Lawyering Skills Research Articles

Institutionalizing a Social Justice Mission for Clinical Legal Education: Cross-National Currents from India and the United States

Clinical law teachers around the world have been debating the future of a social justice mission for clinical legal education at the same time that many clinical programs have increased their emphasis on professional skills training. This paper examines a unique opportunity in India today to merge these sometimes competing goals by institutionalizing social justice-based clinical legal education at all Indian law schools. It also traces certain influences the US clinical movement has had on this development. Over the past forty years, clinical legal education has struggled over where to place its primary emphasis: providing students with the skills training needed to improve lawyer competence or engaging them in supervised high-quality public service. Although public service remains an important part of clinical legal education in both India and the US, professional skills training has begun to overtake social justice as the defining mission of clinical legal education - particularly in the US. The social justice mission remains comparatively strong in India in part because there has been a long-standing effort to involve law schools in a national legal aid scheme, but the goal of establishing law school-based legal aid programs at the national level remains largely unachieved. The stage is set now in India to implement a social justice-based clinical curriculum that would give formal sanction to the effort to link legal aid and legal education reform, and would move India beyond clinical legal education's traditional dilemma in a way that could prove instructive for the rest of the world. The Bar Council of India has mandated a set of four practical papers that require the teaching of a variety of lawyering skills and a certain level of legal aid work. Moreover, the Law Commission of India recently endorsed the idea of introducing a professional skills curriculum drawing on an American Bar Association task force report (the MacCrate Report). A critical look at the MacCrate Report and its relevance to Indian legal education suggests the importance of different values and additional skills needed to secure these values in a meaningful way. A few examples of current clinical projects in India demonstrate how the four practical papers mandated by the Bar Council can be used to instill in law students, and thus in new lawyers, those fundamental values and skills needed to transform the legal profession in India. These examples also show that, at least for the time being, this can be achieved without major changes in the present setup of law schools and without significant additional financial support from either government or private organizations. But more is needed to fully institutionalize social justice-based clinical legal education in India and for Indian society to obtain the benefits of a reformed legal profession, including financial and intellectual support from the bench, the bar, and the government.

The Ethical Health Lawyer

Health care may be the most regulated industry in the United States, at least in terms of the volume of State and Federal laws and regulations that affect business practices. Lawyers who counsel health care clients often face a dilemma: is the client seeing legitimate advice about the legal limitations on his or her conduct, or is the client seeking to use the lawyer's skills to evade the law? The history of health care fraud prosecutions involving lawyers and other professional advisors in recent years makes this an issue of more than academic interest. The well publicized case of U.S. v. Anderson, in which health care counsel faced charges as co-defendants for purported kickback violations, the recent prosecution of Ernst & Young for allegedly aiding Medicare fraud on behalf of client hospitals, and the recent indictment and conviction of an in-house lawyer in a national durable medical equipment fraud case, make clear that the wrongful use of legal advice by health care clients can lead to significant criminal and civil charges against attorneys.

Clinical legal education in Lesotho: Some reflections on experiences in teaching lawyering skills*

Clinical legal education in Lesotho: Some reflections on experiences in teaching lawyering skills*

Taking Lawyering Skills Training Seriously

The lawyering skills so thoroughly explored in Gary Bellow and Bea Moulton's The Lawyering Process continue to be a major focus of clinical legal education. Distinguishing between case-centered and skill-centered clinical programs, this essay explores whether clinical courses provide a sufficient foundation for students to the lawyering skills they are exposed to in law school to the practice of law. Drawing on the recent work of educational researchers and medical school educators, the essay identifies structural attributes that enhance the likelihood of promoting lawyering skills transfer. The essay argues that case-centered clinical programs tend to lack these attributes and identifies possible structural changes that can increase the likelihood that students will transfer lawyering skills learing from law school to practice.

The MacCrate Report and Education in Law Firm Management and the Use of Technology in Law Firms

Beginning in the 1950's reformers proposed law school courses and clinics that would teach practical skills through individualized instruction, simulations, and clinical experiences. This reform effort was reinforced by a series of task force studies and reports from various committees of the American Bar Association, culminating in the 1992 MacCrate Report. The MacCrate Task Force identified ten lawyering skills and four professional values essential to lawyers. The ninth fundamental skill was entitled Organization and Management of Legal Work. This paper measures the efforts of law schools to promote this skill. A survey of law school catalogs for 2001 shows only about 57 schools listing a course in Law Practice Management, still less than one third of the accredited law schools. Enrollment is available for no more than one and one half per cent of the students able to take the courses. Similarly, the literature of law practice management does not seem to have grown as a result of the MacCrate Report. The increase in articles whose subject is law practice management trails the general increase in legal articles published in 1990-1991 and 2000-2001. The most promising developments in law schools relate to the increased reliance on computers and other technology in education, which can translate into the law firm setting to increase productivity, increase customer loyalty, and support the effectiveness of professionals in their practices. The initiator of this response is not the MacCrate Report itself, but the market for legal and professional services.

