Thursday, December 15, 2011

Teaching Law: Training, Education, and Thinking

I don't always agree with Stanley Fish, the former English professor and noted literary theorist who morphed into a law school professor a number of years ago and currently resides temporarily at Yale Law School. Fish, in fact, like any other deep and serious thinker, has sometimes changed his mind about important issues (this was especially true in his literary theory days) -- and so, by definition, one cannot agree with everything he has said. But, as Emerson told us, "a foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines." Real thinkers -- rather than persons preoccupied with their image or persona, like those "little statesmen," or those who adhere blindly to a preset, inflexible ideology, like Emerson's "divines" -- go where the mind leads and are fully willing to change their minds when circumstances, reasons, or arguments prompt a new way of seeing. Our politicians would do well to heed this. In any event, Professor Fish could be classified as a thinker worth attending to -- even if not always to agree.

But this time I agree with him. In a column in The New York Times this week, Fish took issue with those who loudly criticize legal education for its failure to produce lawyers who are "practice ready" right after they pick up their diploma. This critique has become increasingly common in recent years, though the fact has been generally acknowledged for decades, and it lies at the heart of the current attack on law schools for saddling their graduates with huge debt that does not seem to be justified by the practical skills and knowledge they learn in their classrooms (see, for example, this article from the Times). I have myself suggested that practical computer/technological skills should be taught as part of a decent legal education because lawyers must enter a practice world in which such skills are absolutely necessary.

Fish disagrees that the point of a law school education is practical; it is, rather, to teach an understanding of the enterprise of law and all that that means. "The practice of law," he says, "is more than a technical/strategic exercise" that can be taught by schools or law firms as if it were a bag of "tricks of the trade." Instead, the marshaling of "doctrines, precedents, rules, and tests" that a lawyer engages in on behalf of a client "takes place within an enterprise that is purposive. That is, law is more than an aggregation of discrete tactics and procedures; it is an enterprise informed by a vision of how the state can and cannot employ the legalized violence of which it is the sole proprietor."

Fish thinks that such a view of the law -- as a purposive enterprise caught up in larger questions of power and authority, legitimacy and rights, and so on -- should be the focus of legal education. Such a focus does not preclude "training" in a body of skills and background knowledge (e.g., computer/technological competence), but it does mean that such training must take place within a context in which "education" rather than "training" is the goal, a context within which the overall project is conveyed, questioned, and engaged. I think Fish is right about this. You cannot teach someone to be a good baseball player merely by training him to swing like Albert Pujols, or to throw a curveball or two-seam fastball, or how to field a groundball or execute a crow-hop for a throw from the outfield. Someone could have all those skills but if he doesn't understand the purposes of the movements, the rules of the game, the overall design of the enterprise we call baseball -- if he doesn't know it was a game into which the skills he's being taught fit and serve distinctive purposes --  he will not be a good baseball player. (The philosophical among you will recognize shades of Wittgenstein and Searle here; Fish himself cites Searle.) So a proper legal education involves not just teaching some practical skills -- those are important but they can be picked up more easily in actual practice than in a school environment. In addition, and centrally, a proper legal education entails the location of those skills within the larger ongoing project that is the rule of law in the United States.

That means that the bulk of the study of law in school should be devoted to principles, to basic questions and issues, and to the role of law in a constitutional democracy. Traditional legal education may have overemphasized these topics to the point where the education was abstract and disconnected from what a lawyer would actually be doing once out the law school door, but a legal education that ignores these topics does not deserve the term "education," being only a training in the doing of practical tasks, not much different (though considerably more expensive) than the training of an auto mechanic. Fish is right: law students should be made to read, reflect upon, and engage with the ideas of Hobbes and Locke, Holmes and Cardozo, Bentham and Mill, Hart and Dworkin, and so on -- for those ideas, and our understanding of them, lay the foundations for the enterprise of law within a democratic republic. Law is a profession, not a trade -- and its practitioners deserve an education fitting a profession.

It should be remembered that, after obtaining their law license, most lawyers are required to do continuing "education": a certain number of hours sitting in a hotel meeting room learning about the nuts and bolts, the tricks and strategies, of practical lawyering. Continuing education almost never asks the larger questions (though I have found that when you do ask those questions in a CLE seminar, many lawyers respond quite positively). So if lawyers are to gain the knowledge and understanding Fish thinks important to the continuance of a real profession, it will have to be the focus of their coursework in law school.

Fish concludes by saying that "the emphasis on practical short-term payoffs has already laid waste to the traditional project of the liberal arts, which may not survive. Is the law next? The law is surely a practice but it is also a subject, and if it ceases to be a subject -- ceases to be an object of analysis in classrooms and in law reviews -- its practice will be diminished."

