Where’s the Proof?

When  Orin Kerr posted about a survey of George Washington Law School alumni, noting the elective course that proved most useful, the winner was astounding:

1. Evidence — 156 respondents (27%)
2. Administrative Law — 120 respondents (21%)
3. Corporations — 105 respondents (18%)

Evidence?  Was it possible that a person graduate law school and not take a course in evidence?

This was definitely a good time to pull out the “shocked and appalled” cliche.  What became of the core curriculum of law school that included the foundational subjects, torts, real property, contracts, criminal, constitutional, civil procedure?  And yes, evidence?

Nor is this some nightmarish nouveau experiment at GW, as I learned that quite a few law schools no longer require every student to take evidence.  How, I wondered, can any lawyer function without a working knowledge of relevance and materiality, hearsay, admissibility?

No matter what area of law one practices, it all eventually funnels into litigation when a dispute arises.  After all, what’s a written contract but a writing designed to spell out the terms of an agreement so that the respective rights and obligations of the parties can be determined by a court if there is a subsequent breach.  Otherwise, a handshake would be all we ever need to make a deal.  They are constructed with the appreciation of how one would prove their position in litigation based on, wait for it, evidence!

I was so disgusted at the notion that evidence was an elective that I twitted about it.  A response came that led me to understand the workings of a young lawyer’s mind.

This may not seem like much, but it’s the closest means available to get into the head of a law student.  And I wish I hadn’t.  The response, which apparently was not only obvious to its author, but so fundamentally sensible that it requires none of the usual explanatory details that young lawyer feel compelled to tell old guys because we’re so feeble-minded that we can’t grasp their lightning fast intelligence.

Is this really the limited understanding that new lawyers have of their profession?  Can they possible think so small and grasp so little?

The teaching of evidence in law school is not in anticipation of someone being a litigator.  Granted, it is absolutely required for a litigator, and especially for a trial lawyer, but that’s not where it ends.  Knowledge and understanding of evidence is a core competency for every niche (read that clearly, every niche) in the practice of law.  Yes, M&A.  Even real estate closings and wills. Multinational contracts. You name it, you still need to know evidence.  Why? Because every aspect of law entails a potential of dispute leading to litigation.  Any lawyer who doesn’t comprehend evidence cannot competently perform his function.

If nothing else, the concepts of relevance and materiality are basic to thinking like a lawyer.  If you don’t get them, you can’t think. You can’t reason. You can’t understand things the way a lawyer must.

But on a more practical level, the law student picks his elective courses in law school based upon his desire to practice a particular area of law when he grows up. This assumes his choices aren’t based on what courses are given in the morning, or don’t meet on Fridays. Let’s think the best of law students.  Let’s play out a scenario:

Law Student: I want to be an M&A lawyer, ’cause that’s where the big bucks are. I never plan to see the inside of deposition room where those nasty litigators are, and I will never, ever, walk into a courtroom.  So there’s no reason to take evidence.

Law student does well, top grades and law review, and graduates in 2009.  His diploma says Juris Doctor, with no mention of M&A. He passes the bar and his license says Attorney and Counselor at Law.  He sits in his parents’ basement waiting for that letter congratulating him on making $160,000 a year, and waits. And waits.

A year later, he’s run out of Cheetos and has mastered Mortal Kombat. His mother tells him he can’t sit there forever and must do something, so he goes to Solo Practice University where he’s taught how to market himself as a corporate litigation expert by fudging a website and claiming to be experienced, aggressive and caring even though the totality of his experience was sitting in the basement reviewing documents during a summer internship.

Things don’t always work out the way law students anticipate.  When they don’t, the law student, now lawyer, who “specialized” in school to the exclusion of core subjects lacks the core competency to be a lawyer, to engage in any aspect of law other than the one they desired as a law student.  Three years of working toward being an M&A lawyer, but they aren’t competent to be a lawyer. It’s a disaster, for them as well as anyone who might make the unfortunate choice of retaining or hiring them. They lack basic lawyering skills.

