Legal Game Show Night
~
November 15, 2016
Cincinnati Bar Center
Table of Contents
To Tell the Truth
Articles on Credibility, Fact Finding & Deception
Are You Smarter than a Law Student?
Articles on Law School Curriculum
Family Feud
Articles on Substance Abuse & Mental Health
Witness Credibility How To Prepare, Achieve,
And Destroy It
Prepared and Presented by: John Zavitsanos
John Zavitsanos
AHMAD, ZAVITSANOS & ANAIPAKOS, P.C.
1221 McKinney, Suite 3460
Houston, TX 77010
713-655-1101
Fax: 713-655-0062
www.azalaw.com
Taking and Defending Effective Depositions in Texas
Witness Credibility - How To Prepare, Achieve, And Destroy It
I.
SCOPE OF ARTICLE
This article focuses on methods of attacking witness credibility. The paper contains
a discussion of the applicable Federal and Texas rules governing impeachment, impeachment
techniques and suggestions for rehabilitation. The goal of the paper is to provide a practical
overview of impeachment in order to allow lawyers to better prepare for direct and crossexamination.
II.
INTRODUCTION
Cross-examination is critical during litigation. Whether you represent a plaintiff or
a defendant, the other side will inevitably have control over the proof you need (i.e. the
witnesses and the documents). You often have to prove your case in whole or in part through
witnesses that are adverse to you or, in some cases, employed by the other side. As a result,
impeachment can be the most effective weapon a lawyer can use at trial. Impeachment
techniques that are effectively implemented can devastate an opponent’s case. Even as you
prepare for direct examination, you should understand how your witness can be impeached.
If you are prepared for cross-examination, you can blunt its impact through your direct
examination or well-planned rehabilitation.
III.
TECHNICAL CONSIDERATIONS
EXAMINATION
A.
FOR
EFFECTIVE
CROSS-
Keep it Short – Hit the High Points Only
Too many cross-examinations get mired in muck, which destroys their effectiveness.
It is far better to hit only the high points. Avoid going out of the way for minor points, and
keep the examination short. Since a jury sympathizes more with a witness than the lawyer,
the cross examiner has little to gain by subjecting the witness to a grueling and/or petty crossexamination. Frequently, the client seeking vindication will want precisely that type of
cross-examination. Avoid that temptation or the jury will make you and them pay for it.
B.
Ask Short, to the Point, Leading Questions
This is classical cross-examination advice, and I think important. It goes without
saying that generally you want to ask leading questions. Asking any other type of question
is an invitation to the witness to argue his or her side of the story to the jury. Furthermore,
it broadcasts to the jury that this witness can be trusted to tell the truth and has something
important to tell the jury.
Moreover, too many lawyers on cross-examination ask confusing questions which
neither the jury nor anyone else can understand. Long convoluted questions are easier to
argue with because if the witness disagrees with any part of the question then he or she can
simply deny the question. It is far better to ask a few short questions, rather than one long
one. This approach also has the advantage of allowing you to repeat the same point without
drawing an objection.
For example, you are trying to prove that your client was a good employee. Rather
than ask “Ms. Jones was a hard worker, who came in early, left late and always volunteered
for additional work?” It is far better to split the question as follows: “Ms. Jones came early”;
“She worked late frequently”; and “She regularly volunteered for additional work.” If you
want to drive the point home even further, you can sum upthe line of questioning with “She
was a very hard worker, was she not?”
C.
Exercise Discipline and Self Control
Trials are already stressful enough without witnesses trying to play games with you,
evading questions, obstructing the process, etc. Therefore, you should control the witness
during cross-examination and not vice-versa. It is important for you to be calm and
composed at all times no matter what the witness does. Otherwise, the jury loses confidence
in your ability to lead them in the right direction. Good leaders never lose control. You
should demonstrate to the jury that you will not either.
It is important in exercising self control and composure, for example, not to react to
an unfavorable answer. Simply act naturally and continue on with your cross-examination
without delay as if nothing has happened. The jury takes a cue from the lawyers, and if a
lawyer acts as if the witness has hurt the Plaintiff, the jury will conclude that as well.
D.
Use Demonstratives to Summarize Key Points
I like to write down a critical portion of the witness’ testimony on a pad on an easel
so that I can remind the jury of that testimony throughout the trial (i.e. with other witnesses
and at closing). This helps reinforce the critical points that I want the jury to remember, and
because I do it while the witness is testifying, the jury knows it is not just my argument, it
is something that the witness agreed to.
E.
Listen to the Testimony
While your goal on cross-examination should certainly be to argue to the jury through
the witness, it is not only your questions that are important. In the stress of trial, at times it
may seem that you are too busy reading your questions or looking for your next question or
impeachment cite, to even listen to the testimony. This is a critical mistake. It is important
to listen to the testimony that is not only elicited by the opposing attorney on direct, but also
the testimony on cross-examination. Witnesses will say the strangest things at times, and
occasionally they are very damning for the opposing party. It is important to notice those
times and pick up on them.
F.
Use Cross-Examination as an Argument to the Jury
With few exceptions, I do not believe in reserving a point for closing argument. By
that time, the jury has likely made up its mind. Rather, I believe in using cross-examination
to argue your case through the witness.
1.
Ask Questions That Further Your Case
Cross-examination as argument involves asking a question that furthers your
argument and that the witness must agree to. I do not believe in asking questions just for the
sake of having the witness deny it. Some lawyers think that as long as they make a
statement, regardless of what the answer is, a jury will find it believable. This elicits such
ridiculous questions as: you discriminated against my client because of her race, didn’t you?
The truth is that the strategy of asking a question, regardless of the answer, is a technique that
only works in rare circumstances. Today, it is misused and overused.
2.
Have a Deposition or Exhibit Reference for Each Question
Since most witnesses will be adverse, they will not want to agree to anything. To
get them to agree, they need to know that they will be impeached if they don’t. Therefore,
it is imperative to have a deposition or exhibit reference for each question so that if the
witness dares to veer off the path of the argument, they are quickly put in their place.
Here is an example of a prepared outline, in a sexual harassment case. The witness
is the chair of the sexual harassment panel assigned to investigate the client’s sexual
harassment complaint against his supervisor. In this case, the client complained of sexual
harassment against his supervisor reluctantly (because of fear of retaliation). After word of
the complaint had leaked to the supervisor, he complained of retaliation from the employer.
The plaintiff’s theme was that the harasser was so well-regarded that the employer
did nothing to stop the harassment and retaliation. The plaintiff was also trying to defeat the
employer’s affirmative defense that they acted reasonably to correct and prevent sexual
harassment, by showing that the board felt that they had no duty to do so, and in fact did not.
In this case, the defendant played a game of hot potato regarding who was responsible
for stopping the harassment or retaliation. Ultimately, no one stepped up and accepted that
responsibility.
Here is what the outline looked like:1
Reference
Cross-Examination
Exhibit 1, p. 1
He was the Chair of the Sexual Harassment Panel
Exhibit 153, p.1,
Depo, p.
Plaintiff complained about continually being retaliated against after
complaining about sexual harassment
Depo, p.
He and the sexual harassment board had no duty to prevent or correct
any sexual harassment
Depo, p.
The Board had no power to stop retaliation or further harassment
Depo, p.
He did nothing to stop the harassment
Depo, p.
He did nothing to stop the retaliation
Depo, p.
Only President Low can stop the harassment and retaliation
Depo, p.
He knows nothing the President did to stop the harassment or
retaliation
Notice the outline is organized fact by fact; each row contains no more than one fact.
This, by the way, is not the way to formulate the words of the question. You should not write
out your questions verbatim. Instead, you should use this type of preparatory document to
indicate what the deposition or exhibit states, and then formulate simple leading questions
from there. In case the witness tries to veer off course, you want to have the words in the
deposition or exhibit verbatim so that the witness has little room to argue with the question.
Here is an edited transcript of the cross-examination as it played out at trial:
Q
A
...
1
You were the head of the Sexual Harassment Board that investigated
Dr. Mota’s complaint.
I was the head of the panel of the Sexual Harassment Board.
My thanks to Joseph Ahmad for providing me with this outline and the transcript of the
cross-examination.
Q
A
...
Q
A
Now -- during the investigatory process, Dr. Mota complained again
during the process that he was still being subjected to harassment. Is
that true?
When I interviewed him, yes, he did.
Can you look at Exhibit 153, Tab 153. Do you see that document,
sir?
Yes. This is the letter, personal and confidential, dated June 9th, 1997,
to a Ms. Rose Mary Valencia.
...
Q
A
Q
A
And I see at the bottom that you received a copy of this letter. Is that
correct?
That’s what it says.
Okay. Now, in here he mentions that he had been -- on several
occasions subsequent to his complaint had asked for protection from
further harassment and retaliation. Do you see that?
Yes.
Q
A
...
And you remember him mentioning this to you orally?
During the interview. Yes.
Q
Sir, the board could do nothing to stop the harassment or the
retaliation?
That’s correct.
A
...
Q
A
They had no duty themselves to correct or prevent harassment, did
they?
That’s correct.
Q
A
They had no power to do that?
That is correct.
Q
A
And the only person you know that had that power was President
Low?
That is correct.
Q
A
And you don’t know of anything he did to stop the harassment?
That’s correct.
Q
A
Or prevent the retaliation?
That’s correct.
(President Low incidentally testified that it was not his responsibility to stop
the harassment and retaliation).
There are times, although rare, when you will want to ask a question for which there
is no impeachment cite. In fact, the lawyer may not even know what the witness will say to
the question. There are only a few reasons to do this. First, this can be done effectively
when any answer the witness gives helps your case. This may be because common sense and
logic compels a particular answer, and the witness will look foolish if she testifies otherwise.
Also, it may be the case that whichever way the witness testifies, you have alternative
methods of cross examining the witness to prove the point that you are trying to make. In
that case, you need to be prepared for either answer and have two alternative crossexaminations prepared depending upon which answer the witness gives.
Finally, there are times when it is worth taking the risk of asking a question when you
don’t know the answer if it will help prove an important cross-examination point and you
have a real chance of getting a favorable answer. For example, if the question is innocuous
enough, the witness might just give you the answer that you are looking for because the
witness does not yet know what the implication of the answer is, and what you intend to do
with the answer. Sometimes it works; sometimes it does not. If it does not work, you can
simply move on acting as if nothing had happened. In any event, for the strategy to be worth
the risk, it must be a major cross-examination point you are trying to achieve. Otherwise,
it is probably not worth taking the chance.
IV.
SUBSTANTIVE RULES ON IMPEACHMENT
In addition to procedural tactics mentioned above, in order to effectively cross
examine a witness, a lawyer must have a firm grasp of the substantive rules governing crossexamination and impeachment.
A.
Impeaching Your Own Witness
Texas and Federal rules do not prohibit a party from impeaching his own witness.
Under the common law, where a party’s own witness provided damaging testimony, the party
was permitted to contradict that evidence with evidence from another party witness.
However, direct impeachment through prior inconsistent statements, convictions, bias,
prejudice, reputation or other means was generally prohibited. Rule 607 of both the Federal
and Texas Rules of Evidence have modified the common law. Accordingly, under Rule 607,
parties are permitted to impeach any witness that is on the stand, even their own.
B.
Extrinsic Evidence Not Admissible on Collateral Issues
You can cross-examine a witness on collateral issues but you cannot introduce
independent evidence of the collateral facts you inquire about. For example, impeachment
by bad acts is generally collateral. You may ask the witness a question about a prior bad act,
but once you do you must accept the witness’s answer. If the prior bad acts are denied, you
may not introduce independent evidence to show the denial was false. Prior inconsistent
statements not relevant to an issue in the case are also collateral issues.
C.
Extrinsic Evidence Permitted on Non-Collateral Issues
You can introduce impeachment evidence on non-collateral facts. For example, a
prior inconsistent statements on material matters is not collateral. As a result, extrinsic
evidence of a prior inconsistent statement on a material matter may be introduced. In
addition, there are matters which, although not necessarily material issues in a case, are not
collateral and can be established through independent proof or evidence. These include: (1)
bias, prejudice, interest and motive; and (2) criminal convictions. For example, if you
question a witness about personal bias such as a financial interest in the other side, you can
offer independent proof of the issue if the witness denies a fact.
V.
SPECIFIC AREAS TO ATTACK CREDIBILITY AND IMPEACH
A.
Lack of or Deficient Personal Knowledge
l.
The Substantive Rules on Personal Knowledge
Lack of personal knowledge is technically a challenge to a witnesses’ competency
and therefore a basis for excluding testimony altogether. See FED . R. EVID . 602; TEX . R.
EVID . 602 (“A witness may not testify to a matter unless evidence is introduced sufficient to
support a finding that the witness has personal knowledge of the matter.”). Lack of personal
knowledge is rarely used to attack competency, however; because most witnesses will deny
that they lack actual knowledge of the events or, if they do, they will not be called to testify
at all.
When faced with a witness who doesn’t have personal knowledge, you can attack
their credibility by exposing the witness’s lack of first hand knowledge. Since lack of
personal knowledge goes to the witness’s capacity to testify, it may be proved through
extrinsic evidence.
2.
Discrediting Testimony through Lack of Personal Knowledge.
Where the witness is familiar with the events in question but was not actually a
witness to the events or the transactions themselves, one method of impeachment is to
demonstrate that the witness’ knowledge was learned through others. A good example of
such an impeachment involves an expert witness. The cross-examination could proceed as
follows:
Q.
Mr. Jones, you were hired by the defendant’s attorney in this case?
A.
Yes.
Q.
A.
All of the information you have about this case came from the
defendant or his attorney, isn’t that true?
Yes.
Q.
A.
Did you see the accident?
No.
Q.
A.
You were not at the scene right after the accident, isn’t that correct?
That’s correct.
Q.
You did not conduct your own investigation into the accident, did
you?
No, I didn’t.
A.
3.
Discrediting Testimony Through Lack of Reliability
You can also attach a witness’ by demonstrating the lack of reliability in their
testimony. This can be done through showing defects in her ability to observe and recollect
events. For example, where a witness testifies that she witnessed an sudden accident, the
cross-examination can show that she could not accurately observe what really happened:2
Q.
A.
Q.
2
Ms. Jones, is it fair to say that you weren’t expecting an accident that
day?
Yes.
A.
So you were driving the way you usually would just before the
accident, weren’t you?
Yes.
Q.
A.
You had a passenger in the car, correct?
Yes.
This example is taken from Mauet, Thomas S., Fundamentals of Trial Techniques, p. 226227 (3d. ed. 1992).
Q.
A.
You were talking with him while driving, weren’t you?
Yes.
***
Q.
A.
Q.
Both Maple and Elm have buildings on both sides of the street, don’t
they?
Yes.
A.
As you were driving toward the corner, you couldn’t see traffic on
Maple other than the intersection, could you?
No.
Q.
A.
That’s because the buildings were blocking your view, weren’t they?
Yes.
Q.
A.
So you couldn’t see two cars involved in the accident until they were
actually in the intersection, could you?
No.
B.
Challenging the Witness With Selective Memory
Adverse witnesses who testify vividly about events on direct routinely forget events
when cross-examined. Challenge them on this directly by reminding them about other events
that they remember (preferably events they should be more likely to forget than the event you
asked them about) and asking the final question (or some variant) “But you are telling us that
you can’t remember [Fill in the blank].”
Another tactic in handling the witness with selective memory is to actually highlight
the witness’s lack of knowledge. For example, if you are preparing for a witness you
anticipate will have a selective memory, carefully scrutinize the witness’s deposition for all
questions to which his response was that he did not know the answer. All of these questions
could then be repeated on cross-examination. If the witness “happens to remember” the
answer he can be impeached with his prior inconsistent statement in the deposition. If he
doesn’t remember the answer he’ll have to answer “I don’t know” to a long string of
questions, sometimes unrelated, that give the impression he really knows very little about the
case, or is simply being evasive with you.
C.
Impeach Through Bias/Interest.
Bias of a witness is always considered relevant as well it should be. If the witness
is there to hurt you, you must focus at least in part on the bias of a witness. A witness can
be impeached by showing that he has a reason for lying about or misrepresenting facts,
because he is biased in favor of a party, prejudiced against a party, or has an interest in the
outcome.
For expert witnesses, it is important to bring out how much the individual is being
paid by the defendant to testify, how many times the expert has been hired by the defendant
or the defendant’s law firm, how many times the expert testifies for employers as opposed
to employees, defendants as opposed to plaintiffs, and how much, percentage wise, the
witness makes from testifying as opposed to non-forensic work.
Although there is no federal rule on the matter, proof of bias, prejudice, interest or
motive is never considered collateral. As under Texas Rule of Evidence 613(b), bias and
interest may be proved through extrinsic evidence (documents or the testimony of other
witnesses) as well as through cross-examination of the witness. See Recer v. State, 821
S.W.2d 715, 717 (Tex. App. Houston [14th Dist.] 1991, no pet.). See also Walker v. Packer,
827 S.W.2d 833, 839 n. 5 (Tex. 1992). A majority of jurisdictions, however, will require a
foundation for extrinsic proof of bias or prejudice, though foundation may not be required
where indisputable issues of bias, such as family ties, are involved. Moreover, a court may
limit the scope of cross-examination to avoid prejudice, confusion, or harassment of a
witness. See Lagrone v. State, 942 S.W.2d 602, 613 (Tex. Crim. App. 1997).
1.
Examples for Attacking Credibility: Bias/Interest.
A witness may be biased in favor of a party, or prejudiced against another party
because of some family, employment or other relationship that renders the witness incapable
of objectivity. For example, demonstrating bias can be very effective in the case of a witness
who is paid by one of the parties to appear and testify.
2.
Attacking Credibility: Motive
The motive behind a witness’s testimony can create numerous areas for impeachment.
For example, the witness may be a former, disgruntled employee motivated by anger and
revenge to testify against his former employer. The witness might be a former spouse or
lover motivated by bitterness or hatred. The witness may be a parent, motivated by love or
remorse to “cover up” the actions of a wayward child. Regardless of the type of motive,
cross-examining the witness on areas which might be motivating his or her testimony will
diminish the credibility of the witness.
3.
Collateral/Non-Collateral
Impeachment based on bias, interest, prejudice or motive is never collateral; such
inclinations may always be proved by extrinsic evidence. However, if in state court, the
examiner must comply with the requirements set forth in Texas Rule of Evidence 613(b):
(1)
The witness must be told the circumstances supporting the claim of
bias or interest or the details or content of such a statement, including
where, when, and to whom the statements were made. If written, the
writing need not be shown to the witness at that time, but on request,
the same shall be shown to opposing counsel.
(2)
The witness must be afforded the opportunity to explain or deny such
circumstances or statement.
For example:
Q.
A.
Mr. X, you dislike the defendant, don’t you?
No, I’m a fair man.
Q.
Before this lawsuit was filed, you spoke to Mr. Jones about the
defendant, didn’t you?
I may have.
A.
Q.
A.
Q.
In fact, you spoke to him on December 1, 1999 at an annual meeting,
didn’t you?
Yes, I remember attending that and probably spoke with him on that
occasion.
A.
And you told him at that time that the defendant should be banned
from the industry because they didn’t have the good sense to market
your product line?
Yes, I probably said words to that effect.
D.
Prior Inconsistent Statements
A highly effective means of attacking a witness’s credibility is through the use of
prior inconsistent statements that directly contradict a witness’s trial testimony.
1.
The Rules on Inconsistent Statements.
Rule 613 of both the Federal and Texas Rules of Evidence permit a cross-examiner
to inquire about prior inconsistent statements. If the witness unequivocally admits having
made such a statement, extrinsic evidence is prohibited. TEX . R. EVID . 613(a). If the witness
denies having made prior statements material to an issue in the case, extrinsic proof may be
introduced.
Under the common law, confrontation was a prerequisite to impeachment with prior
inconsistent statements. Before introducing a prior inconsistent statement, whether written
or oral, collateral or direct, the witness had to be confronted with the particulars of his prior
statement, have his attention directed to the time, place and circumstances under which the
prior inconsistent statement was made, and asked if he made it. If he admitted making the
statement, extrinsic evidence was disallowed. If the witness denied it and the statement was
written, he had to be shown the statement, permitted to read it, and given the opportunity to
explain or deny it. If he denied ever making the statement, and it was not collateral to the
issues being tried, his prior statement could then be proved by extrinsic evidence.
Federal Rule of Evidence 613 dispenses with the strict requirement for confrontation.
Provided that the statement is disclosed to opposing counsel or opposing counsel is provided
a copy upon request, the witness need not be given a copy. The cross-examiner need only
afford the witness an opportunity to explain or deny the statement and afford the opposing
counsel an opportunity to interrogate the witness thereon if he intends to present extrinsic
proof of the same. FED . R. EVID . 613(b).
Contrary to the Federal rule, Texas Rule of Evidence 613(a) maintains a qualified
version of the common law “confrontation” requirement:
(1)
The witness must be told the contents of the prior statement, as well
as the time, place and person to whom it was made.
(2)
The witness must be afforded with the opportunity to explain or deny
the prior statement.
TEX . R. EVID . 613(a). See also Downen v. Texas Gulf Shrimp Co., 846 S.W.2d 516, 512
(Tex.App.–Corpus Christi 1993, writ denied).
Similar to the Federal rule, however, the cross-examiner no longer needs to show the
witness an impeaching writing before using it; it must only be shown to opposing counsel
if requested. Of course, it is usually more effective to show the witness his prior written
statement so that his admission of having written or signed the document may be obtained.
Pursuant to Federal Rule of Evidence 801(d)(1)(A) and Texas Rule of Evidence
801(e)(1)(A), evidence of prior inconsistent statements may be introduced, not only to cast
doubt upon the credibility of the witness, but also to prove the truth of the statement
previously made if it was made “under oath and subject to the penalty of perjury.” When
prior statements are not made under oath, their use is restricted to impeachment on
cross-examination, and they may not be introduced for purposes of proving their truth.
However, even this use of a prior statement is objectionable if the primary purpose for calling
the witness is simply to elicit the otherwise inadmissible statement. See Arrick v. State, 107
S.W.3d 710, 722-23 (Tex. App.–Austin 2003, no pet.).
2.
Impeachment by Prior Inconsistent Statements.
a.
Make sure that the witness has truly testified contrary to
a prior statement (Try to lift the words verbatim from
your impeachment cite into your question).
Strangely, lawyers often try to impeach with statements that are not truly
contradictory. This only boosts sympathy for the witness and destroys the credibility of the
lawyer in the jury’s eyes. Therefore, it is crucial that before you try to impeach, you make
sure you have testimony that is directly contradictory to a prior statement. After all, since
the witness does not want to help you, he will look for any way he can to weasel out of the
question. And if you give the witness that opportunity, that is exactly what the witness will
do.
For example, if you ask a witness whether the woman was wearing dark clothes and
your impeachment cite is that she had a dark jacket, the witness can and will argue with you.
It is far better, whenever possible to use exactly the same words that the witness used in their
previous statement. That way, the witness cannot quibble with your words because you are
only using the witness’ words.
This is particularly effective when cross examining about characterizations.
Generally, of course, it is better to cross examine specifically on facts so the witness cannot
argue with you. However, if the witness herself used the characterization you can go ahead
and ask it that way too. For example, question: You made the statement about why Mr.
Jones was fired to a lot of people. That question can easily draw an argument over what
constitutes “a lot of people.” However, if the witnesses use that specific phrase I think you
can too with impunity. If the witness attempts to argue with you, you can simply ask, well
these were your words, were they not, or well, that’s how you chose to characterize the
number of people, is it not, or you felt that it was a lot of people, did you not.
Again, it is helpful to keep in mind at the deposition stage that since your crossexamination is going to be based upon a deposition, you want as clean of an answer as
possible. Well coached witnesses at deposition will tend to throw so much gobbley gook in
their answer so as to prevent you from being able to use it on cross-examination. Do not
allow this. Insist on a clear clean answer.
b.
Make sure the impeachment is material.
Just like you want your cross-examination to hit the high points only, your
impeachment should be on major points, not trivial ones. Juries generally believe that
inaccuracies regarding less important points are the product of an innocent mistake, not
deliberate prevarication. On trivial points, just gently refresh the witness’ recollection as to
the truth (as if it were an innocent mistake), rather than resorting to full-blown impeachment.
c.
Techniques for impeachment with prior inconsistent
statements.
A simple impeachment technique is as follows:
1.
Commit the witness to contradictory testimony
2.
Ask if the witness made the inconsistent statement (e.g., “did you
testify differently at your deposition”).
3.
If they say, as they usually will, that they do not remember, repeat
what they just stated on the witness stand, getting another
commitment
4.
And then refer them to page and line reference of the deposition
testimony or other statement that is contradictory, while you (not the
witness) reads the testimony or statement.
Step 3 is optional, and sometimes draws an objection. Steps 1, 2, and 4 are critical.
3.
Impeachment by Prior Testimony.
Prior testimony is the most effective form of impeachment. Prior testimony includes
any testimony given under oath such as depositions, evidentiary hearings and/or former trials.
Since prior testimony is given under oath and is subject to the penalties of perjury, it carries
particular weight when attacking the credibility of a witness and may be introduced to prove
the truth of the matter asserted. For example:
An example (based on the preparatory outline in Section III.F. of this paper) is as
follows:
Step 1 – Commitment.
Q:
A:
Q:
A:
Sir, isn’t it true that as part of your sexual harassment investigation,
you never interviewed the harasser, Mr. X.
Yes we did interview him.
(expressing surprise) You did interview Mr. X as part of your
investigation?
Yes we did.
Step 2 – Ask if he ever testified differently.
Q:
A:
Have you ever made a contrary statement, and stated that you never
interviewed Mr. X?
I don’t believe so.
Step 3 (Optional) – Highlight the testimony of the witness
Q:
A:
But your testimony today is that you interviewed Mr. X as part of the sexual
harassment investigation.
Yes.
Step 4 – Read the impeachment and give the page/line cite.
Q.
A.
You gave a deposition in this case, didn’t you?
Yes
Q.
A.
And before the deposition began you were sworn to tell the truth, is
that right?
Yes
Q.
A.
And you did tell the truth, didn’t you?
Yes.
Q.
A.
After the deposition was over, it was typed up and you had a chance
to read it to make sure your testimony was accurate, didn’t you?
Yes.
Q.
A.
After you read it, you signed it before a notary public, didn’t you?
Yes.
Q:
A:
Sir, if you will turn to your deposition, which I have in front of you,
to page 44, line 15, you were asked the question (pause) did you
interview the harasser Mr. X as part of your sexual harassment
instigation and your answer was “‘No.” Did I read that correctly?
Yes.
Q:
A:
So you testified differently at your deposition than you just did now?
Well yes but . . .
4.
Impeachment by Prior Written Statements.
The following illustration focuses on written statements to impeach the credibility
of the witness. These statements are usually given to investigators of some sort in a narrative
or question/answer format, and are either written by the witness himself or signed by him.
Q.
A.
Q.
Mr. X, you’ve testified on direct examination that the black car ran
the red light and crashed into the white car.
Yes, I did.
A.
Mr. X, you made a written statement shortly after the accident, didn’t
you?
Yes, I did.
Q.
A.
Your statement was made to Deputy Jones, correct?
Yes.
Q.
A.
After Deputy Jones took your statement, he gave it to you to read and
make any corrections, didn’t he?
Yes.
Q.
A.
And you read the statement, didn’t you?
Yes.
Q.
A.
You wanted to be sure that your statement was accurate?
Yes.
Q.
After making sure the statement was accurate, you signed it, didn’t
you?
Yes.
A.
Q.
A.
(Now have the statement marked as an exhibit, show it to opposing
counsel, and then show it to the witness.)
Mr. X, I’m am showing you what has been marked as Defendant’s
Exhibit #1. That is your signature at the bottom, isn’t it?
Yes.
Q.
A.
Exhibit # 1 is the statement you made to Deputy Jones, isn’t it?
Yes.
Q.
In that statement, (refer to page number for the witness and opposing
counsel), you indicated that the white car ran the red light?
Yes, that is what it says.
A.
5.
Impeachment by Prior Oral Statements.
A witness may also be impeached with oral statements made to police officers,
investigators, or other witnesses:
Q.
A.
Mr. X, you talked to Deputy Jones shortly after the accident, didn’t
you?
Yes.
Q.
A.
Deputy Jones asked you how the accident occurred?
Yes.
Q.
A.
And you told him everything you could remember at the time, didn’t
you?
Yes.
Q.
A.
As accurately as you could remember it?
Yes.
Q.
A.
Deputy Jones took notes during your conversation, right?
Yes.
Q.
A.
Didn’t you tell Deputy Jones that the white car ran the red light?
Yes, I did.
If the witness admits the inconsistency, you may not introduce the Deputy’s
testimony. If, however, the witness denies making such a statement, Deputy Jones may
testify that the witness reported otherwise shortly after the accident.
When impeaching with oral statements that are in somebody else’s report, it is
improper to impeach the witness with the report itself because the witness did not author the
report. Therefore, questions such as “Didn’t you say in Deputy Jones’s report that the white
car ran the red light?” are improper.
6.
Impeachment by Omission
You may also impeach by omission. Whenever a person has prepared a written report
or summary of an event and then testifies to important facts that they omitted, the witness is
ripe for this type of impeachment. In these cases, the witness’s credibility can be attacked by
showing that the facts testified to were omitted from a document that they prepared, even
though the document was prepared closer in time to the events in question and the facts were
of a type that should have been included in it.
When impeaching by omission it is critical to build up the importance of the
document. You must establish that the witness knows which information is important enough
to be included, and that the facts testified to during trial should have been included in the
document.
7.
Extrinsic Evidence to Prove Up Impeachment Prior Testimony.
To prove witness statements previously made under oath during a deposition in the
case, simply read the pertinent portions of the deposition or transcript. TEX . R. CIV . P.
203.6(b); TEX . R. EVID . 801(e)(3). If the sworn statement was made in a deposition for
another case, you may still use it subject to the Texas Rules of Evidence. TEX . R. CIV . P.
203.6(c).
a.
