Professor Kristen Holmquist on Lawyerly Thinking
In a recent issue of Journal of Legal Education (Vol. 61, February 2012) Kristen Holmquist (pictured here), Associate Director of Professional Skills and Lecturer in Residence at UC Berkeley School of Law, assails the 2007 Carnegie Report’s conclusion that law schools successfully teach students to think like lawyers. She states, “Our pedagogy and curriculum – an over-reliance on neatly edited cases to the exclusion of working with messy, human facts, in ways that real lawyers might – obscures the inter-dependence of knowing and doing that is at the heart of thinking like a lawyer.”
Professor Holmquist’s Thesis: Law Schools Don’t Do a Particularly Good Job Teaching How to Think Like a Lawyer
Professor Holmquist argues that Carnegie’s contention that law schools effectively teach how to think like a lawyer misses the point that they don’t do so in the best sense of what it means to “think like a lawyer.” According to Holmquist, “It is not true that we do a particularly good job of teaching students to it ‘think like lawyers,’ at least not in the richest sense. Carnegie claim is made possible by artificially separating thinking from doing, and thereby too narrowly defining what it means to think like a lawyer.”
Professor Holmquist then examines what it means to think like a lawyer by broadening the definition of “thinking like a lawyer.” She suggests that options for analyzing what the phrase means and offers two. First, she describes an empirical approach by Marjorie Shulz and Sheldon Zedeck who identified 25 effectiveness factors, such as creativity and innovation, problem solving, researching. Second, she turned to psychology and a problem-solving model. After reviewing them, she concludes, “Drawing from just these two accounts of lawyering, it seems clear that legal education as currently configured teaches a rather anemic version of “thinking like a lawyer. . .In short, law school does good work with what it does but it does not truly teach students to think like lawyers.”
The Holmquist Prescription
Professor Holmquist’s prescription is as follows: “. . .First, I propose that we infuse our curriculum with factual, empirical and normative content far beyond that which can be gleaned from appellate cases. In fact, my suggestions might be understood as moving legal education closer to a liberal arts education (rather than further away, as many, rightly or wrongly, view the Carnegie proposals). Second, I believe that legal curriculum ought to expose would-be lawyers to the cognitive processes that inform the persuasion and decision-making central to lawyering. Finally, I propose that, at least in part, we shift our pedagogy to give students more experience with understanding legal problems from the ground up. So much happened in a case – lawyers and clients and judges have already made so many decision – before it ever reaches the phase of an appellate opinion. Moreover, and perhaps more important, most lawyering will never lead to an appellate opinion. We might develop new pedagogies that expose students to these many other forms of lawyering.”
Existing Courses that Fill Professor Holmquist’s Prescription
Professor Holmquist’s thesis is fine as far as it goes, but it does not acknowledge that some of us teach law school courses designed to do just what she proposes, and, in my experience, do accomplish what she espouses. For example, the Comprehensive Pretrial course that I and others teach, involves students with “messy, human facts, in ways that real lawyers” work. Students are given case files. They meet and interview their clients, interview witnesses, develop their cases, draft pleadings and discovery, engage in negotiations and so on. Along the way they encounter real world problems, such as witnesses with faulty memories, conflicting versions of events, and knotty legal issues. My trial advocacy course also seems to meet her three requirements. Professor Holmquist would do the academic community a favor by examining and reporting on courses that fill her prescription.
I was curious about what Professor Holmquist’s reaction might be to the observation about her omission of any mention of current classes that might meet her criteria, and so I sent her this piece. She responded in this way: “Thanks for sending me your piece. I enjoyed reading it – and I’d love to see a syllabus for your class. It sounds fantastic!” (I sent her the syllabi).
What do you think? Do law schools fail to teach how to think like a lawyer? What courses that you are aware of fill Professor Holmquist’s prescription?