Tweak the scenario a bit, where the student finds that M&A is terminally boring, but IP law is thrilling and hot.  But he doesn’t know evidence, and is incompetent to represent anyone.  Tweak it again, where the student becomes the M&A lawyer of his dreams, but a pal says to him, “say, you’re a lawyer, I have this situation . . . ” and the lawyer can’t provide a basic intelligent response, of the sort that any first year lawyer should be able to provide, because he never took evidence.

Is it conceivable that one might manage to muddle through an entire legal career without ever needing to know evidence?  I don’t believe so, since it’s part of the ability to think like a lawyer, but it’s possible.  Compare the likelihood, however, with the likelihood that he will need a basic working knowledge of evidence throughout his career, to practice his profession, to be capable of spreading out within his profession, to not be so removed from the basic knowledge of his profession that he can’t competently answer something as simple as a cocktail party question.

Dean, how did you let this happen that evidence is not part of your mandatory curriculum? What are you unleashing on society?  No person should ever graduate law school without having taken evidence. No one.

26 thoughts on “Where’s the Proof?

  1. Dave

    I had no intention of litigating. I still took evidence. I had no intention of doing estate work. I still took Trusts & Estates. They were both fun and valuable courses–even if they don’t directly impact my practice areas. Students that don’t take them are missing out, big time. By that same token, give how many of us become transactional lawyers, Corporations should be required, too.

    I used to think the 3yr law program was a waste and that it should be condensed to 2, like an MBA. I still think it’s largely a waste– but that it should be overhauled with a better core curriculum, and expanded to 4yrs to include mandatory clinic work.

  2. SHG

    That students should take core courses seems obvious. Why law schools don’t require them to do so is a mystery.  What’s the alternative to evidence, “Progressive Theories of Due Process at the Ministry of Magic?”

  3. REvers

    This sort of makes me wonder what other core classes have been shifted over to the elective column. But somehow I think I’d really be happier if I never found out.

  4. JP

    I recently graduated from law school and took the July bar exam. I took evidence, but I plan on practicing criminal defense and anticipate being in court. Evidence was not a required course at my law school either.

    What do you think of the fact that evidence is on the bar exam? It’s an MBE subject and, at least here in California (and I imagine nearly all states), it’s an essay subject also. So, even those who did not take the subject in law school are forced to learn it (to some degree) to pass the bar.

    Maybe law schools are using this to justify not including evidence as a required course: that, even if we don’t force students to learn evidence, they’ll have to learn it for the bar exam anyway.

  5. SHG

    Why bother with law school if everything you know was learned for the MBE? 

    Where’d ya study law?


  6. Thomas Stephenson

    Vanderbilt didn’t require evidence, either. But basically everyone took it anyway.

    Since evidence IS one of the MBE subjects, you’d think somebody wouldn’t be able to get a law license without being kinda-sorta competent in the rules of evidence. You’d think, anyway.

  7. Shawn McManus

    Defense: Objection, your honor. The prosecution is engaging in conjecture.

    Judge: Sustained. Greenfield, where’s your proof?

  8. Greg McNeal

    Hi Scott,

    As a follow up to our Twitter exchange: GW is not unique in making Evidence an elective. Starting sometime in the mid-90s law schools moved away from requiring very many courses other than those in the 1st year curriculum, and as far back as 1986 Evidence was an elective at 54% of law schools.

    According to the ABA Curriculum Committee Study 1992-2002 (Set to be updated in 2012) (http://www.americanbar.org/content/dam/aba/migrated/legaled/publications/curriculumsurvey/Curriculum_Survey.pdf), in the upper level curriculum the most commonly required upper courses were (with % of schools indicated parenthetically):

    ConLaw (52.8%)
    Evidence (46.4%)
    BusAssoc (21.5%)
    FedTax (16.9%)
    CrimPro (14.3%)
    Trusts&Estates (13.8%)
    CommercialLaw (11%)
    Trial Practice (7.8%)

    In 1986 Evidence was required by 46% of schools the same as in 2002. BA dropped from 28% to 21.5%, T&E dropped from 17 to 14%, and Tax dropped from 31% to 16.9%. I expect in the 2012 report we will see even fewer schools requiring courses.