The Trial Lawyer's Art (review)

Reviewed by: The Trial Lawyer's Art James Deutsch The Trial Lawyer's Art. By Sam Schrager. (Philadelphia: Temple University Press, 1999. Pp. xiii + 245, 15 black-and-white photographs, notes, bibliography, index.) Readers of this journal may often face the challenge of proving to the public that folklore is not found exclusively in rural or exotic areas, among elderly rustics with little formal education. That folklore is central to the lives of some of the most highly educated members of society may shock certain sophisticates who fail to see the folk among them. Such was the case in the summer of 1986, when professional trial lawyers in suits and ties became one of the leading exhibits in the annual Festival of American Folklife (now [End Page 497] known as the Smithsonian Folklife Festival) in Washington, D.C. Placed on the National Mall next to wood carvers from New Mexico and moonshiners from Tennessee, the participants in the American Trial Lawyers Program successfully demonstrated to an often skeptical public that law-school graduates and distinguished members of the Bar may also be active bearers of tradition. Sam Schrager, the curator of this 1986 Folklife Festival program, has expanded his original project to produce The Trial Lawyer's Art, an insightful and lucid examination of contemporary occupational folklore. Based in part on the tapes and transcripts from the 1986 program, as well as ethnographic research conducted in the criminal courtrooms of Philadelphia, Schrager makes it clear that trial lawyers-like coal miners, lumberjacks, stone carvers, firefighters, and cowboys-constitute an occupational folk group in every meaning of the term. Defined as "the small subset of criminal and civil attorneys who regularly argue cases before juries" (p. 6), trial lawyers directly compete, often one against another, in performance narratives and logical analysis, until a discerning audience of 12 renders a final verdict. The best trial lawyers, like the legendary Cecil B. Moore of Philadelphia, regard the courtroom as not just a stage on which to perform but a primal field of combat that must be controlled and dominated at all costs. One of the secrets of Moore's success was to "make the jury forget the defendant and try the two lawyers" (p. 94). Both the performative and combative skills of trial lawyers are indelibly captured in Schrager's study. His first two chapters closely examine the oratory and persuasive skills of Roger King, a district attorney for the Commonwealth of Pennsylvania. With meticulous transcriptions that illustrate both the poetics and the formulas of courtroom oratory, Schrager demonstrates that King and other luminaries have a formidable repertoire of formulaic expressions, rhythmic repetitions and signifiers, and distinctive body movements and gestures that can be artfully employed to sway a jury. The book's third chapter explores the "well-honed folk identities" that individual trial lawyers from around the country have constructed over time (p. 103), and chapter 4 gathers together an assortment of "war stories"-told with eloquence, pathos, and self-deprecating wit-that further illustrate the maxim that "nothing lawyers do is original. It's a tradition" (p. 114). Consequently, for members of this occupational folk group, the trial itself is a collective ritual in which their artfully competitive performances are carefully crafted to provide "the appearance of truth" (p. 5). But our system of justice seeks more than simple appearances, and the author, to his credit, concludes by assessing the consequences and moral responsibilities of the trial lawyer's art. Granting that the best lawyers with the best resources have the best chance of winning, Schrager calls for greater parity (in terms of legal skills and resources) between the two sides in order to achieve the fairest verdict possible. That this solution seems far too idealistic for the cutthroat competitors described elsewhere in this volume is no reflection on Schrager. Like all folk groups, occupational or otherwise, trial lawyers will try to maintain the efficacy of their cultural practices in part by resisting the efforts of reformers to elevate and enlighten the (so-called) debased elements of the folk. One might even swear that is the truth, the whole truth, and nothing but the truth. James Deutsch George Washington University Copyright...