Right again. A number of factors have conspired to put liberal arts education in the United States in jeopardy. Sadly, "practical" programs designed to garner a job for the graduate, frequently in fields that once did not require a college degree (and really don't need to do so now) have nudged out liberal arts courses at many colleges and universities. Even when those schools do require exposure to the liberal arts, as in English requirements, the focus tends to be on reading and writing skills, and not with the development of the educated person's working knowledge of Shakespeare or Chaucer or Joyce or Eliot (let alone Milton or Dryden or Pope or Johnson). Recent years have seen the proliferation of so-called "masters-level" programs in a host of practical fields, programs that offer skills training and eschew theory; they even dispense with those long and detailed reading lists, designed to give the student a deep grounding in the history and philosophy of the field, that characterized traditional graduate education. Of course, such graduate programs are simply responding to the inflation of degree requirements: the same job that once required no more than an undergraduate degree, if that, now requires a masters degree, not because the real demands of the job have changed but only because employers and others have upped the ante in terms of the required credentials. Increasingly, we are a society that wants to see the practical "use" of whatever we teach our students; to a great extent we have lost the ability to see the importance of any education that does not have immediate cash value.

This myopic view of education -- as training for the workplace, rather than the public square, as conveyor of practical skills rather than the materials of real thought -- threatens legal education, as Fish makes clear. Clinical and semester-in-practice programs have a role to play, to be sure, but they should not be allowed to replace either the traditional, intellectual curriculum or the elective courses that push students to ask the deeper, more fundamental questions about the meaning and importance of the rule of law in constitutional democracy. To the extent that law comes to be seen only "as a means rather than an end, as a tool for solving problems rather than something of interest in its own right," we all suffer. Such a focus narrows our vision and cabins our ability to recognize the larger importance of law in a decent society.

Hannah Arendt observed that the most frightening thing about Adolf Eichmann was that he was quite good at mastering the practical skills necessary to perform his job, but he did not think. He never took a look at his life and his choices, never examined what he was doing with a critical eye, except perhaps to ask whether he was being efficient enough or using the proper tool or strategy. If we reduce legal education to the mastery of those tools and strategies, if we make it a practical education designed to equip the student for day-to-day law practice, if we belittle or diminish or eliminate consideration of the meaning of law and justice, or the role of law in a free society, we risk creating a host of little Eichmanns -- masters of tricks and tactics but unable and unwilling to think deeply about the larger import of what they do. And in the process, we will seriously damage our profession and eject it from its central place in our constitutional democracy.

Friday, December 2, 2011

Computers and Competence

I have a friend who longs for a return to classical education -- a restructuring of education to encourage a reading of the Greek and Roman classics, often in the original languages, taught in the old, traditional way. He believes that such an education develops the kind of memory that is necessary for well-being, and lays the groundwork for learning and the ability to think that is crucial to mature human being.

There is much that is attractive in this vision of education and it may well be that my friend's reconfiguration of education would have a positive effect. But my friend goes further. He sees the root of many of the evils of contemporary education not just in the loss of classical language training, not just in the substitution of the latest novel for a reading of Plato (or even Milton and Shakespeare), not just in the resort to Wikipedia to avoid hours spent in the library -- he is highly critical of computer technology, arguing that all our labor-saving devices save the wrong sort of labor: they save us the labor of finding answers to our questions by thought and extended research; they relieve us of the work involved in remembering facts and details; they allow us to skip the crucial step of putting our ideas and our facts together into a logical structure before we start writing; they mean that we don't have to know how to spell, or understand the rules of grammar and syntax, for they will correct any mistakes we make automatically, thereby relieving us of the responsibility to think through our work. Overall, he insists, computer technology -- from word processors to the Internet to the smartphone -- prevent the development of sound mental habits and diminish us as human beings. In his modern day Platonic Academy, he would prohibit the use of these technologies.

Now this is where my views of sound education and my friend's diverge. Computer technology is part of our contemporary world. If we are to educate citizens who will take an active part in the ongoing project that is our constitutional democracy -- even if we only want to prepare young people to take their places in today's economy (certainly not what I think education should be about, but it certainly is the orthodox view today) -- we must give them computer skills and the thinking abilities necessary to use, intelligently and effectively, the technologies they have available to them. Competent humans cannot engage with their world today or tomorrow without considerable exposure to, familiarity with, and mastery of computer technology.