Written Statements
To prove written statements, call a witness who can identify the writing or signature
of the witness, or a witness who saw the person write or sign the statement. Have the witness
read the impeaching statements from the documents.
b.
Oral Statements
To prove up oral prior inconsistent statements, call a witness who was present when
the witness made the prior inconsistent statement, ask the appropriate foundation questions
for oral conversations, and elicit testimony regarding the specific inconsistent statements.
E.
Prior Bad Acts
1.
The Rules on Prior Bad Acts
Under the Federal Rules of Evidence the trial court may permit a witness to be
cross-examined regarding specific instances of conduct if evidence of these prior acts is
probative of the “truthfulness or untruthfulness” of the witness. FED . R. EVID . 608(b). There
is no absolute right to cross-examine a witness regarding his prior bad acts, however. The
court has the discretion to permit or deny such cross-examination.
Under the Texas Rules of Evidence, cross-examination of specific instances of
conduct is prohibited, unless they are related to prior convictions, as described in Rule 609,
TEX . R. EVID . 608(b). Therefore, before cross-examination is attempted (or disregarded) in
this matter, counsel should research the status of prior bad acts in Texas and whether the
conduct into which examination is desired falls within its scope.
2.
Technique for Attacking Credibility
An example, under the Federal rules for using a prior bad act is as follows:3
Q.
A.
Mr. Johnson, didn’t you fill out a false employment application at
Sears last year?
I don’t think so.
Q
A.
Well, you applied there for a job, didn’t you?
Yes.
Q.
A.
You filled out an application form, right?
Yes.
Q
A.
You submitted it on March 31 of last year, correct?
Yes.
Q.
A.
And you signed it, didn’t you?
Yes.
Q.
On the line asking for the extent of your education, didn’t you write
down “received a B.A. degree in economics from U.C.L.A. in 1981?”
Yes.
A.
Q.
A.
In fact, Mrs. Johnson, you haven’t received a B.A. degree from
U.C.L.A. or any other college, have you?
No.
Because evidence of prior bad acts is collateral to the merits, the cross-examiner is
bound by the witness’ answer on cross. He may not introduce extrinsic evidence of prior bad
acts, even if they are denied by the witness. FED . R. EVID . b08(b). In order to avoid having
the technique backfire with a savvy witness, use as much detail as possible. If the witness
thinks you have the goods on him, he is more likely to tell the truth.
F.
Character Evidence
l.
The Rules on Character Evidence
Both the Federal and Texas Rules allow for a witness’ credibility to be attached by
having another witness testify that the witness was considered untruthful.
3
Mauet, Thomas S., Fundamentals of Trial Techniques, p. 242 (3d. ed. 1992).
The credibility of a witness may be attacked . . . by evidence in the form of
opinion or reputation but subject to [the following] limitations: (1) the
evidence may refer only to [the witness’s] character for truthfulness or
untruthfulness; and (2) evidence of truthful character is admissible only after
the character of the witness for truthfulness has been attacked by opinion or
reputation evidence or otherwise.
FED . R. EVID . 608(a); TEX . R. EVID . 608(a).
The fact that only opinion or reputation evidence may be presented with regard to the
witness’ character for truthfulness or untruthfulness, is the most important limitation
imposed on the cross-examiner. See Service Lloyds Ins. Co. v. Martin, 855 S.W.2d 816, 823
(Tex.App.–Dallas 1993, no writ). Evidence of specific instances of conduct are prohibited
by both rules. See, e.g., Closs v. Goose Creek Consolidated ISD, 874 S.W.2d 859, 870 n.
7 (Tex.App.–Texarkana 1994, no writ).
Federal Rule of Evidence 608(b) renders inadmissible extrinsic evidence of specific
instances of conduct, unless this testimony pertains to a prior conviction, as described in Rule
609. Cross-examination of specific instances of conduct is permissible, however, if it (1)
concerns the witness’s character for truthfulness or untruthfulness, or (2) concerns the
character for truthfulness or untruthfulness of another witness to which character the witness
being cross-examined has testified.
To clarify the Federal rule, examples of specific instances of conduct may not be used
during the direct examination of a character witness. They may only be used during the crossexamination of the character witness. Because character witnesses have testified to
someone’s reputation for truth and veracity, it is only logical that their knowledge of this fact
be tested. Even the question of “arrests” may be inquired into during the cross-examination
of the character witness, not to prove character, but to test the witness’s knowledge of the
other’s reputation.
Contrary to the Federal Rule, Texas Rule of Evidence 608(b) prohibits both the crossexamination of a witness, and extrinsic evidence regarding specific instances of the conduct
for the purpose of attacking or supporting the credibility of a witness. Texas Rule of
Evidence 608(b) permits the reputation witness to testify regarding the “primary” witness’s
reputation for truth and veracity in the community, or to give his opinion regarding the
witness’s tendency towards truthfulness or dishonesty. He may not illustrate his opinion with
testimony regarding instances of conduct, unless his testimony pertains to a conviction of a
crime as described in Rule 609.
Under both the Federal and Texas rules, however, the principal witness is prohibited
from bolstering his testimony by having other witnesses testify as to his truthfulness.
Evidence of the truthful character of the “primary” witness will only be allowed after his
credibility has been attacked. The witness will not be permitted to bolster his character
through the reputation testimony of other witnesses. FED . R. EVID . 608(a)(2); TEX . R. EVID .
608(a)(2); Rose v. Intercontinental Bank, 705 S.W.2d 752, 757 (Tex.App.–Houston [1st
Dist.] 1986, writ ref’d n.r.e.) (“[T]he witness’s reputation for truthfulness must first be
attacked before [the party] can offer rehabilitating evidence.”).
G.
Prior Convictions
1.
The Rules on Prior Convictions
Under the Texas Rules of Evidence any witness’s credibility may be attacked with
evidence that the witness has been convicted of a crime. . . if elicited from
[the witness] or established by public record but only if the crime was a
felony or involved moral turpitude, regardless of [the] punishment, and the
court determines that the probative value of admitting this evidence
outweighs its prejudicial effect to [the] party.
TEX . R. EVID . 609(a).
The Federal rules permit the impeachment of any witness through cross-examination
or extrinsic evidence of felonies or crimes involving dishonesty or false statements. Under
the Federal rule a misdemeanor conviction must involve dishonesty or false statements; the
Texas rule requires that it involve moral turpitude.
Further, admissibility under both rules is predicated upon a prior finding by the trial
court that the probative value of such evidence outweighs its prejudicial effect.
The balancing test of the Federal rules differs slightly from that of the Texas rules,
however, because distinctions are made between criminal and civil cases, and party and
nonparty witnesses. In civil cases, any witness may be impeached with a conviction of a
felony or misdemeanor if it involves dishonesty or false statements: evidence that any
witness has been convicted of a crime shall be admitted if it involved dishonesty or false
statement, regardless of the punishment. FED . R. EVID . 609 (a)(2). This rule includes the
assumption that a witness in a civil trial may not be impeached with a prior felony or
misdemeanor if such an offense did not involve dishonesty or false statements.
a.
Time Limits
Under both Federal and Texas rules, evidence of a prior conviction will not be
permitted if more than ten years have elapsed since the date of the conviction or the date the
witness was released from confinement, whichever is the later date, unless the probative
value substantially outweighs prejudicial effect. FED . R. EVID . 609(b); TEX . R. EVID . 609(b).
b.
Pendency of an Appeal
Under the Federal rules, the pendency of an appeal does not render a conviction
inadmissible, though it is a factor considered in the “balancing” test. FED . R. EVID . 609(e).
The Texas rules, however, render inadmissible any conviction currently being appealed. TEX .
R. EVID . 609(e).
c.
Pardon, Annulment or Rehabilitation
Evidence of a prior conviction is inadmissible under Rule 609 of the Federal and
Texas Rules of Evidence where:
(1)
the person has been pardoned or the conviction annulled, or the
person convicted is deemed rehabilitated, or the equivalent procedure,
and that person has not been convicted of a subsequent crime
punishable by death or imprisonment for more than one year (under
the Federal rules) or convicted of a subsequent crime which was
classified as a felony or involved moral turpitude (under the Texas
rules); or
(2)
the person convicted is pardoned, or his sentence annulled, or other
equivalent procedure because of a finding of innocence.
FED . R. EVID . 609(c); TEX . R. EVID . 609(c)(1) and (3).
The Texas rules add one more provision, however. Evidence of a conviction is not
admissible if probation for the crime for which the person was convicted has been
satisfactorily completed and that person has not been convicted of a subsequent crime
classified as a felony or involving moral turpitude. TEX . R. EVID . 609(c)(2).
d.
Juvenile Adjudications
Under the Federal rules, evidence of the prior adjudication of a juvenile is
inadmissible in a trial to attack that witness’ credibility. Under the Texas rules:
[e]vidence of juvenile adjudications is not admissible, except for proceedings
conducted pursuant to Title III, Family Code, in which the witness is a party,
under this rule unless required to be admitted by the Constitution of the
United States or Texas.
TEX . R. EVID , 609(4).
e.
Presenting Extrinsic Evidence
Under the Texas rules,
Evidence of a conviction is not admissible if after timely written request by
the adverse party . . ., the proponent fails to give the adverse party sufficient
advance written notice of [its] intent to use such evidence to provide the
adverse party with a fair opportunity to contest the use of such evidence.
TEX . R. EVID . 609(f)
The Federal rules only require such written notice where the conviction is more than
ten years old. FED . R. EVID . 609(b).
Proof of a prior conviction is never collateral. If the witness denies the conviction
during cross-examination, proof of the conviction can be established through the use of
public records. Prior to 1990, a cross-examiner was required to present evidence of prior
convictions during cross-examination. Any such evidence omitted during cross was
considered “waived.” As the rule now stands; a cross-examiner may wait until the witness
has left the stand to present extrinsic evidence of his prior convictions.
H.
Impeachment by Contradiction
When the cross-examiner wishes to show that certain facts are different from what
the witness claims at trial, he may seek to have the witness admit facts contradictory to his
original testimony. If properly presented and structured, the jury will soon understand the
inconsistencies in the witness’s story.
VI.
SUGGESTIONS FOR EFFECTIVE CROSS-EXAMINATION
A.
At the Right Time, ask Opinion Questions.
Normally, it is best to ask facts rather than opinions. At times, however, I believe it
is entirely appropriate to ask certain opinions. If the witness gives an opinion which is
particularly helpful for you, you can bring out that opinion to the jury. Moreover, if a witness
has an opinion even a very negative one, that seems heavy handed, harsh, unfair, or illogical,
I think it is important to bring that out to the jury to show that the witness is biased, not
objective or worse yet, lying.
B.
Start with your Biggest Point or Biggest Impeachment.
Depending upon what you are trying to do with the jury, you want to start with either
your biggest point or your biggest impeachment. If the object of your cross-examination is
primarily to undermine the credibility of the witness, then start with your biggest
impeachment. If the primary objective of your cross-examination is to obtain favorable
points from the witness, then start with the biggest and best point you have on crossexamination.
C.
End with your Second Biggest Point or Second Biggest Impeachment.
It is important to finish on a high note also. Therefore, similarly, one must take their
second biggest point on impeachment or second biggest point on cross-examination and
finish with that point.
D.
If the Witness Insists on Talking Despite Diligent Efforts to Control the
Witness Through Short, Leading Questions, let Them.
There are times, however, that despite your diligent attempts to control the witness,
the witness insists on getting out their side of the story.
In employment litigation, we frequently see a type of witness I call the “agenda
setter.” This witness is usually a chief executive officer or similar type who is not used to
being questioned but is used to barking out orders and having people listen without question.
They also feel like they are in a personal battle of wills with you, the lawyer, and simply
cannot bear to let you argue your case to the jury the way you want too. Rather, this witness
is the type who effectively says I’m the one that is going to control the agenda here, not you.
Other types are evasive as well, although not quite as defiant, but still pose potential
problems for the cross-examiner.
The classical advice on this witness is to cut them off, whine to the judge, object as
non-responsive, etc. I could not disagree more. Having the witness fight you on crossexamination while you are asking short, simple, leading questions, is probably the best
opportunity you have on cross-examination to score points with jury. It is commonly
acknowledged that an admission by a hostile witness is much more valuable than that from
friendly witness. I would add that it is that much more valuable when you get a begrudging
admission from a witness that fights you every step of the way. The jury concludes that it
must be true or the witness would never admit it.
It also creates drama, suspense, and therefore interest on the jury’s part when it sees
the witness initially fight with the lawyer. At first, the jury is thinking, “is that really true,
or is lawyer really making it up?” At the same time the jury realizes that whatever the case,
it must be important, because the witness is fighting it. Finally the battle enhances credibility
of the lawyer, and diminishes that of the witness when the witness has to admit that the
lawyer is right. It appears clear to the jury that this witness cannot be trusted to tell the truth
unless he absolutely, positively has to because it is clear from a previous statement. The
fight should create a credibility war that the lawyer wins.
Which would you rather have the jury see: You whine to the judge that the witness
will not play fair or you make the witness eat crow? Remember Bill Gates? Take advantage
of the opportunity the witness creates when she fights the examination.
One qualification: many witnesses elude the question unintentionally. They may
honestly misunderstand the question (perhaps because it was too complex), for example.
Obviously, you want to reserve your fights for those that are intentionally obstructing your
cross-examination or the jury will resent you and sympathize with the witness.
1.
How do you beat the unresponsive witness? Repeat the question
verbatim.
If you ask a question and get a story which is unresponsive, ask the question again
verbatim. If that does not work, ask the question once more verbatim. This usually
underscores to the jury that the witness has attempted to evade the question. After the second
time, you can say “My question is about [subject matter of the question] and then repeat the
question. This, again, serves to underscore that the witness is trying to evade the question.
2.
Ask if the opposite is true.
Sometimes witnesses will continue to struggle and may even protest that they cannot
answer the question. At times it may be effective then to ask the opposite question. You
are again underscoring to the jury that the witness is simply evading the question. Moreover,
the witness looks silly if she will not agree to X or not X, a silly position which just
demonstrates to the jury that the witness is simply refusing to cooperate and has something
to hide.
An example of these techniques, while having an impeachment cite (but saving it
until the end) is as follows:
Q:
A:
Q:
Mr. CEO, Ms. Jones never missed a day of work in the ten years that
she worked for ABC Corporation?
ABC Corporation has an extensive sick leave and vacation leave
policy. We are very good to our employees about that. For example,
we are one of the few employers that actually gives employees a total
of four weeks off from the very first day they start employment with
ABC Corporation. No other company in our business is so generous
to their employees in terms of time off. And frankly it does not
matter to me whether an employee takes one day off or four weeks
off.
Sir, Ms. Jones never missed a day of work in the ten years she worked
there, did she?
A:
Again sir, I don’t think that matters. Whether they miss one day or
four weeks is irrelevant under our policies.
Q:
Sir, my question is not about your polices or whether it matters in
your policies. My question is simply, she never missed a day of work
in the ten years that she was there?
Well, I know there were times when she was gone so you have to
understand this is not a situation in which your client was there every
minute of every day.
A:
Q:
A:
Sir, are you testifying that there were days in which Ms. Jones did not
show up to work?
Look, there were times when she was gone. That’s what I’m saying.
Q:
A:
Sir, was it, was she ever gone for an entire day?
She was gone for hours.
Q:
A:
She was gone for hours, though, but not days, sir, isn’t that right?
She was gone for hours. That is what I’m saying.
Q:
Sir, I am handing you what has been marked as exhibit 5, that is Ms.
Jones’ personnel file and excerpts of her personnel file, is it not?
It looks like it.
A:
Q:
A:
Q:
A:
And it looks like she has never missed a day in the ten years that she
worked there at ABC?
Looks like it.4
But Ms. Jones never missed an entire day of work in the ten years she
was there, did she?
Not an entire day, no sir.
How does the witness come off in this exchange? The jury thought the witness was
despicable for not having the decency to even credit the Plaintiff for not missing an entire
day of work in the years that she had worked for the company. It was obvious the witness
was doing everything he could to hurt the Plaintiff and was not willing to even concede the
smallest point to help the Plaintiff. In doing so the witness came off as evasive and lacking
credibility. All of this only helps your case when you try to show that the employer is lying
about the reasons why your client was terminated.
4
Obviously I could have cut the witness short by using this exhibit in the beginning demonstrating that she
never missed a day of work. However, the witness’ evasion of my questions, I felt at the time, was so helpful, that I
delayed using this exhibit to show the jury what kind o f a witness this person really was.
It is important to remember, however, to employ these techniques only when the
witness is truly being unresponsive. Otherwise it is you who looks argumentative, not the
witness.
E.
Housekeeping Matters - Having Everything set up for Your CrossExamination
I like to use notebooks for exhibits. I have one of them for every member of my
team, the judge, the defense attorneys, the witness (this copy of the notebook remains on the
witness stand at all times) and one for each of the juror. Most of the time, the judge will
allow me to hand to the jury at the outset of trial notebooks containing all exhibits that are
pre-admitted, and then to add to it, as additional documents are added.
Before you start cross-examining a witness you want to have with you:
1)
Your outline containing impeachment cites (a partial example is
contained on Section __ of this paper);
2)
a copy of the witness’ deposition; and
3)
The Exhibit Notebook which has all remaining impeachment cites as
referenced in your outline.
On the witness stand should be
1)
The Exhibit Notebook(s); and
2)
A copy of the witness’ deposition.
Much of this is just personal preference, but having everything set up like this
minimizes shuffling papers, depositions, time, and reduces the chance of error, at least it has
for me.
F.
Should you call the Witness Adverse in your Case in Chief?
Finally, one must decide whether to call a witness adverse as part of your case in
chief, or wait until your opponent calls the witness. Sometimes, of course, you have no
choice. The witness is out of subpoena range, so you will have to wait. When you have the
choice, however, I generally opt for calling the witness in our case in chief.
Although some worry that by doing so you may be giving some credence to the
testimony, or that you may lose the ability to ask leading questions. I have not found that to
be the case. Moreover, it throws the defense lawyers off. They have a prepared direct
examination, which if they stick to, looks foolish after you have scored points on crossexamination. For example, in the sexual harassment case mentioned above, after a crossexamination that demonstrated 1) that the employer took no action to stem the harassment
or retaliation of the plaintiff, and 2) that a letter from the president of the University to the
plaintiff contained inaccurate accusations against the plaintiff, this was the start of the direct
testimony after this cross-examination:
Q
A
Dr. Stancel, would you describe for the jury briefly -- very briefly
what your background is -- your educational background, what you
do currently as the Dean of the Graduate School of Biomedical
Sciences.
Okay. I have a degree in chemistry. I have a Ph.D. in biochemistry
and did some additional training in physiology. At present I’m the
Dean of the Graduate School, which means that I oversee the teaching
and academic work of the graduate faculty and the graduate students,
monitor their progress and so on and so forth. But, basically, I’m
responsible for the academic work and the administration of the
Graduate School of Biomedical Sciences.
Q
A
Do you also engage in biomedical research personally?
Yes, I do.
Q
And in the course of doing that, can you describe briefly what you do.
I mean, you conduct experiments.
...
This is an example of the defense lawyer sticking with the direct testimony, going
over the background information, etc., immediately after their case had been seriously
damaged. This would have made sense at the beginning of the witness’ testimony, but not
after cross-examination. More often than not, instead of immediately stopping the bleeding,
the jury will see the defense lawyer go into topics which appear irrelevant.
VII.
CONCLUSION
Good impeachment depends on good judgments, persuasive content, and effective
delivery. Sometimes better judgment dictates you do not use your impeachment weapons.
When you do, however, make sure that what you deliver has the potential for persuasive
impact and is delivered with precision, brevity, and control.
Credibility of Witnesses
As judges of the facts, you alone determine the truthfulness
and accuracy of the testimony of each witness. You must decide
whether a witness told the truth and was accurate, or instead,
testified falsely or was mistaken. You must also decide what
importance to give to the testimony you accept as truthful and
accurate. It is the quality of the testimony that is controlling, not
the number of witnesses who testify.1
Accept in Whole or in Part (Falsus in Uno)
If you find that any witness has intentionally testified falsely
as to any material fact, you may disregard that witness's entire
testimony. Or, you may disregard so much of it as you find was
untruthful, and accept so much of it as you find to have been
truthful and accurate.2
Credibility factors
There is no particular formula for evaluating the truthfulness
and accuracy of another person's statements or testimony. You
bring to this process all of your varied experiences. In life, you
frequently decide the truthfulness and accuracy of statements
made to you by other people. The same factors used to make
those decisions, should be used in this case when evaluating the
testimony.
In General
Some of the factors that you may wish to consider in
evaluating the testimony of a witness are as follows:
Did the witness have an opportunity to see or hear the
events about which he or she testified?
1
Did the witness have the ability to recall those events
accurately?
Was the testimony of the witness plausible and likely to be
true, or was it implausible and not likely to be true?
Was the testimony of the witness consistent or inconsistent
with other testimony or evidence in the case?
Did the manner in which the witness testified reflect upon
the truthfulness of that witness's testimony?
To what extent, if any, did the witness's background,
training, education, or experience affect the believability of that
witness's testimony?
Did the witness have a bias, hostility or some other attitude
that affected the truthfulness of the witness's testimony?3
Motive
You may consider whether a witness had, or did not have,
a motive to lie.
If a witness had a motive to lie, you may consider whether
and to what extent, if any, that motive affected the truthfulness of
that witness's testimony.
If a witness did not have a motive to lie, you may consider
that as well in evaluating the witness's truthfulness.4
[Add if appropriate:
Benefit
You may consider whether a witness hopes for or expects
2
to receive a benefit for testifying. If so, you may consider
whether and to what extent it affected the truthfulness of the
witness's testimony.5 ]
Interest/Lack of Interest 6
You may consider whether a witness has any interest in the
outcome of the case, or instead, whether the witness has no such
interest.
[Note: Add if appropriate:
A defendant who testifies is a person who has an interest in
the outcome of the case.]
You are not required to reject the testimony of an interested
witness, or to accept the testimony of a witness who has no
interest in the outcome of the case.
You may, however, consider whether an interest in the
outcome, or the lack of such interest, affected the truthfulness of
the witness's testimony.
Previous Criminal Conduct7
You may consider whether a witness has been convicted
of a crime or has engaged in criminal conduct, and if so, whether
and to what extent it affects the truthfulness of that witness's
testimony.
You are not required to reject the testimony of a witness
who has been convicted of a crime or has engaged in criminal
conduct, or to accept the testimony of a witness who has not.
You may, however, consider whether a witness's criminal
conviction or conduct has affected the truthfulness of the
witness's testimony.
3
[Note: Add if appropriate:
With respect to the defendant, such prior convictions or
criminal conduct are not evidence of defendant's guilt in this case,
or evidence that defendant is a person who is disposed to
commit crimes. You are permitted to consider such convictions
or conduct only to evaluate the defendant's truthfulness.]
Inconsistent Statements8
You may consider whether a witness made statements at
this trial that are inconsistent with each other.
You may also consider whether a witness made previous
statements that are inconsistent with his or her testimony at trial.
[Add if appropriate:
You may consider whether a witness testified to a fact here
at trial that the witness omitted to state, at a prior time, when it
would have been reasonable and logical for the witness to have
stated the fact. In determining whether it would have been
reasonable and logical for the witness to have stated the omitted
fact, you may consider whether the witness' attention was called
to the matter and whether the witness was specifically asked
about it. 9]
If a witness has made such inconsistent statements [or
omissions], you may consider whether and to what extent they
affect the truthfulness or accuracy of that witness's testimony here
at this trial.
The contents of a prior inconsistent statement are not proof
of what happened. You may use evidence of a prior inconsistent
statement only to evaluate the truthfulness or accuracy of the
witness's testimony here at trial.10
4
Consistency
You may consider whether a witness's testimony is
consistent with the testimony of other witnesses or with other
evidence in the case.
If there were inconsistencies by or among witnesses, you
may consider whether they were significant inconsistencies
related to important facts, or instead were the kind of minor
inconsistencies that one might expect from multiple witnesses to
the same event?
Police Testimony
In this case you have heard the testimony of (a) police
officer(s). The testimony of a witness should not be believed
solely and simply because the witness is a police officer. At the
same time, a witness's testimony should not be disbelieved solely
and simply because the witness is a police officer. You must
evaluate a police officer's testimony in the same way you would
evaluate the testimony of any other witness.11
[Add if appropriate:
Witness Pre-trial Preparation
You have heard testimony about the prosecutor [or a
lawyer] [or an investigator] speaking to a witness about the case
before the witness testified at this trial. The law does not prohibit
a prosecutor [or a lawyer] [or an investigator] from speaking to a
witness about the case before the witness testifies, nor does it
prohibit the prosecutor [or a lawyer] [or an investigator] from
reviewing with the witness the questions that will be asked at
trial.12
You have also heard testimony that a witness read certain
materials pertaining to this case before the witness testified at
trial. The law does not prohibit a witness from doing so.]
5
1. See generally People v Ward, 282 AD2d 819 (3d Dept 2001); People v
Love, 244 AD2d 431 (2d Dept 1997); People v Turton, 221 AD2d 671, 671672 (2d Dept 1995); People v Jansen, 130 AD2d 764 (2d Dept 1987).
2. This portion of the charge was revised in January, 2008 to make it clear
that the jury may accept so much of testimony as they find to have been
truthful “and accurate.” See People v Perry, 277 NY 460, 467-468 (1938);
People v Laudiero, 192 NY 304, 309 (1908); Hoag v Wright, 174 NY 36, 43
(1903); People v Petmecky, 99 NY 415, 422-423 (1885); Moett v People, 85
NY 373 (1881); People v Johnson, 225 AD2d 464 (1st Dept 1996).
3. See People v Jackson, 74 NY2d 787, 790 (1989); People v Hudy, 73
NY2d 40, 56 (1988).
4. See People v Jackson, supra at 790; People v Hudy, supra at 56.
5. See People v Jackson, supra at 790; See also Caldwell v Cablevision Sys.
Corp., 20 NY3d 365, 372 (2013), holding as follows: "Supreme Court should
have instructed the jury that fact witnesses may be compensated for their
lost time but that the jury should assess whether the compensation was
disproportionately more than what was reasonable for the loss of the
witness's time from work or business. Should the jury find that the
compensation is disproportionate, it should then consider whether it had the
effect of influencing the witness's testimony (see PJI 1:90.4).”
6. See People v Agosto, 73 NY2d 963, 967 (1989).
7. See People v Jackson, supra at 790; People v Sherman, 156 AD2d 889,
891 (3d Dept 1989); People v Smith, 285 AD 590, 591 (4th Dept 1955).
Compare People v Coleman, 70 AD2d 600 (2d Dept 1979).
8. See People v Duncan, 46 NY2d 74, 80 (1978).
9. See People v Bornholdt, 33 NY2d 75, 88 (1973); People v Savage, 50
NY2d 673 (1980); People v Medina, 249 AD2d 166 (1st Dept 1998); People
v Byrd, 284 AD2d 201 (1st Dept 2001).
10. See CPL 60.35 (2).
11. See People v Freier, 228 AD2d 520 (2d Dept 1996); People v Graham,
196 AD2d 552, 552-553 (2d Dept 1993); People v Allan, 192 AD2d 433, 435
(1st Dept 1993); People v McCain, 177 AD2d 513, 514 (2d Dept 1991).
Compare People v Rawlins, 166 AD2d 64, 67 (1st Dept 1991).
12. See People v Liverpool, 262 AD2d 425 (2d Dept 1999); People v
Fountain, 170 AD2d 414, 415 (2d Dept 1991)
6
Shave, Haircut or Total Makeover: The Reality of Trial Witness Preparation
Demeanor, Deception and
Credibility in Witnesses:
Cynthia R. Cohen, Ph.D.
Verdict Success LLC
Manhattan Beach, CA
DEMEANOR
Jurors use intuition in judging demeanor, deception, and credibility in their daily lives.
Since jurors bring life experiences with them to court, understanding perceptions of
truthfulness and lying behavior is critical. Whole books are written on the topic of
lyingi,ii and a television series, Lie to Me, spawned from the work of Dr. Paul Ekman,
the renown psychologist in the area of human emotion and lying. Social scientists
study lying behavior, but knowing the myths that jurors’ believe is crucial. This paper
focuses on perceptions of behavior and suggests ways to enhance witness credibility.
Witness Assessment Method. How do you feel about your natural ability or
intuition in sizing up witnesses? Do you understand how to use information from
expressions, voice, and gestures in witnesses’ testimony? Do you recognize signs
of perplexity, interest, and comprehension from posture, gaze and expression?
This section on demeanor describes assessing witnesses’ behaviors to sharpen
your intuition. While there are individual differences for witnesses, a witness
assessment method can be a template to evaluate any witness. Articulating the
specific behaviors contributes to further defining your gut feeling. Use the
template included or your own method to mark the witnesses’ baseline behavior
and changes from baseline. Adding subjective qualities such as whether the
witness is direct, honest, persuasive, qualified, and understandable are a good
start. Break down subjective qualities into observable behaviors. Allow space to
add other subjective evaluations on attractiveness or jury appeal and advice for
witness preparation for your witnesses.
Role Expectations for Witnesses. In judging a witness, it is important to
understand expectations of the witness’ role as well as interpret his or her
behavior. Jurors make decisions about witness testimony based on more than just
the witness’ occupation. The witness’ role in the case and how it is fulfilled
contributes to whether the witness has a pivotal role. Is this witness a friend of the
plaintiff, a treating doctor, or an expert? In looking at witnesses, jurors evaluate
them against their expectations of the role of a friend, treating doctor, expert, etc.
How the witness fulfills the role is crucial. Assess how jurors might perceive
witnesses when developing case strategy and deciding who will testify. Does the
witness’ appearance match the expected role? Does he or she look like a CEO,
financial advisor, or a hydrology expert? Does the operations manager
responsible for firing the plaintiff match the jurors’ expectations of a manager?
Does the advising financial consultant sound confident testifying that the building
should have sold at the time it was sold, rather than at the top of the market?
In assessing the role, if you see a CEO chewing gum for example, it diminishes
the role. Of course a witness would not chew gum on the witness stand. None of
your witnesses should chew gum in videotaped depositions either. Make sure that
role expectations are considered before depositions and avoid habits or behaviors
that detract from the essence of the testimony.