    In the report there was little statistical evidence that the curricular changes were driven by the bar exam. According to the report, other factors could have been equally important, specifically mentioned were:”faculty resources, pedagogical beliefs, specialization or niche interests, and faculty politics” as equally influential. I imagine that many will jump all over the faculty politics point, however my sense is that it explains a lot less than one would think. Faculty at most schools are hired with an expectation they will teach certain subjects, thus most don’t really have any skin in the game when it comes to changing the curriculum…save for when you’re changing it to make them do something they don’t want to do.

    Separately, at Pepperdine we have a very heavy upper-level required curriculum, and I would guess we are different than 90% of law schools and certainly unique amongst the “Top 100” in the number of courses we require. For a variety of institution specific reasons, I’m not convinced it is to the benefit of all of our students. The courses we require are (http://law.pepperdine.edu/academics/juris-doctor/):

    Wills and Trusts
    Constitutional Structure
    Constitutional Law–Individual Rights and Liberties
    Federal Income Taxation
    Criminal Procedure
    and a Professional Responsibility course* (*In addition to the general PR course we also offer specialty PR courses. For example, I teach Ethical Criminal Practice, which focuses on issues unique to prosecutors and defenders).

    Depending on who you ask, any one of those could be justified as a requirement for preparing future lawyers. But by that measure one should also include Admin Law, and courses in skills development such as Client Counseling, Negotiation, Pre-Trial Practice, and advanced Legal Writing courses (in drafting for example). I hope this helps. -GM

    [Ed. Note: As I specifically asked Greg to post this comment explaining how we came to this sorry state, he gets to post links. I didn’t ask you, so you don’t.]

  9. Antonin I. Pribetic

    Having read the J.D. program requirements at my alma mater, I can only shake my head in dismay. For upper year courses, Osgoode Hall Law School now offers 125 courses and seminars and offers 4 curricular streams and/or participating in a moot, clinical or intensive program, international exchange, etc. The only upper year curriculum stream that requires taking an Evidence course is “Litigation, Dispute Resolution, and the Administration of Justice”. Presumably, if one takes an intensive course in Criminal Law, then criminal law and procedure is mandatory. While some other Canadian law schools still require students to take Evidence in upper year, I note that University of Toronto Law School offers even more elective courses than Osgoode Hall (180) and Evidence is also not a compulsory course. Sheesh.

  10. SHG

    As we’re licensed as generalists, and given a monopoly to hold ourselves out to the public as having the basic competencies to provide legal representation, and the public is supposedly assured that we would not be allowed to practice law if we didn’t possess the basic competencies, I find this turn of events reprehensible.

    While there are arguments at the edge of what substantive, procedural and skills lawyers must possess to be entitled to practice, course such as evidence and con law aren’t even close.  As for basic Professional Responsibility, while my understanding of how it’s being taught is that it’s pathetically tepid and vague, it is also an absolute necessity.

    I fail to see what pedagogical purpose is served by sending students out into the world without possession of basic knowledge of law.  This smells of the politically correct trend to allow students to act as mature decision-makers, entitled to fashion a curriculum that suits their interests, dreams and desires.  And allows them to leave law school lacking the basic knowledge of the profession.

  11. Jordan

    I think it just highlights how legal academia and the practice of law keep getting further apart. Evidence is something every lawyer should have a grasp on. The people coming up with the law school curriculum haven’t practiced in so long that they have no idea what’s important, what’s trending, and what information new lawyers should be equipped with.

    That said, we should all be worried that you can graduate law school, pass the bar, and then take on clients not knowing even the most basic aspects of law. No trial experience, no discovery experience, no practice management, and training in ethics that was far more theoretical than useful. “Facts” are handed to law students for examinations, while real lawyers spend a great deal of time investigating and developing facts. Now with the lack of jobs, more and more young lawyers are hanging a shingle early in their career with training that I view as wholly inadequate.

