Monday, July 7, 2014

Is Rote and Mindless Legal Practice Our Standard?

By Professor Eric Miller

This post originally appeared on Prawsblawg.

Last week, I suggested that the legal academy could do with providing a more concentrated study of legal materials to prepare students for practice. I actually think the case could be made stronger: for many, not only is knowledge of the legal materials in a given doctrinal area our core competence: it is the central obligation of the legal academy to provide competence in legal doctrinal knowledge.

I chose criminal law as my central example. But my point was supposed to apply more generally to torts, contracts, family law, and so on across the curriculum. In short, the argument is that concentration in a particular practice area should not simply mean a wider range of courses, it should primarily mean greater interaction with the extant doctrine.

My claim is that the substantive version of "practice ready" does not require the academy to match practice. I think that is especially the case if the bulk of practice involves the equivalent of agency capture, so that the lawyer becomes divorced from the clients, and instead becomes part of a quasi-bureaucracy. That may be a feature of production-line litigation, and the criminal law may be more prone to that style of litigation than other fields (although tort law shares some of these characteristics). But equipping lawyers to recognize complexity and co-option when it occurs should be part of our teaching mission. Where judges and co-counsel fail to see the issues.

Here's what I think is the most powerful pushback against the doctrinal knowledge thesis: most lawyers are engaged in low-level practice. Low-level practice is more social work than law. Accordingly, lawyers don't need legal knowledge, they need people skills. If they do need legal knowledge, either it's really simple legal knowledge—how to enter into a contract—or it's already in the system—filling in the blanks in an estate plan. Legal practice just is dumb: it's rote and repetitive and doesn't require much beyond the stuff you learn for the bar.

There are two problems with this vision of practice. The first is it makes lawyers redundant, quite literally. Online forms can replace the cut-and-paste document, and specialty courts can provide a forum for self-representation: the Benthamite ideal of a legal system without lawyers. The second is that this is an image of a broken practice. I go to a lawyer to fill out my estate plan, not because I couldn't do it myself, but because I value their expertise in working out what the consequences are for doing it one way rather than another. I expect the lawyer to be able to tell my why I need to do it this way, what my options are, and what the consequences might be if I choose one planning device rather than another. Even at the level of a solo practice, that requires a lot of legal knowledge.

In the criminal sphere, the Court in Argersinger made this point in 1972: "We are by no means convinced that [the] legal … questions involved in a case that actually leads to imprisonment even for a brief period are any less complex than when a person can be sent off for six months or more."

Understanding where and why legal issues become complex is what makes someone a good lawyer. It explains why lawyers are necessary, non-fungible, individuals.

Now it could be the case that lawyers are, in general, not necessary, and that people could just as well represent themselves. That's Jeremy Bentham's ideal legal system. But I don’t think that is the case. I was struck by something that Ted Cruz said in his New Yorker feature, concerning his briefing of the Medellín case: the major issue is how to frame the case in a way that wins (classic parliamentary debating move, by the way). He knew that under the standard framing of the case, he would lose. But by changing the framing, he made it much more likely that he would win. This is what good lawyers do (I've had the privilege of working with some pretty good ones fromtime to time). Some of that is by framing the facts in a way that is persuasive. But some of it is understanding which issues to focus upon. If you don’t know the issues, you can’t frame the law or the facts in a way that is persuasive.

Perhaps criminal law is the wrong place to emphasize the importance of a nuanced and deep understanding of the law. I’m not sure that’s true: if so, the Court was wrong in Argersinger. I guess the point is, dismissing whole areas of practice as ones in which knowing the elements is enough seems a little flippant: what might be useful is to work out which bits of a given practice area could bear more emphasis. Some of these areas are traditionally recognized as hard and focusing on them in depth makes for good lawyers. Some may be hidden, or novel, and so we could do better at thinking about what doctrine lawyers need to know to practice in, e.g., veteran’s courts. And it may be that the practice of law in some areas is poor, perhaps because of administrative-style capture problems, but those problems can be addressed in school and students taught to think about them and their responsibilities, rather than just accept them.

We might think that certain types of practice involve capture by the courtroom workgroup, so that the lawyers serve each other and the judge, and don’t worry about the interested of the parties (including the state). But if that’s what practice-ready means, then so much the worse for the legal profession. The "happier" version of this dire picture (described by Malcolm Feeley in "The Process is the Punishment") is that low-level lawyers are glorified social workers, helping their clients through a hostile system.

So I don’t think teaching to the Bar—the lowest common denominator—is making folks good lawyers. They may be ready for practice, but it is a practice that does not well serve the client or the profession. This is particularly true of practice in county and municipal courts. And even the best-intentioned of judges may not realize the legal problems their rulings entail. Judges need specialists to help guide them through the law. A good lawyer simply cannot expect the judge to know the law governing the case: the judge is a generalist, and has to be brought up to speed by the lawyer. In such circumstances, it’s enough to churn cases: the lawyer needs to explain the law, and the consequences of various decisions. Doctrinal knowledge is, for the most part, all the lawyer has at this point.

Legal knowledge is also a competitive advantage in the office. When a new attorney arrives who has studied lots and lots of cases above and beyond the classes (as a research assistant, on law review, and so on), they spot issues the less well read do not (I've been on the receiving end of that experience). They are immediately more valuable to the upper level-associate or the partner (or the judge): and that goes double for small firms as for big ones. That’s value added. Having only a Bar-level knowledge is value-subtracted, because it places lawyers at a competitive disadvantage to the better read and more thoughtful lawyer.

I recognize that, after a while, lawyers get up to speed and stay up to speed, in part because they specialize. But I’m not judging things by the third or fourth year associate who has already specialized: if practice-ready means something, it could mean that the first-year associate actually knows something about the doctrine and can add something to the case.

For better or worse (better, in my opinion) we are part of the academy, and are interested in producing not simply "skills" but knowledge. When challenged, we should double down on the idea that law schools produce knowledgable lawyers, and legal knowledge is not an elite skill, but a grassroots skill. It creates value in the office, the courtroom, and the conference room. And, as luck would have it, it's the value those of us with the time to study and think about the law have the greatest competence to impart.

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