Behavioral Patterns. Isolated behavior sometimes becomes an exaggerated
headline (e.g., a slip of the tongue or a racist comment). Behavioral patterns of a
witness tell the whole story. It is common knowledge that witnesses who break
down on cross are not as effective as those who remain consistent. Across
several hours or several days, you can more readily see changes in witnesses’
behavior. When a witness is comfortable and feeling in control while being
questioned, he or she appears more confident and credible. Tension arises when
presented with damaging documents. Jurors notice behaviors such as nervous
fidgeting, tapping the foot, and sweating when watching videotapes or live
witnesses. What matters is whether the witness is consistently nervous or does
this particular testimony elicit nervous behavior.
© Cynthia Cohen, Ph.D.
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WITNESS ASSESSMENT TEMPLATE
NAME
_____________________________________
EMPLOYED POSITION
_____________________________________
ROLE IN CASE
_____________________________________
FULFILL ROLE REQUIREMENTS
APPEARANCE
_____________________________________
BEHAVIORS
_____________________________________
NONVERBAL PERCEPTIONS
POSTURE
_____________________________________
GESTURES
_____________________________________
FACIAL EXPRESSIONS
_____________________________________
VERBAL PERCEPTIONS
VOICE
_____________________________________
EXPRESSION
_____________________________________
BASELINE DEVIATIONS
_____________________________________
SUBJECTIVE IMPRESSIONS _____________________________________
STRENGTHS
_____________________________________
WEAKNESSES
_____________________________________
ADDITIONAL COMMENTS
_____________________________________
STRATEGY CONSIDERATIONS ___________________________________
Confidential, attorney work product – Impressions by Dr. Cynthia Cohen
Instructions on Demeanor. Can demeanor assist in the impeachment of a
witness? The Judicial Council of California Civil Jury Instructions suggests that
jurors pay attention to demeanor in evaluating truthfulness. It suggests that jurors
rely more on their visual assessments than on their notes.
© Cynthia Cohen, Ph.D.
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4/26/13
You habitually recognize baseline behavior in those close to you. It is easier to
read behavior from a family member or coworker versus a stranger. When
behavior changes in those close to you, it is easy to ask, “What is the matter?” or
share in their joy. Focusing on facial and vocal expressions aids recognizing
truthfulness in witness testimony.
The moment the witness walks into the courtroom, jurors begin making
attributions. How the witness walks reveals levels of energy, leadership, and
confidence. Jurors may not know how to describe the behavior or their gut
reactions. Whether articulated or not, these perceptions affect them. Straight back
shoulders versus shoulders hunched over affects perceptions of confidence.
Understanding how proud posture and high energy deems witnesses as more
credible is important to convey in witness preparation.
Voice and Expression. What do James Earl Jones, Sean Connery, and Katie
Couric have in common? They are rated as having the best voices in a 2001 poll.iii
There are stereotypes associated with vocal characteristics. Imhof notes a female
with a breathy voice is perceived as more feminine, prettier, petite, effervescent,
high-strung and shallower than other females. The same voice characteristics in a
male lead to perceptions that the person is young and more artistic.iv Imhof’s
empirical study varied pitch in males and females. Women with a low voice are
perceived to be more agreeable than women with a high voice. The reverse
pattern emerges for men. They are perceived as less agreeable when speaking
with a low voice. Higher pitch voices are more commonly associated with
deception.
Vocal expressions contribute to perceptions about the witness. Vocal expressions
are as important as facial expressions and verbal content. When assessing voice,
we notice pitch and tone. When there is a lower octave like a DJ’s voice or James
Earl Jones, the voice is deemed more credible. During a witness prep session,
one witness had a throatiness in his speech where his vocalizations stemmed
from the throat rather than the diaphragm. His father had been a preacher. If the
raspy voice doesn’t work for the witness, one way of training the voice is to
practice speaking from the diaphragm rather than projecting from the throat.
Vocal expression includes phrasing, pausing, and interruptions. In another
witness preparation session, a mining expert consistently interrupted the
questioning lawyer. He also volunteered information on cross. When a witness
interrupts to answer the question before the questioner finishes, it insults the
jurors’ intelligence. Maybe the witness knows what question will be asked, but it is
important that the jurors hear the question. When explaining the response-time
continuum between silence and interruption, this expert had an “aha moment.” His
wife complained that he interrupts her all the time too. He got it. He slowed down
to hear the question instead of trying to show his smarts. Suggest to fast talking
witnesses that they wait five seconds to respond. Of course they will respond in
three seconds or less, but they soon stop interrupting.
© Cynthia Cohen, Ph.D.
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Another witness had hesitated speech. Speech hesitancy can be interpreted as
indecisiveness – an attribute against the grain that an advisor is decisive. This
witness needed to prove he successfully negotiated the contract. Finding the right
rhythm in responding to questions makes a difference.
Congruence between Verbal and Nonverbal Behavior. “I am calm!!” Do the
nonverbal perceptions (posture, gestures, facial expressions) match the verbal
perceptions (voice, expression)? Look at congruence between verbal and
nonverbal behaviors. When the verbal and the nonverbal behaviors don’t match,
we tend to believe the witness’ nonverbal behavior. Experienced trial lawyers
understand nuances. The general public may not. Some jurors are cynical, while
other jurors take content at face value.
Nonverbal behaviors are not as consciously controlled as verbal behaviors. This
becomes important when discussing deception and credibility. Facial expressions
are sometimes consciously controlled as in fake smiles or crocodile tears. The
astute or trained observer often sees leakage. Leakage is a term we discuss with
micro expressions and deception. Leakage is the emotion slipping out
somewhere, whether it is covering the mouth or involuntary signs in the lips.
Witness Assessment from My Cousin Vinny. Marisa Tomey as Miss Vito in My
Cousin Vinny is a classic example of a contrast effect for witness credibility. A
contrast effect occurs when more than expected is delivered. Although Miss Vito
was assisting Vinny in investigating the crime scene, she originally is reluctant to
be a witness. Her knowledge is drawn out while being voir dired as an expert.
Judge:
Ms. Vito:
Judge:
Vinny:
Ms. Vito:
come out
four-barrel carb
Prosecutor:
Can you answer the question?
No. It’s a trick question.
Why is it a trick question?
Watch this.
Cause Chevy didn’t make a 327 in ’55. The 327 didn’t
until ’62. And it wasn’t offered in the Bel Air with a
till ’64. However, . . .
And is there any way in the world the Buick that the
defendants were driving made those tire tracks?
Ms. Vito is credible when she says the two tire tracks are even. She describes the
car that made these two equal length tire tracks had positraction and it was not
available on the ’64 Buick Skylark. She explains limited slip differential and a
regular differential when she relates to the jury that anyone stuck in the mud in
Alabama knows that when you step on the gas, one tire spins while the other
doesn’t. Everyone on the jury nods and some even verbalize, “that’s right.”
While Ms. Vito originally did not portray what jurors would expect an automotive
expert to look like, her knowledge base from working in her father’s shop qualified
her. Her verbal and nonverbal behavior is consistent. She is very expressive. The
underestimation by the prosecutor (and the jury, as well as the audience) adds to
her credibility. While listening to her testify, she seems like someone who would
be comfortable with elbow grease.
© Cynthia Cohen, Ph.D.
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© Cynthia Cohen, Ph.D.
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MS. VITO’S WITNESS ASSESSMENT
NAME
Marisa Tomey as Ms. Vito
EMPLOYED POSITION
Worked in father’s garage
ROLE IN CASE
Expert on automotive issues: tire tracks
FULFILL ROLE REQUIREMENTS
APPEARANCE
Heavy makeup, short skirt, doesn’t look like mechanic
BEHAVIORS
Tries to leave stand – reluctant to testify
NONVERBAL PERCEPTIONS
POSTURE
Shoulders square, sits upright on the stand
GESTURES
Animated, busy arms, crosses arms briefly on voir dire
FACIAL EXPRESSIONS
Makes faces, rolls eyes with responses to judge,
good eye contact with jury
VERBAL PERCEPTIONS
VOICE
High pitched, bit irritating, twang
EXPRESSION
Expressive, talks quickly, combative on cross
BASELINE DEVIATIONS
Becomes confident talking about tire tracks
SUBJECTIVE IMPRESSIONS
Down to earth, no airs, genuine, flirtatious
STRENGTHS
Personalizes her experience well
WEAKNESSES
Voice is a tad irritating, could be explosive
ADDITIONAL COMMENTS
She knows car mechanics, models of cars, tires
STRATEGY CONSIDERATIONS
Evidence of tire tracks exonerates defendants
Confidential attorney work/product – Impressions by Dr. Cynthia Cohen
Miss Vito is asked about a photo showing the tire tracks leaving the scene of the
crime. The prosecutor wholly underestimates her knowledge of cars. Her “expert”
opinion turns the case, since the car the defendants were driving could not have
made those tire tracks.
© Cynthia Cohen, Ph.D.
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4/26/13
DECEPTION
Lies succeed or fail in the courtroom because of the liar’s emotions and
motivations and the lie detector’s ability to detect lies. The ability to detect lies is a
learnable skill. This skill and knowledge helps understand when and why lies
succeed or fail. Knowing common myths about lying behavior helps your case as
well. Sometimes a truthful person is disbelieved. Nervousness or sweating occurs
for many reasons. Awareness of the myths is important for witness preparation.
Can You Detect Deception? “Liar, Liar, Your pants are on fire!” children often
shout as if lying created effects that were immediately obvious to the onlooker. As
we grow older, we rely on more subtle signs in deciding whether to trust
someone. We refer to people as “shifty eyed” or imagine someone has an “honest
face.” Often, we are convinced we can judge others’ characters on the basis of
how they look and behave. Despite what we believe, however, reliance on this
kind of common sense often leads to errors. In conducting litigation, it can cost
you the case.
As a litigator, can you detect a liar? Researchers have sought to identify which
people are likely to recognize a liar when they meet one. Ekman and Friesen’s
1969 theoretical statement about cues to deception explores leakage and
deception cues.v Ekman’s classic researchvi on whether individuals could test who
is lying, used nurses to lie or to be truthful about scenes that are pleasant to
watch. The nurses in training were asked to describe this beautiful scene at the
beach in both conditions. They were either watching a bloody surgery or truly
looking at beaches.
When members of the Secret Service, FBI, CIA, federal polygraphers, police,
psychiatrists, psychologists, judges and attorneys were tested, the results were
unsettling. Psychiatrists and psychologists did no better than chance.
Interestingly, judges and psychiatrists rated their ability to detect lies lower than
the Secret Service members, federal polygraphers, and the police. Secret Service
members were better at detecting liars than members of the FBI and CIA. Secret
Service officers on the streets are constantly vigilant for any changes in behavior
and constantly scanning the environment. [Of course this classic research was
done years before the April 2012 Secret Service scandal in Columbia.] Those who
were accurate varied clues for every person that they saw. Those who were not
accurate didn’t vary their clues. Instead, they relied on fidgeting and speech
content. Success occurred because they were not looking for the Holy Grail, nor a
belief that there is one indicator for lying behavior. There are however key
indicators for physiological expressions of emotions and determining deception.
On the whole, those who were good at recognizing emotions were more accurate
in judging who was lying. Although most people are not better than chance in
detecting deception, some groups of police professionals have demonstrated
significant lie detection accuracy.vii This improvement in ability could be from
specific training in detection.
© Cynthia Cohen, Ph.D.
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Who Lies? Indeed, studies on deception (Ekman’s research) show that few of us
are good judges of character in the absence of experience because the way
people look and behave seldom reveals their true motivations. Some people lie
more successfully than others. Good liars, like professional actors, have the ability
to become the role they are playing. They do not believe they are lying; they
believe the events they describe are actually happening. Pathological liars, on the
other hand, cannot choose to be truthful. They know they are lying, but cannot
stop themselves. They fool people sometimes – usually in brief encounters.
These brief encounters may be a clerk at a store, or in a dating situation at a bar
or online. People tend to lie a lot for sport. Whether an individual lies under oath
depends on whether he or she has gotten away with lying in the past.
Pathological liars and natural performers. Pathological liars cannot choose to be
truthful. They know they are lying, but can’t stop. They fool some people. Some
people within their circles know they are constantly lying. You may have an exbrother-in-law of this type. Natural performers, like actors, are very convincing.
Professional actors are like very good poker players. They have a gift to become
the role they are playing. They believe they are not lying. Most lies are not lies
about emotions. Feelings about lying betray the liar. For example President
Nixon’s sweating on camera.
Emotion. Being able to detect emotion in witnesses is equally important and
effective for determining credibility or lying behavior. Can you recognize each of
the different types of emotion in witnesses (i.e., anger, contempt, disgust, happy,
sad, surprise, fear, and guilt)? Here is how emotions give clues to deception.
Fear. In a trial, jurors have role expectations for witnesses. Sometimes you have
an armchair psychologist in the jury box trying to decide why a witness would feel
a certain way? By understanding the emotions that liars are experiencing, one
can sometimes recognize the deception cues in masking emotions. Ekman
illustrates that it is possible to predict behaviors that distinguish liars from truth
tellers, especially when the liar is apprehensive about being caught. For example,
the cues indicative of detection apprehension are fear cues. These include higher
pitch, faster and louder speech, pauses, speech errors, and indirect speech. The
greater the liars’ detection apprehension, the more evident these fear cues should
be. Liars should appear more fearful as the stakes become higher and the
anticipated probability of success becomes lower.
Fear interplays with lying behavior in a number of ways: 1) Fear of being caught
lying. Not everyone is afraid of being caught. The higher the stakes increases fear
of punishment in being caught; 2) Past experience plays a part. The more times a
liar has gotten away with a lie and succeeded, then fear dissipates for the liar;
3) How well can the target detect the lie? If you have a trained polygrapher, then
the liar’s fear would increase; and 4) Would a truthful person be afraid? What are
the consequences of not being believed? Is there a gang member seeking
revenge if the witness speaks the truth?
© Cynthia Cohen, Ph.D.
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Guilt. Not everyone feels guilty about engaging in a lie. What are the shared
values? If someone feels guilt about lying or there is a moral issue, the first time
that person tells the lie is the easiest time to catch micro expressions. Emotions
are often briefly revealed through leakage. The tenth time that they tell the lie,
liars tend to believe their own lies. There are noticeable changes in face and
body. A lie catcher must look at the situation and determine if there is a
compelling reason for one to feel guilty.
Contempt. Anita Hill was in the hot seat at the Clarence Thomas Senate
Hearings. She was somewhat a reluctant witness confronted with details about
her accusations of sexual harassment while working with Clarence Thomas at the
EEOC. When asked to recall incidents about that time period, she had micro
expressions indicating contempt (her eyebrow being raised). The leakage
occurred the first time she was asked by then Senator Joe Biden about the Coke
can. When further asked about pornography, her slow eyelid movements illustrate
her emotion in recalling the negative events.
Sadness. Susan Smith drove her babies into the lake. When interviewed on
television she cried crocodile tears. She had planned to commit suicide by driving
into the lake with her babies. However she stopped short. For nine days before
her confession, her story had police searching for a Black carjacker. Sheriff Wells
found many inconsistencies in her story and when confronted, she confessed. Her
crocodile tears at a press conference were a dead give away before the
confession. Many of us know what sadness and real tears look like. Sadness
engages more facial muscles.
Duping Delight. People who enjoy lying as an art, enjoy the thrill or excitement to
win. Ekman calls this Duping Delight. Liars see the challenge in fooling the other
person. The reputation of the person being lied to is important. It is not much fun
putting something over on a dummy. Like Frank Abagnale, Jr. in the movie Catch
Me if You Can, liars get a bigger thrill lying to someone smart like the FBI.
Misconceptions about Deceit. In the courtroom, stereotypes can be hazardous for
lawyers and their clients. Some common myths about nonverbal behavior
produce misleading clues and lead juries to think witnesses are lying when they’re
not. These clues include avoiding eye contact and movements such as
scratching, picking, crossing one’s arms, or tapping the foot. Most people believe
lack of eye contact or shifting eyes is a clue to deceit. It is unreliable. Fidgeting
such as foot tapping is often confused as a sign of lying. It is best to understand
the person’s baseline to define the behaviors and mannerisms. Is tapping the foot
part of the person’s usual repertoire? During the person’s usual conversations,
does the person have a pattern or rhythm of looking at someone and looking
away? What if they break that rhythm? Shifting eyes can be useful if linked to
other signs.
Jurors seldom understand body language that is culturally different from their
own. Eye contact is a learned behavior and there are cultural differences.
Looking away often occurs when someone is carefully constructing an answer. It
is not a sign of lying. Umms, ahhs, inarticulate words used to fill pauses are not
signs of lying – they are signs of thinking.
© Cynthia Cohen, Ph.D.
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Misconceptions or Myths about Lying
 Crossing arms
 Lack eye contact, looking away, shifting eyes
 Movement (fidgeting, scratching, picking hands, tapping foot)
 Nose is growing
 Sweating or nervousness
 Ums, ahhs – filling pauses
Training in Detection. Contrary to popular belief, women do not do better than
men in recognizing lying. It takes teamwork in a deposition because watching the
witness is more focused when separate from asking questions. Studying
videotaped depositions afterwards is useful, especially if discovery is still ongoing
and there is a chance for further inquiry. Getting a baseline of the individual’s
behavior can be difficult at the first meeting for many reasons. Detecting
deception is a learnable skill. Ekman’s F.A.C.E. training in physiological
differences in emotions develops the skills.
Infallible Lie Detector? In the courtroom, lies succeed or fail depending on the
liar’s motivations and the ability of the observer (lie detector) to detect lies. The
most significant body of scientific psychological work on lying focuses on methods
for detecting deceptiveness by observing nonverbal behavior. Unfortunately, both
for psychologists and lawyers, results suggest there is no infallible lie detection
tool – human or mechanical. Individuals are so complex that there are no certain,
universal signs of lying. There is nothing that works for everyone. There is no
change in voice or body that always means one is lying. There is no sign of lying
that belongs to lying itself. There are however, signs of fear.
Micro expressions. Physiologically humans are all keyed the same when you
connect facial muscles to emotions. A frown from a remote island native in New
Guinea uses the same facial muscles as a frown from a California native. When
someone tries to mask an emotion (e.g., anger, sadness, happiness, surprise)
there is often leakage of emotion and micro expressions are revealed. Micro
expressions are small bits or blips of the emotion being felt. Micro expressions are
revealed when first learning an unknown such as the prosecutor discovered
evidence implicating the defendant. Training in recognizing emotions helps the lie
detector pick up clues quicker. Below are a couple celebrity examples of
witnesses being presented with evidence.
President Clinton. President William Clinton is a solid communicator whose
baseline presentation is very presidential. His speech pattern is controlled, selfassured, calming, and absent ums, ahhs, or fillers during television casts. During
the Monica Lewinsky debacle, we saw flat denials of ever having sex with that
woman. In a press conference with his wagging finger, “I want you to listen to me.
I did not have sex relations with that woman, Miss Lewinsky. These allegations
are false.” Later in an interview with Jim Lehr, we hear a different tune.
Clinton:
Lehr:
Clinton:
I did not ask anyone to tell anything but the truth. There is no
improper relationship. I intend to cooperate with this inquiry.
No improper relationship. Define what you mean by that?
There is not an improper sexual or any other improper
relationship.
© Cynthia Cohen, Ph.D.
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When we see the grand jury videotape, we see deviations from the baseline.
President Clinton is not prepared for the prosecution having evidence or details
that were revealed and is at a loss for a reply consistent with his normal
presidential baseline.
Clinton:
Prosecutor:
Clinton:
Prosecutor:
Clinton:
You are free to infer that my testimony is that I did not have
sexual relations as I understand this term to be defined.
Including touching her breast?
That is correct.
The insertion of an object into the genitalia of another person?
There is nothing here about that is there? [Clinton’s forehead
reveals leakage as he tries to control his emotions when he
comments. His face reddens and his forehead muscles scrunch
during this short pause.] I never thought about that.
Best time to catch the micro expressions is when not prepared on the newly
introduced topic. Clinton knows how to use his verbal communication strength
and the best time to catch his lie is the first time presented with the evidence.
Clinton later that day returns to baseline presidential mode and delivers
comments to the public. “Indeed I did have a relationship with Monica Lewinsky
that was not appropriate. In fact it was wrong . . . lapse in judgment. I told the
grand jury, at no time did I ask anyone to lie, hide or destroy evidence or to take
any other unlawful action.”
O.J. Simpson. As Dateline says, “If the criminal case had the glove, the civil case
had the shoes.” Viewing the videotaped deposition of O.J. Simpson as a
defendant in the civil trial, you see his expressions when confronted with evidence
of wearing the murder shoes for the first time. O.J. is caught lying about the
“ugly-ass Bruno Magli shoes.”
Testimony before the photographs are introduced.
Petrocelli:
Simpson:
Petrocelli:
Simpson:
Petrocelli:
Simpson:
Do you know why the shoe prints found at Bundy, matched
Bruno Magli shoes?
No.
Did you every buy shoes that you knew were Bruno Magli shoes?
No.
How do you know that?
If Bruno Magli makes shoes that look like the shoes they had in
court involved in this case, I would have never worn those ugly
ass shoes.
After photographs of OJ Simpson wearing Bruno Magli shoes introduced.
Petrocelli:
Anything about the depiction of you in the photograph that
tells you something is wrong in that photograph?
Simpson:
Everything looks a little big. [Simpson’s eyes go wide when he
first sees the pictures. It is a look of fear.]
Petrocelli:
Excuse me?
Simpson:
Everything looks a little big.
Petrocelli:
The body parts?
© Cynthia Cohen, Ph.D.
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Simpson:
Petrocelli:
Simpson:
The clothing – the pants and the coat looks a little big for me.
Anything else?
I don’t recognize the shoes obviously.
The first time Simpson looks at the pictures is when you get the emotional
reaction of the wide eyes. After that the emotions and expressions are more
controlled and the reaction does not reappear.
Mistakes Liars Make. It is no secret that people frequently make mistakes when
they are lying. Most liars don’t plan their lies. Because most lies are about facts
rather than emotions, a liar’s emotions often reveal deception. Frequently,
feelings about lying betray the liar. Mistakes in lying often occur for one of two
reasons – thinking or feelings. If your job is to detect a lie, you can take
advantage of how poorly people prepare and that their emotions become involved
in the process of their lying. The liar is often vulnerable because he or she is in
the position of trying to hold onto a thought without revealing it. The pressure of
this struggle makes revelation more urgent, especially if the lie is about feelings.
The conflicting emotions usually slip out, if not verbally than nonverbally via
involuntary muscle movements (e.g., covering one's mouth or quivering lips).
Liars’ failure to prepare a line ahead of time often traps them. A professional liar
has a prepared script. One trick to catch the professional liar is taking him or her
off script. Instead of walking through the timeline “then what happened?” ask the
witness to tell the story backward. Reverse order proves to be successful for
police officers ability to detect deception.viii Regarding feeling – lies about feelings
are harder to control than lies about facts. When emotions are involved in the
process of lying, there generally is nonverbal leakage. There may be involuntary
signs in the lips. Guilt increases the leakage. Shame prevents it.
You can learn to catch these signals and to pursue those suspected of lying more
aggressively. Learn to understand nonverbal signs and their meanings more
accurately. For example, it is often easy to recognize signs of fear in a witness but
one must know what is behind such signs. Is this person afraid of being caught
lying or merely afraid of being disbelieved? What motivates the witness? What
differences between the person being questioned and the questioner affect
perceptions about what is said? These kinds of psychological insights require
understanding of how others think and are among the skills that can be learned.
Clues to Deceit. Deception clues can be discovered in length of answers. In
rehearsed situations, answers get longer. If unrehearsed, we find the opposite.
Liars are not always vivid with details. Innocent witnesses often tell the story with
irrelevant material. They add details that aren’t useful to the core of what
occurred, but are included as the person tells the story. Liars prepare in a linear
direction (e.g., this happened, next this, then . . .)
Affect is a big clue especially when it differs from baseline. If the witness is
generally animated and the voice suddenly flattens, look at the specific content of
the testimony. When affect changes, there are fewer illustrator movements with
hands, the head, and the upper eyelids. There are many kinds of smiles. We all
© Cynthia Cohen, Ph.D.
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have encountered fake smiles. There is a big difference between polite smiles
and enjoyment smiles. Guilt cues are not as clearly determined, but could include
cues to sadness such as lower pitch, softer and slower speech, and downward
gazing.ix
When liars deceive, they become psychologically aroused in a way that puts
stress on the voice, leading to an increase in pitch. In Ekman and Friesen’s study
using nursing students, they measured the nursing students’ pitch through a
speech analysis computer program. This analysis indicated that those in the lying
condition had significant increases in pitch.x
Gestural slips are changes in behavior that occur when some emotion is felt.
There may be a shoulder shrug or covering the mouth or body shift. Nonverbal
behavior is not as easily edited as verbal behavior. The voice may go higher and
tighter or there is a pained expression on the witness’ face.
DePaulo’s monumental meta-analyses of the empirical studies on deception
reports 158 cues to deception.xi Results show that liars make a negative
impression and are more tense. Many behaviors have weak or no discernable
links to deceit. Cues to deception are more pronounced when people are
motivated to succeed, especially when dealing with identity challenges rather than
money gains. Cues to deception are stronger when lies are about transgressions.
Besides detecting deception through emotions and micro expressions, there are a
number of other methods. Besides the widely known method of polygraphs,
thermal imaging uses a physiological method recording skin temperaturexii
Another method to outsmart liars, uses questions about spatial and/or temporal
information. Vrij et al. found that up to 80% of liars and truth tellers could be
correctly identified when assessing their drawings.xiii
Interview style makes a difference in ability to detect lies. Accusatory styles
typically result in suspects making short denials, thus fewer verbal cues that might
reveal deceit.xiv There is a higher probability of making false accusations than
when using an open-ended information gathering strategy. Liars interviewed by
trained interviewers were more inconsistent leading to the trained interviewers’
greater accuracy rate in detecting deception.xv
Clues to Spotting Lying
 Affect differs than baseline
 Smiles inconsistent with emotion
 Micro expressions revealing inappropriate emotions
 Signs of fear or guilt
 Fear cues (higher pitch, faster/louder speech, speech errors, indirect
speech)
 Gestural slips (e.g., shoulder shrugs)
 Shifting eyes if linked to other signs
 Length of answers, details
 Can’t tell the story backward
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CREDIBILITY
Instructions on Credibility. The Judicial Council of California broadly defines
parameters for jurors to assess credibility. Below are the Council’s suggested
pre-instructions on credibility.xvi
Evidence Code section 312 provides:
Except as otherwise provided by law, where the trial is by jury:
(a) All questions of fact are to be decided by the jury.
(b) Subject to the control of the court, the jury is to determine the effect and value
of the evidence addressed to it, including the credibility of witnesses and hearsay
declarants.
Considerations for evaluating the credibility of witnesses are contained in
Evidence Code section 780:
Except as otherwise provided by statute, the court or jury may consider
in determining the credibility of a witness any matter that has any
tendency in reason to prove or disprove the truthfulness of his testimony
at the hearing, including but not limited to any of the following:
(a) His demeanor while testifying and the manner in which he testifies.
(b) The character of his testimony.
(c) The extent of his capacity to perceive, to recollect, or to communicate any
matter about which he testifies.
(d) The extent of his opportunity to perceive any matter about which he testifies.
(e) His character for honesty or veracity or their opposites.
(f) The existence or nonexistence of a bias, interest, or other motive.
The “credibility of expert witnesses is a matter for the jury after proper
instructions from the court.”
Jurors Determining Credibility. Jurors deciding the criminal prosecution of William
Balfour in the murder of singer and actress Jennifer Hudson’s mother, brother,
and nephew had circumstantial evidence. They had critical pieces of evidence,
but jurors saw holes in the timeline.xvii Jurors decided they would evaluate
witnesses one by one. They would decide on credibility as testimony of each
witness was read back. Jennifer Hudson was credible, but her testimony was
irrelevant. In listening to all the witnesses, pieces of evidence came together. Cell
phone records indicated that Balfour was not where he claimed to be at the time
of the murders. He was convicted.
Hudson’s jurors were able to transcend the CSI Effect or the absence of DNA and
focus on relevant testimony. Jurors generally try to do their best in determining
credibility. While the courts spell out the instructions for determining credibility,
psychologists study underlying factors of credibility.
Lawyers start building credibility during voir dire and through trial attempt to
deliver on promises. Witnesses have a shorter time to build credibility. What
© Cynthia Cohen, Ph.D.
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happens during examinations is critical to whoever calls the witness. While there
are individual differences, there are groups of people who are likely to be believed
or disbelieved. Jurors usually believe experts who have prepared carefully,
celebrities, presidents, professors, and doctors. Jurors usually do not believe the
mother of the defendant, officers of the corporation, and in some venues – the
police.
Liking and Credibility. Early psychology studies of trustworthiness looked at
underlying characteristics. Andersonxviii compiled a list of 555 adjectives used to
describe people. He asked college students to indicate how much they would like
a person who had each of those characteristics. The trait most valued by college
students in the 1960s was sincerity. Of the eight top adjectives, six related to
sincerity (i.e., sincere, honest, loyal, truthful, trustworthy, and dependable). The
adjectives rated lowest were liar and phony – dishonest was close to the bottom.
Possessing the highly rated qualities increases the probability that one will be
liked.
There are many theories of liking and while determinants of liking (e.g., proximity,
rewards, similarity, and complementarity) do not insure credibility, liking
contributes to consideration of trusting the witness. Similarity is one of the most
important factors affecting liking. Sharing a common interest in playing bridge or
golf, for example. The effect of similarity is seen most clearly with people who
share cultural and demographic characteristics, attitudes, beliefs, interests, and
background.
Lawyers sometimes like a juror and falsely assume that it is reciprocal. Liking is
more visible with witnesses. How much you like someone greatly affects how
much he or she likes you. Once you form a positive impression of someone, it
makes it more likely that the two of you will like each other. If you form a negative
impression, the reverse is true. The more positive you are in expecting to be liked,
greatly increases the chance that you will be liked. If however your enthusiasm is
seen as having something to gain, then you may be seen as disingenuous.
