On law schools (part 2)

A few months back, Judge Curtis Karnow opined that law school professors are "disconnected" from the real world of law practice. Karnow, "Dissolving Legal Barriers," Daily Journal (Feb. 20, 2019).

In my last column, I began to explore the reasons why this is often true. I recounted my frustration as a young law professor viewing my students' final exam bluebooks. The intelligence they had displayed during class didn't seem to help them much when they needed to analyze a typical essay question, which asked them to predict what a court would do with a hypothetical set of facts.

I asked myself: Is this the type of exam we should be giving? Is there a good reason to give students an essay exam that asks them to analyze a hypothetical story? As the students saw it, they went to class not to analyze problems, but to learn rules -- mostly by extracting holdings from the cases we read. That's what they furiously scribbled whenever I summarized a case's holding. So let's test what we seem to be teaching: simply write an exam that asks them what the rules are, and no more. That's what an "objective" multiple-choice exam does -- sort of -- so why not just give them that, and do away with the essay exam?

Which bought me to: What's the point of law school? To prepare people to practice law. So what do you need to know to practice law?

You need to know some basic rules of law, of course. But why go to law school for that? Just get some hornbooks that summarize the rules, and memorize them. You don't need to spend three years of time and big bucks on tuition to learn a bunch of rules.

Anything else? Well, you need to be able to listen to a client's story, sort out the issues, and advise the client how a court is likely to decide those issues. And those are exactly the skills that our essay questions test.

So the test is fine -- no need to change that. But we need to teach the students how to handle a test like that. If we could do that, we would be adding significantly to the skills they need to practice law.

Not all the necessary skills, of course. They'll still need to learn how to take a deposition, how to cross-examine, and how to draft a contract. But we can't feasibly teach those things in a large core class of 50 students or more. Those skills can be taught in small, third-year classes by adjuncts who also practice law, and they can be learned in the first few years of practice.

But law students spend the bulk of their law school hours in large classes on core subjects, taught by full-time professors. What if we could make those hours more fruitful by teaching a skill that is useful for all lawyers -- litigators, transactional lawyers,and everyone else? And, what if -- incidentally -- we would be teaching them a skill that actually helps them pass our essay exams? And because our essay exams are very similar to the bar examiners' essay questions, we would be helping them pass the bar exam too.

So I decided to use my large core-subject class (in criminal law) to teach students how to organize the issues in a complex hypothetical story.

Now: How to do it?

The standard way of teaching law -- called the "case method" -- did not help students write a good answer to a hypothetical fact essay question. Students did a fair job of "spotting" issues on an essay exam, though they often overlooked some -- especially subtle or "close" issues. But they had a lot of trouble organizing scattered issues into a coherent grouping. A single class might cover three or four cases, usually all relating to a single topic. But an exam question at the end of the semester includes issues that span the whole course. There might be three, four, or half a dozen of those issues (or sub-issues) in one essay question. Sorting those out into a logical framework is not easy if you've never done it before -- and never been taught how to do it.

From this mulling sprung my new idea: a "problem method" of teaching law.

It's really pretty simple: bring the essay-type exam into the classroom, and teach the students how to analyze it -- and organize an answer to it.

So I wrote a "problem" for every class. The problem was structured like an essay exam. A client or senior partner presents a fact situation, and asks the student how the court would resolve it. I carefully designed it to focus on issues discussed in the cases the students were assigned to read for that class (and sometimes issues raised in prior classes). I included several issues -- some easy to find and resolve, and some more difficult.

I instructed the students to prepare an outline of the issues before class, and bring the outline with them. This required them to do the reading carefully, because you couldn't see the issues or put them into a coherent outline unless you first read and understood the cases. So I told them to read the cases the way a lawyer would: not in the abstract, but for a specific purpose -- to help solve a client's problem.

I began each class by calling on a random student to read out their outline. I wrote the outline on the board, and then asked the class, "Anything wrong with it?" There always was. The student had misunderstood a case -- sometimes completely and sometimes just a nuance. A mistake required us to review the case, so we did some of the case review that occurs during a traditional case method class. By the end of class, we had amended the outline considerably, and the final product was pretty good.

Most students liked the problem method. They told me that it helped them on their exams -- not just mine, but essay exams in all their courses. And students doing internships in law offices or courts told me that it helped them in their work. Plus, it was fun playing lawyer. (A few students didn't like the method, because it required them to do more pre-class work than the traditional "case method" did. They couldn't get away with simply reading the cases and taking notes on them. They had to think.)

And I enjoyed it -- immensely. I felt I was really contributing to my students' abilities to pass the bar exam and to practice law. The hard part was writing the problems. I had tried using the traditional casebooks already available, but they just didn't work well for this new method.

So I developed my assemblages of cases and problems into new "problem books" -- four of them (two in criminal law and two in constitutional criminal procedure). I started each chapter with a very short introduction to the topic, and then set out my two-page problem -- directing the students to read the cases that followed, in order to "solve" the problem. I selected four or five cases from the same jurisdiction (just like a real lawyer would do), and presented them in chronological order. I sprinkled in a few notes about other cases, to flesh out the law a bit. And that's it. Now get to work solving the problem!

And just to make it easy on professors who might consider using my books but were nervous about the new method, I wrote a "teacher's manual" for each book, explaining how to use it. This manual also included my own outline of an analysis for each problem.

I awaited the flood of royalties, expecting to retire amidst fame and fortune. Instead, only a small drizzle arrived -- enough for a cup of coffee.

While most students liked the method and the books, and they paid the rather exorbitant prices my publishers charged, they weren't allowed to choose their books. Profs, not students, choose what they read. The few profs who adopted the books loved them, but there weren't that many of them.

Those that didn't adopt it voiced no gripes about the quality of my work. They simply had no interest in such a practical approach. The problem method required more effort from the profs -- at least in the beginning. And where's the payoff? Tenure and raises turn on publishing, not on teaching.

Some had the interest, but feared they couldn't pull it off. To allay these concerns, I wrote an article describing the problem method, its virtues, and how to teach it, in a journal that goes out to all law professors. See Moskovitz, "Beyond The Case Method: It's Time To Teach With Problems," 42 Journal of Legal Education 241 (1992). The article was widely read and got some plaudits, but did not lead to many more adoptions.

The low point came later, when I was invited to give a series of lectures on the problem method in Japan. A Japanese law professor was pushing for changes in Japan's traditional way of teaching law, and wanted to bring in some American perspective. Students, law professors, and litigators listened to my presentations. The students and lawyers were excited about a method that would actually help them practice law. But the professors sat silent and glum, till one of them popped up. "We cannot teach that way. We are experts in jurisprudence, but we have no idea how to practice law. If Japan adopts your problem method, we will all be fired."

Judge Karnow put his finger on the source of the difficulty: most people go into teaching law to escape law practice, not to improve it. At "top-tier" law schools, professors' median amount of time in prior law practice is only one year, and "nearly half of faculty members had never practiced law for a single day. If medical schools took the same approach, they'd be filled with professors who had never set foot in a hospital."

So it should come as no surprise that many law professors have little interest in connecting with the real world of law practice. And, unfortunately, that affects how they teach their classes. 