It’s not like I look for things to post about that involve lawprof Michael O’Hear, but he keeps coming up with stuff that pique my interest.  This time he posts about giving law school exams orally rather than in writing over at PrawfsBlawg.  Plus, how could I resist a post title like this?

O’Hear’s basic question is a matter of fundamental fairness:

I’ve never seen a good principled reason why the former students should be systematically disadvantaged relative to the latter at exam time. Ideally, I think that students whose strengths lie in oral expression should have an equal opportunity to demonstrate their mastery of course content in a medium in which they are comfortable.

By former, he refers to those who are more orally adept, while latter are the writers.  He then launches into a variety of issues to address, such as anonymity (remember “they’ve given you a number and taken ‘way your name” from Secret Agent Man?) and reaction to non-verbal cues during oral examinations.  The written exam would deny the student the ability to watch his lawprofs’ smile or frown as he answers questions, thus allowing him to shimmy and shake in accordance with the feedback.

But, as a practical fellow, I have an issue with O’Hear’s issue.  Lawyers must be skilled in writing and oral argument.  These are both practical skills that we use daily, and often without knowing which will be commanded by a court at any given moment.  It’s not like we can tell the judge who says, “get me a brief by tomorrow morning,” that we reluctantly decline because we favor arguing the point orally.  The same is true when the judge asks, “Why?”  She wants an answer now, and is not likely to respond well when we say, “But I’d much rather write you a memo on the issue, your Honor.”

It’s this kind of coddling by lawprofs to the wants and desires of law students that is giving rise to their confusion when they finally get down to the work of being a lawyer.  If lawprofs send the message that they have a choice as to what skillset they will be required to use when put to the test as a lawyer, they are going to be sorely disappointed by judges who are less accommodating.  Worse yet, their clients are going to be downright miserable when they fail to fulfill their purpose in court because they lack the facility to produce.  Nobody wants to hear that the former students, now lawyers, can’t write and argue orally because law school let them slip through without developing both skills.

I completely understand that law students may think it unfair that they are forced to be tested on substantive law via their weaker skill.  Law students think everything is unfair.  They wear whining like a fashion accessory.  But the practice of law demands the ability to make a point and persuade, whether it be in writing or by oral argument.  We all know this, right?  So let’s stop playing with students’ heads by giving them the impression that they have a choice in the matter and make them develop all the skills needed to practice law.  Their future clients will thank you for it.  Eventually, so will they.