Liking plays an important part in how you relate to your client. Jurors notice
everything in the courthouse and being respectful of clients is critical. Remember
jurors trust body language. Another factor that affects liking is physical
attractiveness. People considered attractive are more liked than people
considered not attractive.xix Stroebe’s research indicates that physical
attractiveness is more important to men than to women, similarity had a greater
effect for females than males.
While it is overly simple to conclude that more contact is always good, familiarity
leads to liking. Zajoncxx showed subjects pictures of faces. Some of the faces
were shown as many as twenty-five times, others only one or two times.
Afterward, the subjects were asked how much they liked each face and how much
they thought they would like the person pictured. The more often the subjects had
seen a face, the more they said they liked it and that they thought they would like
the person pictured.
© Cynthia Cohen, Ph.D.
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Freedman, Carlsmith and Searsxxi studied the effect of familiarity with actual
people. Each pair of subjects met either three, six, or twelve times. At each
meeting, they sat across from each other without talking. At the end of the series
of meetings, the subjects were asked how much they like each of the other
subjects. The more often they met, the more they liked each other. Consider
having your client at trial as much as possible. Initially-unlikeable people may
become more likeable to jurors.
Other things being equal, there is a tendency to like people more if they are
honest rather than dishonest, helpful rather than harmful, friendly rather than
unfriendly. On direct exam it is easy to relate to witnesses in a friendly manner.
Suggestions for Credible Witnesses
 Appropriate facial expressions (e.g., smile appropriately)
 Eye contact with questioner
 Talk to jury when directed
 Take time to think before speaking
 Sit upright in witness chair
 Straighten shoulders (unless victim)
 Deflect bad arguments – not argumentative, not evasive or defensive.
Trustworthiness, Expertness and Credibility. Psychological studies of expert
witnesses’ credibility, frequently illustrate two factors –trustworthiness and
expertness. (Lay witnesses are judged according to their role expectations.
Trustworthiness is important.) Obviously for expert witnesses, both
trustworthiness and expertness are critical. In selecting expert witnesses for a
particular case, it is important to know whether jurors stereotype or have a gender
bias for that particular profession.
Studies reveal whether gender differences in jurors’ perceptions exist. In Cohen
and Monroe’s study, women experts are viewed equally trustworthy as their male
counterparts, but males are viewed as more expert.xxii This study using written
scenarios comparing jurors’ perceptions of male and female doctors, piggybacked
a mock trial with jury eligible community residentsxxiii. If repeated today, there
might be different results since perspectives of female doctors evolve with more
women entering medical school and more jurors being treated by women doctors.
Trial lawyers often speculate on whether a female or male attorney ought to cross
examine the expert. The decision of who does the cross depends on the team’s
resources. Larson and Brodsky measured gender effects of cross exam and warn
of introducing personally intrusive questions. Male and female experts were both
rated as more credible, trustworthy, and believable when subjected to personally
intrusive questions on cross-examinations.xxiv In trial the intrusive questions would
be objected to as irrelevant. Perhaps a strategy not to object and let the cross
examiner be intrusive would be successful. As the jurors dislike the intrusion, they
rate the expert as more credible.
© Cynthia Cohen, Ph.D.
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Outright deception could be a problem on the part of the witness. You might recall
an instance catching a witness lying or falsifying information. Sometimes winning
the battle, you can lose the war. It’s a complex balance between proving lying and
proving your case. Jurors rely on evidence and credibility of witnesses. They
remain the finders of fact and want to be the deciders of credibility.
A successful way to deal with lying is illustrated in a case with 32 witnesses, each
one from a plaintiff's standpoint provided a piece of information to prove a fact in
the case. No one saw the exact incidents. Plaintiffs had all these people putting
together this mosaic that circumstantially proved the fact. One of the defense’s
themes was rumor. Defense had a big piece of butcher paper with the witnesses’
names on one side and the relevant facts across the top. Every time a witness got
on the stand, Marc Whitehead, the trial lawyer, unrolled all this butcher paper
going “crinkle, crinkle.”xxv Whitehead loved the crinkle and says the sound
bolstered the theme, “And the jury would think rumors. Now I've got to really
listen. Does this guy really know? Is this first-hand knowledge or is he reporting
something that somebody told him? Very effective in reminding the jury that there
were a lot of witnesses up there lying to protect their buddy. They didn't say they
were lying, but they were mistaken in repeating information that they had no first
hand knowledge. That was another example of a way to talk about credibility and
help the jury focus on who was really telling the truth and the ability to know what
the truth was.”
Confidence, Clarity & Expressiveness. Confidence, clarity and expressiveness are
three factors developed through assessing and preparing a witness. The factors
represent observable witness behavior during direct and cross exam. We tested
Mr. Crane’s before and after witness preparation videotapes with fifty mock jurors.
The mock jurors readily saw his fidgeting, picking at his fingers, and lack of affect.
In factor analyzing the mock jurors’ ratings of this witness, we extrapolated these
factors that relate to any witness. (Each factor represents a continuum of positive
and negative behaviors.) Confidence is seen in voice command, posture, and how
one sits in the witness chair or stands to demonstrate a diagram. Clarity is being
articulate with words as well as the graphics – this includes teaching concepts.
Expressiveness (or dynamism) refers to affect, changes in voice inflections, and
use of senses.
Mr. Crane’s attorney brought out the negatives in the initial Q & A practice
session. Mr. Crane, a plaintiff suing a former partner, looked very solemn on the
witness chair. Meeting this man in person, one sees a totally different energetic
person. This man who feels awful about suing his former partner is crushed
because the former partner was a mentor. With a few suggestions we turned this
somber man into a stellar witness. This occurred with a few attitude and behavior
changes. Giving Mr. Crane permission to smile on the witness stand was the first
change. He believed the courthouse was a somber place and completely masked
feelings. Once he was permitted to express himself, one could see his love of the
company and the medical benefits to its customers. In describing how this
medical optical product works, Mr. Crane touched his eye. (This impromptu
physical touch connected with jurors’ senses.) In the initial preparation session,
© Cynthia Cohen, Ph.D.
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MR. CRANE’S WITNESS ASSESSMENT
NAME
Richard Crane
EMPLOYED POSITION
General Partner, med-optical-tech
ROLE IN CASE
Plaintiff
FULFILL ROLE REQUIREMENTS
APPEARANCE
Looks like a businessman, clean cut
BEHAVIORS
Lots of fidgeting. picking at fingers
NONVERBAL PERCEPTIONS
POSTURE
Shoulders straight and stiff
GESTURES
No movement, lack of affect
FACIAL EXPRESSIONS
Solemn, mouth turns down and no smiles.
VERBAL PERCEPTIONS
VOICE
Monotone
EXPRESSION
Sounds sad, hesitant, fills pauses with ums, ahhs,
BASELINE DEVIATIONS
Different personality in person!
SUBJECTIVE IMPRESSIONS
Disconnected to jurors
STRENGTHS
Comes to life when describes company products,
caring about consumers
WEAKNESSES
Defensive about dropping out of med school
ADDITIONAL COMMENTS
More energetic when explaining product
STRATEGY CONSIDERATIONS
Introduce qualifications after talking about product.
Use med school background to bolster work with
med products, drop “problem” with school.
Confidential, attorney work product – Impressions by Dr. Cynthia Cohen
Mr. Crane’s attorney asked about problems in medical school and why he
dropped out. In the second session, we changed a negative to a positive. Most
individuals do not get into medical school. Mr. Crane used his two years of
medical school as a positive basis for developing a medical product. It made
sense to bring this experience into his testimony. Mr. Crane still had a few “ums”
in his speech, but his attorney’s newly framed questioning elicited better
responses.
© Cynthia Cohen, Ph.D.
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Weighing all the Witnesses. Judge Kane warns that making conclusions as the
events happen is like building a house of cards and watching the entire edifice
tumble when a joker is added to the roof.xxvi There may be one witness that
stands out who makes or breaks the case, but most cases build upon the story.
Whether you are looking for the joker or carefully building the house, consider
each witness that you place in order and consider each witness that you cross. In
the search for credibility it depends on the client’s story and how well it is told.
Poorly prepared stories lose credibility.
Conclusions. We learn a lot from mock trials and from jury interviews about what
actually happens in the jury box and in deliberations. One can never replicate the
dynamics of the real jury in a mock trial. However in both, we learn how jurors
judge credibility of witnesses. Through the jurors’ lens, witnesses are credible or
not. They sometimes determine credibility based on age, race, occupation,
education, or mental acuity, but not always. Underlying factors of trustworthiness
contribute.
Learning to read witnesses better has clear advantages in both pretrial and
courtroom proceedings. By making use of communication theory combined with
in-depth pretrial research, litigators may not control the outcome of a case, but
they can perhaps improve the odds for a favorable verdict. Practical tips for
determining deception include establishing a baseline of a witness’ behavior and
looking at congruence between his or her verbal and nonverbal behaviors.
Accurate interpretation of nonverbal clues helps in identifying witnesses who are
lying or possibly jurors who have biases to hide.
While there is no sign of lying that characterizes lying itself, lawyers who want to
be more aware of an individual’s potential for lying can learn skills that will help
detect deceit. To the extent that you understand and interpret nonverbal clues
correctly, you can advance advocacy and improve your discovery procedures.
Similarly, you can prepare witnesses to be more effective in front of juries, not by
making them better liars, but by helping them become aware of their behaviors
and of jurors’ perceptions of them.
Further, an understanding of jurors’ methods of comprehension can help fashion
arguments that jurors will interpret correctly. Jurors understand complex issues
such as securities, patent processing, underwriting, total loss v. partial loss, and
complex insurance practices when the concepts are translated into meaningful
issues that relate to their daily lives.
i
Ekman, P.E. (1985). Telling Lies: Clues to Deceit in the Marketplace, Politics, and
Marriage, New York, W.W. Norton & Company.
ii
Granhag, P.A., & Stomwall, L. (Eds.). (2004). The Detection of Deception in Forensic
Contexts. Cambridge University Press, New York.
iii
Marcucci, S.N. (2002). America’s best and worst voices.
http://Hollywood.com/news/Americas_best_and_worst_voices/1103039
iv
Imhof, M. (2010). Listening to voices and judging people. The International Journal of
Listening. 24, 19-33.
v
Ekman, P.E., & Friesen, W.V. (1969). Nonverbal leakage and clues to deception.
Psychiatry, 32, 88-106.
© Cynthia Cohen, Ph.D.
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vi
Ekman, P.E. & O’Sullivan, M. (1991). Who can catch a liar? American Psychologist, 46 (9),
913-920.
vii
O’Sullivan, M., Frank, M.G., Hurley, C. M., Tiwana, J. (2009). Police lie detection
accuracy: The effect of lie scenario. Law and Human Behavior, 33 (6), 530-538.
viii
Vrij, A., Mann, S.A., Fisher, R.P., Leal, S., Milne, R., & Bull, R. (2008). Increasing
cognitive load to facilitate lie detection: The benefit of recalling an event in reverse order.
Law and Human Behavior, 32 (3), 253-265.
ix
Ekman, P.E. (1985). Telling Lies: Clues to Deceit in the Marketplace, Politics, and
Marriage, New York, W.W. Norton & Company.
x
Ekman, P.E., & Friesen, W.V. (1969). Nonverbal leakage and clues to deception.
Psychiatry, 32, 88-106.
xi
DePaulo, B.M., Malone, B.E., Lindsay, J.J., Muhlenbruck, L. Charlton, K., & Cooer, H.
(2003). Cues to deception. Psychological Bulletin, 129 (1), 74-118.
xii
Warmelink, L., Vrij, A., Mann, S., Leal, S., Forrester, D. & Fisher R.P. (2011). Thermal
imaging as a lie detection tool at airports. Law and Human Behavior, 35 (1), 40-48.
xiii
Vrij, A., Leal, S., Granhag, P.A., Mann, S., Fisher, R.P., Hillman, J., & Sperry, K. (2009).
Outsmarting the liars: The benefit of asking unanticipated questions. Law and Human
Behavior, 33 (2), 159-166.
xiv
Vrij, A., Mann, S., Kristen, S., & Fisher, R. P. (2007). Cues to deception and ability to
detect lies as a function of police interview styles. Law and Human Behavior, 31(5), 499518.
xv
Hartwig, M., Granhag, P.A., Stomwall, L.A., & Kronkvist, O. (2006). Law and Human
Behavior, 30 (5), 603-619.
xvi
Judicial Council of California. (2011). Civil Jury Instructions. December 13, Judicial
Council Meeting.
xvii
Meisner, J., & St. Clair, S. Chicago Tribune, May 13, 2012.
xviii
Anderson, N.H. (1968). Likeableness ratings of 555 personality-trait words, Journal of
Personality and Social Psychology, 9(3), 272-279.
xix
Stroebe. W., Insko, C.A., Thompson, V.D., and Layton, B.D. (1971). Journal of Personality
and Social Psychology, 18(1), 79-91.
xx
Zajonc, R.B. (1968). Attitudinal effects of mere exposure. Journal of Personality and Social
Psychology, 10(4), 1-27.
xxi
Freedman, J.L., Carlsmith, J. M., Sears, D.O. Social Psychology (2nd edition). (1974).
Oxford, England: Prentice Hall.
xxii
Monroe, T. (1993). The credibility of male versus female expert witnesses. Unpublished
doctoral dissertation, California School of Professional Psychology.
xxiii
Cynthia Cohen, Monroe’s doctoral committee chair, and supplied mock jury panel.
xxiv
Larson, B.A., and Brodsky, S.L. (2010). When cross-examination offends: How men and
women assess intrusive questioning of male and female expert witnesses. Journal of
Applied Social Psychology, 40 (4), 811-830.
xxv
Whitehead, M. (1992). Interview.
xxvi
Kane, J.L. (2007). Judging credibility, Litigation, 33 (3), 31-37.
© Cynthia Cohen, Ph.D.
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What do law students need in order to ‘fly’? And how can bar associations help? | Bar Ser... Page 1 of 3
Home > Publications > Bar Leader > 2016-17 > September-October 2016 > What do law students need in
order to ‘fly’? And how can bar associations help?
What do law students need in order to ‘fly’? And
how can bar associations help?
Volume 41 Number 1
By Dan Kittay
A recent study confirms what some bar associations and law
schools have learned through experience: The changing legal
market requires that law school graduates have more practical
skills and professional attributes, as well as traditional legal
training, to be better able to find employment after they graduate.
“New lawyers need some legal skills and require intelligence, but
they are successful when they come to the job with a much
broader blend of legal skills, professional competencies, and
characteristics that comprise the whole lawyer,” says Alli Gerkman,
director of Educating Tomorrow's Lawyers, which conducted the
survey as part of its Foundations for Practice project. ETL is part of
the Institute for the Advancement of the American Legal System.
The survey, to which more than 24,000 practicing lawyers across
the country responded, is the first part of an effort by ETL to close
the “employment gap” for law school graduates.
“This first phase was about understanding what legal employers
need,” Gerkman said. “In the next phase, we want to take those
results and work with law schools and legal employers to look at
what they’re doing and evaluate whether they have programs in
place that are ensuring that their students graduate with these
foundations.”
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Could this mean an increasing role for bar associations in helping
law students gain necessary skills before the JD?
Daniel Webster Scholar: An alternative with a long
history
The discussion about focusing more of the law school curriculum on
practical skills in order to develop “practice ready” lawyers has
been ongoing for years. While there is not universal agreement in
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the legal community about the need for change, some bar
associations have decided to focus more attention on those topics,
and have been working with law schools and on their own to help.
One of the longer running efforts is the Daniel Webster Scholar
program at the University of New Hampshire School of Law. The
program, which includes the New Hampshire Bar Association
among its collaborators, offers some second- and third-year UNH
law students the chance to combine parts of the regular school
curriculum with the DWS version, which focuses on simulations,
client interactions, and other work designed to give the students a
solid background in handling many basic legal procedures, says
John Garvey, DWS director and professor at the law school.
Completion of the program functions as a bar exam, so graduates
don't need take the traditional bar exam to begin practicing.
DWS began as a pilot program in 2005, Garvey says. The idea for
it originated with Chief Justice Linda Dalianis of the New Hampshire
Supreme Court. Dalianis had noticed when she was a trial judge
that many lawyers were unprepared to handle basic legal
work, Garvey recalls. When Dalianis eventually became a state
Supreme Court justice, she convinced her colleagues to authorize
the pilot program.
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Garvey was hired to develop the initial curriculum and
requirements. He interviewed judges, law school faculty, students
and NHBA officials in an attempt to find a core curriculum that
could provide the right mix of practical skills training and
traditional legal education.
While the Supreme Court was behind the program, Garvey says
there were those in the legal community who were skeptical about
its value. He heard such sentiments as “We’ve been taking the bar
exam this way; why do we need to change it?” and “We’ve been
teaching students this way; why do we need to change it?” He
believes that involving the “stakeholders” in the creation of the
curriculum helped to overcome much of the resistance to the
program.
Getting to ‘yes’
That skepticism is something that Robert Hirshon also sees.
Hirshon, an ABA past president and currently a professor from
practice and special counsel of developments in the legal
profession at University of Michigan Law School, teaches ethics
courses that focus on “how ethics play into everyday
practice, versus just a focus on the rules themselves,” he says.
“It’s much more of a holistic approach, because that’s the way I
experienced it as a practitioner for 30 years.”
The State Bar of Michigan is involved with other practice-oriented
programs at the school, Hirshon says, adding that bar associations
looking to partner with law schools will likely find some easier to
work with than others.
http://www.americanbar.org/publications/bar_leader/2016-17/september-october/what-do-l... 10/4/2016
What do law students need in order to ‘fly’? And how can bar associations help? | Bar Ser... Page 3 of 3
“Each law school takes a very individual approach. Because the
faculties guard very closely their prerogatives, and what they teach
and how they teach it, one size does not fit all,” Hirshon notes.
“Where one law school might say, ‘We’d love to have the state bar
come in,’ another might say, ‘No, thank you.’ ”
Hirshon recommends that bars looking to connect with law schools
on practical skills training consider talking with individual
professors who might have some connection with the bar. Getting
the professor to agree with a proposed program can help to move
it through the faculty and administration, and help to neutralize
opposition, he explains.
As the discussion continues, bars take action
Jim Calloway, director of the Oklahoma Bar Association’s
Management Assistance Program, sees both sides of the question
of changing the focus to add more practical skills training. Calloway
regularly speaks at law schools on practical subjects students will
need to know once they become practicing attorneys. Topics
include cyber-ethics, which he defines as the intersection of the
law and technology and how it affects a lawyer’s ethical
obligations, such as keeping data secure and eliminating threats to
confidentiality; and how to set up a solo or small firm practice.
Calloway’s personal opinion is that law schools should spend “a lot
more time” teaching practical skills, but he respects many
academics’ view that this would come at a high cost.
“If you would add 15 or 20 percent of a curriculum to be in
practical skills, that means cutting 15 or 20 percent of what’s
currently offered now,” he says, “and that’s a real challenge
because many of the individuals in the law schools believe they are
teaching important things that would be discontinued if we shifted
the focus.”
However different the law school curriculum may look in the future,
many other state and local bar associations are taking steps to
help today’s law students gain practical skills—sometimes in
conjunction and collaboration with law schools, and sometimes by
reaching law students directly. To learn more about several of
those programs, please see “How do bar associations help law
students? A closer look,” also in this issue.
http://www.americanbar.org/publications/bar_leader/2016-17/september-october/what-do-l... 10/4/2016
OHIO STATE BAR ASSOCIATION
Report of the Task Force on Legal Education Reform
December 2009
This Report was approved by the Ohio State Bar Association
Board of Governors and the Council of Delegates
OHIO STATE BAR ASSOCIATION
Task Force on Legal Education Reform
Report and Recommendations
Task Force Charge
A primary topic of discussion for the past decade at the annual Bench Bar Deans Conference has
been legal education, the bar examination and whether newly admitted lawyers were adequately
prepared for the practice of law. Similar discussions were being held across the country and
several comprehensive studies were conducted. This task force was established by (Ohio State
Bar Association (OSBA) then-President Robert F. Ware and President-elect Gary J. Leppla to
review the Carnegie Foundation Report on Educating Lawyers (Carnegie), and the Clinical Legal
Education Association Report on Best Practices for Legal Education (Stuckey); to develop
recommendations for including more practice-centered instruction in the law school curriculum;
and to consider changes to the Ohio Bar examination, which may be necessary to enable law
schools to modify their curricula.
Task Force Members
The Task Force consisted of 25 members. Heather G. Sowald, past OSBA president was
appointed to chair the Task Force. Each of Ohio’s nine law schools plus Northern Kentucky was
asked to name a representative to the Task Force. The Supreme Court of Ohio was represented
by its administrative director, the chair of the Board of Bar Examiners and the director of the
Office of Bar Admission. Several practitioners from law firms of varying sizes across the state,
two recently licensed attorneys and a law student were also appointed to the Task Force. A
roster of Task Force members is attached as Appendix A.
Task Force Work
The Task Force began its work by studying the history of the legal profession and its evolution in
the United States. The Task Force then reviewed many documents, including various reports on
legal education and law review articles; reviewed the bar examination in Ohio; studied how
other countries prepare students for law practice; studied how other professions in Ohio prepare
students for practice; and surveyed recent Ohio law graduates as to their readiness to practice.
The Task Force also reviewed innovative curricula at Ohio and out-of-state law schools.
The Task Force found that the curricula at all Ohio law schools include a variety of programs
and courses, including simulations, clinics and externships, which provide practice-centered
instruction. In some cases Ohio’s law schools are among the nation’s leaders in innovative
professional skills training. However, all of the law school representatives on the Task Force
acknowledged that more can and should be done to make this training available to every student,
and to improve the professional preparation of all students prior to graduation.
The Task Force believes that the experience of the Ohio law schools, as well as the commitment
of the Ohio judiciary, bar, and legal academy to collaborate in expanding existing training and to
create new and innovative forms of professional skills training, will make it possible for Ohio to
be the national model for preparing new lawyers for practice in the coming years.
Committees
Chair Heather Sowald established three committees (bar examination, law school curriculum and
internships/externships) to review the legal education reports, other information received, and to
make specific recommendations for consideration by the full Task Force. The committees, their
specific charges; and their recommendations are attached as Exhibits B-E.
Task Force Recommendations
I.
Endorsement of Reports
A. Resolved, that the Task Force endorses and supports the recommendations of the report
of The Carnegie Foundation for the Advancement of Teaching entitled "Educating
Lawyers: Preparation for the Profession of Law" (the "Carnegie Report"). An executive
summary of the Carnegie Report is attached as Exhibit F.
B. Resolved, that the Task Force endorses and supports the recommendations for best
practices described in the report of Roy Stuckey, et al., entitled "Best Practices for Legal
Education: A Vision and Road Map" (the "Stuckey Report"). An executive summary of
the Stuckey Report is attached as Exhibit G.
II.
Recommendations for Encouraging Innovation and Change
A. Resolved, that the Task Force recommends that the State of Ohio become the national
leader in advancing systemic change in legal education and licensing by developing
innovative programs and new models for admission to the practice of law.
To facilitate the foregoing recommendation, the Task Force recommends the
following initiatives:
1.
The Supreme Court of Ohio reduce or otherwise modify the subjects tested
on the essay portion of the Ohio Bar Exam to enable Ohio law schools to
offer enhanced and increased clinical and externship opportunities;
2.
The Supreme Court of Ohio expand student licenses to include second-year
students when under proper supervision and in appropriate circumstances;
3.
The Supreme Court of Ohio, the Ohio law schools, and the practicing bar
(through its associations) create a Joint Working Group to work together to
seek modification or waiver of certain ABA accreditation standards to
facilitate experimental law school programs and curricula;
4.
The Supreme Court of Ohio, Ohio law schools, and practicing bar (through
its associations) work together to create new financial models supporting
clinical and other experiential legal education;
5.
The Supreme Court of Ohio, through its Commission on Professionalism,
develop an electronic database and/or network, and an annual statewide
conference, to facilitate the sharing of best practices and innovative
teaching materials among professors at Ohio law schools, especially in
regard to courses and teaching materials on professionalism, ethics, and
professional identification; and
6.
III.
The Supreme Court of Ohio study, and implement if appropriate, alternative
paths to licensing new Ohio lawyers, such as: (a) an examination consisting
of simulations and application of professional skills; (b) an apprenticeship
program; and/or (c) an honors professional practice program.
Recommendations for Integration of Theory and Practice
A. Resolved, that the Task Force recommends that Ohio law schools, courts, bar
associations, and practitioners work together to offer more practical training opportunities
to Ohio law students.
B. Resolved, that the Task Force recommends that the Supreme Court of Ohio adopt a rule
that requires, prior to taking the Ohio Bar Examination, the completion of a performance
experience consisting of either a clinic in law school, a performance externship in law
school, or a practice experience through an organized bar association program which
involves law school faculty and practicing bar.
C. Resolved, that the Task Force recommends that law students in Ohio law schools be
encouraged to develop an abiding sense of professionalism, professional identity, and
ethical responsibility throughout their law school career.
To facilitate the foregoing recommendation, Ohio law schools are encouraged to pursue
the following initiatives, and similar initiatives and recommendations from the Joint
Commission and the Supreme Court of Ohio Commission on Professionalism:
1.
Require professionalism training and ethics curricula for law students
incorporating practical or practitioner perspectives;
2.
Provide opportunities for greater collaboration and interaction between
practitioners and professors, such as bar association activities, joint
projects (e.g., a summer law professor in residence at a law firm or
courthouse), and guest lecturers;
3.
Develop teaching materials based on actual legal matters, similar to
business school case studies, and encourage participation of practitioners
in presenting and discussing these materials especially in the second and
third year classes;
4.
Incorporate of professionalism, ethics, and professional skills education
within substantive courses across the curriculum starting with the first
year; and
5.
IV.
Develop of a system of “portfolios” of law students’ activities during law
school, and, especially, of legal performance experiences.
Time Frame for Implementation
A. Resolved, that the Task Force recommends that while the recommendations in Section II
and III are pending before the Supreme Court of Ohio (or its designated commission, task
force, or board) for review, analysis, and promulgation, that the Ohio law schools,
practicing bar, bar associations, and courts of Ohio proceed with the immediate and full
development of the recommendations outlined in Sections II and III of this Report.
To ensure the full and speedy implementation of the foregoing recommendations
found in Sections II and III of this Report, the Task Force recommends the following:
Appendix
Exhibit A
Exhibit B
Exhibit C
Exhibit D
Exhibit E
Exhibit F
Exhibit G
1.
The Supreme Court of Ohio (or its designated commission, task force, or
board) issue rules implementing, as appropriate, the recommendations
found in Section II of this Report no later than August 1, 2010, and ensure
that those rules apply to law students graduating from Ohio law schools
during and after May/June, 2013;
2.
That the Supreme Court of Ohio, the OSBA, the metropolitan bar
associations, and the Ohio law schools create a Joint Commission to review
annually Ohio’s progress in implementing the Task Force’s recommendations
found in this Report and to report accordingly to the Supreme Court of Ohio,
the OSBA, and the metropolitan bar associations; and
3.
That Ohio’s law schools, bar associations, and the practicing bar first report
to that Joint Commission no later than June 1, 2010, on how each is acting
to implement the Task Force’s recommendations found in this Report.
Roster of the Task Force
Subcommittees and Charges
Charge and Report of the Practical Applications committee
Charge and Report of the Externship and Internship committee
Charge and Report of the Bar Examination committee
Executive Summary of Carnegie Report
Executive Summary of Stuckey Report.
Separate Statement
I join the Task Force’s report except for recommendation III.B. That recommendation concerns
me for several reasons, two of which I note here. First, the proposed mandate is likely to
increase costs for law students. The Carnegie and Stuckey Reports acknowledge the substantial
financial costs of expanding well-supervised clinics and externships; our own subcommittee
reports note the same challenges. Unless the initiative described in II.A.4 (creating new financial
models for clinical education) succeeds, the mandate in III.B is likely to raise tuition costs
significantly for law students.
Second, the Task Force does not define “performance experience,” and I am not sure whether
that phrase allows the bar and law schools to continue developing the best professional training
for our graduates. Medical students gain much of their clinical training by completing well
constructed simulations and shadowing doctors; they, like many other professionals, complete
the “performance” part of their training primarily after graduation and while paid members of the
workforce. Pre-degree externships include performance, but they often lack the supervision and
feedback that education researchers agree are essential to mastering professional skills. Unless
the “performance experiences” recommended in III.B include simulations, shadowing programs,
and other forms of experiential education, the recommendation may force schools and students to
favor externships over other forms of training that are more effective in developing professional
expertise.
If the Supreme Court adopts recommendation III.B, my concerns could be reduced by:
1. Requiring completion of the performance experience before admission to the Ohio bar,
rather than before taking the Ohio bar examination.
2. Specifying that applicants may satisfy the requirement through experiences that earn
academic credit, appropriately supervised pro bono work, or appropriately supervised
work for pay.
3. Clarifying that experiences satisfying this requirement could include externships with
judges, government agencies, and other employers who offer valuable professional
training without serving clients directly.
4. Acknowledging the role of well constructed simulations, shadowing programs, mentoring
relationships, and other forms of experiential learning in providing appropriate
“performance experiences.”
5. Directing the Joint Commission, within two years after implementation of the
recommendation, to issue a report detailing the economic and educational impact of the
recommendation on law students and recent graduates.
Respectfully submitted,
Deborah J. Merritt
James M. Klein
Appendix A
TASK FORCE ON LEGAL EDUCATION
Martin H. Belsky
Dean and Randolph Baxter Professor of Law
University of Akron School of Law
C. Blake McDowell Law Center, 136K
Akron, OH 44325-2901
Louis D. Bilionis
Dean and Nippert Professor of Law
University of Cincinnati College of Law
P. O. Box 210040
Cincinnati, OH 45221-0040
Katherine S. Chappelear, Esq.
