Deconstructing the First Year: How Law School Experiences Lead to Misunderstandings of What Lawyers Do

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Kim O’Leary and Chris Church

Thomas Cooley Law School

We list seven ways in which excellent third-year law students consistently misunderstand what it means to be a lawyer.

Two questions for other clinical legal educators:

1. Have any of you noticed these types of misunderstandings?  
2. Have you noticed others not mentioned here?

 The Carnegie Report references an absence of integrated learning between realms that at Cooley we call “Knowledge, Skills and Ethics.”  We are clinical professors who are experienced in teaching students in in-house clinics, externships, and simulation-based classes.  One of us has been teaching in clinical legal education for over twenty years, at three different law schools.  The other is a relative newcomer, but has spearheaded a school-wide evaluation of skills at our law school.

 We have noticed specific ways that the first and second year curriculum programs students to think in certain constructs which are antithetical to good lawyering.  We believe that these constructs are part of appropriately teaching students to “think like a lawyer” but some of these must be deconstructed as the student begins preparing for the transition from law student to lawyer.  Otherwise, students have a tendency to leap to an incorrect understanding of the way the law works; these misunderstandings have been observed by us in very good students and at a number of different law schools.  We believe they are examples of the ways  non-integrated education (such as that typically found in the first two years of law school) actually leads very good students to err in their understanding of law and lawyering.

1. “Where is the Fact Statement?” 

Students frequently begin law practice believing the facts are static; one second-year student (not at Cooley) said to me once, “I can’t find the statement of the facts in the file.”  They think there is one pre-existing fact scenario.  This misunderstanding prevents them from flexibly adjusting analysis and case theory as more facts are uncovered, and also prevents them from understanding the paramount importance of tracking down details, clarifying apparent inconsistencies and understanding how facts fit together.  This misunderstanding of the basic nature of facts in a legal case leads many students to perceive that their clients are lying to them when the student uncovers a fact that the student didn’t fully understand previously, or finds documents that are inconsistent with the client’s relation of the facts.  Possible cause of misunderstanding:  learning the law through cases that contain “statement of the facts” at a level in the legal process that does not allow for any complex understanding of facts, such as statements contained in appellate cases or fact scenarios in problems.

2.  “My client cannot possibly win”

Students frequently interview a client, and then come into a supervision session and state “my client says such and such happened, but he cannot possibly win.”  When probed, the student reveals that a) he has not yet identified any potential legal theories and thus has no idea what elements might be needed to prove a case; b) the client has first hand knowledge of events that, if believed, would constitute evidence to prove a case; and/or c)the student has no idea if the opposing party will show up, contest the claims or be credible.  The student has been exposed to the classroom paradigm where the professor will continue to question the student about the theory until the student gives up, thinking that the argument will not succeed.  As a result, the student does not consider or has limited understanding of what constitutes evidence and how that evidence fits into legal research.  The student misunderstands the burden of proof, erroneously thinking that if anyone disagrees with the client’s version the client cannot possibly win.  The student also evaluates evidence without directly linking it to what needs to be proved (elements) or burden of proof.  Possible cause of misunderstanding:  Students are not taught how to ask for and evaluate evidence; students are led to believe if they cannot back up an assertion in an airtight fashion with no dissenting voice the assertion has no validity.

3. “We can argue that our client didn’t have to disclose that lake-front property”

Frequently law students have the misimpression that all potential legal theories are equally viable but we know that sometimes the law is clear-cut.  For example, in one class we gave students cases that state clearly that in Michigan a pre-nuptial agreement is only valid if the parties fully disclose their assets.  The students are asked to interview a client in a simulation, and the “client” is instructed to tell the student he or she wants to ensure a certain distribution of pre-marital property but does not want the other party to know about one secret asset.  In discussion after the simulation, the students quickly realize that the best legal option for attaining most of the client’s goals is a pre-nuptial agreement, but that option requires full disclosure.  Virtually every time, at least one student argues that the secret asset can remain a secret and the client can proceed with a pre-nup without disclosure; you can see the other students in the class kicking themselves for not being aggressive enough for the client.  After advising the student that if she were to choose that route I would personally escort her to the ethics hearing, it begins to dawn on the students that sometimes a legal argument cannot be made – it simply does not comport with the law.   The law is filled with actual bright-line rules – appeal deadlines, notice requirements, and cases or statutes that preclude certain legal theories.  Possible cause:  Students learn primarily through border-line cases and issues.  Everything from first-year casebooks to third-year simulations are based on issues where a variety of arguments can be made.  Students are given higher grades if they can generate more creative arguments.  But issues that are bright-line do not get appealed and rarely get past summary disposition.

