Law School 2.0

David Segal: The Business of Law Schools is "Crazy"

Recently, Bloomberg Law posted a video interview with New York Times reporter David Segal on YouTube.  Mr. Segal is the reporter who has written several articles over the last year highly critical of legal education generally, and law school economics in particular.  If you would like to read those articles, you may find them here, here, here, and here. 

In the video interview, Mr. Segal explains how he came to be interested in the subject of legal education, alleges that the "business of law school is crazy," and refers to the "madness" of the overly influential and "pathological" U.S. News rankings. He calls the "prestige race" sparked by U.S. News "incredibly destructive."

Concerning the tension between rising student debt and the history of some law schools to not reveal accurate employment information, Mr. Segal argues in favor of law schools "patronizing" potential students to provide that information and let them know how tough it is to make a living as a lawyer. He also argues in favor of a range of law schools producing different "levels" of lawyers, from those qualified to handle small matters to those qualified to handle bigger ones, suggesting that this would benefit consumers. He charges that the ABA has a conflict of interest in being the regulating body for legal education, since lawyers have an interest in their being fewer lawyers on the market, and want to keep wages high.  Near the end of the interview, Mr. Segal strikes a discouraging note when he predicts that the extent of reform that the ABA or Congress is likely to force will be limited to better reporting of employment data and similar information.

Here is the video (14 minutes):

 

From my point of view, in his articles in the Times and in this video, Mr. Segal has put a spotlight on problems in legal education at the top (schools that mostly disfavor teaching lawyering skills) and at the bottom (schools that charge a lot and may be playing fast and loose with employement data). But he misses the good middle almost entirely.  

There are many law schools today that are working hard (and harder every day) to train their graduates better for a wider range of law practice. One way of looking at the concern about a lack of "small matter" lawyers is that too many law schools are not producing graduates who are ready to practice when they leave, some of whom might "hang out a shingle" competently, and develop a small matter practice and make a decent living doing so (and be able to pay off their educational debt). 

I suppose the sexier, headline grabbing, front page "above the fold" articles are the ones Mr. Segal wants to write. But there is another very encouraging story that he is missing, and by not paying attention to it, he is not providing the full picture of legal education today. There are many encouraging signs. For a start, he might want to look at the Educating Tomorrow's Lawyers initiative of the Institute for the Advancement of the American Legal System. A consortium of law schools - across the spectrum - are working hard to improve legal education. My own course portfolio - for the Discovery Practicum course - was one of the first ones posted, but I am hardly alone; more and more law professors are changing how they teach law, in part by making it more practice focused.

These efforts are about producing better value for the cost of legal education. We may not be able to reduce the cost, but we can teach better, and prepare our students for a variety of practice settings. As I argue in the Law School 2.0 book, leveraging technology will play an increasingly important role in providing better value for the cost. This was also the subject of my talk at New York Law School as part of the Future Ed 3 Conference last April.

Personally, Mr. Segal's attack on law schools for not teaching practical skills was the toughest for me to take. He is right, at least at the "top" schools, and the rest of us - sure, we could all do more. But to suggest that law schools do not teach real lawyering skills was hard to swallow. I have taught a course doing just that for over 20 years, and have written extensively about how to do this. After teaching as an adjunct for many years, I left a healthy 20 year practice to teach full time at the University of Denver so I could do more of this kind of teaching. A former student in the Discovery course wrote an article in the February issue of the Denver Bar Asssociation's montly publication about how it helped her to be ready for practice. A more eloquent rebuke to Mr. Segal's article could not be imagined - at least not by me.

Yes, that is just one course. But there are many like it. And even more broadly, the University of Denver has required a course of all first year students called Lawyering Process, and I have taught in that program for 15 years (as an adjunct for six years, and full-time faculty for 9). I have been Director of that program for the last 4 years.  My colleagues (9 full-time faculty members) believe very strongly in what we do - teaching lawyering skills to first year students - and many of us have dedicated our careers to doing this. And we are not alone! Lawyering skills teachers abound in nearly every law school across the country. Are there issues about how we are perceived and valued in the academy? Sure. But we teach these skills day in, day out. Hundreds of us. The complete picture is much better, and more encouraging, than Mr. Segal acknowledges, and that story would benefit from his spotlight. There's something to write about.

Snow Day? University Closed? Class is in Session.

Last Thursday evening, the University of Denver announced it would be closed on Friday, February 3.  A massive snow storm was coming in overnight, and indeed it was not a false alarm. In the morning, the roads were treacherous, and it snowed all day Friday and into the night. When it finally cleared on Saturday, we had two feet of snow in our front yard. 

One of my colleagues once said about the frequency of University closings: "It usually takes a direct hit by an asteroid." Meaning, it never happens.  But the University was right to close.

But why also cancel classes? We have to make them up at some point, and that can extend the semester too late. And with "integrated" law school skills classes - like the Discovery Practicum course I teach - it is very disruptive to postpone a class.  It is not like a typical "doctrinal" course, where each class is essentially the same - going through cases in a casebook.  Skipping one class just doubles up material in another, or adds a class to the end of the semester, or the end of semester material is skipped or compressed.  It doesn't much matter to most law school courses. But it does matter to the Discovery class I teach.

So I conducted class online on Friday.  The technology to support this is in place in almost every class: Blackboard, or a similar courseware system. I wrote to my students on Thursday evening to let them know that I would like to conduct class online the following day. To their credit, they seemed willing to go along with this - I was clear that I was not requiring them to participate, since the University was closed, and if they would rather go sledding, they could certainly do that.  I prepared the class in the morning, and conducted it in the Lexis Webcourse site (basically, Blackboard) that comes with the textbook for the course (Discovery Practice, described elsewhere in this blog).