Franklin County Prosecutors Office
373 S. High Street, Floor 14
Columbus, OH 43215-4591
Douglas R. Cole, Esq.
Jones Day
325 John H. McConnell Boulevard, Ste. 600
Columbus, OH 43215-2673
David C. Crago, Esq.
Dean, Claude W. Petitt College of Law
Ohio Northern University
525 S. Main Street
Ada, OH 45810
Maria P. Crist
Director, Legal Profession Program
University of Dayton School of Law
300 College Park
Dayton, OH 45469-2772
Michael Distelhorst, Esq.
Capital University Law School
303 E. Broad Street
Columbus, OH 43215-3200
Jason M. Dolin, Esq.
2369 E. Main Street
Columbus, OH 43209-2421
Jessica Emch
Ohio State Bar Association
1700 Lake Shore Drive
Columbus, OH 43204
Patrick F. Fischer, Esq.
Keating, Muething & Klekamp
One E. Fourth Street, Ste. 1400
Cincinnati, OH 45202-3752
Hon. William H. Harsha
4th District Court of Appeals
14 S. Paint Street, Suite 38
Chillicothe, OH 45601
Dennis R. Honabach
Dean, Salmon P. Chase College of Law
Norther Kentucky University
Nunn Drive
Highland Heights, KY 41099
James M. Klein, Esq.
University of Toledo
2801 W. Bancroft Street
Toledo, OH 43606-3390
Kenneth R. Margolis, Esq.
Case Western Reserve University School of Law
11075 East Boulevard
Cleveland, OH 44106
Shirley L. Mays, Esq.
Assistant Dean
Capital University Law School
303 E. Broad Street
Columbus, OH 43215-3200
Geoffrey S. Mearns, Esq.
Cleveland State University
Cleveland-Marshall College of Law
2121 Euclid Avenue
Cleveland, OH 44115-2223
Deborah J. Merritt, Esq.
The Ohio State University
Moritz College of Law
55 W. 12th Avenue
Columbus, OH 43210-1391
Michael P. Morrison, Esq.
Government Advantage Group
100 E. Gay Street, Ste. 701
Columbus, OH 43215-3251
David C. Patterson, Esq.
Patterson Law Office
10 W. Broad Street, Ste. 1900
Columbus, OH 43215
Heather G. Sowald, Esq.
Sowald, Sowald, Anderson & Hawley
400 S. Fifth Street, Ste. 101
Columbus, OH 43215-5430
Nicole VanderDoes, Esq.
Columbus, OH
Lee Ann Ward, Esq.
The Supreme Court of Ohio
65 S. Front Street
Columbus, OH 43215-3431
Robert F. Ware, Esq.
Thompson Hine LLP
27 Public Square, Ste. 3900
Cleveland, OH 44114-1291
Legal Education Task Force Report Appendix
Exhibit B Subcommittees and Charges
Exhibit C Charge and Report of the Practical Applications committee
Exhibit D Charge and Report of the Externship and Internship committee
Exhibit E Charge and Report of the Bar Examination committee
Exhibit F Executive Summary of Carnegie Report
Exhibit G Executive Summary of Stuckey Report
SUBCOMMITTEE ASSIGNMENTS
I. Practical Applications in the Classroom: Chair, Deborah
J. Merritt.
Curriculum changes to ensure that legal practice skills are
integrated throughout all law school classes.
a. (Subset) Curriculum changes to ensure that legal
ethics and professionalism are taught and integrated
throughout law school classes.
b. See notes below at asterisk.
1.
2.
3.
4.
5.
6.
Nicole VanderDoes
Katherine Chappelear
William Harsha
Patrick Fisher
Michael Distelhorst
Shirley Mays
II.
Internship/Externships: Chair, David Patterson
Curriculum changes and bar support to ensure that all students
have mandatory externship/internship.
a. (Subset) Curriculum changes and bar support to
ensure that as many students as possible are exposed
to simulated or actual legal clinic work while in law
school.
b. (Subset) Internship requirement occurring postgraduation.
c. See notes below at asterisk.
1.
2.
3.
4.
5.
Geoffrey Mearns
Kenneth Margolis
James Klein
Maria Crist
Jason Dolin
6. Jessica Emch
7. Nicole VanderDoes
8. Robert Ware
III.
Ohio Bar Examination: Chair, Martin Belsky
Changes to the bar exam such as different or fewer courses
tested, giving test at end of second year, etc.
a. (Subset) Adding Family Law back into the Ohio bar
exam.
b. See notes below at asterisk.
1.
2.
3.
4.
5.
6.
Lee Ann Ward
Michael Morrison
Louis Bilionis
David Crago
Dennis Honabach
Douglas Cole
………………………………………………………………………………..
*Each group to consider the following, if applicable:
A. Best practices (in other law schools, in other states, outside of the
U.S., by other professions).
B. Other schools’/states’ experiences with this option.
C. Effect on students’ finances.
D. Effect on students’ loans.
E. Effect on bar examination.
F. Effect on law school accreditation by ABA.
G. How to implement suggested changes?
H. Possible Ohio Supreme Court rule changes.
I. What about Ohio students to other states?
J. What about outside students/practitioners coming into Ohio?
11/24/2009
Recommendations from the Subcommittee
On Practical Applications in the Classroom
Our subcommittee agrees with the Carnegie Report, Best Practices Report, and our own Task
Force discussions: We have an opportunity to make legal education deeper, richer, more
engaging to students, and more responsive to clients. Key improvements would:
Introduce students to professional identity, ethics, and client contact starting in the
first year of law school.
Integrate these experiences throughout all three years. Law students, unlike their
counterparts in other professions, have limited contact with clients or their multidimensional problems. That isolation reduces students’ ability to solve complex
problems and think creatively. To practice law at the most sophisticated levels,
students must learn both to think like lawyers and to respond to clients.
Educate students to exercise independent professional judgment. Responding to
clients does not mean facilitating every client wish; lawyers base their counsel on
independent judgments bound by law and ethics. Law students should begin
mastering that difficult task before graduation.
Rely more extensively on simulations, shadowing, mentoring externships, and clinics
to prepare students for law practice. Didactic instruction has limited ability to teach
the full range of complex skills that lawyers use.
Make greater use of statutes, regulations, transactional documents, mediated
agreements, and other materials that characterize contemporary law practice. Legal
education relies too heavily on appellate opinions to teach students the law.
Although we are enthusiastic about improving legal education in these ways, our
recommendations also try to account for several significant constraints:
Law practice is very diverse, and students frequently shift career goals while enrolled in
law school. Individual schools, therefore, must meet a wide range of student interests and
employer demands. Although all employers show some support for the goals identified
above, they prioritize educational experiences differently. Law schools have limited
resources to respond to these diverse demands.
Excellence in law practice, like mastery in other fields, takes time to develop. Even the
best designed law school curriculum cannot produce a fully developed professional in three
years. We need to set realistic expectations for what students can accomplish in three
years and what schools can deliver during that time. Professional education should focus
on (a) helping students acquire basic competence in the skills and knowledge they need to
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function as lawyers, and (b) teaching the tools that graduates will use to continue
developing those competencies.
Expanded reliance on clinical training, shadowing, mentoring externships, and other forms
of experiential learning will require significant time/financial investments from both law
schools and practitioners. Academics may have to develop new teaching materials and
pedagogies; practitioners may need to learn new mentoring skills and workplace routines.
High-quality clinical learning imposes significant costs on both classroom educators and
practitioners.
The economy is suffering a severe recession; this is a difficult time to impose new costs on
law schools or practitioners. At the same time, we need to be particularly careful that we
don’t impose any new costs on students and novice lawyers. Law school tuition is already
high, graduates already carry significant debt loads, and recently hired workers are
suffering disproportionately from layoffs.
Statewide regulation can effectively foster some types of change, but not others.
Especially during a time of rapid market shifts, we need to choose regulations and
incentives carefully. We offer some recommendations—such as those related to the bar
examination—that would have to be adopted by the Supreme Court of Ohio. Other
innovations might be fostered through statewide incentive programs or academic/bar
partnerships. Still others are recommendations that individual schools or practitioners
might choose to follow, but that are inappropriate for mandates.
We report below 30 recommendations related to (a) the bar exam, (b) upper level courses, and
(c) first-year courses. We realize that it would be impractical to implement all of these
recommendations. In fact, some of the recommendations offer alternative means of achieving
similar goals. We viewed our role as partly a brainstorming one, so we forward all of these
ideas for consideration by the Task Force, OSBA, Supreme Court of Ohio, law schools, and
practitioners.
Recommendations Related to the Bar Exam
The bar exam should reflect the competencies that the profession believes are basic to
practicing law. In addition to identifying applicants who hold those competencies, the exam
sends a strong signal to law schools about what the profession values. Even if professors don’t
“teach to the test,” they respond to those signals.
Much of the current bar exam tests memorized doctrinal principles. The multiple-choice MBE
and MPRE questions require relatively little problem solving, critical thinking, or professional
judgment. Instead, these portions of the exam require students to spot doctrinal or ethical
issues and to recall from memory the applicable principles. Even the 30-minute Ohio essay
questions require primarily issue-spotting and doctrinal recall. The 90-minute MPT exercises
come closest to testing the full range of skills that we associate with legal competence:
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defining problems, synthesizing legal principles, applying those principles to the facts, and
addressing a client problem.
Since the bar exam tests almost exclusively doctrine, it is very difficult to persuade professors
to teach less doctrine and more professional skills. Even for professors who claim to ignore
the bar exam, or who teach in fields outside its reach, the exam’s doctrinal focus sends a strong
signal that the profession values doctrinal learning over all other goals. To change legal
education, we need to change the bar exam.
1. Reduce the subjects tested on the Ohio essay portion of the exam. If possible, narrow
those subjects to those tested on the MBE and MPRE.
Rationale: Law students spend too much time studying doctrinal subjects and memorizing
principles within those areas. Professors, similarly, believe that doctrine matters more than
other forms of professional preparation. To encourage a more balanced course of study,
including more clinical experiences, simulations, problem courses, writing practice, and
skills training, we need to reduce doctrinal pressures. The MBE and MPRE subjects
represent an appropriate core of fundamental doctrinal principles for testing. Even if we
disagree with the particular choice of subjects on those exams, it is very difficult for one
state to modify the national exam; the best course for Ohio is to narrow our topics to those
covered by the national exam.
Note that reducing the number of essay subjects will not inflate Ohio’s bar passage rates.
Like other states, Ohio keys the pass rate for each exam to that group of test takers’
performance on the MBE. Reducing the number of subjects tested on the essay portion of
the exam thus will not significantly change the pass rate. Instead, this reduction will allow
us to make the essays more like the MPT questions—a change we discuss further in the
next recommendation. It will also encourage students to devote more of their legal
education to skills training.
2. Increase the percentage of the bar exam devoted to the MPT or similar exercises.
Exercises like these might entirely replace the current essay portion of the exam.
Rationale: The MPT, which asks applicants to address issues raised in a hypothetical
client file and to produce a document appropriate to the problem, most closely parallels the
work that lawyers do. If we want students to acquire problem-solving skills, we should
test them on those skills. Converting the Ohio essay questions to MPT-like problems
(whether developed within Ohio or taken from an expanded national test) would better test
applicants’ ability to work effectively as lawyers. This change would also encourage
development of additional problem-solving, client-focused courses in law schools—a trend
that has already started, but that could increase.
These MPT-like questions would not be easier than those currently posed on the essay
questions. On the contrary, they would require students to engage in more analytic
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thinking, synthesizing, and problem solving. The difference is that these questions would
test a more complete range of lawyering skills, rather than focusing on memorization of
detailed rules from a large number of distinct practice areas.
3. Alternatively, replace some or all of the bar exam with selected simulations in which
students demonstrate proficiency in a range of professional skills.
Rationale: Drafting and grading the bar exam requires significant financial resources;
studying for the exam similarly absorbs significant time and expense. In addition to the
money invested by bar examiners, applicants spend thousands of dollars to take the courses
needed to help them memorize principles tested on the exam. Applicants have studied
most of these principles during law school; they purchase expensive bar review courses
because they need to memorize all of these principles to display on the exam.
If bar examiners could add the substantial resources students currently spend on bar review
courses to the money that examiners currently devote to exam preparation and grading,
examiners could provide much better assessments of lawyer competency. The
assessments, moreover, would provide more meaningful educational experiences for the
new lawyers themselves.
During the months after law school graduation, bar applicants could enroll in several
simulations that require them to perform real lawyering tasks. The simulations, like real
law practice, would rest on basic doctrinal principles taught in law school. But these
simulations would allow students to consult resources, as real lawyers do; they would not
demand detailed memorization of hundreds of doctrinal rules. Students would not succeed
in these simulations unless they possessed a basic understanding of Torts, Contracts,
Evidence, and other basic subjects from their law school courses, but they would not need
to recall detailed UCC provisions or evidentiary rules from memory.
Most important, the simulations would require students to engage in tasks like client
counseling; interviewing; negotiating; explaining conclusions to a colleague; advocating
arguments to a decision maker; drafting documents; and writing memos, briefs, and other
products. In addition to completing one or two basic simulations, students could choose
one or two experiences focused in a particular practice area.
These simulations would be more expensive to administer than current exams, but
applicants would be willing to pay much more for them. The aim is to shift dollars spent
on bar review courses and other parts of the ever-growing bar preparation industry
(including dollars that law schools increasingly allocate for this purpose) to more
meaningful evaluation. The evaluations, moreover, could be done with more detailed
feedback than a simple “pass” or “fail.” Although examiners would not publish more
detailed scores, they could share feedback with the examinees during the simulations and
through any written scoring. The test could contribute some learning value to the applicant
rather than serve solely as a licensing hurdle.
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These simulations are a condensed version of the New Hampshire honors program
described below. Note, however, that they could rely entirely on evaluation controlled
directly by bar examiners. Professors might contribute substance to the simulations, as
they currently consult on bar exam questions, but bar examiners and practitioners would
evaluate applicants (as they currently grade exam answers).
4. Any changes in the bar exam should NOT increase the total amount of time or money
devoted to bar preparation or testing.
Rationale: The simulations described above would increase the amount of time and money
that applicants spend on assessment sessions, but they would replace substantial amounts
of time and money that applicants currently devote to bar review courses. The “bar exam”
currently consists of three days of testing (including the MPRE, which applicants take
separately from other parts of the bar) and two and a half months of intensive preparation.
Those burdens are already heavy. Whatever changes we make in bar examination or
licensing requirements, we would not want to increase these overall burdens. Any
additions should replace current components of the system.
5. Create an Honors Professional Practice Program Alternative to the Bar Exam (like
the one adopted in New Hampshire).
Rationale: Students who participate in a rigorous honors curriculum focused on
professional practice, and who document their abilities through a series of exercises
documented in a portfolio, ably demonstrate proficiency to practice law. Exercises
completed in programs like this are more comprehensive than those completed in a 90minute MPT exercise or other portion of the bar exam. In addition to providing an
appropriate means of testing professional competence, these programs have a spillover
effect for other students: They maintain commitment to high-level simulations, clinics,
and other professional practice courses at law schools, creating opportunities even for
students outside the honors curriculum. Other states are considering adoption of programs
like the one in New Hampshire. If Ohio acts ahead of other states in creating these
programs, we will attract highly qualified students to the state’s law schools and encourage
highly qualified law graduates to remain in Ohio.
Note that bar examiners, judges, and practitioners could participate in assessments
conducted during an honors program of this type. This would assure that schools maintain
rigor in these programs.
This type of program could also serve as a pilot way to explore more expansive changes in
the bar admission system. I.e., if this type of program succeeds for a small group of
students at participating law schools, it could pave the way for the full simulation exams
described above.
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6. Create an LLM Professional Practice Alternative to the Bar Exam.
Rationale: Some observers have suggested increasing law school to four years, with the
final two years devoted to clinical rotations as in medical school. Others have proposed
requiring all bar applicants to complete a year-long apprenticeship after law school and
before being admitted to practice. We view both of these options as economically
impractical, given the cost of law school, mounting debt obligations, and typically low
salaries for apprentices. For law graduates who want a year of supervised professional
practice, however, and for employers who would like to hire lawyers with that additional
training, we think it would be feasible to create LLM programs focused on professional
practice. We discuss this option in further detail below. In addition to giving enrollees
advanced training, successful completion of one of these programs would demonstrate
legal competency at a level supporting bar admission. Participants in these programs, like
those enrolled in the honors programs described above, would complete a series of
professional experiences and exercises documented through portfolios. If those were
completed with at a required level of excellence (which could include review by statewide
bar examiners), that should satisfy admission to the bar.
7. Create an Apprenticeship Option for Bar Admission.
Rationale: For the reasons stated in the previous paragraph, we see a mandatory
apprenticeship program as economically unworkable or unfair; for many new lawyers, it
may also be unnecessary. But apprenticeships completed after law school graduation,
under sufficiently rigorous guidelines, and with close oversight, could offer an alternative
path to bar admission. As with the previous suggestions, this option would demonstrate
the bar’s commitment to professional problem-solving and other practice skills as the core
of lawyer competence. Only a small number of lawyers might elect this time-consuming
and expensive option, but the model might have ripple effects on the practice: It would
involve some senior lawyers very directly in mentoring and apprentice supervision, and it
would remind all lawyers of the value of apprentice-like relationships.
8. Reduce the imbalance between litigation and non-litigation practices on the bar
exam.
Rationale: Much of legal education, explicitly or implicitly, focuses on courtroom
litigation. Most doctrinal courses use appellate opinions as the primary source of
information, and a preponderance of skills courses and clinics focus on litigation-related
skills. The bar exam perpetuates this bias in numerous ways. E.g., evidence is one of just
six MBE subjects, and the other five subjects draw from first-year courses focused almost
exclusively on appellate opinions. For bar applicants who plan to practice in transaction or
counseling focused fields, this imbalance is particularly unfortunate; it distracts them from
acquiring competencies most relevant to serving their clients. But even for lawyers who
practice in litigation-heavy fields, the tilt focuses students on competencies like appellate
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brief-writing, appellate arguments, and trial advocacy rather than client counseling, fact
analysis, negotiation, and alternative forms of problem solving. Reducing the “litigation
tilt” in professional preparation would improve the education of all lawyers.
Changes in the bar exam alone are unlikely to fix this problem. At the very least, however,
we recommend addressing this problem when implementing any of the above
recommendations. E.g., MPT-like exercises should include settings and skills outside
litigation; honors practice programs should offer transaction, ADR, and other “non
litigation” options; schools should strive to create LLM professional practice programs for
a variety of practice tracks; and apprenticeship programs should actively seek mentors in
both litigation and non-litigation practices.
9. Work with national bar examiners to reduce the scope of topics tested within subject
areas.
Rationale: We examined the topic outlines for subjects tested on the MBE and found them
very broad. Few, if any, first-year courses cover all of the topics tested in these areas. The
doctrinal principles tested in each area seem to range beyond foundation principles and
into practice specialties. To learn the material tested in each MBE subject, students often
have to take at least two law school courses, the required first-year one and an upper level
one. This intensifies the pressures to memorize doctrine rather than develop more fully as
a professional during law school.
10. Lead other states on bar exam practices.
Rationale: States often worry about deviating from nationwide bar exam practices; they
fear creating an exam that is too easy compared to other states. This is a time, however,
when innovation and leadership will pay off. Given the increasingly cross-jurisdictional
nature of law practice, states are likely to join together in a national bar exam within the
next 5-10 years. If Ohio leads the way with innovative approaches during the next few
years, we can gain significant attention and respect from other states. In addition, if we
create a system that tests new lawyer competencies better than the exams used in other
states, we will strengthen the competitive position of our current practitioners. Clients
increasingly rely on lawyers in multiple states to fill their legal needs. If Ohio leads the
way in developing lawyers who meet those needs, our practicing bar will benefit.
Recommendations Related to Upper Level Courses
Although we believe that an invigorated, more client-focused form of legal education should
start in the first year, we start by outlining proposals for the upper level; many of these provide
context for our first-year recommendations.
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We focused on three overriding problems in second- and third-year law courses. First, these
courses lack an engaging, effective, and distinctive pedagogy. As the Carnegie Commission
recognized, legal education’s “signature pedagogy” is the case method. But that method
works most effectively in the first year; a steady diet of appellate opinions produces
diminishing returns in the upper level. Second- and third-year courses need new pedagogies
that are as effective and esteemed as the first year’s “signature” method. Professors are
starting to develop these pedagogies; we want to stimulate those efforts and increase their
presence.
Second, at least for some students, the upper level years fail to provide an effective bridge
between 1L study and the early years of law practice. The nature of this transition differs
depending on practice area and the individual student’s needs; one size won’t fit all. But it is
important for students to feel that upper level contributes meaningfully to their professional
development. This upper level progression, moreover, should help students plan for continued
development throughout their early years of practice.
Third, these years should build on the first year to develop more sophisticated approaches to
professionalism and legal ethics. We should integrate these experiences more fully into
students’ upper level study, building a strong foundation for continued growth as practitioners.
11. Create a template for a “Competencies for Law Practice” portfolio. The template
would identify a large number of skills, knowledge, and experiences that prepare students
for law practice. Students could use the template to identify competencies important to
their personal goals, and could record steps taken toward achieving those competencies.
They could also use portions of the portfolio to demonstrate competencies to employers;
these “external” parts of the portfolio would include writing samples, drafted documents,
videotapes, and other summaries of a student’s work. Employers could use the portfolios
directly in hiring; they could also signal to students the competencies that are particularly
relevant to their particular field or organization.
Rationale: Competency-based portfolios will help students document their progression in
the upper level years, creating a bridge between law school and practice. These portfolios
will also help students identify and seek skills, experiences, and knowledge that contribute
to effective lawyering. Equally important, students using the portfolios will start to
understand the ongoing nature of professional development and the need for each lawyer to
assert control over his/her own development.
We found that law schools offer an increasingly diverse array of upper level courses,
including clinics, externships, simulations, and innovative practice-based courses. We see
portfolios as a way to organize diverse upper level offerings, and to assure that students
and employers consider a full array of competencies, without forcing a single model on
everyone.
We also believe that portfolios will form a particularly effective way to spur continued
innovation in the law school curriculum. As explained further below, portfolios are
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flexible, they adapt readily to changing circumstances, and they focus on skills or
knowledge rather than course units. Professors, therefore, can incorporate a new skill or
experience into an existing class without developing an entirely new offering.
What would a portfolio look like? The portfolios would be electronic templates with
categories like (a) mastery of fundamental doctrinal principles, such as those covered in
first-year courses; (b) acquisition of knowledge about more specialized doctrinal areas; (c)
instruction, experience, and feedback on a range of written products; (d) instruction,
experience, and feedback on a variety of lawyering tasks (e.g., client counseling,
interviewing, fact gathering, negotiating, contract drafting); (e) grappling with ethical and
professional issues; (f) critiquing the law and offering reform proposals; (g) exposure to
international clients or legal issues; and (h) acquisition of basic accounting, statistical, or
other tools that assist lawyers. These are just examples; one advantage of the portfolio
approach is that students, schools, and employers can add new categories as practice
evolves.
Within each category, students would record relevant experiences and achievements. The
template might suggest steps that students commonly take to pursue a particular
competency, but students would be free to document other means. The portfolios would
integrate students’ curricular work with their achievements in the workplace,
extracurricular activities, and community groups; a student, for example, might document
client counseling experiences from all of these sources. The portfolios would also allow
students to record multi-faceted classroom experiences. A course on Mergers &
Acquisitions that included a simulated negotiation, for example, would allow students to
record both study of that doctrinal field and completion of the negotiation exercise. This
aspect of portfolios encourages the development of new pedagogies across the entire upper
level curriculum.
No student would complete every competency during three years of law school. On the
contrary, the portfolios would help students realize that professional development is a
long-term, ongoing process. Students, however, could consult academic advisors, career
service counselors, and potential employers about the competencies most relevant to their
personal development and career goals. The student portfolios could also dovetail with
development guidelines offered under the OSBA’s mentoring program or an individual
employer’s professional development program; this would aid long-term development.
At this point, we view portfolios as a voluntary tool that students could adopt, although
individual law schools or employers might ultimately require them. Individual schools
might create portfolios on their own, but collaboration could establish the concept more
quickly and cost effectively. Steps to develop this concept include:
A. An OSBA working group could develop an initial template for statewide use.
B. The Bar Foundation could fund a team of practitioners and professors to design a
template.
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C. Funding by the OSBA, Bar Foundation, or some other central source would be
especially useful to develop the software supporting portfolios.
12. Create student Professionalism/Ethics Journals. In these journals, students would
record professionalism or ethics issues raised in doctrinal courses; experienced in the
workplace; and encountered in clinics, externships, or simulations. In addition to noting
these issues, students would record how the issued was discussed or resolved by others, as
well as their own assessment of the issue and resolution. The journals might be part of the
portfolios described above, or they could stand apart. They might be mandatory or
voluntary. One way to encourage use of the journals would be to offer third-year students
one academic credit for maintaining these journals throughout law school. Those thirdyear students could also attend 2-3 small-group discussions with faculty or practitioners at
which they would discuss a few of the issues encountered by students in the group.
Rationale: The journals would encourage students to look for professionalism and ethical
issues in all of their law school classes and workplace assignments. They would also
encourage both faculty and practitioners to identify and discuss these issues. Since
students would produce a written record of professionalism/ethics issues they had
discussed with others, we could track how frequently those discussions occur. This would
help spread consideration of ethics and professionalism throughout the curriculum and
workplace.
13. Encourage expansion of clinical programs; collaborate to create new financial models
supporting clinical education.
Rationale: Clinics offer significant opportunities for students to develop as lawyers. In
clinics, students address real-client problems; at the same time, instructors are available to
provide substantial mentoring and instruction. Clinics thus provide opportunities that
neither doctrinal classes nor post-graduation practice consistently offer in such depth.
These assets, however, make clinical education very expensive. In many professions (like
architecture, accounting, and elementary/secondary education), clinical instruction occurs
after graduation or in the field, with practitioners bearing the instructional costs for the
students or new professionals. Similar costs occur when medical and other health science
students perform clinical work outside university-based hospitals; office practitioners
provide feedback and mentoring to those students. When clinical education occurs in the
field, the costs for practitioners are substantial: One study of doctors found that, on
average, office practitioners devoted an extra 30 minutes of unbillable time to each day
that they supervised a medical student; these doctors averaged 30 days/year supervising
students.
In-school clinics impose few costs on practitioners (unless they compete for paying
business), but they require funds to pay faculty and support the office infrastructure for a
legal practice. In medicine, significant funds for in-school clinical training come from
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patient insurance, Medicaid, Medicare, and Veteran’s Administration benefits; the medical
school clinics receive reimbursement for patient care from these sources. Law practice,
unfortunately, includes very few pre-paid insurance plans and enjoys very little
government support. The costs of in-school legal clinics, therefore, are borne primarily by
students paying tuition. In the current economy, with declines in state funds, private
giving, and endowment interest, tuition increasingly will provide the sole source for new
programs of any type.
Faced with these realities, we recommend expanded clinical opportunities; ideally, every
law student would have the opportunity to take a full-semester clinic before graduation.
But we have to couple that recommendation with one for the academy and profession to
collaborate in finding new financial models to support clinics. If bar requirements and
employer expectations change, law schools may be able to shift some resources from
classroom doctrinal instruction to clinical education. But those prospects are limited; law
school faculties are relatively small. The medical school financial model is not available to
law schools, because we cannot draw upon private insurance or government resources to
reimburse client care. To succeed, enhanced clinical education may have to demand more
from practitioners, either as supervisors or financial collaborators.
14. Develop “mentoring externships.”
Rationale: Externships offer an alternative to clinical instruction. In externships, students
typically provide free services for an employer, while receiving workplace experience. At
their best, externships offer a cost-effective way for students to learn hands-on practice
skills. Law practice, however, is a demanding profession that has faced escalating
economic pressures during the last two decades. In this environment, it has been hard for
some employers to provide the opportunities and feedback that offer the most educational
benefit to students serving externships. At their worst, poorly structured externships
require students to pay tuition while performing unpaid clerical or paralegal work that
offers them few educational experiences.
To assure worthwhile externships, we could create a new model of “mentoring
externships.” These externships would focus on the mentoring that the employer provides
to the student, rather than the unpaid work that the student offers the employer.
Supervisors accepting students in these programs would receive training in mentoring; law
schools could bear the cost of those programs. Externs and supervisors would identify
specific skills and experiences that the extern would receive; these goals might appear in
the portfolios identified above. Externs could also provide useful unpaid work for
supervisors, but the externship would have to provide clear professional development for
the extern in return. CLE credits might compensate supervisors for some of their
mentoring time, analogously to the CLE credits given mentors for new lawyers.
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15. Facilitate more widespread use of shadowing programs.
Rationale: Law schools make relatively little use of shadowing as a learning tool; this
differs sharply from medical school, where medical students spend significant time
shadowing the work of residents and attending physicians. Although “shadowing”
suggests a relatively passive role for student-observers, the activity can produce more
pedagogic payoff than traditional externships. A shadowing program requires the
practitioner to include the student in his/her professional activities and to share insights
about those events. Steps to support development of shadowing programs include:
A. OSBA could help identify a core group of lawyers committed to working with law
students in shadowing programs.
B. The Bar Foundation could fund a small team of professors and practitioners to
develop a framework and materials for shadowing programs. An effective
program would include orientation materials for both practitioners and students,
guidelines or checklists to structure the relationship, and a way of collecting feedback
from both students and practitioners. Developing these materials collaboratively would
benefit all Ohio/Northern Kentucky law students.
C. This design team should address confidentiality issues, developing clear
instructional materials for students. The team could also develop a “swearing in”
ceremony, to be used by schools before students participate as shadows. The ceremony
would reinforce professional standards and, like the “white coat” ceremony in medical
school, serve as a marker of student’s progression.
D. CLE credit should be available for practitioners who participate in the program.
E. OSBA could help develop a system-wide response to liability concerns:
Practitioners may worry that their malpractice insurance won’t cover student shadows.
Could law schools cover student shadows through their liability insurance? If not,
what other options are available?