The 2001 Goff Lecture: The Lawyer's Duty to Arbitrate in Good Faith

IT IS a great honour to be asked to deliver this Goff lecture, not only because it is a privilege to follow in the footsteps of so many distinguished lecturers but also because this lecture bears the name of one of the most respected English jurists of my professional lifetime. There are many stories of Robert Goff: he was one of the greatest advocates I ever heard; he was a creative scholar; he was the most courteous judge; he is now a distinguished arbitrator; but above all else, he was and remains the epitome of fairness and human decency. To listen to his advocate's argument even in the most contentious case provoked no sense of ill-will, just despair at the power of his legal logic; and to lose a case before him as judge left only a strong sense of his intellectual honesty. To Lord Goff, the title of this lecture might seem so self-evident as to preclude any serious debate. Sadly, however, the debate is provoked by growing difficulties which cause the practice of transnational arbitration to fall short of his ideals. For the parties to an international commercial arbitration, justice should be the paramount objective; and procedural fairness by their legal representatives is subsumed in that single objective. But the practice of international arbitration is not so simple, certainly not for the parties professional lawyers coming from different jurisdictions to a still different place of arbitration. Lawyers are not musicians or ballet dancers: a lawyer's training, skills and ethics are still essentially rooted in a national legal system; and it is far from clear how and to what extent national professional rules apply abroad to the transnational lawyer in the international arbitration process. For example, for a European Union lawyer practising abroad in a host Member State, Article …

How to Push an Elephant Through a Straw: Using Wireless Technology in a Web-enhanced Skills Program

The title of this article derives from the expression used by programmers and developers to explain problems of limited network bandwidth connection speeds. The ever-increasing demand by growing numbers of web users for bandwidth-intensive media is outstripping the Internet's capacity to deliver information. In this case, the 'Elephant' is the massive online information system, including text, graphics, audio, and video, and the 'Straw' is the low bandwidth through which only a fixed volume can move. Generally, compression of data is the way to push that elephant through the straw. Included among those users competing for bandwidth are law schools. In the last decade, technology has begun to occupy a more pivotal role in American legal education. As law firms increase their use of technology in response to client demand, they must hire associates who graduate from law school prepared for high-technology law practice. The resulting pressure on law schools to incorporate technology into class materials and instruction has arisen contemporaneously with pressure to increase the teaching of lawyering skills. A tension arises, however, between the obligation of legal educators to expose students to emerging technologies and the additional burdens thereby imposed upon law schools to add lawyering skills to the the existing curriculum without displacing needed doctrinal and analytical instruction. The authors are faculty members and administrators at Nova Southeastern University (NSU) Shepard Broad Law Center, which was named "Most Wired Law School" by National Jurist in 1998 and 2001. The centrepiece of legal education at NSU is a high technology Lawyering Skills and Values Program that employs wireless classrooms and web-enhanced education. Delivering a lawyering skills course through technology is not unlike pushing an elephant through a straw. The challenge is to accomplish pedagogical goals without compressing either the curriculum or the social processes of teaching and learning. This article describes and evaluates the authors' practical experiences planning, implementing, and teaching a Lawyering Skills course to first-year students in a wireless classroom environment.

Inviting Visions: Role Plays About Community Economic Development

Role play simulation can be a valuable technique to employ, whether teaching lawyering skills or substantive legal doctrine, or guiding community service. Role plays immerse participants in a particular context in which they can plan, perform and see reactions, elicit feedback and self critique. This chapter discusses the design and construction of role plays, also called simulations, to use in a variety of settings as a teaching and learning technique. It also touches briefly on debriefing student performances in role plays. Though there are references to 'teachers' and 'students' in this chapter, the technique is also useful as a planning device with a community group and other collaborators. Community economic development is a relatively novel context for role play in law schools, where the traditional focus on litigation has made moot court prevalent. The need for interdisciplinary collaboration is particularly clear in economic development work. Role play involving planning with community groups and their technical advisers can be very useful. It can help students cultivate good communication and planning practices. This article invites law teachers, students and communities to create role plays to strengthen skills and imagination to achieve community economic development. As a teacher new to Bangladesh and who has taught in the USA, I urge collaboration among law teachers to undertake this visionary work.

