Page 26 - Delaware Lawyer - Summer 2022

FEATURE | WHAT MAKES A GOOD LAWYER?
practice, clients do not come to lawyers with multiple-choice questions, and answers to most legal tasks are not performed under a stopwatch to be completed in 108 seconds. All this “un- godly speededness” achieves is to “make current tests too hard for competent future lawyers who are not rapid-fire memorization superstars.”17 Moreover, both the multiple choice and essay por- tions of traditional bar exams present questions in a format that fail to mirror the complexity, ambiguity and exercise of judgment required to practice law— “the questions are ... too simple, using cardboard scenarios with falsely stable rules and artificially firm facts.”18 In con- trast, “lawyering is about handling am- biguity.”19
So too, competent lawyering involves intelligent and context-driven time- management, understanding when to speed up and when to slow down, and above all, understanding that getting to the best answer is usually far more im- portant than getting to the fastest an- swer. This is especially true for novice lawyers, “because novices in any field, including legal practice, take longer to perform any task when it is new.”20 This is both a matter of common knowledge and common sense, and has long been reflected in the practices of the profes- sion. New attorneys, for example, bill at a lower rate than more established at- torneys.21
In conclusion, “thoughtfulness is more important to competent law prac- tice than speed.”22
Creative Alternatives Do Exist
In 1992, a report conducted under the auspices of the American Bar As- sociation leveled the first modern salvo questioning the propriety of traditional law school instruction. Led by Robert MacCrate, a former President of the ABA, it came to be called the “Mac- Crate Report.”23 The report addressed the perceived gap between law schools on the one hand and practicing lawyers and judges on the other. At its core, the
MacCrate Report seriously challenged the traditional ways in which law schools had for decades treated the study of law. The report reflected the growing frus- tration expressed by practicing lawyers and judges that law students were not entering practice prepared to serve as ethical and competent professionals:
It has long been apparent that law schools cannot reasonably be expected to shoulder the task of converting even very able students into full-fledged lawyers licensed to handle legal matters. Thus a gap develops between the expectation and the reality, resulting in complaints and recriminations from legal educators and practicing lawyers.24
The MacCrate Report suggested that “[l]icensing authorities, the law schools and the organized bar should engage in continuing dialogue to determine the optimum content, methods and mix of instruction in skills and values in law school, during the licensing process and after admission to practice.”25
In 2007, the Carnegie Founda- tion for the Advancement of Teaching published one of the most profound and important studies of modern legal education, entitled Educating Lawyers: Preparation for the Profession of Law, authored by five distinguished voices in legal education and the legal profes- sion: William M. Sullivan, Anne Colby, Judith Welch Wegner, Lloyd Bond and Lee S. Schulman.26
The Carnegie Report again spurred a national conversation on whether the traditional three-year law school cur- riculum does enough to prepare stu- dents for entry into practice. The tra- ditional curriculum does work very well in the first year of law school, where students are taught the basic building blocks of legal doctrine, analysis and theory through the use of the Socratic method, or other related approaches to teaching that rely heavily on the study of cases and interactive dialogue among
students and professors. Fundamen- tal courses such as contracts, property, torts, criminal law, civil procedure or constitutional law provide students with a heavy dose of basic legal principles and are designed to help students master what law schools have always touted as “learning to think like a lawyer.”
This process of learning to think like a lawyer is enormously important, and law schools do an excellent job of it. But the Carnegie Report, like the MacCrate Report before it, attempted to function as a “wake-up call” to law schools that this was not enough. The second and third years of law school generally re- peated the same techniques, primarily through a potpourri of elective courses, but did little more to help students de- velop habits of ethical professionalism or the core competencies necessary to actually practice law. As the Carnegie Report persuasively emphasized: “Most law schools give only casual attention to teaching students how to use legal thinking in the complexity of actual law practice. Unlike other professional edu- cation, most notably medical school, legal education typically pays relatively little attention to direct training in pro- fessional practice.”27 As conveyed in the title of a provocative 2011 piece pub- lished in The New York Times, what law schools don’t teach law students is law- yering.28
Among the most far-reaching al- ternatives to the existing system is the notion of a “diploma privilege.” The diploma privilege has a longer pedigree than most contemporary lawyers might imagine. At one point in the nation’s history, 34 states permitted bar admis- sion through diploma privilege.29 The diploma privilege gave way to the mod- ern bar exam, however, in all states but Wisconsin. The diploma privilege was originally extended to graduates of the University of Wisconsin Law School, and then in 1933 extended to the state’s other law school, at Marquette Univer- sity. It remains enormously popular in
24 DELAWARE LAWYER SUMMER 2022