Professional Skills

May 2nd, 2018 / By

Robert Kuehn has written a thoughtful review of the history of professional skills education in legal education. As Bob notes, the ABA has been notably reluctant to require law schools to educate students on the skills they will use in law practice. Our accrediting body did not require any instruction in professional skills until 2005 and, even then, the accreditors required only “one solid credit” of that training. More recently, the ABA mandated six credits of experiential work for every law student–a total that still seems grudging for skills that lawyers use heavily in practice.

Students and some law schools have been more foresighted. As Bob documents, one-fifth of law schools now require all students to complete a clinic or externship; ninety percent have enough clinic or externship spots to accommodate all of their students. Students, meanwhile, show increasing interest in learning professional skills: enrollments in clinics, externships, and simulation courses have all climbed during the last decade.

This is a good news/bad news report. Student demand for professional training has increased, schools have shown an ability to meet that demand, and the ABA has finally imposed a meaningful requirement for experiential education. At the same time, tenure-track faculty continue to distance themselves from these educational experiences and the six-credit requirement is unrealistically light for students who will build their professional success on their skills.

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New Semester, Old Classes

January 10th, 2017 / By

The optimistically named “spring” semester has begun at most law schools. One-L’s nervously await their fall-semester grades while climbing a mountain of new reading. Two-L’s focus on their externships, student organizations, and job searches, while mostly ignoring the assigned reading. Three-L’s celebrate with glee the fact that this is their “last first day.” They haven’t even opened their course syllabi, much less the assigned readings.

In a very thoughtful essay, Bob Kuehn reminds us what’s wrong with this picture. Whether the students do the readings or not, they’re not learning enough of the professional skills they will most need as new lawyers. Study after study demonstrates that law schools fail to give students enough education in professional essentials like listening effectively, interviewing, counseling, negotiating, identifying client goals, strategizing to meet those goals, and problem solving.

Law schools prepare their graduates to perform as superb appellate lawyers, but only mediocre (at best) lawyers for every other type of legal problem or client need. Graduates slowly learn how to lawyer for those clients, but they don’t give their early clients and employers the excellence those groups deserve. And, without a sound foundation at the start, these graduates may never become the superb counselors, strategists, and problem solvers they could have been.

Law schools have made progress, but we haven’t traveled nearly far enough–and our progress has been crawl-like. As 2017 unfolds, I hope to offer some ideas for more effective progress. Meanwhile, put Bob’s essay on your personal first-week reading list. And then, do more: read the underlying studies and reflect on what they mean for legal education. Let’s try for a newer new semester this time next year.

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Our Own Worst Critics

August 28th, 2015 / By

The journal Science just published a study reporting that top scientists were unable to reproduce the results claimed by 75% of social psychology studies and 50% of cognitive psychology ones. All of the studies appeared in top-ranked journals.

Some scientists, I’m sure, are reeling that their work has been challenged. But I like the attitude expressed by Brian Nosek, a prominent researcher who led the reproduction study. “Scepticism is a core part of science,” he told journalists, “and we need to embrace it. . . . We should be our own worst critics,”

I would say the same about legal education. Skepticism is a core part of our method. We teach students to question their assumptions, as well as the precedents they read. At faculty workshops, we question the presenter’s results and offer competing theses. Practicing lawyers must learn to be even more skeptical than we are; clients shade the truth, witnesses lie, and opposing lawyers omit relevant facts. Skeptical questions are the foundation of our profession.

Yet we are remarkably resistant to questions about legal education. Suggestions that our curriculum focuses too heavily on appellate practice; that education in other practice skills would improve client representation; that we tout big firm lawyers (and their salaries) more eagerly than small ones; that tuition and tenured faculty salaries have increased markedly, while teaching loads have fallen; that legal scholars devote almost no time to studying the delivery of legal services and ways to streamline those services; or even that the hallowed Socratic method may not be quite as engaging to students as it is to professors–these and other criticisms meet waves of resistance rather than eager discussion. Note that I say “discussion” rather than “acceptance.” I am inclined to agree with the criticisms noted here, but I am amazed by the reluctance of some scholars even to entertain these questions.

Legal educators are finally making progress; we are more willing to consider the fact that legal education might–just might–be capable of improvement. It’s sad, though, that this new openness has stemmed primarily from market forces rather than an innate commitment to improvement. Ten years ago, it was hard to get many educators to discuss even the possibility of flaws in legal education. Only after remarkable downturns in jobs and applicants have we become receptive to reflection.

That reflection has led to promising innovations, but our work has just begun. We need to know much more about the impact of those innovations, as well as about some of the traditional classroom models they have replaced. We need to continue learning about the work our graduates do and the legal needs that remain unmet. State supreme courts have given us the virtually exclusive power to choose future lawyers, along with the responsibility of providing their foundational education. It’s a weighty responsibility that will bring it’s own reward if we do it right.

Law schools don’t need a $1 million communications effort to improve our public image. We need a genuine commitment to identifying and solving problems within legal education and the profession. If we have an extra $5,000 per law school, I suggest we spend that money on initiatives that will inform and improve legal education–not on PR. Here are just a few suggestions:

1. Evaluate the outcomes of legal incubators for both new lawyers and clients. Do these initiatives succeed in launching new lawyers into practice? Are they able to address low- and moderate-income needs?

2. What other practice models show promise in matching lawyers with under-served clients? individual schools–or a national organization like the AALS–could offer seed grants to scholars who are exploring alternative structures for the delivery of legal services. Which structures show the most promise for closing the justice gap? What kind of work do lawyers do within those structures? How can law schools best educate lawyers for those roles?

3. Sponsor faculty workshops that will educate faculty on what skills like interviewing, counseling, fact gathering, and negotiation really entail. I was amazed to read last night that some faculty think that these are “motor” skills rather than “thinking” ones. We need to educate faculty about these essential skills, which are as important to law practice as appellate-style reasoning. These skills also require as much “thinking” as any other work in law school.

4. Create workshops that will teach practitioners how to educate new lawyers. The conventional law school classroom offers a poor model for workplace education. Too many senior lawyers try to emulate Kingsfield, barking questions and criticisms rather than giving guidance. Clinical professors know how to educate new lawyers while engaged in active client representation. With a modest amount of funding, they could educate practitioners in those pedagogies.

Do good work, and the good press follows.

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ABA Journal Blawg 100 HonoreeLaw School Cafe is a resource for anyone interested in changes in legal education and the legal profession.

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