Bend, Oregon October 14, 2007

1. How do law schools comply with the ABA’s new mandate requiring significant instruction in professional skills for all students? Bend, Oregon October 14, 2007 Northwest Clinical Teachers Conference

2. Summary • The standard and interpretations • What does the standard mean? • What is the ABA accepting, for now? • What are schools doing? • Why should a school do more than the ABA requires? • What are the implications for legal education? • Examples from the real world.

3. Standard 302 • A law school shall require that each student receive substantial instruction in five different topics

4. Standard 302(a)(1) • The substantive law generally regarded as necessary to effective and responsible participation in the legal profession

5. Standard 302(a)(2) • Legal Analysis and Reasoning • Legal Research • Problem Solving • Oral Communication

6. Standard 302(a)(3) • Writing in a legal context, including at least one rigorous writing experience in the first year and at least one additional rigorous writing experience after the first year

7. Standard 302(a)(5) • The history, goals, structure, value, rules and responsibilities of the legal profession and its members

8. Standard 302(a)(4) • Other professional skills generally regarded as necessary for effective and responsible participation in the legal profession

9. Interpretation 302-2 • “Trial and appellate advocacy, alternative methods of dispute resolution, counseling, interviewing, negotiating, problem solving, factual investigation, organization and management of legal work, and drafting are among the areas of instruction of professional skills that fulfill Standard 302(a)(4).”

10. Interpretation 302-3 • “A school may satisfy the requirement for substantial instruction in professional skills in various ways • Example • requiring students to take one or more courses having substantial professional skills components. To be ‘substantial,’ instruction in professional skills must engage each student skills performances that are assessed by the instructor.

11. Interpretation 302-8 • “A law school shall engage in periodic review of its curriculum to ensure that it prepares the school’s graduates to participate effectively and responsibly in the legal profession”

12. What do these Standards and Interpretations Mean?

13. Standard 302(a)(4) • Other professional skills generally regarded as necessary for effective and responsible participation in the legal profession

14. What is the ABA accepting for now? • At least a graduation requirement to take one professional skills course other than legal writing and research • More than one hour credit • Can be an in-house clinic or externship

15. What are schools doing? • Many schools require all students to take one or more courses from a list of designated “skills” courses • This is the band aid approach to get past the ABA

16. Some schools require all students to take specified skills and values courses, in addition to any elective courses

17. These schools provide one semester skills and values instruction to 1Ls • Boston College: Introduction to lawyering or professional responsibility • Montana: Practicum • Albany: Introduction to lawyering • Minnesota: Theory of practice and lawyering (under development) • Harvard: problem-solving course (winter break) (under development?)

18. These schools provide skills and values instruction during both semesters for 1Ls • Southwestern: Laws I and II • NYU: The lawyering program • Northeastern: Legal Practice

19. These schools require students to take a one semester skills and values course in the second year • Loyola, Los Angeles: Ethical Lawyering • Emory: Trial Techniques

20. These schools provide multiple semester skills and values courses for 1Ls & 2Ls • William & Mary: Legal Skills Program • Four semesters - 9 credits • Richmond: Lawyering Skills Program • Four semesters – 8 credits

21. These schools provide multiple semester skills and values courses for 1Ls & 2Ls (cont.) • Florida International: Legal Skills and Values • Three semesters • William Mitchell College of Law: Writing & Representation: Advice and Persuasion • Three semesters – 3 credits

22. This school does something different • St Thomas, Minneapolis • A structured mentor program pairs each student with a lawyer or judge through all three years of law school. Classroom components in second and third years carry one credit each year

23. These schools provide somewhat comprehensive, structured, and progressive instruction in skills and values to some, but not all third year students • Vermont: General Practice Program • Franklin Pierce: Webster Scholar Program • Golden Gate: Honors Lawyering Program • Southwestern: SCALE Program

24. Some schools provide somewhat comprehensive, structured, and progressive instruction in skills and values to all students throughout law school More about them later

25. Why should a law school do more than the ABA requires?

26. Many of our graduates will be representing clients shortly after graduation

27. Many of our graduates will be representing clients shortly after graduation • Clients expect and deserve competent representation

28. Many of our graduates will be representing clients shortly after graduation • Clients expect and deserve competent representation • Our graduates would rather be competent than incompetent