4. “I can’t do anything until I nail down all the facts first”

Many students have a linear view of how legal process works:  first we gather all the facts, then we research the law, then we apply the facts to the law, then we generate options, etc.  As a matter of practice, we both noticed that when we began talking with clients our first priority was to get the facts.  As our competency grew we both noticed that getting the facts is not the most important part of the initial interview.  Finding out at the beginning of the interview why the client had come to a lawyer, the client’s goals and objectives, and what was the client’s biggest concern gave much more structure to the interview. Examples of this paradigm:  in criminal law, figuring out how to get the client out of jail; with a new case, determining what deadlines or statutes of limitations might be; in private practice, getting a client to sign a retainer and commit to the case; before an interview, determining whether there is a conflict of interest—all of these are priority matters that students are apt to ignore.  Possible cause:  study of appellate cases ignores a host of practical priority issues that lawyers face on a regular basis; IRAC and other methods for breaking down legal arguments falsely leads students to believe there is a linear order to law practice.

5. “But now I have to throw away everything I’ve been working on.”

Law students see the facts as being static and base their legal theories accordingly.  However, as the cases develop, new facts become known and these new facts can cause an entirely different legal theory to develop.  For example, in a divorce case the student discovers that the client’s first divorce decree was never entered by the court and as a result she had a prior subsisting marriage.  The case shifts from a divorce case to an annulment.  Possible cause:  teaching from appellate cases where the facts were static at the time of trial does not teach flexibility in developing fluid legal theories; learning about legal doctrines separate from one another leads students to conclude only one type of doctrine applies in a given situation.

6. “I don’t have any ethics issues in my caseload”

Each term, students in our clinic are asked to identify one ethics issue that arose in a real case and describe it, applying rules of ethics to the situation and analyzing courses of action.  Inevitably, some students say “But I don’t have any ethics issues in my caseload.”  Even students who earn very high grades in a course in professional responsibility have trouble seeing the application of everyday ethics issues in law practice.  In our elderlaw clinic, almost every student at one time or another has either represented two members of couple in estate planning, or had to decide the proper course of action when an adult child or elder advocate calls to ask questions about a case, has represented an elderly person whose capacity is in question, or has worked with a personal representative of an estate who is also a beneficiary of that estate.  These students frequently fail to see that these issues are the types of issues addressed by the rules of ethics.  Possible cause:  a separate PR course that deals with ethics issues by a different subject each week fails to convey an appreciation for how ethics issues arise in everyday practice.  

7. “I didn’t realize you wanted it this way”

Really good law students succeed in part by figuring out how law school works and organizing around long-standing structures.  Really good lawyers succeed in part by pointing out (diplomatically) what facts the judge does not understand accurately, or by making an argument never tried before in a particular jurisdiction.  Really good lawyers know their cases and their files better than anyone else, inside and out.  Really good lawyers understand the policy behind the law and why the laws are written a particular way.  Really good law students learn to accommodate authority.  Really good lawyers confront authority (again, in a diplomatic way).  Often good law students are confused when they make a change I suggested, only to have me reconsider their original argument in light of having re-read a statute or court rule.  I have had to tell students to put down their pens when I speak; note-taking in class helps prepare for an exam.  Note-taking during supervisory sessions while discussing cases frequently interferes with collaboration and understanding of deeper issues. 