16. Explore expansion of student licenses to include second-year students, at least for
some types of legal service.
Rationale: Some states offer limited licenses to second-year students. Expanding
availability of these licenses in Ohio would give second-year students more options in
clinics, externships, and shadowing programs.
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17. Support development of alternative teaching materials for the upper level, including
case studies like those used in business schools.
Rationale: The upper level needs new pedagogic approaches and materials. Professors
continue to rely on appellate opinions and the traditional case method in part because they
lack other materials. And, since appellate opinions form the basis of law’s “signature
pedagogy,” professors are reluctant to depart from that gold standard. Innovations are
occurring within law schools, but we need to encourage more use of alternative materials.
A few well-considered incentives could expand on that foundation to create a new gold
standard for the upper level years.
A. Encourage law schools to create summer grants for development of innovative
upper level course materials. Many law schools offer professors summer research
grants to support scholarship. If each of our ten law schools agreed to apply one of
these summer grants to development of a case study, simulation, or other innovative set
of upper level materials, we could generate 50 sets of these materials in just five years.
B. Use Bar Foundation grants to seed development of innovative materials. The Ohio
State Bar Foundation could also support development of new materials for the upper
level curriculum. In addition to supporting work by professors, the Bar Foundation
could offer grants for practitioners who plan to develop materials for courses they teach
as adjuncts. Or the Foundation could offer grants to teams of professors and
practitioners developing materials together: The Foundation might play a particular
role in stimulating those partnerships.
18. Encourage professors to share innovative materials through databases.
Rationale: New teaching materials are time-intensive to create. We should encourage
professors to share new materials as widely as possible through electronic databases.
Several legal publishers (e.g.., West and CALI) recently launched databases that attempt to
fill this void. Rather than creating our own database, we should help Ohio professors gain
familiarity with these resources.
19. Encourage cooperation between firms/organizations and law schools to offer
professional training.
Rationale: Some law firms and other organizations have developed training programs for
their new lawyers. These programs may offer particularly efficient training in new-lawyer
skills. Rather than reinvent the wheel (especially in areas like transactional practice, where
law school programs lag behind), law schools might be able to collaborate with firms to
offer these programs to JD students. Some firms may prefer to maintain the proprietary
nature of their programs, but others—especially in the current recession—might welcome
shared expenses with law schools. Training JD students with new lawyers has the
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collateral advantage of exposing students to possible mentors only a few years ahead of
them in practice.
20. Identify practice materials that can be used in legal education.
Rationale: Law firms and other organizations produce materials that might be recycled for
effective legal education. A firm that conducts a mock trial to test trial strategies, for
example, might share the video with law schools. Memos, briefs, contracts, and other
materials likewise offer significant educational benefits. Practitioners obviously must
protect the interests of their clients, but finding ways to use practice materials in law
schools would offer significant benefits to students. One reason that professors rely so
heavily on appellate opinions is that these materials are readily available for classroom use.
21. Explore potential use of CLE programs in law schools.
Rationale: Bar associations and other groups produce a large number of CLE programs
each year. Some of these programs might offer suitable training experiences for law
students—especially for a generation of students accustomed to learning through video,
podcasts, and other means. Law schools and the OSBA could identify low-cost ways to
offer these programs to students. Although the programs would not carry law school
credit, students might pursue some of them to reach particular portfolio objectives; they
would enhance the student’s professional development.
22. Explore new types of collaboration between professors and practitioners.
Rationale: Even professors who practiced law for several years can quickly lose touch
with practice developments; this is especially true in an era of fast-paced changes.
Practitioners, meanwhile, need up-to-date information on doctrinal and theoretical
developments. We would like to find new ways for practitioners and professors to
collaborate productively. Some possibilities include:
A. Create CLE small-group workshops focused on case studies. A small group of
professors and practitioners could meet to discuss a case study created in advance by
one participant. The workshop would invite each participant to share perspectives,
allowing an exchange of practical and theoretical perspectives.
B. Create “professor in residence” programs at law firms and other organizations.
These programs could range from a single day of shadowing (during which a professor
has the opportunity to observe a practitioner’s activities) to week-long, month-long, or
longer residencies.
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C. Establish professor/practice teams to create new materials for courses. Some of
the recommendations listed above (such as identifying practice materials to use in law
school courses) could offer goals for productive collaboration. In addition to
producing a particular set of materials, professors and practitioners might benefit from
related exchanges.
23. Create a Distinguished Society of Professors and Practitioners Dedicated to
Professional Development. This society would be analogous to the American Law
Institute, with a selective membership, but it would focus on methods for improving
professional development (from law school admission through retirement) rather than
doctrinal law.
Rationale: This group would support innovation in legal education through workshops,
publications, “best practice” guidelines, and other means. The group would define “legal
education” broadly to include both pre- and post-JD development. In addition to
supporting innovation in law schools, therefore, the group could support new forms of
mentoring and professional development in practice. All of these activities would
contribute directly to improvements in professional development. In addition, the society
would offer recognition to both practitioners and professors committed to excellence in
this area.
24. Create LLM or certificate programs that focus on professional skills.
Rationale: As noted above, some observers favor expanding law school to four years
and/or creating a mandatory apprenticeship year after graduation. We concluded that,
although these options might enhance the quality of professional training secured by some
lawyers, the costs of these mandates outweighed their potential benefits. Both options
would significantly increase the costs of legal education and bar admission. Other
approaches offer greater promise without concentrating new costs on those least able to
bear them.
On the other hand, some students might choose an extra year of professional training and
some employers might prefer students with that training. Some practicing lawyers also
want to improve their skills or shift to a different type of practice. Law schools already
offer many LLM and certificate programs, but most of these focus on advanced work in
doctrinal areas. We recommend complementing those programs with advanced study that
focuses specifically on acquiring professional skills. LLMs in civil trial practice,
transactional practice, business/law problem solving, administrative practice, or other
professional practice orientations would offer new options to students and practitioners.
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25. Fund statewide conferences on innovations in legal education and professional
development.
Rationale: Several organizations already sponsor nationwide conferences on innovations
in legal education. We are wary of duplicating those efforts, but see three possible roles
for a statewide conference: (1) Some professors are unable or unwilling to travel long
distances for conferences focused on teaching. Travel within Ohio is relatively easy. (2)
A statewide conference could create ongoing collaborations among Ohio professors, which
could benefit all of our schools. (3) A statewide conference could draw together professors
and practitioners interested in improving professional development. Ongoing
collaborations between these professional groups may be easier within the same city or
state than on a national level. Relatively few conferences on law school pedagogy,
moreover, include practitioners or consider professional development that occurs after law
school. Including these components might generate new insights and approaches.
26. Develop a set of “best practices” for law schools.
Rationale: Our subcommittee discussed a number of proposed mandates for legal
education and/or bar admission, but encountered serious obstacles to mandates: (1)
Considerable disagreement exists over what law students or new lawyers should do to
prepare themselves for practice. While many practitioners favor clinics, for example,
others advise students to avoid them. Academics similarly disagree about the best
curriculum for law students. (2) To some extent, this disagreement reflects variation in
practice areas. Some educational experiences seem more suitable for particular areas and
organizations than others. Law students prepare for a particularly diverse set of
professional experiences. (3) Mandates devote resources to the current perceived crisis,
while drawing those resources away from other areas of need. While strengthening
externships, for example, we might weaken programs in international law. (4) Mandates
create strong vested interests. This may be desirable in the short run, if the mandated
programs need strengthening. But those interests, in turn, can hamper future innovation.
Given these concerns, we see the development of “best practices” as more productive than
attempts to design new mandates for legal education. Even development of these
guidelines might prove overly time-consuming. Both educators and practitioners are very
busy; it might be more productive to devote time to the recommendations described above
rather than to articulating and refining guidelines. But an ongoing commission of
practitioners and academics might be able to develop a useful set of best practices. Law
schools could advertise their compliance with the practices; law students and employers
could inquire about practices that schools don’t meet.
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Recommendations Related to the First Year
Many of the recommendations outlined above would encompass the first year. Portfolios,
professionalism logs, best practices, new pedagogies, and other ideas could all begin during
the first year. We identify here some special needs or approaches for the first year.
27. Develop professionalism and professional identify from the first day of law school.
Rationale: Many students come to law school with unrealistic beliefs about law practice;
others have little idea about how they might apply their legal education. At the same time,
our profession is changing rapidly: We are creating new economic models, new types of
lawyer-client relationships, and new ways to address client needs. Given these trends, it is
more important than ever for students to explore the legal profession itself during their first
year of law school.
We are not sure of the best way for schools to structure this learning. Previous attempts to
create first-year courses in the legal profession have tended to founder. One problem may
be that the case method creates its own sense of professional identity during the first year.
Although that identity is a narrow one, it pervades the first-year curriculum; other
approaches have difficulty competing.
This is an area in which we might invest in innovation. If the Bar Foundation, a team of
law schools, and/or a group of employers could support creative thinking in this area, we
might be able to design new programs that would give first-year students a more expansive
sense of professional identity.
28. Expose first-year students to clients, practitioners, and/or law practice.
Rationale: Although the first year teaches a large body of classroom material, some
exposure to clients, practitioners, and law practice would give students better context for
that study. Shadowing experiences could be particularly helpful for first-year students.
Schools and practitioners could also work to identify practice experiences (such as client
intake at legal aid or public defender programs) that first-year students could handle.
Traditional views of professional education held that students should learn theory first, and
perform hands-on work only after mastering that theory. Educators, however, have
discovered that this layer-cake approach is not optimal: Integrating theory and practice
achieves better learning. Medical schools have followed this advice; they now offer firstyear medical students simulated, then real, contact with patients. We should encourage
law schools to pursue the same path, giving all first-year students some exposure to law
practice or clients.
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29. Encourage schools to re-examine the first-year curriculum in light of contemporary
students and current law practice.
Rationale: The first-year curriculum has many strengths; we do not envision either its
methods or subject matter changing dramatically. But today’s students differ significantly
from previous generations. Some bring more advanced thinking skills to law school than
their predecessors did; they may also think and learn faster than earlier generations. At the
same time, law practice is more demanding than ever. To prepare for this practice, today’s
students must master more material and skills than the lawyers before them. We could fine
tune the first-year curriculum to accommodate these changes.
Current students, for example, may tire of the basic case method more quickly than
previous generations did. Introducing new materials and methods of instruction during the
second semester might enhance their learning. Conversely (and somewhat ironically)
today’s students might reap more from the case method if they received some explicit
instruction in case briefing and other legal methods at the start of law school. Today, it is
impossible to insulate students from study aids, how-to-succeed books, and even day-long
courses offered by outside vendors. Incorporating top-quality instruction and feedback
into the first semester—as law schools increasingly do—would enhance learning and
reduce stress.
30. Offer feedback throughout the first year.
Rationale: Effective learning depends on feedback. The limited feedback given to firstyear students slows their learning; with better feedback, students could master more skills
and knowledge throughout law school. The first year’s limited feedback may also deprive
lawyers of models for how to provide effective feedback in practice. To promote more
effective mentoring and feedback in law practice, legal educators need to model
mentoring/feedback skills.
Throughout much of the twentieth century, the Socratic method provided more feedback
than many other types of instruction. Compared to college lecture courses with a single
final exam, first-year law school courses abounded with feedback: Law courses offered
daily interaction between the professor and students. Today, however, first-year law
school courses lag behind other educational methods in offering feedback. Today’s
students are accustomed to significant feedback from educational computer programs,
online courses, and the small classes offered at many colleges.
Increasing student feedback is expensive: Unlike undergraduate and master’s programs,
law schools rarely have doctoral students to serve as teaching assistants. Tenured faculty
provide feedback, but those hours cost substantially more than hours purchased from
graduate teaching assistants. First-year law school classes, moreover, are quite large. For
a class of 75-80 students (typical for a first-year section), most college departments would
hire 3-4 graduate teaching assistants to grade papers and offer feedback.
18
11/24/2009
Despite these challenges, we think it is essential for law schools to provide more feedback
to first-year students. Computerized instruction, part-time teaching assistants,
collaboration among professors (with each offering in-depth feedback to one portion of a
shared first-year section), and other methods may address this feedback gap. We
encourage schools to explore as many options as possible to increase the amount of
feedback during the first year.
Deborah Merritt, Chair
Katherine Chappelear
Michael Distelhorst
Patrick Fisher
William Harsha
Shirley Mays
Nicole VanderDoes
19
Report of the Internship/Externships Subcommittee
To members of the Legal Education Task Force:
In response to the Subcommittee’s charge, Kenneth Margolis identified three possible options for
an internship/externship requirement to be fulfilled prior to sitting for the bar exam and posed
questions that needed to be addressed. After the options were identified, Maria Crist and James
Klein offered several issues for consideration and Jason Dolin offered a detailed vision for
Option #2, which is attached Exhibit A.
Options for mandatory lawyering skills training for Ohio bar exam applicants
Each option would include the following components:
1. Fundamental Skills Training: A series of required skills and values training
courses/experiences in law school addressing fundamental lawyering skills – PLUS
2. Specialized Skills Training: A variety of elective specialized skills training courses or
experiences – PLUS one of the three options below.
If a school has a broad enough clinical program involving real clients or performance externship
activities that cover a broad enough range of skills and ―acting in role‖ opportunities, these
requirements could be satisfied through those programs. (Option #1.) This does not exist
currently at any Ohio law school, and due to resource constraints may not be economically
feasible in the near future. Assuming such programs do not exist in Ohio, the above training
would begin with the use of simulation based courses, and would conclude with clinics,
externships or outside practice experiences as in Option #2 or #3:
Option #1:
A required performance experience consisting of EITHER:
a. A clinic in law school OR
b. A performance externship in law school
Option #2: (See Exhibit A)
A required performance experience consisting of EITHER:
a. A clinic in law school OR
b. A performance externship in law school OR
c. A practice experience through an organized bar association program which involves law
school faculty and practicing bar
Option #3:
A required clerkship experience like Delaware or Vermont with a checklist approach to what
applicants must accomplish. This could be satisfied by EITHER:
a. A clinic in law school
b. A performance externship in law school OR
1
c. A clerkship out in practice like Delaware or Vermont
Questions to be resolved
1. What are the fundamental skills that all law students should be taught in law school?
MacCrate Fundamental Skills:
a. Problem solving
b. Legal Analysis & Reasoning
c. Legal Research
d. Factual InvestigationacCrate
e. Communication
f. Counseling
g. Negotiation
h. Litigation and ADR
i. Organization and Management of Legal Work
j. Recognizing and Resolving Ethical Dilemmas
MacCrate Fundamental Values:
a. Provision of Competent Representation
b. Striving to Promote Justice, Fairness & Morality
c. Striving to Improve the Profession
d. Professional Self Development
2. How much additional specialized skills training should be required?
3. What are the characteristics of a clinical, externship or bar association program that would
satisfy the requirements?
a. How many hours per week would students be required to dedicate to a
internship/externship?
b. Would the subject of specialized skills training be broad (general) or narrow (criminal
defense)?
c. What range of lawyering experiences would be required?
d. Would a Rule require real client contact? If so, how much contact would be required?
e. Should a Rule include a checklist of required experiences/abilities be developed? If so,
would the list be mostly observational or experiential? (See Exhibit B—example of
Australian Skills Taxonomy.)
f. What level of supervision is required?
g. Who should perform the supervision? Should law school faculty provide or on site
lawyers provide supervision? Would a combination be more beneficial?
4. What are the characteristics of a bar association/practitioner ―apprenticeship‖ program that
would satisfy the requirements?
2
a. Who would participate in this type of program and who would coordinate the
program?
b. What incentives can be given to volunteer practitioners to participate?
c. What measures would be taken to ensure accountability?
Issues for consideration
From: Maria Crist
Thanks to Ken for his draft concerning mandatory lawyering skills training for applicants for
licensure in Ohio. I appreciate his hard work in framing the options and addressing the issues
that would need to be resolved. I’ve also reviewed Jason’s and Jim’s responses, as well as
information from Deborah Merritt and her sub-committee’s report. Because of the potential
obstacles, I’m not in favor of recommending a lawyering skills mandate, without further study of
how the mandate would be implemented. Besides the concerns expressed below, a mandate may
also create ―minimum‖ standards that might undermine the growth of legal skills education.
Among Ken’s options, option two would appear to merit further study.
Difficulty defining an acceptable format for lawyering skills training:
In reviewing responses, it seems that genuine disagreement exists as to what is the acceptable
setting for ―lawyering skills training.‖ Jim suggests that simulation classes are best suited, while
Ken suggests that only ―performance‖ courses would be acceptable. I believe that lawyering
skills training can be achieved in simulation classes, performance clinics/externships, and even in
―observational‖ externships. Regardless of the format, skillful teachers can create a learning
environment where students can develop lawyering skills in any of these settings. I also believe
that students can develop lawyering skills while on the job in paid clerkships, although no gauge
exists to determine this. The problem we face is that each law school as part of its mission, and
in recognition of its available resources, may have very different views as to how best expose its
students to lawyering skills training. This difference of views is already emerging as law schools
attempt to satisfy the new ―professional skills‖ requirement for ABA accreditation.
Difficulty in defining the skills that would be mandated in lawyering skills training:
As we already know, law graduates seeking Ohio licensure will enter a wide variety of practice
settings, each with its unique emphasis on what skills will be needed. For one student, lawyering
skills training that emphasizes transactional skills would be more useful than litigation skills. If
we are to mandate skills training, then we would essentially be requiring law schools to cover all
skills that students might want or need. If the skills are defined less specifically (as in the
Australian model), then some could argue that almost any law school course would qualify. Who
would decide if a course did not sufficiently address attitudinal, cognitive, communication, or
relational skills?
Ken’s list of the characteristics of a clinical, externship, or bar association program that would
satisfy the requirements provides a great sense of the level of administration that would be
necessary. If we could decide what the scope of a lawyering skills mandate would entail, what
resources would be needed to insure appropriate oversight? For our own mandatory externship
3
program at Dayton, we hired two full-time instructors to train and supervise the field supervisors,
as well as teach the classroom component and meet regularly with the students.
Need for consistency towards students coming from Ohio or non-Ohio law schools:
I would not favor a rule that only applies to students from Ohio law schools. Regardless of where
a student attends law school, the student is seeking licensure in Ohio. The Ohio Supreme Court
in its licensure rules establishes what law graduates need to qualify to practice in Ohio. Just
because a mandate would be difficult to apply to students coming from non-Ohio law schools,
does not mean they should be excused from the mandate. If the difficulty can’t be overcome,
such an obstacle would also weigh against imposing a mandate. In addition, the committee
should recognize that not all students who attend Ohio law schools intend to stay and practice in
Ohio.
A related issue would be the need to respect a jurisdiction’s student practice rule. If a mandate
were to require a ―performance‖ type of skills training, then it would also have to conform to any
applicable state practice rules. For example, Ohio’s student practice rule1 limits the type of
activity and who can supervise students, and those limitations would necessarily limit the type of
performance type skills training that would be available to students. Even if Ohio were to change
its rules, other jurisdictions would still have similar restrictions.
Recognition that teaching lawyering skills and doing it well requires extensive planning and
resources:
While I recognize the value of skills training and agree that law schools and the legal profession
need to do a better job of including those skills within the curriculum, it will take more than a
simple mandate. Many of the ideas described in Deborah Merritt’s sub-committee report are a
step in the right direction. For example, the idea of creating a template for a required
―Competencies for Law Practice‖ portfolio has promise, and its recommendation for increased
financial support for clinical programs would be welcome.
1
Ohio Supreme Court Rules of Practice, Rule II, Limited Practice of Law by a Legal Intern, states in Section 5:
(A) A legal intern may represent either of the following:
(1) Any person who qualifies for legal services at a law school clinic, legal aid bureau, public
defender’s office, or other legal services organization that provides legal assistance primarily to
financially needy individuals, provided the person obtaining legal assistance from the legal intern
consents in writing to the legal intern’s representation;
(2) The state of Ohio or any municipal corporation, with the consent of the official charged with
the responsibility of handling or prosecuting the matters or cases that are referred to the legal
intern.
In Section 1, only the following attorneys can serve as supervising attorneys:
(B) ―Supervising attorney‖ means an attorney who satisfies all of the following:
(1) Has been admitted to practice law in Ohio pursuant to Gov. Bar R. I or has been temporarily
certified to practice law in Ohio pursuant to Gov. Bar R. IX;
(2) Is in good standing with the Supreme Court;
(3) Is either employed by or associated with a law school clinic, legal aid bureau, public
defender’s office, or other legal services organization that provides legal assistance primarily to
financially needy individuals, or is responsible for handling civil cases or prosecuting criminal
misdemeanor cases for the state of Ohio or a municipal corporation.
The complete rules are available at: http://www.sconet.state.oh.us/LegalResources/Rules/govbar/govbar.pdf#Rule1
4
From James Klein:
Ensuring access to access to internship/externship opportunities for part-time students
Law schools with part-time evening programs may have difficulty requiring clinical experience
for these students. Adequate simulation courses would be a solution to this problem and would
allow us to accomplish our goals.
Respectfully submitted,
David Patterson, Chair; Kenneth Margolis; James Klein; Maria Crist; Jason Dolin; Jessica
Emch; Nicole VanderDoes; and Robert Ware
5
EXHIBIT A
March 14, 2009
At the outset, I want to thank Ken for sending out his draft. It provides much
food for thought and raises important and necessary discussion points for our
subcommittee.
The “Questions to Be Resolved” in Ken’s draft are important and need to be
addressed. In my view, however, the best approach is for the subcommittee first to
determine if we want a clinical requirement. The vision comes first. The details,
significant as they may be, follow the vision and will be worked to meet the vision or at
least as much of the vision as can be met.
With that said, I have the following comments.
Clinical Requirement
I would opt for Ken’s Option #2. My view is that the Supreme Court should
require that all those taking the bar exam beginning in “X” year be required to take 9
credit hours of any combination of in-school clinic, externships/internships, or in-school
practicum. There would need to be some kind of approval or certification process for
these courses, but I do not see that as an obstacle to that requirement. Because all law
U.S. law schools have clinics and externships, if sufficient advance notice is sent to all
law schools (ie: 2 or 3 years before the requirement goes into effect) then the 9 hour
requirement should not present an impediment to out of state students.
I suggest 9 hours for the following reasons:
1. Educationally, a Clinical Requirement is the Right Thing to Do. The best
educational, scientific, and anecdotal evidence – including the Carnegie and Best
Practices Reports - makes clear beyond any reasonable debate that clinical
education works and is a significant tool in preparing attorneys to practice.
Supervised clinical/externship/internship training is required by virtually all other
professions in Ohio and in amounts significantly beyond what I am suggesting
here. Carnegie and Best Practices make clear that the status quo in legal
education is not a good option if we are to adequately prepare attorneys for future
practice. If clinical training is an effective tool in preparing attorneys to practice,
then it should be required like any other important law school course.1
1
The argument that many students will never practice law at all, or won’t practice in the substantive
areas in which clinic is taught, is a straw man. There are a host of required courses in law school.
Many students will never practice in the substantive areas of many of these required courses (torts,
criminal law, civil procedure (litigation), etc.). Despite that, students are quite properly required by
every law school to take those courses because they are an important component of a well rounded and
well informed attorney. Clinical courses should be no different.
1
2. Ethically, a Clinical Requirement is the Right Thing to Do for Law Students.
Law students pay high tuition and leave law school with a high debt burden. The
job market they face – since well before the current recession – is and was, to say
the least, unwelcoming. The job prospects for many law graduates are nothing
short of grim. Given the high cost of education and faced with the prospect that
many recent graduates may increasingly open their own practices, the least that
law school can do is attempt to prepare them to practice. The argument has often
been made that law school can’t fully prepare students for practice upon
graduation. There is little doubt that such is the case, but it should not prevent us
from trying to better prepare them. We should not let the perfect drive out the
good.
3. Ethically, a Clinical Requirement is the Right Thing to Do for the Public. Given
the increasingly grim job market and the corresponding increased likelihood that
many students will start practicing on their own, legal education owes it to the law
consuming public to better prepare new attorneys for practice. The public pays
significant tax dollars for our courts, judges, prosecutors, public defenders, and
other aspects of our legal system. Further, and significantly, public tax dollars
subsidize the compensation of law professors and the budgets of law schools at
the five publicly funded law schools in this state. Our profession serves the
public and our law schools, especially our publicly funded law schools, serve a
public purpose. As a simple matter of consumer protection, we should not be
granting licenses to practice where the graduate has received no mandated
training in how to practice.
4. There is sufficient room in the curriculum to allow for a 9 credit clinical
requirement. As part of her subcommittee’s work, Deborah Merritt conducted a
study at Moritz where she reviewed 50 student transcripts to determine the type of
courses taken by the average Moritz student. After concluding that analysis, she
said the following:
The average Moritz student completes 44 credits of work in bar
subjects (25 required and 19 elective); 16 credits of professional
practice/skills courses (5 required and 11 elective); 2 credits of a
seminar that requires a substantial research paper; and 3 credits of
work for a law journal. That totals 65 credits out of 88 required for
graduation.
She then discussed some of the other courses that students took to make up the
balance of the 88 credits. Her study demonstrates conclusively that there is room
in the curriculum for a 9 credit hour clinical requirement.
5. The 9 Credit Hour Requirement is Significantly Below that Required by the Other
Non-Medical Professional Programs in Ohio. The 9 credit hour requirement is a
fraction of the clinical/externship time required by virtually all other licensed
2
professionals in Ohio and, based upon what is required in other professions, we
should require significantly more training than that.2 No one – not one person on our committee, in any of the literature I have read on this, or in any of the
meetings I have held on this matter over the last several years, has even attempted
to argue that clinical training is unhelpful, ineffective, or pedagogically unsound.
Indeed, Carnegie, Best Practices, and virtually all of the scientific and educational
literature in this area clearly show that clinical training is effective. Pedagogically
and, in my view, ethically a clinical requirement is the right thing to do.
The problem, many say, is cost.
Costs of Clinical Training
Complaints that clinical education should not be required because it is too
expensive have been heard over the years, most recently in the wake of the MacCrate
Report.3 There is no question that the personnel costs of clinical education are, in
2
For example before being able to sit for their respective licensing examinations, social workers require 6
clinical hours and 400 clock hours of supervised practicum or field experience; pharmacists require 1,500
documented clock hours of supervised practical experience; psychologists require substantial training
which includes at least 1,800 clock hours of work in one calendar year; professional engineers require at
least 4 years of practical experience; architects require 700 training units with each training unit being the
equivalent of 8 hours of acceptable activity in a given training area.
3
An article that appeared in the Clinical Law Review in 2001 discussing the tenth anniversary of the
MacCrate Report, brings a sense of perspective, if not a certain sense of déjà vu, to current objections to
clinical requirements. In that article Russell Engler discusses the reaction to the MacCrate Report shortly
after it was issued.
The MacCrate Report became a lightening rod for discussion, strategizing and critique both
inside the world of legal education and in the profession as a whole. Following the Report's
publication, a steady stream of conferences focused on the Report, as well as on the teaching of
skills and values in general. Both the American Bar Association (ABA) and the Association of
American Law Schools (AALS) dedicated considerable energy to the Report, its
recommendations and the reaction triggered by the report.
The discussions around the country were soon accompanied by scholarly articles involving
descriptions, analyses and critiques of the Report and its recommendations. The trickle of law
review articles that began to appear in 1993 became a flood by 1994. Law reviews published
individual articles and symposia dedicated to issues raised by the MacCrate Report.
The earliest scholarly responses included a scathing critique from Dean John J. Costonis. Dean
Costonis excoriated the Report for “essentially ignoring the most visible impediment to its
implementation: the costs of its recommendations and the trade-offs that must be struck.” …
Other law school Deans joined Dean Costonis in his critique, most notably through a “Dean's
letter” co-signed by fourteen law school Deans. The Deans' Letter explicitly opposed use of the
accreditation process in its implementation. As part of their critique, the Deans fought back
directly at clinicians, citing the costs of clinical legal education, the dangers of using the
accreditation process to push skills training and clinical legal education, and the flaw in any
strategy that might use the MacCrate Report to enhance the status of clinical teachers….
Law School Deans were not the only group that produced critics of the MacCrate Report. Inside
the law school, non-skills teachers also worried about the restrictions on academic freedom and
3
general, greater than those in large doctrinal classes. Some of the costs are real, others
are perceived. Nonetheless, there are ways - few of which have been tried – to reduce the
cost of clinical training.
All segments of the legal establishment – practitioners, the institutions of the
organized bar, the judiciary, and law schools – bear some responsibility for the current
lack of required practical training for law students and, in my view, should bear some of
its costs. This will require changes in current behavior by all segments of the bar.
Below, I list a few suggestions of steps that can be taken to engage in an equitable cost
sharing:
Costs - Law Schools Should Reallocate Resources and Faculty Incentives
It is neither equitable nor realistic to have law schools bear the entire cost of
training attorneys to practice. On the other hand, if clinical training is to be required, it is
neither equitable nor realistic for law schools to refuse to increase or reallocate the
resources that they devote to that training. If clinical education is required, it will be
necessary for law schools to examine and modify the manner in which they allocate their
resources – both dollars and human resources – to free up the resources needed to
implement the clinical requirement. This will, no doubt, entail changes in the way things
have been done.
Reallocation of Resources. Like practicing attorneys, law schools do not produce
a tangible product. Instead, like practicing attorneys, their primary convertible resource
is time (professor-hours). Law professors produce significant amounts of legal
scholarship, most of which appears in law reviews or other scholarly journals. Given the
multitude of hours that go into this scholarship, it is costly to produce and according to
citation counts and anecdotal information is of limited impact (certainly there are
exceptions) on the profession and the public. The literature shows that as a general
matter this scholarship has taken an increasingly theoretical bent and is largely
re-allocation of resources that would result were the Report implemented. Legal writing and
research teachers criticized the Report for failing to elevate the status and role of their field, and
teachers of Alternative Dispute Resolution (ADR) critiqued the Report's emphasis on litigation.
Outside the academy, bar administration leaders criticized the advocacy of performance testing,
and bar association leaders criticized the lack of implementation of the report's
recommendations.
