Law schools teach three bad habits—ones that are particularly deleterious to pretrial and trial advocates. These three dreadfully bad habits can be broken, and the means to breaking them are covered here and, in more depth, in Trial Advocacy: Planning, Analysis, and Strategy and Pretrial Advocacy: Planning, Analysis, and Strategy.
First, although law schools should produce professional communicators, but quite to the contrary, they graduate lawyers who are poor communicators. Some are so bad they can and often do put a jury to sleep. Law schools should focus on producing professional communicators – lawyers who are effective writers and speakers. However, Bryan A. Garner’s in his column for ABA Journal entitled, “Why Lawyers Can’t Write” subtitled: “Science has something to do with it, and law schools are partly to blame” states:
“While lawyers are the most highly paid rhetoricians in the world, we’re among the most inept wielders of words. Stop and think about that. The blame goes primarily to law schools. They inundate students with poorly written, legalese-riddled opinions that read like over-the-top Marx Brothers parodies of stiffness and hyperformality, and they offer law students little if any feedback (on substance, much less style) from professors on exams and writing assignments.” ABA Journal (March 2013, p. 24).
Jim McElhaney, advocacy instructor, ABA Journal contributor for 25 years, and also like Garner an ABA columnist, put it this way:
“Law school is as much obscure vocabulary training as it is legal reasoning. At its best, it can teach close thought and precise expression. But too often law school is reverse Hogwarts – where Harry Potter trained to be a wizard – that secretly implants into its students the power to confuse other people instead of sowing the magic seeds of clarity and simplicity..
“So we lard our speech and writing with words and phrases of awkward obscurity and rarely have anything to do with legal precision but that unmistakably say, ‘This was written – or said – by a lawyer.’
“Because we are professional communicators, it is our obligation to be plain and simple. It’s not our readers’ and listeners’ jobs to try to understand us. It’s our job to make certain that everything we write and say commands instant comprehension.
“And because we weren’t turned out that way by our law school training, we have to reprogram ourselves if we want to be effective communicators.” ABA Journal (September 2012).
Correcting this habit isn’t easy. It requires a good legal writing program, such as Seattle University Law School’s currently ranked number three in the country, can teach students how to write clearly and effectively. Further, professors should do what Garner suggests and give students feedback on the substance and style of their submissions.
The second bad habit is that lawyers find it impossible to find the core message of a case. In Winning at Cross-Examination: A Modern Approach for Depositions and Trials, Shane Read explains that they have this habit because they developed it in law school, as follows:
“Almost every lawyer fails to find the bottom-line message for his or her case because our law schools and legal system teach us the wrong skills to accomplish this task. It is ironic, but law school is a terrible training ground for trial lawyers because it rewards students who focus on details at the expense of not rewarding those who focus on the main point. From the first day of law school, professors reward the highest grades to students who can spot the most issues in an exam question and write the longest answer with the most facts in it. In classroom discussions, the student who sees the complexities in a judicial ruling is rewarded instead of the student who clearly articulates the simple holding of the case.”
How can the habit be broken? A solid trial or pretrial advocacy class can drive home the importance of having a core message and teach students how to craft it. In both Trial Advocacy and Pretrial Advocacy, we focus on how to develop a case theory and then be able to encapsulate it into a case theme. As we put it in Trial Advocacy, “First rate themes are a lawyer’s treasure. The theme captures the case theory and distills it so that it will be memorable and sway the jury. It is the bridge between the factual theory and the jury’s human experience and understanding. The theme can be a word, a phrase, an analogy, or another devise that vividly describes the case. The theme can be repeated and become the structural glue holding the case together throughout the various stages of trial from opening through closing.” Law student will be able to break the habit of not being able to find the bottom-line message if they take a course that teaches the importance of finding the core message and how to craft it.
While law school inflicts the first two bad habits on law students, law school merely perpetuates the teaching of a third bad habit that the students learned in undergraduate school—cramming. For most law school classes, the students show up for lectures and discussions throughout the term and then take a final. They may have a midterm examination. They can sit back and wait until near the end of the term to prepare for the exam.
The practice of law isn’t patterned that way, particularly if you are a litigator. A trial lawyer will have multiple cases to track with court imposed or other deadlines. How important is meeting deadlines? Rule of Professional Conduct 1.3 puts it succinctly, “ A lawyer shall act with reasonable diligence and promptness in representing a client.” When we receive our bar journal, where do we look first? We go to the back pages to see who has been suspended or disbarred. And, what is usually one of the reasons for sanctions or disbarment? Violation of RPC 1.3.
How can law school break the habit that was formed in undergraduate school? First and foremost by discussing the importance of due diligence and meeting deadlines. Second, courses such as pretrial advocacy, trial advocacy and legal writing among others can set deadlines for assignments and enforce them with penalties for lateness.
In sum, law schools should recognize that they foster bad habits in their students, particularly these three: (1) being a lousy communicator; (2) missing the core message of a case; and (3) being a procrastinator. Then, law schools should address the problems and take steps to help students break the habits.