29. Many of our graduates will be representing clients shortly after graduation • Clients expect and deserve competent representation • Our graduates would rather be competent than incompetent • Our graduates will not be competent unless we do “more”

30. How do lawyers become competent? • That is, how do they develop the ability to resolve legal problems?

31. How do lawyers become competent? (cont.) • The first step is to learn the rules and procedures of lawyering. These provide “scaffolds” that enable beginners to gain a basic grasp on how to function in a variety of practice situations

32. “The prime task of the novice in the law is to achieve a basic acquaintance with the common techniques of the lawyer’s craft” (Carnegie, p.117)

33. How do students acquire a basic acquaintance with these common techniques? • Textbooks on lawyering “articulate the conceptual models involved in the important skills that define effective lawyering: in developing evidence, interviewing, counseling, drafting documents, conducting research, and negotiating.” (Carnegie, p. 101)

34. Teachers help students improve their understanding of the conceptual models by allowing novice students “to work with and imitate multiple examples, using the conceptual models as scaffolds through which to understand feedback, in order to guide their assimilation of more skillful performance.” (Carnegie, p.101-102)

35. How do students go from having a basic acquaintance with the lawyer’s craft to being experts? • In order to progress toward expertise, students need opportunities to practice resolving legal problems and receive feedback from qualified observers, followed by reflection, repetition, and progression

36. “Over time, the learner gradually develops the ability to see analogies, to recognize new situations as similar to whole remembered patterns, and, finally, as an expert to grasp what is important in a situation without proceeding through a long process of formal reasoning. Sometimes called expert intuition or judgment, such ability is the goal of professional training.” (Carnegie, p. 116)

37. Developing expert judgment takes a long time and much experience • It probably cannot be achieved within the three years of law school

38. Law School can give students a solid foundation toward developing expert judgment, however,

39. By teaching students concepts and theories about effective, responsible lawyering,

40. By teaching students concepts and theories about effective, responsible lawyering, • By providing students as many opportunities as possible to practice solving legal problems with supervision and guidance,

41. By teaching students concepts and theories about effective, responsible lawyering, • By providing students as many opportunities as possible to practice solving legal problems with supervision and guidance, • By helping them understand their strengths and weaknesses as novice lawyers

42. By teaching students concepts and theories about effective, responsible lawyering, • By providing students as many opportunities as possible to practice solving legal problems with supervision and guidance, • By helping them understand their strengths and weaknesses as novice lawyers • By teaching them how to continue learning from experience

43. What are the implications for legal education? • Some schools are providing somewhat comprehensive, structured, and progressive instruction in skills and values to all students throughout law school

44. Liberty University School of Law • Requires a “lawyering skills” course in all six semesters • “The development of proficient communication skills is a focus of the LU School of Law curriculum.”

45. Case School of Law • CaseArc program. • A three year program that seeks to provide a completely integrated approach to teaching law and lawyering • Pervasive teaching of knowledge, skills, and values • Each course builds on prior courses • “Graduated Complexity” • Team teaching • Problem-based learning

46. CaseArc Program (cont.) • First Year • 5 credits • Second Year • 2 credits each semester • Third Year: Capstone • Intensive research project and “a reality-based experiential program”

47. Dayton • Lawyer as problem solver program • Students are required to participate in one of three “curricular tracks” • Advocacy & Dispute Resolution • Personal & Transactional Law • Intellectual Law, Cyberlaw & Creativity

48. Dayton (cont.) • Each track at Dayton includes: • Mandatory courses in dispute resolution and values and ethics • Participation in an externship • A clinic or capstone course that brings together skills, theory, research and writing Mandatory skills proficiency tests are being developed!!!!

49. CUNY • The curriculum emphasizes the integrated teaching of knowledge, skills, and values during all three years of law school • Specific requirements include • 2 semester lawyering seminar for 1Ls • 8 credits • 1 semester lawyering seminar for 2Ls • Multiple options • 2 semester clinic or concentration for 3Ls • 12-16 credits

50. University of the District of Columbia: David A Clarke School of Law • 2 semester lawyering process course for 1Ls • 5 credits • Law and Justice course for 1Ls • 1 credit (includes a 40 hr community service requirement) • Legal Reasoning course for 1Ls • 2 credits • 2 Semester Clinic for 2Ls • 7 credits (multiple options to choose from) • 2 Semester Clinic for 3Ls • 7 credits (multiple options to choose from)