Many attorneys in practice have wished that their newly hired law school graduates had more training in what attorneys actually do. Traditionally, law school has offered courses that were mostly grounded in the major doctrinal areas of law. While this foundation is certainly important, there has long been a gap between law school and the profession. But this is starting to change.
There has been a broad ranging discussion going on for several years in the legal academy about how to provide a more balanced curriculum to our students. This discussion – which had been simmering for many years – received an impetus from a critical report from The Carnegie Foundation for the Advancement of Teaching in 2007. The Carnegie Report was soon followed by the econalypse of 2008, which has had a profound impact on the economics of the legal profession.
The Carnegie Report mostly commended legal education for the work it does in the first year of law school, noting that the critical analytical skill lawyers must have is formed there. But when law school continues to use the “doctrine focused” method of teaching in the second and third year it loses the opportunity to teach critical lawyering skills and to help students form their professional identity as ethical lawyers. The Report advocates a movement toward teaching what it calls the three “apprenticeships” – analysis, skills, and identity – in an integrated fashion, i.e., all together in each course.
When I graduated from law school, I found myself less prepared than I expected to be for life in a large litigation firm in New York City. I certainly knew the basic doctrines and rules that one learns in Civil Procedure, but I had never drafted a set of interrogatories, much less answered a set or handled a document review. I learned all of that at the expense of the firm’s clients, which was a fairly common practice at the time. Today, clients have less tolerance for paying for the training of first year associates.
When I moved to the Rothgerber firm Denver in 1990, I contacted the University of Denver’s law school to see if they would be interested in having someone teach an advanced course in Discovery law. It turned out they did, and I served as an adjunct professor for six years. In those years, I developed a course that was a “Carnegie integrated course” before such a thing existed. It integrated the doctrine, skills, and ethical identity apprenticeships in myriad ways throughout the course.
Since I came to teach at DU full-time eight years ago, I have continued to refine the course, and I have now it taught almost a dozen times. I also have recently authored a hybrid textbook (with print and online components) to support this different method of teaching.
In the course, students learn the Federal Rules of Civil Procedure that govern civil discovery law, and we study important cases that interpret those rules. Throughout, the students are not just learning but also doing. That is, they are working on a litigation, assigned to represent a party, and assigned to an opposing counsel (who is another student in the course). In the mock litigation, the students are only given part of the relevant information, so at least they can get started. The rest of the semester, they use the discovery rules to learn the rest of what they need to know – just like in a real litigation. So, we learn about Rule 33 and how it operates in practice, and then the students prepare a set of interrogatories and serve it on their opposing counsel. In the next class, we learn about answering interrogatories (which is mostly about privileges and objections), and then the students answer the set that they received from their opposing counsel. And so on throughout the semester. The students also conduct a deposition, and at the end of the course, they settle the case and prepare a settlement agreement. In the deposition, student court reporters from the Denver Academy of Court Reporting take down the testimony and produce a transcript for each student to review. Students take, defend and act as a witness in the deposition; that way they experience it from all vantage points.
I created this course so that at least those students who had taken it would never enter their first legal job (as I did) with little idea of how the rules of civil procedure actually apply in practice. I discovered to my immense joy that it is massively more fun to teach in this way. And students are highly engaged: if you have heard stories about students tuning out in class to check their email or Facebook page (or perhaps you did that occasionally in law school?), I can tell you that does not happen in this class – student engagement is very high. A teacher’s greatest joy is to teach engaged and motivated students.
While there are pockets of this kind of teaching going on around the country – more commonly in the last few years – it is still fairly isolated. A new initiative of the Institute for the Advancement of the American Legal System at DU – it is called “Educating Tomorrow’s Lawyers” – is aimed at encouraging this kind of integrated teaching at law schools across the country. It will, over time, contain teaching portfolios from many law professors who teach in this “Carnegie integrated” way, so that other professors can learn and incorporate these techniques as they see fit in their own courses. There are three teaching portfolios already posted on its new website, including one explaining the Discovery course I teach in more detail. If you would like to know more about this effort, please visit the website – http://educatingtomorrowslawyers.du.edu
© 2011 David Thomson – all rights reserved