Clinical teachers joined in the critique as well, questioning the Report's efforts to set forth a
taxonomy of fundamental lawyering skills and values in the first place, but also lamenting “the
poor prospects for effective implementation of the MacCrate Report's pro-clinical
recommendations . . . .” Proponents of in-house clinics worried that the effect of the Report
would be to lead to an expansion of simulation courses or externship programs at the expense of
in-house clinics. Externship proponents argued that the Report had undervalued the learning that
occurs in field placements and exalted a particular form of clinical pedagogy that relied too
heavily on top-down, supervisory structures. (citations omitted).
See Engler, The MacCrate Report Turns 10: Assessing its Impact and Identifying Gaps We Should Seek to
Narrow, 8 Clinical L. Rev. 109, 116 – 119.
4
disregarded by judges, the practicing bar, and the public. In short, there is a small return
for the large time commitment used to produce this scholarship.
There is an important place in law school, and there always should be, for the
production of legal scholarship and nothing in this recommendation seeks to change that.
Nonetheless, a more equitable balance needs to be struck between the use of professorhours to produce scholarship with seemingly little public impact and the significantly
more impactful use of those hours to help train young attorneys. A significant portion of
those professor-hours can be converted from scholarship hours to training/skills hours.
In order to facilitate that transition, I would recommend that scholarship
requirements for tenure and promotion be reduced by a significant percent (to be
determined) and that the time that would otherwise be used by faculty for the production
of scholarship be converted into training hours. Certainly there may be resistance to such
a proposal from some quarters of the faculty who have not practiced and are not
comfortable in practice settings. These objections can be overcome, to some degree, by
the reallocation of faculty incentives and the manner in which law schools evaluate
faculty performance. Some examples:
a. Tenure and Promotion. In addition to the production of scholarship, law
schools can choose to evaluate faculty based upon their work in law school
clinics, overseeing student externs, teaching practical skills, or the production
of materials for the teaching of practical skills.
b. Practice Stipends. Instead of traditional research stipends (often given for
research over the summer) professors can be given incentives to learn
practice. For example, a summer stipend can be given for a professor to work
in a prosecutor’s office4 or attach himself/herself to a private sector law office.
Scholarship more useful to practitioners may well result from such
experiences. In addition, the knowledge gained through such practice
experience will help infuse the professor’s classroom with current real world
examples.
c. Teach the Teachers. Those faculty members who don’t teach practical
courses or clinics can be utilized to “teach the teachers”, that is, to train
adjunct professors in up to date teaching and student evaluation methods. In
that regard, the strengths of these faculty members can be utilized to further
the teaching skills of the cadre of adjuncts. In addition, these faculty members
can help to develop materials, templates, evaluation forms and other real
world practice materials to assist those who teach the clinical or other training
courses.
4
This was in fact done, when I worked in the Manhattan District Attorney’s Office. We had professors
from Columbia Law School and Yale Law School spend several months in our office learning about the
functions of a prosecutor’s office. The same thing could be done with private sector offices.
5
d. Adjuncts. Some schools currently use a significant number of adjuncts but
there may be accreditation issues regarding the number of adjuncts that a law
school may utilize. If that is the case, then I would urge that the Ohio law
schools along with their colleagues in other states attempt to influence the
ABA regarding the ability to increase and provide training for qualified
adjuncts.
e. Hiring Practices – Practice Experience. In hiring new faculty, law schools
may be able to effect savings if they hire new faculty with practice experience
who can both produce scholarship and teach practical courses. This may
entail a review of whom and how law schools hire but will pay dividends in
the long run.
f. Hiring Practices - Salaries. Finally, on a cost-saving note, it may be possible
to achieve significant savings in the hiring of new faculty. Typically new law
school faculty hires have relatively little practice experience. The attached
survey of the Society of American Law Teachers (SALT) for March 2009
shows median compensation across three different academic ranks for schools
in Ohio and the rest of the United States. Given the abundance of well
qualified attorneys seeking clinical or teaching positions, the possibility of a
teaching position that holds lifetime tenure, and an attractive health and
benefits package that often includes a tuition remission component for
members of the professor’s family, it may be possible to attract well qualified
candidates for significantly less salary than is currently being offered new
hires. Over the course of a 20 or 30 year teaching career, savings effected at
the time of hire could result in lifetime savings of several hundred thousand
dollars that could be used for clinical training. For purposes of comparison
with practicing attorneys in Ohio, I have listed below the most recent income
date from the OSBA.5
These are just some thoughts on some of the alternative uses of law school resources that
will assist in paying for a clinical requirement.
Costs – Institutions of the Bar Should Provide Resources for Training
Although there are segments of the bar that have been actively involved in
training for years, large segments of the bar have been indifferent to the training of young
attorneys. In general, the response of the organized bar to the training needs of new
attorneys has been limited, uncoordinated, and non-systematic. There is much that the
organized bar can do to enhance and support the training of attorneys. Below, I have
listed some suggestions on how to better utilize bar resources in that endeavor.
5
See The Economics of Law Practice in Ohio, Desktop Reference for 2006. According to this survey, the
median net income in 2006 for full time attorneys in Ohio was as follows: for attorneys with 1 – 5 years of
practice, $55,000; 6 – 10 years of practice, $75,000; 11 – 15 years of practice, $80,000; 16 – 25 years of
practice, $100,000; and more than 25 years of practice, $110,000 (Exhibit 10). The median net income for
all full time attorneys, all age groups, and all practice categories, in Ohio in 2006 was $89,000.
6
a. Public Offices. All publicly funded law offices in the state (prosecutor, public
defender, all judges, Attorney General) should be required on a year-round
basis to take on and provide training to law students.6 This training may well
take different forms and would be done in coordination with the law schools.
To lower the time involved in this endeavor, the OSBA could assist in the
development of a programmatic template that will assist public and private
offices in structuring their training. This could include, amongst other things,
a proposed schedule of skills to be emphasized and experiences to be
undertaken.
b. Private Sector Offices. The private sector must also bear some of the costs for
training. While this will require that firms and practitioners incur the near
term expenditure of resources, the enhanced practical experience gained by
graduates should better prepare them to practice sooner and thereby shorten
the learning curve, make them more efficient, and make them less prone to the
mistakes that new attorneys are most likely to make. This benefits the entire
profession and the public. Some thoughts on this:
1. Train Faculty. Law firms could volunteer to assist in the
training of law school faculty regarding the nuts and bolts of
practice in their respective areas of expertise.
2. The “Teaching Firm”. Like teaching hospitals in medicine
that tend to be regarded as prestigious, a designation could be
created by the Supreme Court or the OSBA for a “certified
teaching firm” and given to those firms that engage in best
practices and have made a commitment (to be determined) to
train attorneys in addition to their own associates.
Obviously, an accreditation process would have to be created
to maintain the integrity of such a distinction. Like teaching
hospitals, such firms could be affiliated with a single law
school, or a group of law schools. The certified teaching firm
designation would not be limited to large firms only. Indeed,
smaller firms and solo practitioners could get a similar
designation as well. The Supreme Court could devise rules
that would permit such a designation to appear on law firm
letterhead and materials and to be used in the firm’s
marketing endeavors. In addition, firms and attorneys that
engage in the training of attorneys would be given significant
or total credit toward their biannual CLE requirements.
6
There may be small public offices that cannot realistically comply with this requirement. An exemption
procedure could be developed for such offices to provide other written materials or needed services in
connection with such training.
7
3. A Pro Bono Requirement. Over the years the Supreme Court
has considered a pro bono requirement for attorneys. Such a
requirement, if it is ever imposed, should enable attorneys to
train new attorneys in satisfaction of that requirement.
c. Training Materials. Those involved in the OSBA and local bar associations
have a wealth of practical experience, talent, and knowledge. The bar
associations, in coordination with the law schools, can be helpful in
developing training materials. For example, in conjunction with law schools
the bar associations can develop or provide practical training materials –
checklists, outlines, forms, documents – and other items that can be utilized
by law schools in their clinics and practice courses. This will lower training
costs for the law schools and help free professor time for the teaching and
oversight of clinics.
d. OSBA Academy. If we are to convert professors’ “scholarship hours” to
“clinic hours” some retraining of current faculty in practice will be needed. In
assisting law schools in “converting” that time, the OSBA can establish
courses taught by practitioners to bring current faculty up to speed in the
nuances of existing practice. These courses would be taught by experienced
practitioners from both the public and private sectors who would volunteer
their time in the development and teaching of those courses.
e. Adjunct Academy. To better prepare a corps of adjuncts who are “clinic
ready”, the OSBA in coordination with the law schools would develop a
course in which law school faculty would teach prospective adjuncts on the
latest teaching and student evaluation techniques. These courses would be
taught by experienced law school clinical and other faculty from both public
and private law schools who would volunteer their time in the development
and teaching of these courses.
f. Funding. To provide a portion of the funds that might be needed to develop
the training and courses described above, the OSBA and/or local bar
associations should consider the addition of a fee to current dues that would
be earmarked solely for training programs. While such a fee might not fully
fund the endeavors described above, it will provide at least partial funding and
make clear that all segments of the bar and all practitioners must bear some of
the costs of training.
These are just a few of the things that the organized bar can do to absorb some of the
costs of training new attorneys to practice.
Costs – The Supreme Court
As the entity that controls attorney licensing in Ohio, there is obviously much the
Supreme Court can do to implement more effective training.
8
a.
Bar Exam. My understanding is that another subcommittee is
addressing the issue of the bar exam so I will not address it here.
Nonetheless, changes in emphasis on the bar exam could go have
significant influence in guiding more effective practical education at
Ohio’s law schools.
b.
Student Practice Licenses. I know that students can engage in limited
practice in certain settings but I am not fully conversant with the extent
of that limited practice authority. If training is required it may be
productive to revisit these rules to determine if, consistent with the
protection of the public, greater supervised training opportunities can
be afforded to law students.
c.
Office of Training Coordinator. Many of the initiatives discussed
above will involve a substantial amount of coordination between and
amongst the institutions of the bar and law schools. This will be an
ongoing process that will require significant and ongoing coordination
amongst a number of stakeholders. The creation of a high level Office
of Training Coordinator within the Supreme Court, with significant
oversight responsibilities and the authority to recommend rules to the
Supreme Court for the furtherance of practical training, could help
focus the efforts of the disparate groups needed to further effective
clinical training in this state. This Office could be included within one
of the existing Supreme Court offices or could be a new office entirely.
d.
Bridge the Gap Training. The mandated 12 credit Bridge the Gap
training has been largely regarded as ineffective and is in need of
retooling. The resources that have been devoted to that program could
be reallocated to some of the other programs discussed herein.
e.
American Bar Association. The Ohio Supreme Court, along with the
Supreme Courts of the other states, could play a significant role in
encouraging the American Bar Association to review and revise its
accreditation standards regarding the need for mandatory clinical
training.
The above are some thoughts on ways in which the costs of clinical training can be
shared amongst the various stakeholders in the system. There is no question that many of
the above suggestions will raise practical and logistical issues. These issues may well be
real, but are not insurmountable, and can be addressed with further study or focused
committee work. In all events the costs – both dollars and human resources - of this
endeavor must be shared and will require changes to existing behavior in all sectors.
9
SALT
EQUALIZER
Volume 2009, Issue 1
Society of American Law Teachers
In This Issue
2008–09 SALT Salary Survey
This issue of the SALT Equalizer contains the
2008–09 SALT salary survey results. Information
for Regions III–VII continues on pages 2 and 3.
Survey Information
This survey of 2008-09 academic year law
faculty salaries by Aviam Soifer, Dean of the
School of Law at the University of Hawai’i,
reports the median salaries for the three
faculty ranks, in alphabetical order by school,
in seven regions. SALT received information
from 95 (48%) of the 196 surveyed schools
in the U.S. and Puerto Rico, including two
schools that did not respond but whose salary
information was located in publicly-available
documents. 101 schools (52%) refused or
failed to participate in the survey.
Although SALT does not survey schools for
information on the salaries of non-tenuretrack legal writing faculty, the Association
of Legal Writing Directors (ALWD) and the
Legal Writing Institute (LWI) jointly sponsor
an annual national survey of legal writing
programs at approximately 140 law schools.
That data can be found on the LWI website at
Survey Information, continued on page 2
SALT EQUALIZER
The SALT Equalizer is a publication of the Society of
American Law Teachers.
Raleigh Hannah Levine
Virginia Sutton
Margaret Martin Barry
Deborah Waire Post
Robert Lancaster
Patricia A. Cain
Hazel Weiser
Editor
Layout
Co-President
Co-President
Secretary
Treasurer
Executive Director
To contact the SALT Equalizer, write the editor at William Mitchell
College of Law, 875 Summit Ave., St. Paul, MN 55105-3076; call
(651) 290-7503; or e-mail [email protected]. Visit
the SALT web site at www.saltlaw.org.
March 2009
Region I (Far West)
NAME OF SCHOOL
Chapman
ASST.
PROFESSOR
ASSOC.
PROFESSOR
FULL
PROFESSOR
FRINGE
BENEFITS
101,267
119,319
144,915
35.5%
Not applicable or
not available
(“NA”)
123,235
126,450
33.21%
NA
135,048
170,061
31%
La Verne
89,175
100,132
115,255
23%
Nevada-Las Vegas*
86,677
108,887
150,138
NA
Golden Gate
Hawai’i
UC-Hastings
Whittier
NA
131,200
178,200
13%
119,117
117,260
160,476
19.36%
Schools that did not report information: Arizona, Arizona State, Brigham Young, Cal Western, Loyola-Los Angeles,
Pacific-McGeorge, Pepperdine, Phoenix, San Diego, San Francisco, Santa Clara, Southern California, Southwestern,
Stanford, Thomas Jefferson, UC-Berkeley, UC-Davis, UCLA, Utah, and Western State.
Region II (Northwest and Great Plains)
NAME OF SCHOOL
Hamline
ASST.
PROFESSOR
ASSOC.
PROFESSOR
FULL
PROFESSOR
FRINGE
BENEFITS
94,244
97,810
128,461
25%
Idaho
NA
93,434
127,317
25%
Iowa
NA
112,394
156,496
29.3%
Minnesota
NA
146,667
220,000
30.4%
Montana
74,675
83,561
112,818
24.47%
Nebraska
101,665
102,500
151,089
28%
77,175
97,489
109,275
30%
110,240
139,324
150,006
34.6%
North Dakota
Oregon
South Dakota
William Mitchell
Wyoming
78,000
95,011
122,765
23%
111,409
101,641
142,284
28.5%
85,296
97,350
127,566
36%
Schools that did not report information: Creighton, Drake, Gonzaga, Lewis & Clark, Saint Thomas-MN, Seattle,
Washington, and Willamette.
Footnote
*School did not participate in survey, but SALT staff and volunteers gathered the relevant data
from publicly-available documents.
Page 2
www.saltlaw.org
Region III (Southwest and South Central)
NAME OF SCHOOL
ASST.
PROFESSOR
ASSOC.
PROFESSOR
FULL
PROFESSOR
Region V (Southeast)
FRINGE
BENEFITS
NAME OF SCHOOL
ASST.
PROFESSOR
ASSOC.
PROFESSOR
FULL
PROFESSOR
FRINGE
BENEFITS
Arkansas-Fayetteville
83,940
102,145
140,100
23.5
Emory
74,652
135,707
212,004
37%
Arkansas-Little Rock
86,513
100,698
132,272
20%
Florida
102,274
113,300
154,997
26.5%
Colorado
NA
122,336
172,881
26.8%
Florida A&M
Denver
94,308
108,420
133,767
27.2%
Georgia
Houston
111,000
115,954
138,653
28%
Georgia State
NA
110,600
158,638
28%
Louisville
Louisiana State
92,000
116,836
156,351
22.2%
Memphis
Loyola-New Orleans
97,000
103,630
134,937
28%
Mercer
Missouri-Columbia
NA
105,500
153,887
28.9%
Mississippi
95,880
109,140
145,163
30%
Missouri-Kansas City
NA
95,500
125,000
28%
Mississippi College
90,000
105,000
119,000
24%
Kansas
New Mexico
89,073
115,965
136,787
NA
116,114
141,377
176,863
26%
NA
112,606
144,915
26.74%
88,463
92,239
132,414
17%
86,000
124,961
131,529
29%
85,000
103,025
132,001
26%
90,537
106,388
123,544
29%
Northern Kentucky
91,489
99,518
122,084
20%
110,000
124,900
168,200
32.7%
Nova Southeastern
75,000
NA
140,552
26.2%
Oklahoma City
97,500
102,000
128,000
30%
Tennessee
NA
92,273
136,075
28%
Saint Mary’s
87,879
NA
133,442
20%
South Texas
86,663
101,920
150,665
25%
Schools that did not report information: Alabama, Barry, Faulkner, Florida Coastal, Florida International, Florida State, Inter American-PR, John Marshall-Atlanta, Kentucky, Miami, Pontifical
Catholic-PR, Puerto Rico, Saint Thomas-FL, Samford-Cumberland, Stetson, and Vanderbilt.
Southern
84,622
101,208
119,418
25%
Oklahoma
Texas Southern
Texas Tech
Texas Wesleyan
Tulsa
Washburn
98,087
116,939
146,750
26%
103,250
108,472
139,641
28%
NA
94,630
126,000
24%
NAME OF SCHOOL
88,424
108,331
127,088
33%
Baltimore
NA
106,550
151,971
25%
Region VI (Mid-Atlantic)
Schools that did not report information: Baylor, Saint Louis, Southern Methodist, Texas, Tulane,
and Washington-Saint Louis.
NAME OF SCHOOL
ASST.
PROFESSOR
ASSOC.
PROFESSOR
FRINGE
BENEFITS
27%
Catholic-DC
97,750
118,391
151,787
22.5%
Charleston
107,640
113,620
162,774
15%
District of Columbia
74,126
78,414
88,626
23%
Duquesne
88,500
115,432
152,514
33%
NA
104,784
133,231
27.1%
112,100
134,000
175,678
19.1%
North Carolina Central
Akron
82,000
97,408
129,940
28.5%
Capital
86,000
105,984
146,534
24%
Pittsburgh
Indiana-Indianapolis
John Marshall-Chicago
Marquette
130,000
147,408
185,394
40%
Rutgers-Camden
NA
98,992
132,615
40.6%
Rutgers-Newark
148,400
NA
158,248
27.7%
NA
NA
144,420
32.3%
93,020
111,980
168,505
35.2%
NA
NA
170,000
34.5%
99,190
108,278
153,040
28%
92,725
102,830
134,432
48%
120,200
143,700
38%
96,350
111,433
138,829
22%
Widener
Schools that did not report information: American, Appalachian, Campbell, Duke, George Mason,
George Washington, Georgetown, JAG, Liberty, Maryland, Pennsylvania, Regent, Richmond,
Seton Hall, Temple, Villanova, Virginia, Wake Forest, Washington & Lee, and William & Mary.
166,000
NA
254,500
24%
106,189
114,968
149,475
30%
84,104
100,037
104,256
Varies
113,178
123,122
182,556
27.7%
Southern Illinois
87,219
94,739
132,084
20%
Thomas M. Cooley
91,534
129,674
152,557
29%
Toledo
89,973
104,197
143,967
34.8%
Valparaiso
NA
NA
148,922
32.5%
West Virginia
NA
90,191
136,261
27.5%
Schools that did not report information: Ave Maria, Case Western, Chicago, Chicago-Kent,
Cincinnati, Cleveland-Marshall, Dayton, DePaul, Detroit, Indiana-Bloomington, Loyola-Chicago,
Northwestern, Notre Dame, Ohio Northern, Wayne State, and Wisconsin.
SALT Equalizer
115,000
139,200
105,0000
Michigan State
Ohio State
92,250
122,505
South Carolina
Michigan
Northern Illinois
FRINGE
BENEFITS
147,700
Penn State
Illinois
FULL
PROFESSOR
125,100
North Carolina
FULL
PROFESSOR
ASSOC.
PROFESSOR
95,400
Howard
Region IV (Great Lakes)
ASST.
PROFESSOR
Survey Information, continued from page 1
http://www.lwionline.org/surveys.html.
The American Association of Law Libraries (AALL) collects data
on law librarian salaries. AALL members may access the survey
results online, at no charge, at http://www.aallnet.org/products/
pub_salary_survey.asp. Non-members may purchase a hard copy
version from the same website.
The Center for the Study of Applied Legal Education has
collected salary and compensation data for clinicians, available by
emailing [email protected].
Page 2
March 2009
www.saltlaw.org
About SALT
Region VII (Northeast)
ASST.
PROFESSOR
NAME OF SCHOOL
Albany
104,100
142,165
31.6%
120,339
170,000
26.19%
88,558
108,302
127,034
33.5%
NA
108,000
117,000
30%
150,000
NA
252,450
25%
Hofstra
Maine
FRINGE
BENEFITS
NA
Franklin Pierce
Harvard
FULL
PROFESSOR
97,000
Connecticut
CUNY
ASSOC.
PROFESSOR
NA
141,794
199,499
25%
88,340
100,700
125,300
47.8%
NA
139,075
162,775
29.3%
Northeastern
Pace
118,000
138,500
165,000
34%
Suffolk
108,530
122,030
144,030
24%
43,366-98,202
51,263-113,932
63,586-156,206
NA
128,544
129,081
182,353
20%
NA
114,792
124,909
29%
92,393
100,468
144,866
38.5%
SUNY-Buffalo*
Touro
Vermont
Western New England
Schools that did not report information: Boston College, Boston University, Brooklyn, Cardozo, Columbia, Cornell, Fordham, New England, New York Law, NYU, Quinnipiac, Roger Williams, Saint John’s, Syracuse, and Yale.
Since 1973, the Society of American Law
Teachers (SALT) has been an independent
organization of law teachers, law deans,
law librarians, and other legal educational
professionals working to enhance the quality
of legal education, make the legal profession
more inclusive, and extend legal representation to under-served individuals and
communities. SALT has been at the forefront
of national debates about legal education and
legal institutions. SALT challenges faculty,
staff, and students to promote the profession’s
core values of equality and justice, and to
oppose illegal and inequitable practices. You
can learn more about SALT at www.saltlaw.org.
Please join us by registering to become a
member online or with the membership
application included below.
Society of American Law Teachers
Membership Application (or Renewal) 2008–09 Academic Year
You can register to become a member online and pay by credit card by going to www.saltlaw.org, or you can complete
and mail in this form, together with a check or credit card information.
Enroll me/renew my membership. I enclose:*
Additional contributions:
$125 (for those earning $125,000 or more per year)
I am contributing $______ to the Norman Dorsen Fund to support
public interest internships with SALT.
$90 (for those earning at least $100,000 but less than $125,000 per year)
I am contributing $______ to the Stuart and Ellen Filler Fund
to support the work of the SALT Board.
$65 (for those earning at least $75,000 but less than $100,000 per year)
$40 (for those earning less than $75,000 per year)
I am contributing $______ to support SALT’s activities.
$900 for lifetime membership
*Please pay at higher rate if dues are paid from professional funds.
Personal information:
First and middle names: _____________________________________ Last name: ___________________________________________
Title: _________________________________________________ School: _____________________________________________
Street address: ______________________________________________________________________________________________
City: _________________________________________________________________ State: _________ Zip code: ________________
Phone (work): _____________________________ Email: ____________________________________________________________
Billing information:
I am paying by check, payable to: Society of American Law Teachers (SALT)
I am paying by credit card. My card information is:
Name on credit card: __________________________________________________________________________________________
Billing street address: _________________________________________________________________________________________
City: _________________________________________________________________ State: ________ Zip code: ________________
Type of card (Visa or Mastercard only): __________________________________________
Credit card number: ________________________________________________________ Expiration date: _______________
Mail this form and your payment to: Hazel Weiser, Executive Director, SALT, Touro Law Center,
Public Advocacy Center, Rm. 223, 225 Eastview Drive, Central Islip, NY 11722
SALT Equalizer
Page 3
March 2009
William Mitchell College of Law
875 Summit Avenue
Saint Paul, MN 55105-3076
www.wmitchell.edu
Non Profit Org.
U.S. Postage
PAID
St. Paul, MN
Permit No. 1300
SALT Equalizer
Professor Raleigh Hannah Levine, Editor
Society of American Law Teachers
Co-Presidents
Margaret Martin Barry (Catholic)
Deborah Waire Post (Touro)
Past Presidents (in order of service)
Norman Dorsen (NYU)
Howard Lesnick (Pennsylvania)
David L. Chambers (Michigan)
George J. Alexander (Santa Clara)
Wendy W. Williams (Georgetown)
Rhonda D. Rivera (Ohio State)
Emma Coleman Jordan (Georgetown)
Charles R. Lawrence III (Georgetown)
Howard A. Glickstein (Touro)
Sylvia A. Law (NYU)
Patricia A. Cain (Santa Clara)
Jean C. Love (Santa Clara)
Linda S. Greene (Wisconsin)
Phoebe A. Haddon (Temple)
Stephanie M. Wildman (Santa Clara)
Carol Chomsky (Minnesota)
Margaret E. Montoya (New Mexico)
Paula C. Johnson (Syracuse)
Michael Rooke-Ley (Santa Clara, visiting)
José R. Juárez, Jr. (Denver)
Holly Maguigan (NYU)
Eileen Kaufman (Touro)
Tayyab Mahmud (Seattle)
Past Vice-Presidents
Anthony G. Amsterdam (NYU)
Derrick A. Bell, Jr. (NYU)
Gary Bellow (Harvard)
Ralph S. Brown, Jr. (Yale)
Thomas Emerson (Yale)
Secretary
Robert Lancaster (Louisiana State)
Treasurer
Patricia A. Cain (Santa Clara)
Equalizer Editor
Raleigh Hannah Levine (William Mitchell)
CLEA Liaison
Claudia Angelos (NYU)
Executive Director
Hazel Weiser
Board of Governors
Bryan Adamson (Seattle)
Raquel Aldana (UNLV; SALT Co-President-Elect)
Steven W. Bender (Oregon; SALT Co-PresidentElect)
Doug Colbert (Maryland)
Nancy Cook (Minnesota)
Andi Curcio (Georgia State)
Benjamin Davis (Toledo)
Jane Dolkart
Olympia Duhart (Nova Southeastern)
Nancy Ehrenreich (Denver)
Patricia Falk (Cleveland-Marshall)
Ruben Garcia (Cal Western)
Jackie Gardina (Vermont)
Neil Gotanda (Western State)
Joan Howarth (Dean, Michigan State)
Peter Joy (Washington-St. Louis)
Beth Lyon (Villanova)
Joan Mahoney (Wayne State)
Peggy Maisel (Florida International)
Adele Morrison (Washington-St. Louis)
Camille Nelson (Washington-St. Louis)
Reginald Oh (Cleveland-Marshall)
Angela Onwuachi-Willig (Iowa)
Ngai Pindell (Catholic-DC)
Bill Quigley (Loyola-New Orleans)
Denise Roy (William Mitchell)
Natsu Taylor Saito (Georgia State)
Aviam Soifer (Dean, Hawai’i)
Kellye Y. Testy (Dean, Seattle)
EXHIBIT B
Example of Australian Skills Taxonomy
BROAD SKILLS CATEGORIES (Queensland University of Technology Law School)
Attitudinal skills
1. Ethical values
2. Creative outlook
3. Reflective practice
4. Inclusive perspective
5. Social justice orientation
6. Adaptive behaviour
7. Pro-active behaviour
Cognitive skills
1. Problem solving
2. Legal analysis
3. Information literacy
4. Legal research
5. Document management
6. Discipline & ethical knowledge
Communication skills
1. Oral communication
2. Oral presentations
3. Advocacy
4. Legal interviewing
5. Mooting
6. Negotiation
7. Written communication
8. Drafting
Relational skills
1. Work independently
2. Teamwork
3. Appreciation of diversity
4. Time management
5. International perspective
6. Indigenous perspective
EXAMPLE
• Graduate Capability – Communication
•
Skill – written communication/ legal letter writing
–
•
Course Objective – Demonstrate ability to write legal letter in plain English;
“customised” depending on the purpose for which it is written by identifying
whether the function of letter is (a)information (b)request (c)persuasion (d)record
or a combination of these functions; utilising formalities such as salutations; for
appropriate audience.
Queensland University of Technology Law created 3 levels of demonstrated abilities –
each requiring student to move through experiential learning cycle of instruction,
practice, feedback, reflection & plan
–
Level 1 instructed in theoretical framework and application of skill – usually at
generic level – practiced under guidance and feedback provided
–
Level 2 additional guidance at advanced level in authentic context – feedback
provided – reflection – individual and w/i group utilise a range of skills in simple
legal matter
–
Level 3 utilise skills in different contexts w/o guidance – greater complexity of
discipline contexts and emphasis on relating level
Report and Recommendations from the Subcommittee on the Ohio Bar Exam
of the Legal Education
Introduction
Members of the Sub-committee reviewed a number of topics related to the bar exam in Ohio,
including the location of the exam, options to the bar exam, costs of bar exam preparation, and
alternatives to the bar exam. The members decided to focus specifically on the bar exam as it
relates to legal education. Specifically, we believed that any recommendations we would make
should directly relate to how the bar exam impacts teaching and learning in our law schools. As
a result of this focus, we are presenting only one set of recommendations but will note other
issues that might deserve further study.
Scope of the Bar Exam
Early on in our discussions, we noted that there are subjects that are included in the coverage of
the Ohio Essay Exam that are broader than those covered in the multi-state practice exam [MPT],
in the multi-state multiple choice exam [MBE], and the Multi-state Professional Responsibility
Exam [MPRE]. This, in turn led to a discussion of the purpose of the bar exam process and how
this purpose affects legal education.
There was a consensus that the bar exam should measure core competencies. Of course, there
was not consensus as to what those core competencies are. Yet, with the dissent of one member
of the sub-committee, the members agreed that testing of the content covered in first year
courses, and a few selected upper level course was sufficient to measure such competencies. The
MBE, MPT, and MPRE cover these courses. Yet the Ohio Essay exam covers other topics.
