“If you want law school to be practical, and you want it to do more than train litigators (whose orientation is the enforcement or opposition of legal rights and duties – and where some practitioners get to be appropriately tunnel-visioned), and you want lawyers to be “practice-ready” when they get out, and you don’t want a lot of interdisciplinary theory, what do you do?”
Jeff Lipshaw asks the question over at The Legal Whiteboard. It’s a good question. I’m not as anti-litigator as most transactional types, since the one things lawyers bring to transactions that other professionals don’t is their sense of potential legal liabilities, a sense that is well-honed by training in litigation. Any good MBA can tell you if the deal is good or bad. Only a lawyer can tell you what the litigation risks are.
In my view, training lawyers ought to be thought of in the same way as training soldiers or surgeons. A great military commander obviously must possess a great many skills apart from a thorough understanding of small unit tactics and how to keep a rifle in good working order. A great surgeon must have qualities apart from his or her ability to stitch up an incision correctly. But the newly minted second lieutenant or surgical resident cannot be expected to have developed those kinds of skills. At the point they emerge, it is enough that they know how to lay down suppressive fire at a given target or sew a straight seam.
In his post Jeff raises several points about how, in real life, decisions about whether to do a deal, whether to break off a contract, and whether to sue are not usually made on the basis of relative legal rights. But that’s the same with soldiers in the international world. Most of the time the United States will work out its differences with other countries amicably. Even when things get testy, most of the time we will work things out peacefully or at least adopt some sort of live-and-let-live policy. But this does not mean that having armed forces is unnecessary. It is the very presence of the armed forces and a perceived willingness to use them when necessary that helps us reach peaceful solutions. Similarly, the presence of the ”law” as the ultimate endgame ploy provides the background for all commercial dealings. This means that just as soldiers must be trained heavily for the one percent of the time they will be called on to kill people, lawyers must be trained heavily for the one percent of the time they will be called on to resort to legal remedies.
So I feel about putting more emphasis on “business thinking” in law school pretty much the way I assume an MBA schools would feel about putting more “thinking like a lawyer” into their marketing program. Not necessarily opposed, but rather dubious. I try to teach my students enough business so they (1) understand what a given transaction is about, and (b) communicate with their clients. I’ll be doing a new class this year where we take it a step further, and teach students how to find the facts that will become the basis of their legal arguments. But I will almost certainly continue to have them focus on drafting simple contracts and pleadings rather than focusing on strategic business thinking.
Besides, I don’t know how many people there are like Jeff, whom I would trust to teach my students “real world” stuff. Very few of my colleagues in the academy have anything like Jeff’s background. It’s difficult to take seriously “real world” advice from someone who practiced law as a junior associate for a year and a half during the Nixon administration. I simply don’t know how many of us have the kind of breadth of practice experience that we could actually add value. I’m fairly confident I couldn’t, and I have a lot more higher-level practice experience than most of us.