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.