The blogs are buzzing these days about law schools. It’s now widely believed that even after the recent freefall in law school applicants, and the corresponding (but less severe) decline in law school enrollment across the country, we’re still producing more than two lawyers for every available law job. (And, many argue that the law degree isn’t terribly helpful—and possibly even harmful—in an unemployed lawyer’s attempt to land a non-legal job.) But my main problem with law schools isn’t that they turn out way too many lawyers. Instead, as a practicing lawyer, I’m still peeved about the way that law schools turn out lawyers (and future judges) who can’t understand basic legal principles.
Here’s a great example, subtle variations of which occur daily (if not hourly) in trial courts across the country: A defendant was charged criminally for knowingly entering a house without consent. The defendant argued, however, that he thought he had consent to be in the house. At trial, he wanted to testify that he was specifically told that he was allowed in. Although he later learned that the person who told him this was lying, the testimony would have shown the defendant's state of mind at the time of the alleged crime.
This would have been a great defense, except that the trial judge—a graduate of an elite law school, no less—completely misunderstood the hearsay rule. Therefore, she prevented the defendant from testifying and shut down his defense. (Lesson for judges: The statement about which the defendant wanted to testify was not true—in fact, everyone agreed that the statement was false—and, in any case, it was being offered to show the defendant’s state of mind, which was an element of the crime charged. Either of these things, even standing alone, removes the evidence from the category of hearsay.)
This defendant was convicted, and on appeal both the state and the appellate court agreed that the judge screwed up. However, the appellate court upheld the conviction by labeling the error “harmless.” (This is a disingenuous trick that appellate courts often use to avoid granting defendants new trials.) Also, in fairness, the trial court’s error was somewhat complicated by the prosecutor’s failure to understand hearsay, as well as what could have been the defense lawyer’s own confusion about what constitutes hearsay. But this only proves my point: law schools are churning out lawyers who don’t understand basic legal principles. And, to make matters worse, this particular type of error (which is only one of many different types) keeps recurring on a regular basis.
To understand why it's problematic for law schools to routinely produce trial lawyers and trial judges who don’t understand hearsay, one need only analogize to medicine. Not understanding hearsay is roughly the equivalent of a surgeon not understanding basic human anatomy. (This, obviously, would be disastrous for patients.) And with law, just as with medicine, lives are sometimes at stake. (And even when they’re not, freedom, money, parental rights, and countless other important issues are at stake.)
So, what to do about this? While some law school reformers are calling for more practical legal education, that idea seems of little value when law school graduates repeatedly fail to grasp even basic legal principles. That is, lawyers have to first understand basic legal theory before they can put the ideas into practice. So instead, the answer to legal reform might lie in specialization. Rather than making law students study dozens of different areas of the law—nearly all of which they’ll forget immediately after graduation, if not sooner—law schools should instead force students to focus on one, or at most two, legal tracks after completing their first year courses. That way, students will obtain a much deeper and detailed working knowledge of one or two areas of the law—such as criminal law, civil litigation, business transactions, family law, etc.—rather than learning a handful of superficial factoids about many areas of the law.
And this approach makes sense to the people who really matter: clients. For example, would you really want the lawyer who handles your real estate purchase to also defend you against child sexual assault allegations? Would you want the lawyer who handles your divorce to also draft the patent application for your new invention? Would you want the lawyer who handles your auto accident lawsuit to also draft the documents for the sale of your business? No, no, and no. The law is so intricate and complex—thanks in part to our legislatures that crank out laws like a factory churns out its products—that specializing in law school is the only way to graduate competent lawyers.
Forcing students to specialize is only the first step, of course. Law school education needs to become more rigorous, and schools need to fail students who can’t demonstrate mastery of their chosen area on both the theoretical and practical levels. Of course, this approach to education is not likely to happen, for many reasons. Most notably, failing under-performing students would force them to drop out, which would reduce tuition income for law schools. Also, this approach would require law schools to start hiring law professors who have a truly in-depth, working knowledge of their particular area of law. Or, at the very least, it would require law schools to hire law professors who, themselves, have graduated from law school. (Interestingly, hiring Ph.D.s without law degrees has become trendy among our elite law schools.)
But until then, we'll be left with our current error-ridden, business-as-usual approach to the practice of law.