Maybe the best movie line ever about law school was delivered by John Houseman in The Paper Chase. Playing the imperious contracts professor Charles W. Kingsfield, he famously said to first year student James Hart and his classmates: “You come in here with a skull full of mush. . . . And if you survive,” he continued in all his stentorious magnificence, “you’ll leave thinking like a lawyer.”
It’s a great line, and it still can raise a laugh at a law school pub night. But the fact is that it was not accurate in 1973, when the movie was made, and it’s not accurate now. The truth is that in law school, we teach students half of what thinking like a lawyer really is.
Thinking like a lawyer — really thinking like a lawyer — involves not just parsing problems, finding the issues and then applying the law. Of course, legal advice is grounded in legal principle. But lawyers — good lawyers — think in terms of solutions.
Yes, good legal advice is based on the law, but it includes a pragmatic assessment of which is the best of a possible range of outcomes in the circumstances. And, ultimately, the lawyer is judged, not just in the formal courtroom, but in the court of public opinion on the quality of his or her . . . well, judgment.
Yet, this is not something that we tend to teach in law schools. At least not in a systematic way. We do a very good job at teaching analysis. But solution-oriented thinking, not so much.
Every law school probably has courses where the art of solution-oriented thinking is introduced, but I don’t think there are any schools where we can say every student has systematically acquired at least some mastery of it.
This would never do in other professional disciplines. Think how odd it would sound for a medical student to say to a patient, “Yes, you’re really quite ill. Let me tell you just how ill you are. You are ill in five different ways.”
It puts one in mind of the Monty Python “dead parrot” skit, and I’ll bet that med school variety shows regularly have skits that riff off stuff like this. Yet no one would seriously say that diagnosis, however important it is, it can validly be the principal objective of a medical education.
Yes, it’s a bedrock of what doctors do. But it’s only the first half of what we want medical students to learn. We expect a quality medical education to involve teaching putative doctors how to make the right judgment calls in life or death cases.
For most of them, it will be several years post-MD before they find themselves alone in the firing line, but we’d be aghast if the medical academy didn’t embrace teaching students how to cure as well as how to recognize disease when they see it.
But part of our problem is that we in law school have become accustomed to drawing a distinction between analysis and action. Or, as it is more commonly put, between theory and skills.
Law school, the conventional party line has it, is supposed to teach the former. The bar admission process takes care of the latter (except for legal research and writing). That was the deal struck between the universities and the Law Society of Upper Canada in 1949, and it remains the theoretical basis for our professional federalism across Canada even today.
The problem with this sort of a division, though, is that it represents a false dichotomy. A lawyer with theory but no skills is useless. One with skills but no theory is a malpractice claim waiting to happen. The fact is that any lawyer worth his or her salt can reason from first principles, and then actually do things to help others.
Moreover, we know that doing deepens learning. It helps contextualize theory; it makes it seem real, which in turn makes the theory more “sticky.” For most who advocate it, the objective of experiential learning is not to turn out “practice-ready” lawyers. That, frankly, would be impossible in three years — regardless of whether or not we have a system of articling. Rather, it is to make the learning environment more active and more intense.
In other words, it is to combat the progressive disengagement that I wrote about last time, and to deepen the extent to which students learn — and retain — legal principle.
It is also to introduce students to how they’ll actually be earning a living. Whether they end up as barristers or solicitors, in the public sector or private, in big firms or small, in the city or in the country; if people with JDs haven’t acquired the skill of making judgment calls, then we are short-changing them in their legal education.
So above all else, that’s what law schools should do: incorporate solution-oriented thinking — what the medical schools call “problem-based learning” — throughout the curriculum.
There are plenty of other things that ought to go along with this. It is difficult, for instance, to overstate the impact that technology is having on the law and the legal system. Legal project management is now mainstream enough to demand a spot in the curriculum. So, too, should we be teaching things like leadership and teamwork.
But as a precursor to everything else, we have to jettison the baggage of the theory versus skills distinction.
In its Canadian formulation, that was grounded in the attempt to draw up a peace treaty between big egos at the University of Toronto and the Law Society of Upper Canada more than six decades ago. Louis St. Laurent was prime minister and Frankie Laine was No. 1 on the charts. We still had appeals to the Privy Council.
But the men of 1949 are long-dead. For heaven’s sake, surely in 2015 we can come up with a way in which to teach law today that actually acknowledges what we’re preparing our students to do.
For more detail on what we’re doing at the University of Calgary, see my colleague, Alice Woolley’s recent SLAW column on the Calgary curriculum.