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April 26, 2005
Legal Education – What Are You Really Supposed to Learn?
I have a unique vantage point of legal education. I have already been through the education system in engineering and had a successful career in the industry. I switched careers and began working in the legal industry and then began law school. I have experienced education first and then practice, and have experienced practice before having the education.
Since I have been reading blogs, especially legal blogs, I have read many posts decrying the legal education system, including this one on rethink(ip) by Steve Nipper. Everybody seems to have a suggestion to change this piece or that piece.
But I think there is a different perspective.
While in undergraduate and graduate school studying mechanical engineering, I learned all sorts of ways to calculate stress and strain in a structure. I took Machine Dynamics, Advanced Strength, etc. etc. You would think that having a masters degree in mechanical engineering from a fairly decent engineering school would have prepared me for the real world.
In my first job at an airplane factory, I was fortunate enough to run into someone who had an intuitive feel for stress and strain in structures. In just a few minutes, he was able to describe the flow of forces in a structure or joint in a cohesive manner that synthesized every single class I ever took. This old, crusty engineer had developed an expertise and understanding of stresses and strains that was orders of magnitude greater than anything I could have possibly gathered in school.
This older, wiser engineer had developed an intuitive feel of the science. While I knew stress and strain calculations, he understood them. I don’t know exactly how to describe it, but his knowledge transcended the superficial learning I seemed to have.
I developed the same type of intuitive understanding after seven or eight years of practicing engineering. I did not understand it at the time, and it seemed to just creep up on me after working in many different situations and solving many different problems. It is only in hindsight that I realized how well I understood the technology at that time.
I think the same thing happens in law, and I have seen experienced attorneys who have this deeper level of understanding that transcends the basic rules and cases that are taught in school.
What is it that we need to learn in law school? There are two things: learn what you don’t know, and learn how to understand.
The single most important thing anyone can know is the bounds of their knowledge. The attorney who practices outside his/her area of knowledge is liable for malpractice, which can end a career prematurely. But it also comes down to honesty and truthfulness when dealing with other people, especially clients. They might not be able to judge the correctness of your knowledge, but they can sniff out people who are BS’ing.
Knowing what you don’t know is the key to success in any field. It helps you identify what needs to be researched and where to ask the important questions. The importance of this cannot be understated. It is the basis of competency in any field.
The second thing is almost as important. Learning how to understand. What I mean by this is learning how to draw from the breadth of learning to synthesize a deeper knowledge and insight into a topic. This is where the breadth of knowledge and experience is invaluable. Being exposed to any course of study, from the sciences to the humanities, can be helpful, as well as just about any actual job experience.
So how does law school help us achieve these two goals?
First off, realize that each case in each course may very well represent the culmination of a lifetime’s work and experience by the people involved, and that you are reading only an edited summation of all that experience. Know that each case in the casebook represents years of experience in only a couple pages of text.
Secondly, know that the law school curriculum is a mile wide and a foot deep. Even the courses that purport to go into ‘detail’ on a subject are still merely survey courses and skim over the highlights. The point of this is to give the practitioner a wide basis from which the deep understanding will be developed over time.
What do we really learn from the Rule Against Perpetuities? We are forced to wrap our minds around this rather simple notion that transactions must be determinable. We then see examples where bad lawyering causes the Rule to be violated, especially when it is not obvious. In most cases, this is an intellectual exercise, but it also forces the student to think through the various views and applications of the Rule.
So, what do we really learn? We learn how to think through a difficult problem and peel back different viewpoints to get to the core issue. We learn in very real terms that we need a through understanding of an issue to be fully competent to practice, and that a cursory understanding is not enough.
Do you really need to know the details of how the Rule Against Perpetuities to practice law? No. Do you need to know the real lessons of the Rule? Absolutely.
In my viewpoint, the actual subjects taught in law school are pretty much irrelevant. The real practice of law, or any profession for that matter, is learned in the field, and only over many years of experience. The most important thing you need to learn in school is how to think. The second part of education is the breadth of exposure to different fields, so that you have a basis on which to build and synthesize your understanding of the knowledge you need to perform whatever tasks lie ahead. These two elements should illuminate the student’s bounds of their knowledge.
Does it matter if every lawyer has a course in IP law? I don’t think so. The competent lawyer will know what he does not know and either research an IP issue or consult someone. After research and consultation, the competent lawyer should be able to synthesize all of his/her experience and knowledge into formulating a solution for the client. Having an IP course will not make a competent lawyer out of an incompetent one, no matter how good the course is.
Posted by krajec at April 26, 2005 09:59 AM
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Comments
Nice post.
My point is more that teaching law students a broader range of material (so they can better spot issues in practice (and refer the work onto an experienced colleague who can help)) is more important than making sure that everyone learns about the RAP, every last type of offer/acceptance, or how many old torts cases involve slipping on bananas.
Law school shouldn't be so much about challenging your mind...it should prepare you to be a competent attorney (and issue spotting is an integral component of that). Just my two cents.
Again, great post. SMN
Posted by: Nipper at April 26, 2005 10:43 AM
Steve, thanks for the comments.
The problem with learning issue spotting is that people are taught how to positively spot potential issues. But they are not taught how to see the negative space of what they do not understand.
When an otherwise competent lawyer assumes that they know all of the issues in a certain situation with which they are only slightly familiar, they should know where the bounds of their abilities lie.
It may be more dangerous to teach all lawyers a little bit of IP law, through which they assume they know far more than they actually do, and wind up doing more damage than if they were never exposed to it in the beginning and consulted an expert.
The beauty of this issue is that there are no silver bullet solutions.
Posted by: Russ Krajec at April 26, 2005 01:00 PM
Russ, nice post.
I would take issue with the "more dangerous to teach all lawyers a little bit of IP law" comment.
I think it is more dangerous to perpetuate the myth that the lawyer is all-knowing and that anyone wanting knowledge in a particular area should come to the expert. As an adjunct at the law school and the medical school here in town, I would say that the best students are those who are not going to go into IP or tech transfer. These "outsiders" tend to be more informed and more likely to look at an issue beyond the 'but how do I protect it' angle. The best IP lawyer I have ever known had no scientific training and no formal IP law training -- since they weren't shackled to preconceived notions, they were able to see all points of view.
As the originator of the rant, I do see value in having all formal educational options incorporating an IP component - not just law school. Unless there is a common understanding of the limits, scope and boundaries of the IP concepts in the general population, we will continue to have non-productive debates that have no merit in light of the facts or actual point of law.
Thanks again for riffing further on the ideas. You always throw some interesting comments into the mix.
Douglas
Posted by: Douglas Sorocco at April 26, 2005 01:45 PM
No doubt there is value in educating everyone about IP issues. One of my biggest complaints having worked in industry is that nobody knew how IP worked, other than it was good to have some patents on the resume.
From my perspective, I saw a bunch of managers fumble the whole patent process and did not have a clue when it came to the business aspects of IP.
The biggest bang for the buck might be to educate MBA students on IP law.
Posted by: Russ Krajec at April 26, 2005 04:41 PM