TEACHING TRIAL SKILLS AT LAW SCHOOLS: SOME OPENING THOUGHTS
written by NITA guest blogger Judge McGahey
I’ve been teaching trial advocacy classes at the University of Denver’s Sturm College of Law since the early ‘80’s; I’ve been teaching for NITA about as long. I’ve seen ups and downs in how – and why – we teach trial skills. Since I know this month’s blog topic is about the conjunction of trial skills and law schools, I’d like to share some thoughts, in the hope that people wiser than I will weigh in.
First, let’s talk about the “why.” I think having – or at least understanding — trial skills are inherently valuable to every lawyer, even those who never plan to set foot in a courtroom. A transactional lawyer is likely at some point in his or her career to have a client who has to go to court on an important issue. Wouldn’t it be a good idea to understand the best way to present the client’s case, even if you aren’t going to do it yourself? And if you have to find a good trial lawyer for your client, wouldn’t it be a good idea to understand what makes that chosen lawyer the right person to present your client’s case to a judge or jury? I’ve had students over the years who took my advocacy classes for exactly these reasons. Interestingly, most were caught up in the process and demonstrated excellent advocacy skills.
Secondly, let’s consider the “how.” Most law schools offer some kind of advocacy training, whether it be classes, clinics, competitive trial teams, or some combination of all of these. Many schools offer their training in a highly organized, highly directed fashion, with each piece of the program tied to all of the others. But many do not. Even schools with active programs rarely have more than one or two full-time faculty teaching advocacy. Most schools have to depend on adjuncts (like me) as the backbone of their programs. This is a place where NITA-trained people can be particularly useful, as long as the law school is willing to use them. But the quality of the adjuncts can be outweighed by a lack of co-ordination at the academic level.
Next, let’s talk about “where.” By that, I mean where lawyers get their initial training in trial skills. One reason that law schools began focusing on “skills” courses as opposed to focusing only on “doctrinal” courses was the way the legal profession changed how lawyers were trained. For generations, graduates came out of law schools not knowing doodly-squat about how to actually practice law. Law firms assumed that new associates didn’t know anything and that the firm/organization/agency would have to train the newbies on how to do their job. But that’s an expensive proposition and more and more of that necessary training got pushed down to the law school level; notice the emphasis at many schools on producing “practice-ready” lawyers. As a consequence, “skills” courses and “experiential learning” became part of the core curriculum at many schools.
But I’ve recently been seeing some slippage of the perceived value of teaching advocacy skills at law schools. Classes don’t fill up automatically like they did in the past. This may be because schools are accepting fewer students, coupled with lower enrollments. But students seem to struggle with paying for classes that they don’t think will help them with bar passage. I suspect that this has something to do with the link between bar passage, getting a job and beginning to pay off the frequently crushing debt many students have at graduation. There is also the cost to schools of teaching advocacy; as noted many – if not most – advocacy programs rely on adjuncts rather than full-time faculty, to teach advocacy classes. Reduced enrollment equals reduced revenue which equals hard choices on where to spend those dollars.
What does this mean for law schools, law students and advocacy teachers? I’d suggest that those of us who see the value of advocacy teaching must renew our conviction on the value of these skills to the health of the legal system and the citizens of this country. No one thinks they need a lawyer until they need one. We must make sure that trial skills don’t fade away in the future and that the trial lawyers who come after us know what to do, how to do it – and why doing it is important.
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