Editorial: Cerebral Palsy—the International Consensus Statement

When AVMA was founded in 1982, few cases of cerebral palsy were litigated; those which were invariably lost. The reason for both was the lack ofskillson the part of claimant lawyers. As these skills developed, both the number of cases and the success rate increased. Towards the end of the 1980s, claimants were having so much success that the obstetricians began to panic. It became clear that they, or their legal advisors, were developing two methods of counteracting what they saw as a near epidemic and a threat to the profession itself The first was the concept ofdefensive medicine; notice was given that, because of the fear of litigation, obstetricians were carrying out unnecessary Caesarean sections, to the detriment ofmothers and to the health service. The second method was to move the goal posts. Until then, the main issue in the cerebral palsy litigation had been that ofnegligence. The defendants were finding that the new skills of the claimants' lawyers, together with the support ofexpert witnesses who had become far more experienced and were prepared to criticize their colleagues when their practice was clearly not acceptable, meant that negligence had become far easier to prove. As a result, the issue ofcausation clearly a far more complex one began to be raised more frequently. So much so that in recent years, most cerebral palsy actions are disputed, not always on negligence, but often solely on causation. Around that time, a number of learned scientific articles began to appear in the medical literature, particularly in the United States, showing just how difficult it was to prove causation. The more cynical amongst those representing patients regarded this as an interesting coincidence. Indeed, an editorial in an early edition of the A VMA Medical and Legal Journal

Why Teaching Matters and Technology Doesn’t: An Evaluation and Review of Web-based Lectures (Flexible Delivery in a First Year Law Subject, Part II)

Graduate attributes may be broadly defined as the qualities, capabilities and understandings of a graduate which a university community agrees students should develop during their time at the institution, both for their future professions and to make a contribution as ordinary citizens. This article examines the benefits and disadvantages of an integrated and incremental approach to developing these attributes, and to teaching the generic and legally specific skills that underpin them in an undergraduate law program. The progress toward the integration of both generic and lawyering skills within the undergraduate law program at the Queensland University of Technology (QUT) will be used as the exemplar for this article.

Emotional intelligence and legal education.

The traditional knowledge-based law school curriculum is slowly giving way to one that increasingly exposes students to various lawyering skills. Nonetheless, legal educators are generally averse — or at best ill equipped — to support that training with the empathic and psychological skills good lawyering demands. The author discusses how emotional intelligence is essential to good lawyering and argues that it can and should be cultivated in law school. The article draws upon three examples of popular culture to explore both the absence and possibilities of interpersonal intelligence in the practice of law. The author also describes her own law school's current project of re-imagining legal education and explains how the development of emotional skills might be incorporated into that vision.

Emotional intelligence and legal education.

The traditional knowledge-based law school curriculum is slowly giving way to one that increasingly exposes students to various lawyering skills. Nonetheless, legal educators are generally averse — or at best ill equipped — to support that training with the empathic and psychological skills good lawyering demands. The author discusses how emotional intelligence is essential to good lawyering and argues that it can and should be cultivated in law school. The article draws upon three examples of popular culture to explore both the absence and possibilities of interpersonal intelligence in the practice of law. The author also describes her own law school's current project of re-imagining legal education and explains how the development of emotional skills might be incorporated into that vision.

Professional Responsibility as a Lawyering Skill

For too long, the teaching of professional responsibility has generated dissatisfaction on the part of faculty and students alike. Complaints abound of dry and mechanical exploration of rules and cases and an emphasis on abstract philosophical concepts that lack the framework to establish a meaningful understanding of the pivotal role professional responsibility plays in the daily life of a lawyer.1 While the problems inherent in teaching the subject have long been recognized, little real progress has been made to move away from the traditional large class lecture/discussion teaching methodology still prevalent in the curriculum of many law schools. If anything approaching progress can be claimed, it is only in the recognition that traditional teaching methods do not adequately present the subject in a way that both stimulates and informs students, and allows them to assimilate the information and skills necessary for the ethical pursuit of a career in the law. The solutions that have generally been proposed to deal with the problems surrounding the teaching of professional responsibility seem to fall into two basic categories. The first attempts to address the perception that the course lacks sufficient intellectual and doctrinal content to give it the kind of stature that other courses in the curriculum command. Without such stature, it is argued, neither students nor faculty will perceive professional responsibility as a subject that belongs at the core of a program to prepare students for their role as lawyers. In other words, if professional responsibility courses were structured to look and feel more like such core courses as Contracts, Torts, and Property, students and faculty would take the class more seriously than they currently do.2

The Responsibility of Law Schools: Educating Lawyers as Counselors and Problem Solvers

