Its bad enough that the third year of law school is filled with such elective educational opportunities as The Law of Pogo Sticks and Animal Husbandry Law. Hey, you never know when this knowledge will come in handy.
For non-lawyers, bear in mind that every person with a license to practice law appears, outwardly at least, to have the minimum competence to represent people in any practice area. We licensed as generalists, regardless of what we actually practice, and held out to the public, with the state’s seal of approval as capable serving as a lawyer. Reality be damned.
But at least in the the first and second year, schools ram the basics down students’ throats so they have at least a passing familiarity with basic legal concepts. Or maybe not.
At PrawfsBlawg, Chad Oldfather questions whether he should tailor a section of his required evidence course for non-litigators.
In addition to teaching first-year courses, I also teach Evidence. At Marquette, as I’m sure is the case at many schools, it’s a required course. That, of course, means that many of the students have no intention of ever setting foot in a courtroom. My colleagues and I have kicked around the idea of tailoring one section to those students. That section might, for example, devote more time to privileges and less time to things like the Confrontation Clause, and would otherwise serve to highlight some of the key evidence-related issues that non-litigators need to be mindful of.
Zooks. My gut was that students at year 2 may have no intention of ever setting foot in a courtroom, but then things change when the job they get requires otherwise, or there’s no job to be had and they decide to strike out on their own. What then? Plans change. Needs change. If they have a ticket, they’re supposed to know the deal.
The first comment to the post, sadly anonymous, was a screamer.
I take it that this is a sincere question, but I find it hilarious all the same. Tailoring an Evidence class to meet the “needs” of people who think, as second-year students, that they won’t ever set “foot in a courtroom”? How thoughtful! But why not do that for every class? It could be like college all over, though instead of “Physics for Poets” (or whatever), we could have “Patents for Public Defenders” and “Antitrust for Aspiring Academics.” The possibilities are truly endless. And even better, no one would ever have to master material they didn’t believe, as nascent attorneys, they’d use. Perfect!
You’ve got to love Patents for Public Defenders. What a perfect means of adapting the law school curriculum to meet the needs of today’s students, requiring nothing more of them than what they want to learn. And this, coming not from students who feel that lawprofs are already disdainful of their rights, but from a lawprof who feels that teaching basic law is too onerous a burden.
Oldfather (great name, no?) responds and explains:
The idea is not, of course, to overlook any of the fundamentals of evidence law. But consider: there are some schools where Evidence isn’t a required course at all, there are many ways to structure and create areas of emphasis within an Evidence course without assigning a label to it (e.g, some of us might do lots of Confrontation Clause, others of it none of it), and students make all sorts of choices about courses to take that may not be completely informed by a strong sense of what they’ll end up doing. So it hardly seems silly to say – to take the idea even one step further – here’s an Evidence section that will emphasize things likely to be of value to criminal litigators, here’s one that will do it for civil litigators, and here’s another that will do it for those who deem themselves unlikely to set foot in a courtroom.
Curiously, the best argument for limiting a broad and basic course is that some schools don’t bother with it at all, and some lawprofs already teach it poorly. (Aside: It would help law firms if there was a list of schools that neglected basic legal education, so they could make sure to never hire one of their graduates.} Since students already leave law school having never used the word hearsay properly, who not institutionalize the failure? Oldfather’s retort concludes with the obligatory whine about the harshness of the criticism.
Calling it hilarious strikes me as more than a little strong.
Of course it does, Chad,since you’re proposing the idea as a solid concept, and anon thinks it’s a very bad idea. There are far worse things he could have said, and hilarious doesn’t seem particularly strong at all to me. But then, we all have different sensibilities, and no description (hyperbolic or otherwise) is going to receive universal approval. Smart guys like lawprofs ought to realize that. And toughen up enough to hear quasi-strong words without getting all teary eyed.
The underlying assumption, that law students’ best laid plans for their future should dictate what they learn in law school, is both wrong and dangerous. While some will go on to live out their well-planned careers, many won’t and will find themselves in places they never dreamed possible, like courtrooms. Will the client at their side be okay when they learn that their Evidence class at Marquette didn’t cover the Confrontation Clause?
My experience in discussing litigation issues with in-house counsel is that they are often at a significant deficit already in understanding that nuances that distinguish a winning tactic from a loser because of their superficial understanding of how things work. These are lawyers who never intended to step foot in a courtroom, but their careers aren’t wholly dedicated to transactional work and they are expected to have a functional knowledge of litigation in order to safeguard their employer’s interests and oversee outside counsel’s efforts. It often requires remedial evidence, or statutory construction, or ConLaw, to help them to understand why some tactics work and others are nuts.
But for the public, those who believe that anyone with a license to practice law is as good as any other, or from a slightly more sophisticated perspective, is at least minimally competent to accept the representation of a person, the failure to teach the basics in law school turns the license into a lie.
No one should come out of law school with less than a functional knowledge of the basic areas of law. And if the saving argument is that law schools no longer require students to take basic courses like Evidence, then how can they justify cashing these kids’ tuition loan payment checks at all?