Academic

Here is a teaching trap I find myself falling into on a regular basis ? just like a character from Lost and a hidden pit in the jungle. (Spoiler alert: the whole island is really just inside a kid?s snowglobe). I lead a class discussion on a case. Somewhere during the discussion, I try to push the discussion towards ?What would you have done differently had you been a lawyer advising a client to avoid this litigation??

Sounds like a fair question, right? It is supposed to get students thinking more prospectively ? to help think like planners. Or even to think about planning for future litigation.

The problem is that the discussion can too easily lead into a discussion of what the lawyers did wrong in a case (if lawyers were even involved). There is not just a risk of hindsight bias. When reading a case, we are only seeing the facts a judge chose to highlight before making her ruling. Who knows what the total universe of facts in the dispute were? To some extent this can be rectified by the ?law stories? scholarship ? those scholarly investigations of the broader context of the case not mentioned in the record. Personally, I find the value in that scholarship not so much in re-thinking whether an opinion got it ?right? (judicial opinions may matter more in how they come to be used by later courts than whether the facts were ?correct?; how often would a litigator be able to convince a court not to use a case because later scholarship uncovers a richer factual context to a case not mentioned in the actual record?). Instead, I find the law stories scholarship invaluable for answering bigger questions ? including evaluating how well the lawyers performed at their craft.

But even when I have a richer set of facts for casebook cases, I worry that I am still giving my students a skewed view of lawyering. First, litigation doesn?t necessarily mean that there was an earlier lawyering failure. Second, even if there was a lawyering failure, by looking at case after case my law students may only be getting a view of how not to be a lawyer instead of a positive view of how to be a good lawyer. It is fairly easy to fall into the trap of chiding the lawyers in a case (?Silly folk from the 1920s ? how could you not have anticipated Cardozo?s brilliance shining a light on your misdeeds??)

It is also all-too--easy to fall into the trap of recommending more lawyering to solve every problem. With cases, students don?t necessarily see all the examples of lawyers successfully steering their clients from disaster. Nor do they see all the examples of over-lawyering needlessly killing deals. Perhaps case books encourage us to spot Type II errors in lawyering (not enough lawyering), but don?t help as much with Type I errors (too much). (I realize the Type I/Type II metaphor is not a precise fit here). Or maybe it is just a trap I alone easily fall into.

What to do? One tact is to promote more empirical research on effective lawyering. I?ll save that for a future post ? there are dozens of methodological challenges. Another approach is to admit that lawyering is an art or a craft and about the exercise of judgment. But are law professors always the best exemplars of professional judgment? I?m certainly not. Which is why it makes sense to invite practitioners and judges and even seasoned clients(!) into the law school classroom to give a perspective that cases alone cannot.

None of the foregoing represents a novel insight, but I find I need to remind myself of the traps I fall into any way.