    Personally, I think that is what has diminished the quality of the bar more than anything — we’re producing too many young lawyers who don’t know the trade, even though they just paid a school a good bit of money for “legal education.”

  12. SHG

    I think you’re right.  And I feel like a moron, as I had no clue this was happening. Had it not been for Orin’s post, I never would have believed that anyone could go to law school and not take evidence and conlaw.  It’s absurd.

  13. Andrew

    I’m not a lawyer. Say I need to hire a lawyer. I suppose I could ask the prospective attorney whether he or she took evidence in law school, however long ago that was. I could ask about the lawyer’s understanding of evidence. But, I never would have thought it was a problem. Does ABA think potential clients are going to think it was a problem? That the lawyer they are about to hire may or may not know how to conduct a trial or draw up a will or contract that can be used in a court proceeding?

    Maybe there’s a use for the attorney profile side of Avvo after all, if there was a checklist of courses the lawyer took in law school and how (specifically) the lawyer knows about any subjects whose courses were not taken. But, I’m being unrealistic. I guess Joe Schmoe is just supposed to do his own due diligence when hiring a lawyer even though he has no idea what to look for.

  14. GK

    I think he means to say that BARBRI will teach you the subject.

    Yes, I studied law at BARBRI.

    The 3 years of Socratic drivel prior to BARBRI, with the exception of a few classes, were simply a usess waste of time, but a prerequisite to take the bar. The 4 years of “broad liberal education” before that were simply a prerequisite to get into law school.

    Legal education begins with BARBRI and continues with your first legal job.

  15. GK

    I am not sure that every niche needs to know evidence. By evidence, I mean the rules to allow or exclude trial testimony or documents based on foundation, relevance, hearsay, conclusion of law, and the like.

    As a practical matter, how would this matter to a contract negotiation attorney? All drafts of prior contracts, unless privileged, would probably come in as business records, but it would be the trial lawyers job to lay proper foundation for them. Short of keeping the contract drafts “in the ordinary course of business”, I don’t know what else a contract negotiation attorney needs to know about the rules of evidence.

    Legal principles such as “the signed contract signifies the full agreement of the parties and overrides prior versions of the contract and oral representations” is a principle of contract law, not evidence law.

    Privilege law on the other hand, should be taught to all lawyers; taught in a real way, not a socratic-casebook way. In the context of a criminal defendant wispering to his lawyer in a jail cell, the law of attorney client privilege is simple and obvious, and is taught by law schools. In the context of a large transaction or litigation with numerous drafts of multiple documents going back and forth, it is not obvious what is privileged and when it is inadvertently waived. All lawyers need to know this, yet I am aware of no law schools which teach a comprehensive course on privilege.

  16. Dave

    Almost. At my school, it was “Legislative Process”. Which was not even as useful as one class session of Evidence.

  17. Gavin

    I just finished evidence last semester (required). The attorney I clerk for told me the two most important classes in law school are evidence and civil procedure. Will civ pro be optional next?

  18. Ted F

    I like to tell the story of my jury service in 2000. One attorney made an incorrect hearsay objection, the other attorney failed to make the correct rejoinder, and the judge made the wrong ruling, and it suddenly occurred to me that I was the only person in the room that understood the hearsay rule. And that none of the legal professionals in the room were going hungry notwithstanding their ignorance.

  19. GK

    I bet it was some kind of civil trial. In my experience, criminal lawyers (prosecution or defense) can apply the rules of evidence in their sleep.

  20. Titus

    Thank you. I was flabbergasted to learn that Evidence was not a required course at my top-25 law school either. It was always a packed class, but nobody *had* to take it. As someone observed, “going to law school and not taking evidence is a bit like going to med school and not taking surgery: it’s what we do.”

    Of course, my school has also now made Federal Income Tax an elective also and lets 1Ls take electives (instead of what, torts?). It’s a mess.

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