I’m sure no one will want to hear, but it is (partly) my blog:

1. Outside of a highly localized market school, the idea that legal education should be about knowing one’s way to the courthouse and how to file motion X in jurisdiction Z is a bit much to swallow. I think that Spence would agree with this. He argues that he could teach an 8th grader to brief a case - I think that most of us could; at least a bright 8th grader. Legal education needs to be more than just technical training - otherwise it would make sense to go back to the practice of ‘reading the law’ like they did in the 19th century (and later in some jurisdictions) and just letting people get to it after passing the bar exam.

2. Certainly there is a place for the practical aspects of legal practice in legal education - I am all in favor of having legal clinics and internships as part of the process - but most schools already have these programs - what else are we really talking about here? I’ll tell you what classic legal education advocates are talking about - crusty old professors berating students over case minutia and bragging about their glory days in practice and telling endless war stories. Not that helpful in my book. Finally, firms bear some of the responsibility for training their lawyers - most businesses in America do not have entry level hires who can step up to the plate of client responsibility without at least some training and mentoring (yes, I do know that there are exceptions).

3) Spence pities judges who have to sort through all of the legalese and stilted language of most legal arguments. His tag line (the title of this post) is something that holds true in many professions, including academia. A good article or book, in its simplest form, is telling a story readers can understand and find insightful and compelling. Unfortunately, this isn’t necessarily how either lawyers or academics seem to be trained. The culture in both disciplines seems to think these matters are not important. This is probably part of a separate rant, but accessibility and creativity are, in my opinion, vital to communication and argument (or scholarship). I imagine that for every political science article that can’t be read by the average political scientist (much less a non-academic) there is probably a corresponding legal brief out there that is equally unreadable and useless. Here’s what Spence has to say (from the comments section):

Lawyers who are confined in their arguments to judges, oral or written, forget that before the judge retreated to the bench he actually thought himself to be a human being. Every investigator of human decision-making has learned that the decision is first made at the feeling level. In the law it is then translated into an intellectual rationalization called an ?opinion.? The lawyer who succeeds is one who has learned how to communicate with the judge as a human being? not an unfeeling, anesthetized compendium of legalisms that have replaced the person, but one who puts his pants on one leg at a time and who has a spat with his wife over their credit card bill before he drags himself out the front door headed for his chambers.

You say the lawyer goes to law school in order to learn how to think like a lawyer. What a pity! I want him or her to learn how to think like a human being.

The sad truth is that we are training lawyers to join some kind of weird society in which a foreign language is spoken that has little to do with the human condition and that can be understood only by those who are members of this elitist club, one that has so isolated itself from society as to become essentially useless.

Clearly, the topic of legal education is a complex one and neither I, or even Gerry Spence, has all of the answers - there is room for reasonable disagreement. However, I liked the discussion that this has sparked.