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If you’re a second-year law student, you’ve now been immersed in a case study method for a year, and I thought it might be useful to explain, from a teacher’s perspective, some benefits and limitations of that method. The notion behind the heavy focus on reported decisions is that these provide the raw material from which the student acquires a number of things. First, the student learns doctrine — the black-letter law. Second, the cases tend to give the history and rationale behind certain legal doctrines. Third, because most casebooks include cases decided at various points during an entire century, the cases give students a sense of the “march” of the law, including how, when and why it grows in certain directions rather than others. Fourth, cases give students a springboard for learning and practicing the skills of legal analysis and argument. The appellate case is a good snapshot of the basic positions and arguments of each party, the methods of argument and the judge’s rationale. Fifth, reading appellate cases is, in itself, a skill lawyers must have. Lawyers have to be able to understand the strengths, weaknesses, holdings, and overall meaning of a single case or a stream of cases taken together. The approach in the first year, then, has many benefits for a person training for any form of legal practice or application. But the case method approach is not the best way to learn a number of other important legal skills and methods. A judicial opinion is a finished product that has already digested and categorized and decided upon the relevant facts, the applicable law and the best line of analysis. One could say it is an “ex post” product — it looks back at what happened, and it decides with the benefit of an ex post perspective. Lawyers operate in an “ex ante” environment — clients contact lawyers to help with a problem or transaction whose ending is not yet written. To make decisions about how to help in this setting, lawyers of course must be able to access and use all the previous “ex post” decisions about this type of problem. But, in the end, any lawyer representing a client is operating at a point in time when the future remains unclear, and when the past is not always fully understood or known. The case method is not the best method for understanding and mastering many of the abilities a lawyer should have in this “ex ante” environment. One such ability relates to assimilating multiple important facts, influences, historical facts, desires, wishes, etc. The lawyer should have a sense of discernment and perception: What is missing? What pieces of this story do not fit with the others? What is my client trying to communicate? In this complex history that the spouse has related to me, what is the most important to the risks that lie ahead for my client? Another area is decisional and judgmental ability. What, in the end, are the client’s best options? The most likely ways to achieve them? Judgmental ability is something connected to but distinct from analytical ability. When I was a law student and then a clerk for a federal appeals judge, I was good at analysis, reasoning and legal writing. I assumed my achievement in these areas would translate into success as a lawyer. But, because I chose a type of law practice that brought me into contact with individual clients in the midst of legal crises — disputes with employers about disability, family law, landlord-tenant — I had to suggest courses of action and reach conclusions about the best and worst ways to proceed. I had no trouble analyzing the vast tree of potential decisions and outcomes, but I had a hard time sensing what, in the end, was the better path for proceeding. Another set of skills relates to communicating with the client. This includes the lawyer’s “receiving” and “transmitting” roles. On the receiving end, the lawyer needs to listen; empathize to the extent appropriate; understand boundaries; hear the “story behind the story”; discern and judge sincerity; and make sense of a narrative from a client whose cultural and intellectual background may be different from the lawyer’s. On the transmitting end, the lawyer needs the ability to explain with clarity and directness while remaining mindful of the impact on the client. Another set of skills involves communicating with, and relating to, other individuals. This includes not just the “adversary” skills associated with argument, but communicating well with witnesses, court or agency personnel, opposing counsel and affected individuals. These points lead to two key lessons about the relationship of law school to law practice: 1. Your performance in your first year of law school tells you little about how well you will do at many of the skills that a practicing lawyer might need; and 2. With the traditional case law method, the student learns methods and skills that are a necessary, but far from sufficient, part of a lawyer’s practicing foundation. THE RIGHT THING Having discussed what the first-year method does and does not emphasize, we turn to something a little fuzzier, but important: how ethical and faith-based values affect, and are affected by, law school and law practice. Especially in the first year of law school, students find themselves in an intense, analytical and specific method of study, thinking and discourse. It’s almost like learning a new language, and students spend a great deal of physical and intellectual energy on the process. The language is logical and analytical. The dominant focus seems to be on logical analysis and learning to build arguments based on case precedents, statutes and social policy. Fairly often, discussions of these sources will include larger social norms or moral aims. For instance, your torts class talked about larger goals of corrective justice or fair and efficient risk distribution. For some students, the most exciting feature of the first year is this type of discussion. Still, by the end of the first year, or perhaps sometime later in law school, students sometimes feel as though law school has not nurtured or furthered their own internal journey toward defining and living a good life, a life pleasing to God, or the moral life as they conceive it. Indeed, law students sometimes say that the law school experience has distanced them from these internal moorings and aims. “I stopped thinking about the right result, or the right way to argue, and just tried to find the correct legal argument.” The best “legal” argument may be completely different from the right thing to do. This “disconnect” is not a goal of law teaching, but it can be an incidental byproduct. One reason is that law professors — especially in the first year — strive to teach students how to analyze and present arguments in the “legal” mode. Lawyers eventually need to be familiar with certain templates and approaches to argument and analysis, and the first year focuses on this. The standard modes of legal analysis and argument do not, in the end, take the form of intuition, faith-based beliefs or moral directives. A second reason is that students are reluctant to articulate, in front of others, a comment that reveals moral or spiritual concerns. This is true for many in various settings; the law classroom is not unique in this respect. But this natural reluctance ends up having a kind of snowballing effect as the weeks and months go by in law school. Students are focused and intense; the context is a professional school, not a graduate degree in ethics; the main language and focus of the classes seem highly analytical, logical and argumentative. Thus, what begins as a natural reluctance to give voice to ethical and religious concerns becomes pretty well locked in. The disconnect some students feel between their internal moral compass and law school study results from several factors: 1. the need to master the techniques of legal argument and analysis; 2. the time and coverage pressures students and teachers face, pressures that reduce the time available for larger reflections about some of the moral and spiritual dimensions of law and law practice; and 3. the implicit (and maybe unconscious) assumption that the law school classroom is “not the place” for fuzzy or tentative statements and questions about what is just, fair, morally right, etc. And, after teachers and students spend a year or two in this style of study, the pattern becomes more locked in. This has only been a short summary of several topics of interest within the law school teaching community. For now, at most schools, the first-year experience and many upper-level classes still follow the traditional method, with all its benefits and its limits. Ellen S. Pryor is the Homer R. Mitchell professor of law university distinguished teaching professor at Southern Methodist University Dedman School of Law in Dallas.

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