Like most classes, there was advance reading in the text and online, as well as a pre-class quiz (online) about the reading. I prepared a PowerPoint that went through the doctrinal material for the course (our subject was Answering Interrogatories), and then set up several discussion threads.  The PPT made reference to those threads in several places, and it was there that we had the class discussion. The class extended the full class period - actually, it started before 1:30, and ended after 4:00 p.m., which is the usual class period (since we only meet once per week). I followed the discussion threads as they developed over the course of the class, and asked questions and added my guidance when it seemed helpful. At the end of the class, there were 110 postings made to seven threaded discussions over the course of 2.5 hours.

All but two of my students were able to attend the class, and they will be able to catch up - asynchronously - over the next few days when it is convenient for them. And, we all stayed safe and warm. Even better, last night I received an email from one of the students in the course, which read as follows: "I just wanted to say that I was initially apprehensive about the online idea but I am pleasantly surprised and impressed with how it turned out.  Thanks for exposing a law school class to the new era!"

It was really simple to do, with technology that has been available to us for many years. What teacher today doesn't know how to use PowerPoint, an online courseware site to upload a file, and participate in online discussions? Sure, I worked all day when it might have been nice to enjoy the unexpected day off. But given this type of class, it was much better to conduct class online and stay on track.

It is perfectly appropriate to close the University when it is unsafe to travel, but I am becoming increasingly convinced that it has become an anachronism to cancel classes.

The Practicality of Practicums

The February issue of The Docket, a montly publication of the Colorado Bar Association, includes an article by a former student, Beth A. Tomerlin.  The article, The Practicality of Practicums: Thinking and Acting Like a Lawyer, One Class at a Time, describes the Discovery Practicum course that I have taught at DU Law School for nearly 20 years.  Beth was a student of mine in Lawyering Process in her first year, and took the Discovery course in her second year.  She graduated from the law school in 2007.

Needless to say, it is gratifying to read what a student has written after taking one of your courses, particularly when it is written from the perspective of having been out in practice for several years.  But this is especially true when it makes such a convicing case about how the course helped her be prepared for practice.  For any teacher, seeing a student succeed with what you taught them is immensely gratifying. For a teacher like me who has given so many years to this sort of teaching - well, it doesn't get better.

Although I have to say, it takes some getting used to. I first taught this course almost 20 years ago at DU, as an adjunct professor. I felt like I was about as alone as alone could be. I thought it was working, and my students seemed to think so too (for the most part).  I tweaked the course over the years, and when I joined the full-time faculty in 2003 I revived the course in the curriculum, and have taught it once or twice a year since then.

It is not like this is rocket science or anything. It can be done with virtually any law school course. It is based on the simple proposition of "Learn and Do."  Learn the rules and the cases - the applicable doctrine - and then practice it in between classes.  In my experience, this is best accomplished when the course is designed as what I call a "whole course simulation," organized around a rich problem set.

It is this kind of course that really needs new teaching materials, since a traditional casebook just won't work.  That is why I have been serving as Series Editor on the Skills & Values Series with Lexis for the last several years, and why I authored the S&V book for Discovery.  Although you could use it in several different ways, it is designed to support this kind of whole course simulation (as are the other S&V texts).

In the Discovery course, students read the rule, applicable cases, and some information about strategy and context before class (some of which is in that print book shown above, and some of which is in the Webcourse for the book online), then we review and discuss that material in class, and then the students engage in a mock litigation and *use* the discovery tools and strategies we have learned about in class.  Each week, they prepare a discovery document and serve it on their opposing counsel. The next week we learn about the next discovery rule, and then we practice that one.  I give them feedback on each assignment. Later in the semester they take, defend, and act as a witness in a deposition (with student court reporters taking down the transcript).  And at the end of the course they settle the case in settlement negotiations, and the final paper is their settlement agreement.

There are many advantages of teaching in this way. For starters, it's more fun.  For the teacher as well as the students. As a result, both are more engaged, and engaged learners are learning more. Students love this approach (you may read some of my student evaluations at the link below). Imagine such a course with a professor lecturing about the rules and strategy during class, with students taking a final exam for 100% of the grade.  Well, I suppose students could learn the rules and cases in the traditional class (although I don't think they would learn more substance than what my students learn anyway), but the retention rate would be awful. And they would never actually learn how to draft the discovery documents they will soon be asked to draft in practice.

But don't believe me! Read Beth's article - it's all in there.

When I read the Carnegie Report in 2007 I was gratified to see it argue in favor of more law school courses in which Doctrine, Skills, and Professional Identity are integrated. Because that perfectly describes the goal of the course design for the Discovery Practicum. Students learn the doctrine - be assured of that. But they also begin to develop their skills of using the doctrine (and hone their legal writing skills too - always a good thing). Perhaps most importantly, the simulation creates situations in which the students are called upon to begin to develop their professional identities. What kind of lawyer do they want to be? How will they behave when this situation arises in practice? A typical law school course can *ask* students questions like that, but until they are put in a situation that requires them to confront their own decision making process, they won't really know what their answer will be.  I think that when the Carnegie Report called upon law schools to do a better job integrating Professional identity formation into the curriculum, this is the sort of opportunity they were referring to.

In sum, it is nice that the course is getting some attention, finally. But mostly I am proud of Beth, for working hard in law school, thinking through what she needed out of the experience, and now for making her way in her career. And I am proud that she feels like she received a good education at the DU Law School.  Her article is a good rebuke to David Segal's most recent article in the New York Times, which had the headline: "What They Don't Teach You in Law School: Lawyering."  Ha.

If you would like to learn more about how the Discovery course works, read Beth's article, and take a look at the teaching portfolio on the Educating Tomorrow's Lawyers website.  Also, please feel free to contact me with any questions - I would be glad to help in any way I can.