 

Comments

[Nick Halbur]

You asked if I'd seen these misunderstandings and I have the following thoughts:

3. Re: We can argue anything.

I agree with your core point that there is a lack of understanding that there are a great number of clear cases out there. More often than the problem that you identified though, I see that students are unnecessarily unsure of their conclusions because there are no cases on a particular subject. The statute or procedural rule is simply clear and so the issue is actually very simple. When working in a new area of law that our clinic does not typically handle I find the need to tell students, "I don't know the answer to that, but this must come up all of the time, so there is likely a clear and simple answer. Don't spend too much time researching this if there is a rule/statute that is on point." They make the issue harder than it needs to be because they assume (after reading appellate cases w/ dissents all the time as 1L's) that any issue that they look into will be a gray area or counterpoint.

6. I don't have ethics issues

This was the item that surprised me the most. We have students give themselves a relative rating and short narrative comments on ethical issues at midterm and at the end of each semester and I have yet (of course I am only teaching my 4th semester) to have a student mark that they had no experience with this subject in clinic (which is an option under every item in the self-eval).

[Bob Jones]

"You mean opposing parties can actually reach an agreement?" Settlements and agreements don't make it into case books. Students learn from case law that lawsuits are resolved only through jury verdicts or judgments. It does not occur to many clinic students that part of their task is to explore whether individual issues or entire cases may be settled. Even when students understand intellectually that settlements are possible, they may instinctively feel that reaching agreements is not what litigators are hired to do.

[Nina W. Tarr]

Kim and Chris,
You have clearly articulated some of the failings of the current structure of legal education. I would characterize your list as law students' "discomfort with exercising independent professional judgment." Both the gift and the curse of a clinic programs is its role in helping law students overcome the limitations of their law school experiences. Are the problems you identify are our "raison d’être?"
At certain times in our history, some clinic folks defined clinical teaching as a methodology, rather than a "justice movement" or "just skills training," and such arguments were dismissed as arrogant. I am bemused to note that as law schools try to implement the Carnegie Report recommendations, most of the new curricular innovations are attempts to adapt what we have been doing for years because integrated, experiential learning is the best method for training professionals.
So, here is an interesting question..... If there is a reformation of the first and second year curriculum so that students do not suffer these misconceptions about the work and ethics of lawyers-- will clinics still be necessary?

Nina

[Kim O'Leary]

It has been brought to my attention that some people view our initial posting as a slam against first year professors and their teaching. Nothing could be farther from the truth. At Cooley we have had the pleasure of hearing about innovative teaching techniques in first year courses. My own impression of first year professors is that they are smart, creative and work very, very hard. I certainly do not have the skills to do what they do, day in and and day out. Through Teaching Roundtables at Cooley, I have learned more about law teaching from my colleagues than I could possibly chronicle here. To a person, colleagues are supportive of clinical and skills education. The misimpressions I have observed have spanned over twenty years at three different law schools. Chris has pointed out to me on several occasions that it is absolutely necessary for first -year professors to teach legal anaylsis and reasoning and doctrinal concepts; it appears to be a by-product of a good legal education that even excellent students suffer the misconceptions that challenge us. Despite innovative teaching, I see these misunderstandings crop up like bad pennies consistently over time. My point is not to slam the hard work of first year professors- rather to wonder whether there is anything we can do in the first or second year to curb the misimpressions directly. There is much we could write about what works in the first year of legal education - for example, almost all of my students can analyze cases and statutes well and can spot doctrinal issues. At Cooley most of them want to look for alternative means for solving disputes. They understand their obligations toward their clients. That is saying a lot. We focus on recurring problems because that is where we might make a small contribution to understanding how we might do better. In the Carnegie Report, legal educators were asked to consider integrating knowledge, skills and ethics earlier and more pervasively throughout the curriculum. Cooley already offers excellent instruction in the knowledge, skills and ethics realms. If we are to consider better integration, we should do so looking to solve specific problems. It is in that spirit that this blog posting was made. Part of the reason for the blog posting was to find out if our observations were true only for us, and perhaps quirky, or whether they are observed by professors in other law schools.

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