Challenging “Challenging Carnegie”

The February issue of th Journal of Legal Education, the scholarly house organ of the Association of American Law Schools, has a thought-provoking article by Kristen Holmquist (UC-Berkeley), Challenging Carnegie.  For the uninitiated, “Carnegie” means the Carnegie FAT’s report, Educating Lawyers, which enlisted a distinguished panel of lawyers and scholars who did a two-year study to (1) conclude something almost everybody concerned already knew (that newly minted law graduates are woefully unprepared to actually practice law) and (2) offer a solution that almost everyone concerned rejects (that law schools should do a better job of preparing said students by teaching them practical skills.)

In her paper, Holmquist argues that Carnegie is correct that we’re not doing a good job of preparing lawyers, but that it is wrong that more emphasis needs to be placed on practical practice skills, such as forming corporations, drafting contracts, writing complaints, negotiating settlements, researching land titles, writing summary judgment motions, etc.  Instead, she argues (I’m forced to simplify here, so please read the paper) that students need to learn to think more broadly and creatively.  Law school teaches an approach that is too shallow (in that it does not focus on the deeper connections between law and other parts of life) and acontextual (in that it teaches doctrines in the abstract while client problem-solving is inherently fact-intensive).

As observations, I think both of these these are correct, but as indictments of the present system, I’m not so sure.  Most of what Holmquist describes as the tools of a good lawyer is the set of human problem-solving skills that are used in every reasonably sophisticated trade.  A drug company deciding whether to market a new product may, for example, call in a marketing consultant, a production executive, a financial number-cruncher, an FDA lobbyist, and a lawyer, the latter of whom is to gauge possible liablities for torts or patent infringement.  Each of these experts does much the same thing.  Each must internalize the client’s goals, understand its current situation, gauge its specific interests, assess specific risks, analyze specific strengths, identify tradeoffs, and make recommendations based on a holistic sense of all the various factors that come into play.  The only difference is that each brings a different professional toolbox to bear, and each must be able to focus on the  particular facts relevant to his or her own specialty.

A very substantial slice of the value of a any practitioner of any trade lies in these fundamental information-gathering and problem-solving skills.  But the reason one calls a lawyer rather than a production engineer (or vice versa) is that the lawyer is expert in the legal regime–the particular doctrinal and procedural toolbox that lawyers employ.  The lawyer is certainly no smarter or better at problem-solving than the production engineer (in my experience the opposite is probably true) but the lawyer has been trained to, in Holmes’s phrase, “predict what the judge will decide,” while the engineer has not.

The difference between law schools, medical schools, MBA programs, and engineering schools is not in the different problem-solving skills their practitioners need.  It is in the abstract frameworks they use for organizing the facts they uncover.  A physician cannot determine that a certain series of osbsrvations and test results suggests that I have cancer unless and until the physician has an abstract idea of what “cancer” is.  The same is true for other trades.  Determining the average variable cost of a particular can of beer at at particular production facility during a particular period of time is an extremely context-specific endeavor.  But one cannot do it unless one has in the abstract learned what “average variable cost” is and how one in general goes about calculating it.  One calls a cost accountant to to this kind of calculation not because he is a better problem solver but because he understands what facts are important and how to integrate them to give the answer.

If this is true, then learning the specific things that make lawyers different–the ability to discover and manipulate legal doctrine–must come before any attempt to teach lawyers how to use them in context.  That is presumably why business schools use the (business) case method, relying for the most part on predigested facts and clearly defined desired outcomes to teach students how to focus on the analysis.  Only after a student learns to solve a problem using a preselected set of facts and a given set of goals can a student move to trying to figure out a client’s problem from scratch.  Trying to teach an analytical framework while trying to get students to actually do the necessary factual analysis is like trying to teach a pitcher to throw a curve ball in the middle of a close game.  There are only so many things a student can concentrate on at a time.

Since the legal toolbox is what makes the lawyer different from the marketeing executive, it makes sense for law schools to focus disproportionately on lawyer-specific skills.  I agree with Holmquist that the (law school) case method is not a very good way of doing this, but that’s a question of pedagogy, not goals.

Even if Holmquist were correct, though, there are costs to her approach that make it undesirable for a substantial set of our students.  She relies for her determination of what young lawyers need on the views of ”a room full of eminent lawyers, judges and mediators who had come together to serve as the UC Berkeley School of Law Professional Skills Advisory Board.”  Given that Boalt is one of the world’s great law schools, it’s likely that any of its advisory boards is going to be stocked with folks who are very eminent indeed.  I am doubtful that a judge on the 9th Circuit, the managing partner of a Silicon Valley law firm, or the lawyer who mediates international trade disputes has much of a clue as to what a newly admitted solo practitioner representing ordinary people in Laredo really needs to know.  I also suspect that these eminent lawyers are being a little unfair when they expect a newly minted 24-year-old lawyer to be able to think the same way that they do after 30 years of experience.

Our Laredo solo needs a lot more training in nuts and bolts of ordinary lawyer stuff than she is now getting, and it is probably more important to her clients that she be able to draft a simple complaint, litigate a Minor in Possession Charge, or handle a Social Security appeal, than to have the kind of deep understanding that the eminent lawyers prize.  Given that law is highly segmented, the most complex matters will go to the lawyers who have Holmquist’s type of thinking skills.  These will tend to be more experienced lawyers.  The least complex matters will go to the least experienced lawyers.  Since our new graduates are by definition the very least experienced lawyers out there, it makes sense for us to make them as capable as we can about doing the kinds of things that their clients need.  True, there are some students (those headed to do work at big firms or the government) who would benefit by Holmquist’s approach, because they’re going to have several years of highly paid employment while they learn the rudiments of taking a deposition or drafting an agreement.  Their colleagues who will start representing people in routine matters the day after they are sworn in don’t have that luxury.  It’s them (and their clients, who usually are not rich multinational corporations or huge government bureaucracies) whom I think we should be training.

In other words, I’m not convinced.  I think Carnegie has it right.  But Holmquist’s piece is at a fairly high level of abstraction, and I’m hopeful that she has in mind some more concrete suggestions that would accomplish both her goal of making sure lawyers are capable of becoming U.S. circuit judges, and my goal of making sure they’re capable of not getting their clients deported because they filed the wrong form.