That last sentence applies, I believe, to lawyers. Competent lawyers cannot engage with their world and their clients, and they cannot work in the courts, without considerable exposure to, familiarity with, and mastery of computer technology. For the past couple of years Jim Knapp and I have been suggesting to Vermont lawyers that unless they understand modern computerized technologies -- from electronic data structures to online storage and management programs, to cell phone technology, to Facebook and Twitter -- they may well be "professionally" incompetent. After all, this technological world is the one in which our clients live and work. It is the world out of which all of our future clients will come, for they will have grown up with computers and all computers do. They will have been educated in schools that make extensive use of computers and online resources, almost to the exclusion of other tools and resources -- schools quite unlike those my friend would like to see established. Most of these future clients will be active in the online world, using contemporary social media for both personal matters and business, and using less and less paper as the years go on (meaning that all their records will be in electronic form).

Indeed, a strong case can be made that in certain areas of practice, lack of fairly detailed knowledge of the latest technologies means that a lawyer is ethically incompetent in violation of Rule 1.1. That case has been made by ESI expert Ralph Losey in a recent blog post. Losey tells us that trial lawyers have a "dirty little secret": the world has changed so fast in recent years that most trial lawyers have not kept up." As a result, most are incompetent to handle electronic evidence, including discovery of their client's documents." Worse still, the majority of trial lawyers, Losey tells us, "are in complete denial of their incompetence." They choose to bury their heads in the sand, hoping that the need to do electronic discovery won't come up in their cases, or imagining that they can just hire someone to do the necessary work without needing to know much about what those contractors are doing.

The trouble, of course, is that our clients have computers and are storing their information electronically. This is especially true of our business clients, but increasingly of our individual clients as well. And lawyers' lack of knowledge about electronic information raises the cost of electronic discovery: if you don't know what exactly you're looking for or where to find it, let alone how, you cast a wider net, wander down dead-end alleyways, pay through the nose for "expert" help, all to the cost of your client or the client on the other side.

Losey notes that most lawyers and judges are not techie-types who find the marvels of the latest computerized, whiz-bang gadgets a source of fascination. As a result, they tend to keep their distance. Anyway, for many years while documents were being created electronically, they were frequently not being stored electronically, especially in law offices; rather, they were printed out and stored as paper documents. So it was unnecessary to delve into the mysteries of electronic data-keeping and the arcana of electronic filing, data storage, and associated occult sciences.

Not anymore. To the extent that lawyers and judges are not technologically sophisticated, argues Losey, they may to that extent be less than competent. For today, documents are not being printed out and stored as paper -- they are being stored electronically, in databases, on servers, in the cloud. That, at least, is the way the rest of the world runs, even if many law offices still have not gotten there. The law is a conservative profession, of course, as many have noted (including Losey), and lawyers err on the side of carefulness and suspicion when it comes to the latest technology. That is good, to an extent. But conservatism can become archaism, and we are rapidly moving to a time when refusal to use the computer technologies of the day will seem musty, obsolete, archaic -- a day when our clients will expect us to be "up" on the latest means of communication and data storage. That day is coming soon, very soon. In fact, it is here now in most places, in most areas of life, in most businesses, in most personal matters, for most of those who need legal services. Losey insists that to serve those clients -- indeed, to serve any clients, even those who themselves do not inhabit an online, in-the-cloud, in-front-of-the-screen environment -- at least in the litigation context, competence means being technologically sophisticated, no matter how much that may go against the grain.

Increasingly, ethics panels around the country are recognizing that lawyers should be able to enter this modern and frequently changing world without fear. Those panels are concluding that ethical rules laid down when files were in cabinets, letters were typed and mailed, and phones were attached by wires to the wall no longer fit the contemporary practice environment and must be changed or, at the very least, reinterpreted using reasonableness as a standard. (See, for example, North Carolina Proposed 2011 Formal Ethics Opinion 6.) If the ethical objections are removed -- as they should be -- lawyers will no longer be able to use the rules to excuse their lack of technological sophistication. In fact, the rules themselves may soon be understood -- and should be understood -- to require knowledge of the technologies that pervade the relationships our clients have with the human world around them (their friends, their transactional partners, their opponents at trial).  

Law schools have come in for their fair share of criticism in recent months, but Losey thinks it is appropriate to add one more complaint to the pile: law schools are falling far short of their obligation to prepare new lawyers for the world in which they will actually work because they only train students in "paper evidence and paper discovery." Law schools, with a handful of exceptions, do nearly nothing to prepare future lawyers for the real demands of trial practice (let alone transactional practice). As a result, students graduate "unprepared to handle the ESI where the truth of past events is now stored." Still one more reason to re-think how legal education is currently structured. Law schools (as well as bar associations) have an obligation to teach new lawyers (and old lawyers) about technology; not to do so is to foster incompetence. And here we can return to my friend: good education requires providing students with the tools and skills needed to be competent participants in today's world, and familiarity with a wide range of computer technologies, tools, and resources is essential to such competence.