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Beyond “Think Like a Lawyer”

Distinguished Practitioner in Residence, Seattle University Law School

Law schools should be preparing students to practice law. That means teaching them to think not just like lawyers but  also like professional communicators. It’s now a given that law schools need to place more emphasis on teaching practical lawyering skills. The 2007 Report by the Carnegie Foundation for the Advancement of Teaching addressed the deficiency in skills training in today’s law schools as follows:

Law schools need to do a better job integrating the teaching of legal doctrine with a much stronger focus on helping students develop practical ‘lawyering’ skills and understandings of ethical and moral considerations.

The economic situation will compel law schools to focus more on teaching practical skills. An April 1, 2009 New York Times editorial entitled “The Downturn, It’s Time to Rethink the Legal Profession” noted:

Law schools may also become more serious about curriculum reform. The Carnegie Foundation for the Advancement of Teaching released an influential report that, among other things, urged law schools to make better use of the sometimes-aimless second and third years. If law jobs are scarce, there will be more pressure on schools to make the changes Carnegie suggested, including more focus on practical skills.

What should law schools teach beyond “thinking like a lawyer”? What practical lawyering skills are essential to the successful practice of law? What should law schools require in the way of skills training? What skills courses should students take even if they are not required?

THINK LIKE A PROFESSIONAL COMMUNICATOR

Jim McElhaney, 25-year Litigation columnist for the ABA Journal,  Distinguished Scholar in Trial Practice at Case Western Reserve and Distinguished Lecturer at South Texas College of Law in Houston, contends that learning to think like a lawyer can be harmful. (September 2012 reprint of December 2001 ABA Journal article “The Plain Truth”) He argues that new lawyers need to unlearn some of what they learned in law school and that law schools don’t teach effective communication skills. Using the voice of Angus, his alter ego, McElhaney put it this way to new lawyers:

Today, most lawyers in the United States share the common burden of having gone to law school. This is a difficult rite of passage — not because the legal concepts are so hard but because law school requires conforming to a strange new culture and learning a remarkable way of thinking and speaking…

Because we are professional communicators, it is our obligation to be plain and simple. It’s not our readers’ and listeners’ jobs to understand us. It’s our job to make certain that everything we write and say commands instant comprehension.

And because we weren’t turned out that way by our law school training, we have to reprogram ourselves if we want to become effective communicators.

McElhaney is right on both scores. First, talking and writing like a lawyer can get in the way of clear communication. Who, but lawyers, use words and phrases like “comes now,” “wherefore,” and “the decedent entered the room” (dead man walking)? Second, lawyers are “professional communicators.”

TEACHING  ESSENTIAL COMMUNICATION SKILLS

Today’s law schools offer a few courses, such as legal writing and pretrial and trial advocacy, that teach students how to think like professional communicators. Students should be required to enroll in them. The following is a brief, nonexclusive list of what these courses cover:

  • Adult learning styles;
  • Effective writing techniques;
  • Drafting basic legal documents, such as  a complaint, an answer, a demand letter, a motion, discovery requests;
  • Taking and defending a deposition;
  • Advocating in an ADR setting;
  • Trial skills from jury selection through closing argument;
  • Effective public speaking, including elocution, coping with nervousness, speech devices, word choice, projecting sincerity;
  • Nonverbal communication, including appearance, gestures, body language;
  • Storytelling;
  • Interviewing;
  • Counseling;
  • Visual persuasion; and
  • Available resources on writing, public speaking and visuals.

These communication skills are valuable in any legal career, not just pretrial litigation and trial work. The impact of a drama teacher upon his students illustrates the importance of skills training and the wide-ranging applicability of some skills. Ruben VanKempen has had a 30-year career teaching drama to high school students. This year he was inducted into the Educational Theatre Association’s Hall of Fame. Mr. VanKempen knows that all but a few of his students won’t end up in showbiz like his former student and Tony Nominated Chad Kimball who starred in the Broadway hit “Memphis.”  VanKempen also knows the importance of what he is teaching. He said, “Most are not going to be actors, but they’re going to have to someday give a report at work, or before a PTA. I want to give them skills and confidence.” The same can be said of law students. While few of them are going to be pretrial, trial or appellate advocates, they will  need to speak and write well. Law schools should equip their students for the practice of law by teaching them to think and act like effective communicators.

About the Author

Ronald H. Clark is a nationally known lecturer and author and Distinguished Practitioner in Residence at Seattle University Law School. His books, published by Wolters Kluwer, include: Trial Advocacy, 3rd Edition; Pretrial Advocacy, 3rd Edition; Cross Examination Handbook; and Evidence: Skills, Strategies, and Assignments for Trial and Pretrial. Prior to joining the law school, Mr. Clark was in the King County Prosecutor's office in Seattle, Washington for 27 years, where he served as a senior deputy prosecutor, head of the trial teams and, for ten years, as the Chief Deputy of the Criminal Division. After that, for six years he was the Senior Training Counsel at the National Advocacy Center in Columbia, South Carolina. Mr. Clark also publishes his own blogs: Pretrial, Trial, Appellate & Evidence Blog at http://www.advocacytraining.blogspot.com and Cross-Examination Blog at http://wwwcrossx.blogspot.com.

Comments

It seems that the law school model is criticized and re-evaluated on a monthly basis on law blogs and forums across the nation, but it nevertheless seems that change is occurring at a glacial pace. The foundational courses are absolutely useful, but I agree that certain writing courses and oral advocacy practicums should also be required in the 2L and/or 3L years. So many students end up taking courses that, while interesting, will not serve them in the real world. I think many students lose sight of the fact that law school is meant to be a professional school, not college 2.0; while I don't underestimate the importance of continuously learning, I do think it is important to focus that learning on coursework that serves a purpose or furthers a career goal.

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