Although lawyers add great value to society, the esteem in which our profession is held-not only by the public, but by practitioners themselves-has declined greatly in recent years. There is a widespread sense that the practice of law is devolving from a profession with a public calling into a business-and a business with sharp practices at that. Some lawyers, judges, and law professors have criticized law schools for failing to improve the situation or even for making it worse. These critics particularly deprecate the interdisciplinary turn in contemporary legal education, arguing that law schools should stick to time-honored methods of teaching doctrine and legal analysis through the case method.1 In my view, American legal education is as strong as ever in doctrine and legal analysis. But it is strikingly weak in teaching other foundational skills and knowledge that lawyers need as counselors, problem solvers, negotiators, and as architects of transactions and organizations-roles that will pervade their professional lives. The need for these skills can only grow as law school graduates encounter problems with increasingly complex technological, global, financial, institutional, and ethical dimensions. The problem is not that legal education has become too adventurous, but that it has changed so little to meet the needs of a changing society. This essay proposes a series of advanced courses that integrate the fundamental lawyering skills of counseling, problem solving, and negotiation with insights from other disciplines, including economics, psychology, and business. I shall refer to these courses in the aggregate as the complementary curriculum-an indication that they are elements of a coherent program that complements the traditional, case-based law school curriculum.

The Validity of Written Simulation Exercises for Assessing Clinical Skills in Legal Education

Four different groups of respondents completed a set of simulation exercises intended to reflect lawyering skills involved in client interviews. The written simulation exercises began with a brief description of a practical situation and required a series of interdependent steps be taken toward resolution of a specific problem in client interviewing. The four response groups were: (a) undergraduate prelaw students; (b) law students without any direct client experience; (c) law students completing programs of clinical legal education; and (d) law professors and attorneys. Scores on the simulation exercises showed successive, significant increases across response groups and seemed independent of academic preparation and ability. These results suggest both the appropriateness of simulation exercises as measures of clinical skills in legal education and the effectiveness of clinical programs in promoting the development of such skills within law schools.

ASSESSING CLINICAL SKILLS IN LEGAL EDUCATION: SIMULATION EXERCISES IN CLIENT INTERVIEWING

ABSTRACTFour different groups of respondents completed a set of simulation exercises intended to reflect lawyering skills involved in client interviews. The written simulation exercises began with a brief description of a practical situation and required a series of interdependent steps be taken toward resolution of a specific problem in client interviewing. The four response groups were: undergraduate prelaw students; law students without any direct client experience; law students completing programs of clinical legal education; and law professors and attorneys. Scores on the simulation exercises showed successive, significant increases across response groups which were independent of academic preparation and ability. These results suggest both the appropriateness of simulation exercises as measures of clinical skills in legal education and the effectiveness of clinical programs in promoting the development of such skills within law schools.

The Uses of Simulation in Teaching Law and Lawyering Skills

The Uses of Simulation in Teaching Law and Lawyering Skills

The Urban Transportation Problem

This critical examination of the Urban Mass Transportation Act of 1964 attempts to identify the urban transportation problem and focuses on 3 aspects of the Act: the plight of the transportation disadvantaged; congestion; and the journey to work. The social costs of automobile commuting are analyzed with particular reference to the social evils of pollution, energy waste, accidents and the misalocation of urban land. The optimal solution to the problem would discourage automobile commuting and would act to improve the attractiveness of the urban area. Such a solution implies the problem is one of land planning. The adoption of a system of zoning streets for particular categories of use with a view toward discouraging automobile commuting and improving the attractiveness of the urban area is seen as the present task. Implementation of the land planning solution will require a lawyer's skills and mastery of a complex body of real property law.

The Leadership Problem in the Legal Services Program

Sargent Shriver, the first Director of the Office of Economic Opportunity, forecast at the outset that the lawyers in the legal services program would come to be recognized as the heavy artillery in the war on poverty (Shriver, 1966: 219). Shriver's success as a soothsayer was considerable. Poverty lawyers have proven to be among the most effective weapons in the war on poverty's arsenal. In practice it seems that many of the lawyer's skills and much of his legal training are helpful and even powerful when directed at the legal problems of the poor. Nevertheless, one wonders how much credit for the poverty lawyer's success can properly be attributed to OEO's leadership. There never really was reason to doubt the lawyer's fire power. But the record reveals much reason to doubt whether his potential power has been used efficiently and with maximum efficacy. An examination of OEO's belated efforts to orient the local legal services offices toward more meaningful targets leads to the belief that the strength of the program lies in the professional training and prodigious labors of the lawyers in the field and its weakness lies in the manner in which OEO has constructed and conducted the legal services program.