Specifically, the MPE covers contracts, torts, constitutional law, criminal law, evidence,
and real property. The MPRE, of course, covers legal ethics. The MPT covers legal analysis,
fact analysis, problem solving, resolution of ethical dilemmas, organization and management of a
lawyering task, and communication.
The Ohio Essay exam covers these topics plus business associations, civil procedure,
commercial transactions, and wills.
During the discussions of the sub-committee, the academic members noted the impact of
having these additional courses as subjects on the bar exam. While the profession [in the 1992
Maccrate and 2007 Carnegie Foundation Reports] encourages schools to increase their skills
offerings, students continue to believe that they should take “one more commercial course” or
“one more estates course,” even though they did not plan to practice in an area with those
specializations. This student demand forced school administrators, in turn, to provide more
sections or offerings in these areas, thus limiting the ability of schools to offer and students to
take clinics, simulations, and other skills training courses.
Bar Examination Subcommittee Report - 2
On another level, many students wish to start specializing in one or more subject areas
during their law school career, and many schools wish to carve out areas of concentration and
faculty expertise in some subject matters. Having a broad array of courses in a bar exam
decreases the opportunities for students to focus in areas other than those in the bar exam
[commercial transactions, business associations, wills] or even focus in more depth on one of the
three topics covered. It also decreases the opportunities of students to have specialized writing
experiences in seminars as students and the academic administrators focus resources on those
additional courses in the Ohio Essay exam.
The sub-committee also discussed the possible impact of reducing the subjects in the
Ohio essay exam. The consensus was that there would be little if any negative impact. There is
already a close correlation of the results in the MBE and the Essay. Moreover, test-takers
responses to essay questions on the additional topics also have a close correlation to their
responses to essay questions on the topics covered in other exams.
So, with one dissent, we agree with the recommendation of another subcommittee [on Practical
Applications in the Classroom] –
Recommendation - The Supreme Court should reduce the subjects tested on the Ohio essay
portion of the Ohio Bar Exam. If possible, the subjects should be narrowed to those tested
on the MBE and MPRE.
Other Issues
As noted above, the subcommittee considered a number of other issues but determined that it did
not have the expertise to make specific recommendations or that any recommendations might not
directly affect the limited focus of our charge.
We, however, urge the Bar and the Supreme Court to establish special study groups, who could
invite representatives of other constituencies, professionals with experience in other states, and
consultants who have unique competency to review the following topics:
--
use of the multi-state essay exam;
--
review of other alternatives to the bar exam for some or all students;
--
analysis of the success of the Webster program in New Hampshire that provides
an alternative to the bar exam in certain circumstances;
--
post-graduate requirements as alternative to the bar exam in certain
circumstances;
Bar Examination Subcommittee Report - 3
--
an apprenticeship option to the bar exam in certain circumstances;
--
law school certification of competencies as an alternative to the bar in certain
circumstances
--
reduction in the length of the bar exam to two days;
--
use of alternatives to portions of the bar exam;
--
use of only some but not all of the MBE;
--
the impact of the cost of bar review preparation courses and possible alternatives;
--
mandates to law schools for skills and certification of competencies; and
--
cooperation with other states in reviewing the subjects covered in multi-state and
independent portions of the bar exam.
The subcommittee takes no position on these topics but only suggests that further study might be
useful.
Martin H. Belsky, Chair
Louis D. Bilionis
Douglas R. Cole
David C. Crago
Dennis R. Honabach
Geoffrey S. Mearns
Michael P. Morrison
Lee Ann Ward
Educating Lawyers
Preparation for the Profession of Law
The Foundation’s two-year study of legal education involved a reassessment of teaching and
learning in American and Canadian law schools today. Intensive field work was conducted at a
cross section of 16 law schools during the 1999-2000 academic year. The study re-examines
“thinking like a lawyer”—the paramount educational construct currently in use. The report
shows how law school teaching affords students powerful intellectual tools while also shaping
education and professional practice in subsequent years in significant, yet often unrecognized,
ways. The study was funded by The Atlantic Philanthropies.
About the Authors
WILLIAM M. SULLIVAN is a senior scholar at The Carnegie Foundation for the Advancement of
Teaching. He is the author of Work and Integrity and co-author of Habits of the Heart.
ANNE COLBY co-directs The Carnegie Foundation for the Advancement of Teaching’s
Preparation for the Professions Program and Higher Education and the Development of Moral
and Civic Responsibility Program.
Judith Welch Wegner is professor of law at the University of North Carolina at Chapel
Hill where she has served as dean. Formerly a senior scholar with The Carnegie Foundation for
the Advancement of Teaching, she has served as president of the Association of American Law
Schools.
Lloyd Bond is a senior scholar with The Carnegie Foundation for the Advancement of
Teaching, working in the area of assessment across several of the Foundation’s programs.
Lee S. Shulman is the 8th president of The Carnegie Foundation for the Advancement of
Teaching. He is the first Charles E. Ducommun Professor of Education Emeritus and Professor
of Psychology Emeritus (by courtesy) at Stanford University, past president of the American
Educational Research Association (AERA), and a member of the National Academy of Education.
S U M M A RY
EDUCATING
LAWYERS
preparation for the
profession of law
William M. Sullivan
Anne Colby
Judith Welch Wegner
Lloyd Bond
Lee S. Shulman
A P U B L I C AT I O N O F
S u m m a ry
Introduction
The profession of law is fundamental to the f lourishing of American democracy. Today, however, critics of
the legal profession, both from within and without, have pointed to a great profession suffering from varying
degrees of confusion and demoralization. A reawakening of professional élan must include revitalizing legal
preparation. It is hard to imagine that taking place without the enthusiastic participation of the nation’s law
schools. Law school provides the single experience that virtually all legal professionals share. It is the place and
time where expert knowledge and judgment are communicated from advanced practitioner to beginner. It is
where the profession puts its defining values and exemplars on display, and future practitioners can begin both
to assume and critically examine their future identities.
Educating Lawyers examines the dramatic way that law schools develop legal understanding and form
professional identity. The study captures the special strengths of legal education, and its distinctive forms of
teaching. It follows earlier studies of professional education conducted by The Carnegie Foundation for the
Advancement of Teaching. Beginning with the landmark Flexner Report on medical education of 1910 and
other pioneering studies of education in engineering, architecture, teaching and law, the Foundation has for
nearly one hundred years inf luenced improvement of education for the professions.
As the Foundation enters its second century, Educating Lawyers becomes part of a series of reports on
professional education issued by the Foundation through its Preparation for the Professions Program.
Educating Clergy was the first in this series, which will include reports on the education of engineers, nurses
and physicians.
Educating Lawyers is thus informed by the findings of the Foundation’s concurrent studies of professional
education. It is also, like the other studies, grounded in direct observation of education in process. Over the
space of two academic semesters, a research team visited 16 law schools in the United States and Canada.
The schools, both public and private, were chosen to be geographically diverse, ranging from coast to coast
and north to south. Several are among the more selective schools. Several are freestanding schools, while
others are less selective institutions within large state university systems. One school is historically black, while
two (one in Canada, the other in the United States) are distinctive for their attention to Native American and
First Nation peoples and their concerns. Several schools were chosen because they were judged by many to
represent important strengths in legal education.
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Overview of Legal Education
Education of professionals is a complex educational process, and its value depends in large part upon how
well the several aspects of professional training are understood and woven into a whole. That is the challenge
for legal education: linking the interests of legal educators with the needs of legal practitioners and with the
public the profession is pledged to serve—in
That is the challenge for legal education: linking the
other words, fostering what can be called civic
interests
of legal educators with the needs of legal
professionalism.
practitioners and with the public the profession is
pledged to serve.
Like other professional schools, law schools are
hybrid institutions. One parent is the historic
community of practitioners, for centuries deeply immersed in the common law and carrying on traditions
of craft, judgment and public responsibility. The other heritage is that of the modern research university.
These two strands of inheritance were blended by the inventors of the modern American law school, starting
at Harvard in the 1870s with President Charles William Eliot and his law dean, Christopher Columbus
Langdell. The blend, however, was uneven. Factors beyond inheritance—the pressures and opportunities
of the surrounding environment—have been very important in what might be called the epigenesis of legal
education. But as American law schools have developed, their academic genes have become dominant.
The curriculum at most schools follows a fairly standard pattern. The juris doctor (JD) degree is the typical
credential offered, requiring three years of full-time or four years of part-time study. Most states require
the degree for admission to practice, along with a separate bar examination. Typically, in the first year and a
half, students take a set of core courses: constitutional law, contracts, criminal law, property law, torts, civil
procedure and legal writing. After that, they choose among courses in particular areas of the law, such as tax,
labor or corporate law. The school-sponsored legal clinics, moot court competition, supervised practice trials
and law journals give the students who participate opportunities to practice the legal skills of working with
clients, conducting appellate arguments, and research and writing.
Law schools use the Socratic, case-dialogue instruction in the first phase of their students’ legal education.
During the second two years, most schools continue to teach, by the same method, a number of elective
courses in legal doctrine. In addition, many also offer a variety of elective courses in seminar format, taught
in ways that resemble graduate courses in the
arts and sciences. What sets these courses apart
The dramatic results of the first year of law school’s
from the arts and sciences experience is precisely
emphasis on well-honed skills of legal analysis SHould
their context—law school as apprenticeship
be matched by similarly strong skill in serving clients
to the profession of law. But there is room
and a solid ethical grounding.
for improvement. The dramatic results of the
first year of law school’s emphasis on wellhoned skills of legal analysis should be matched by similarly strong skill in serving clients and a solid ethical
grounding. If legal education were serious about such a goal, it would require a bolder, more integrated
approach that would build on its strengths and address its most serious limitations. In pursuing such a goal, law
schools could also benefit from the approaches used in education of physicians, teachers, nurses, engineers and
clergy, as well as from research on learning.
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Five Key Observations
1
observATION
Law School Provides Rapid Socialization into the Standards
of Legal Thinking.
Law schools are impressive educational institutions. In a relatively short period of time, they are able to
impart a distinctive habit of thinking that forms the basis for their students’ development as legal professionals.
Visiting schools of different types and geographical locations, the research team found unmistakable evidence
of the pedagogical power of the first phase of legal education. Within months of their arrival in law school,
students demonstrate new capacities for understanding legal processes, for seeing both sides of legal arguments,
for sifting through facts and precedents in search of the more plausible account, for using precise language, and
for understanding the applications and conf licts of legal rules. Despite a wide variety of social backgrounds and
undergraduate experiences, they are learning, in the parlance of legal education, to “think like a lawyer.” This
is an accomplishment of the first order that deserves serious consideration from educators of aspirants to other
professional fields.
2
observATION
Law Schools Rely Heavily on One Way of Teaching
to Accomplish the Socialization Process.
The process of enabling students to “think like lawyers” takes place not only in a compressed period of time
but primarily through the medium of a single form of teaching: the case-dialogue method. Compared to other
professional fields, which often employ multiple forms of teaching through a more prolonged socialization
process, legal pedagogy is remarkably uniform across variations in schools and student bodies. With the
exception of a few schools, the first-year curriculum is similarly standardized, as is the system of competitive
grading that accompanies the teaching and learning practices associated with case dialogue. The consequence
is a striking conformity in outlook and habits of thought among legal graduates.
In particular, most law schools emphasize the priority of analytic thinking, in which students learn to
categorize and discuss persons and events in highly generalized terms. This emphasis on analysis and system
has profound effects in shaping a legal frame of mind. At a deep, largely uncritical level, the students come to
understand the law as a formal and rational system, however much its doctrines and rules may diverge from
the common sense understandings of the lay person. This emphasis on the procedural and systematic gives a
common tone to legal discourse that students are quick to notice, even if reproducing it consistently is often a
major learning challenge.
3
observation
The Case-Dialogue Method of Teaching Has Valuable
Strengths but Also Unintended Consequences.
The case-dialogue method challenges students to grasp the law as a subject characterized by a particular
way of thinking, a distinctive stance toward the world. And, as do the particular methods of teaching for
other professions, the case-dialogue method offers both an accurate representation of central aspects of legal
competence and a deliberate simplification of them. The simplification consists in the abstraction of the
legally relevant aspects of situations and persons from their everyday contexts. In the case-dialogue classroom,
students learn to dissect every situation they meet from a legal point of view.
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By questioning and argumentative exchange with faculty, students are led to analyze situations by looking
for points of dispute or conf lict and considering as “facts” only those details that contribute to someone’s
staking a legal claim on the basis of precedent. The case-dialogue method drills students, over and over, in
first abstracting from natural contexts, then operating upon the “facts” so abstracted according to specified
rules and procedures, and drawing conclusions based upon that reasoning. Students discover that to “think like
a lawyer” means redefining messy situations of actual or potential conf lict as opportunities for advancing a
client’s cause through legal argument before a judge or through negotiation.
By contrast, the task of connecting these conclusions with the rich complexity of actual situations that involve
full-dimensional people, let alone the job of thinking through the social consequences or ethical aspects
of the conclusions, remains outside the case-dialogue method. Issues such as the social needs or matters of
justice involved in cases do get attention in some case-dialogue classrooms, but these issues are almost always
treated as addenda. Being told repeatedly that such
In their all-consuming first year, students
matters fall, as they do, outside the precise and orderly
are
told to set aside their desire for justice.
“legal landscape,” students often conclude that they
are secondary to what really counts for success in law
school—and in legal practice. In their all-consuming first year, students are told to set aside their desire for
justice. They are warned not to let their moral concerns or compassion for the people in the cases they discuss
cloud their legal analyses.
This warning does help students escape the grip of misconceptions about how the law works as they hone
their analytic skills. But when the misconceptions are not addressed directly, students have no way of learning
when and how their moral concerns may be relevant to their work as lawyers and when these concerns could
throw them off track. Students often find this confusing and disillusioning. The fact that moral concerns are
reintroduced only haphazardly conveys a cynical impression of the law that is rarely intended.
Two Major Limitations of Legal Education
1. Most law schools give only casual attention to teaching students how to use legal thinking in the
complexity of actual law practice. Unlike other professional education, most notably medical school, legal
education typically pays relatively little attention to direct training in professional practice. The result
is to prolong and reinforce the habits of thinking like a student rather than an apprentice practitioner,
conveying the impression that lawyers are more like competitive scholars than attorneys engaged with the
problems of clients. Neither understanding of the law is exhaustive, of course, but law school’s typically
unbalanced emphasis on the one perspective can create problems as the students move into practice.1
2. Law schools fail to complement the focus on skill in legal analyses with effective support for developing
ethical and social skills. Students need opportunities to learn about, ref lect on and practice the
responsibilities of legal professionals. Despite progress in making legal ethics a part of the curriculum, law
schools rarely pay consistent attention to the social and cultural contexts of legal institutions and the varied
forms of legal practice. To engage the moral imagination of students as they move toward professional
practice, seminaries and medical, business and engineering schools employ well-elaborated case studies
of professional work. Law schools, which pioneered the use of case teaching, only occasionally do so.
Both of these drawbacks—lack of attention to practice and inadequate concern with professional
responsibility—are the unintended consequences of reliance upon a single, heavily academic pedagogy, the
case-dialogue method, to provide the crucial initiation into legal education.
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observation
4
Assessment of Student Learning Remains Underdeveloped.
Assessment of what students have learned—what they know and are able to do—is important in all forms
of professional education. In law schools, too, assessing students’ competence performs several important
educational functions. In its familiar summative form, assessment sorts and selects students. From the start,
assessment is used as a filter; law schools typically admit only students who are likely to succeed in law school
as judged by performance on the Law School Admissions Test; and high-stakes, summative assessment is
critical at the end of each of the first two semesters of law school, when essay examinations in each doctrinal
course will determine students’ relative ranking, opening academic options for the remainder of some
students’ legal education and legal careers—and closing them for others. The bar examination is another
high-stakes, summative assessment that directly affects law school teaching but is administered by an
independent body.
Summative assessments are useful devices to protect the public, for they can ensure basic levels of
competence. But there is another form of assessment, formative assessment, which focuses on supporting
students in learning rather than ranking, sorting and filtering them. Although contemporary learning theory
suggests that educational effort is significantly enhanced by the use of formative assessment, law schools
make little use of it. Formative assessments directed toward improved learning ought to be a primary form
of assessment in legal education.
5
observation
Legal Education Approaches Improvement Incrementally,
Not Comprehensively.
Compared to 50 years ago, law schools now provide students with more experience, more contextual
experience, more choice and more connection with the larger university world and other disciplines.
However, efforts to improve legal education have been more piecemeal than comprehensive. Few schools
have made the overall practices and effects of their educational effort a subject for serious study. Too few
have attempted to address these inadequacies on a systematic basis. This relative lack of responsiveness by the
law schools, taken as a group, to the well-reasoned pleas of the national bar and its commissions antedates the
study on which Educating Lawyers is based.
The relatively subordinate place of the practical legal skills, such as dealing with clients and ethical-social
development in many law schools, is symptomatic of legal education’s approach to addressing problems
and framing remedies. To a significant degree, both supporters
Providing additional classroom coverage of professionalism
and opponents of increased attention to “lawyering” and
issues will not be an easy task. Law school curriculum
professionalism have treated the major components of legal
reform is a tedious and often frustrating task and seems to
education in an additive way, not an integrative way.
work best when modest changes are made at the margin
by adding one or two additional courses. If the proponents
of the need for increased law school training in ethics and
professionalism are right, however, an effort equivalent
to that which led to the increase in clinical legal education
in the 1970s and the increased emphasis on skills training
in the 1990s is required. The aim of this effort should be
to elevate the twin concepts of the practice of law as a
public service calling and the development of the capacity
for reflective moral judgment to the same level as legal
knowledge and traditional legal skills. This is indeed an
ambitious goal. (American Bar Association, 1996)
Moreover, efforts to add new requirements are almost universally
resisted, not only in legal education, but in professional education
generally, because there is always too much to accomplish in too
little time. Sometimes this problem becomes so acute that the
only solution is to extend the time allocated to training.
In engineering, for example, current debate centers on the
question of whether the master’s rather than the bachelor’s degree
should be the entry-level credential for the field. Extending the
duration of training is a radical solution, however, and certainly
not one that would appeal to law school administrators, faculty
or students.
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This additive strategy of educational change assumes that increasing emphasis on the practical and ethicalsocial skills of the profession will reduce time for and ultimately affect the extent to which students develop
skills in legal analyses. Thus, practical skills are addressed only to a point. This is not only a logistical problem
(too much to accomplish in a limited amount of time) but it is also a conceptual and pedagogical problem. In
essence, the additive strategy assumes that the legal analysis so prominent in legal education is sufficient in its
own terms, only requiring slight increase in attention to the practical and ethical-social skills of a beginning
lawyer.
Toward a More Integrated Model:
A Historic Opportunity to Advance Legal Education
Law school provides the beginning, not the full development, of students’ professional competence and identity.
At present, what most students get as a beginning is insufficient. Students need a dynamic curriculum that
moves them back and forth between understanding and enactment, experience and analysis. Law schools face
an increasingly urgent need to bridge the gap between analytical and practical knowledge, and a demand
for more robust professional integrity. Appeals and demands for change, from both within academic law and
without, pose a new challenge to legal education. At the same time, they open to legal education a historic
opportunity to advance both legal knowledge—theoretical and practical—and the capacities of the profession.
Legal education needs to be responsive to both the needs of our time and recent knowledge about how learning
takes place; it needs to combine the elements of legal professionalism—conceptual knowledge, skill and moral
discernment—into the capacity for judgment guided by a sense of professional responsibility. Legal education
should seek to unite the two sides of legal knowledge: formal knowledge and experience of practice.
In particular, legal education should use more effectively the second two years of law school and more
fully complement the teaching and learning of legal doctrine with the teaching and learning of practice.
Legal education should also give more focused attention to the actual and potential effects of the law school
experience on the formation of future legal professionals.
Recommendations
r ecomm endATION
1
Offer an Integrated Curriculum.
To build on their strengths and address their shortcomings, law schools should offer an integrated, three-part
curriculum: (1) the teaching of legal doctrine and analysis, which provides the basis for professional growth;
(2) introduction to the several facets of practice included under the rubric of lawyering, leading to acting with
responsibility for clients; and (3) exploration and assumption of the identity, values and dispositions consonant
with the fundamental purposes of the legal profession. Integrating the three parts of legal education would
better prepare students for the varied demands of professional legal work.
In order to produce such integrative results in students’ learning, however, the faculty who teach in the several
areas of the legal curriculum must first communicate with and learn from each other.
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r ecomm endATION
2
Join “Lawyering,” Professionalism and Legal Analysis
from the Start.
The existing common core of legal education needs to be expanded to provide students substantial experience
with practice as well as opportunities to wrestle with the issues of professionalism. Further, and building on
the work already underway in several law schools, the teaching of legal analysis, while remaining central,
should not stand alone as it does in so many schools. The teaching of legal doctrine needs to be fully integrated
into the curriculum. It should extend beyond case-dialogue courses to become part of learning to “think like
a lawyer” in practice settings.
Nor should doctrinal instruction be the exclusive content of the beginner’s curriculum. Rather, learning
legal doctrine should be seen as prior to practice chief ly in the sense that it provides the essential background
assumptions and habits of thought that students need as they find their way into the functions and identity of
legal professionals. r ecomm endATION
3
Make Better Use of the Second and Third Years of
Law School.
After the JD reports that graduates mostly see their experiences with law-related summer employment after
the first and second years of law school as having the greatest inf luence on their selection of career paths.2
Law schools could give new emphasis to the third year by designing it as a kind of “capstone” opportunity for
students to develop specialized knowledge, engage in advanced clinical training, and work with faculty and
peers in serious, comprehensive ref lection on their educational experience and their strategies for career and
future professional growth.
r ecomm endATION
4
Support Faculty to Work Across the Curriculum.
Both doctrinal and practical courses are likely to be most effective if faculty who teach them have some
significant experience with the other, complementary area. Since all law faculty have experienced the casedialogue classroom from their own education, doctrinal faculty will probably make the more significant
pedagogical discoveries as they observe or participate in the teaching of lawyering courses and clinics, and
we predict that they will take these discoveries back into doctrinal teaching. Faculty development programs
that consciously aim to increase the faculty’s mutual understanding of each other’s work are likely to improve
students’ efforts to make integrated sense of their developing legal competence. However it is organized, it is
the sustained dialogue among faculty with different strengths and interests united around common educational
purpose that is likely to matter most.
r ecomm endATION
5
Design the Program so that Students—and Faculty—Weave
Together Disparate Kinds of Knowledge and Skill.
Although the ways of teaching appropriate to develop professional identity and purpose range from classroom
didactics to ref lective practice in clinical situations, the key challenge in supporting students’ ethical-social
development is to keep each of these emphases in active communication with each other.
The demands of an integrative approach require both attention to how fully ethical-social issues pervade the
doctrinal and lawyering curricula and the provision of educational experiences directly concerned with the
values and situation of the law and the legal profession. As the example of medical education suggests, these
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concerns “come alive” most effectively when the ideas are introduced in relation to students’ experience of
taking on the responsibilities incumbent upon the profession’s various roles. And, in teaching for legal analysis
and lawyering skills, the most powerful effects on student learning are likely to be felt when faculty with
different strengths work in a complementary relationship.
r ecomm endATION
6
Recognize a Common Purpose.
Amid the useful varieties of mission and emphasis among American law schools, the formation of competent
and committed professionals deserves and needs to be the common, unifying purpose. A focus on the formation of professionals would give renewed prominence to the ideals and commitments that have historically
defined the legal profession in America.
r ecomm endATION
7
Work Together, Within and Across Institutions.
Legal education is complex, with its different emphases of legal analysis, training for practice and development
of professional identity. The integration we advocate will depend upon rather than override the development
of students’ expertise within each of the different emphases. But integration can f lourish only if law schools
can consciously organize their emphases through ongoing mutual discussion and learning.
Examples from the Field
Some law schools are already addressing the need for a more dynamic, integrated curriculum. The work of
centers such as the Institute for Law School Teaching at the Gonzaga University School of Law and a farf lung network of legal educators that has resulted in the report “Best Practices for Legal Education” testify to
substantial interest in aspects of the pedagogical project.3 Indeed, the idea for an integrated approach draws
liberally on their inspiration.
The law schools of New York University (NYU) and the City University of New York (CUNY) each
exemplify, in different ways, ongoing efforts to bring the three aspects of legal apprenticeship into active
relation. CUNY cultivates close interrelations between doctrinal and lawyering courses, including a resourceintensive investment in small sections in both doctrinal and lawyering seminars in the first year and a heavy
use of simulation throughout the curriculum. The school also provides extensive clinical experience linked
to the lawyering sequence. At NYU, doctrinal, lawyering and clinical courses are linked in a variety of
intentional ways. There, the lawyering curriculum also serves as a connecting point for faculty discussion and
theoretical work, as well as a way to encourage students to consider their educational experience as a unified
effort.
Other schools have embarked on different experiments. Yale Law School has restructured its first-year
curriculum by reducing the number of required doctrinal courses and encouraging students to elect an
introductory clinical course in their second semester. This is not full-scale integration of the sort necessary
to legal education, but it and other efforts like it point toward an intermediate strategy: a course of study that
encourages students to shift their focus between doctrine and practical experience not once but several times,
so as to gradually develop more competence in each area while making more linkages between them.
Courses and other experiences that develop the practical skills of lawyering are most effective in small-group
settings. Of all the obstacles to this reform, the relatively higher cost of the small classes is the most difficult
to overcome, especially at institutions without large endowments. In this light, it is encouraging to note the
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emergence of what may be another, less resource-intensive strategy. Southwestern Law School has instituted
a new first-year curriculum, in which students take four doctrinal courses in their first semester rather than
five, allowing for an intensified two-semester, integrated lawyering course plus an elective course in their
second semester. The lawyering course expands a legal writing and research experience to include detailed
work in legal methods and reasoning, as well as interviewing and advocacy. Professionalism explicitly grounds
the course through the introduction of case studies of lawyer careers that have been drawn from empirical
research, such as the studies done by the American Bar Foundation referred to earlier. In addition, the
Southwestern plan also provides extensive academic support where needed to enhance student success.
The Rewards of Innovation
Developing an integrated curriculum and approach to teaching designed to meet a common mission of
forming professionals will not be a simple or effortless process. On the part of faculty, it will require both
drawing more fully on one’s own experience and learning from each other. It will also require creativity.
Greater coherence and integration in the law school experience is not only a worthy project for the benefit
of students; it can also incite faculty creativity and cohesion. Attention to issues of teaching and learning often
results in improvements and even experiments in teaching. And when innovation is the focus of a group of
colleagues in and across institutions, the practice of teaching
Greater coherence and integration in the
can become the basis of community, where the substantive
law school experience is not only a worthy
knowledge about teaching and learning can be built upon
project for the benefit of students; it can
and shared publicly over time, in the fashion of traditional
also incite faculty creativity and cohesion.
academic scholarship, rather than being gained and lost
anew with each individual teacher .4 By making classroom
practice the subject of critical scrutiny, law professors would be applying to their teaching and their students’
learning the kind of skill and intellectual attention they routinely bring to their legal scholarship. Curricular
integration and collaborations could also open the opportunity for faculty, particularly new faculty, to develop
their careers in novel ways, both directly through new methods of teaching and also through scholarship
about teaching and learning.
As desirable—and necessary—as developing a more balanced and integrated legal education might be,
change does not come without effort and cost. Forward-thinking faculty and schools will have to overcome
significant obstacles. A trade-off between higher costs and greater educational effectiveness is one. Resistance
to change in a largely successful and comfortable academic enterprise is another. However, in all movements
for innovation, champions and leaders are essential factors in determining whether or not a possibility becomes
realized. Here, the developing network of faculty and deans concerned with improving legal education is a
key resource waiting to be developed further and put to good use.
It is well worth the effort. The calling of legal educators is a high one—to prepare future professionals with
enough understanding, skill and judgment to support the vast and complicated system of the law needed to
sustain the United States as a free society worthy of its citizens’ loyalty. That is, to uphold the vital values of
freedom with equity and extend these values into situations as yet unknown but continuous with the best
aspirations of our past.
Dinovitzer, R., and others, After the JD: First Results of a National Study of Legal Careers. Overland Park, KS: The National
Association for Law Placement Foundation for Law Career Research and Education and the American Bar Foundation, 2004,
pp. 77-82.
2
Dinovitzer and others, After the JD, pp. 79, 82.
3
Stuckey, R. and others. “Best Practices for Legal Education.” Nelson Mullins Riley & Scarborough Center on Professionalism
at the University of South Carolina School of Law. [http://professionalism.law.sc.edu/news.html#CLEA].
4
Huber, M. T., and Hutchings, P. The Advancement of Learning: Building the Teaching Commons. San Francisco: Jossey-Bass, 2005.
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Best Practices
for Legal Education
A Vision and A Road Map
Roy Stuckey and Others
Foreword by Robert MacCrate, Esq.
7
Executive Summary and Key
Recommendations
Developing a Statement of Best Practices
(Introduction and Chapter One)
There is a compelling need to change legal education in the United States in
significant ways. Law schools do some things well, but they do some things poorly or
not at all. While law schools help students acquire some of the essential skills and
knowledge required for law practice, most law schools are not committed to preparing
students for practice. It is generally conceded that most law school graduates are
not as prepared for law practice as they could be and should be. Law schools can do
much better.
Our key recommendations for improving legal education are listed below.
One can quickly grasp the full breadth of our recommendations by reviewing the
table of contents.
We divide our discussion of best practices into seven categories: 1) setting
goals, 2) organizing the program of instruction, 3) delivering instruction, generally,
4) conducting experiential courses, 5) employing non-experiential methods of
instruction, 6) assessing student learning, and 7) evaluating the success of the
program of instruction. We also include an example of a “model” best practices
program of instruction.
We call on law schools to make a commitment to improve the preparation
of their students for practice, clarify and expand their educational objectives,
improve and diversify methods for delivering instruction, and give more attention
to evaluating the success of their programs of instruction. The importance of
accomplishing these goals was explained by Greg Munro:
A law school can best achieve excellence and have the most
effective academic program when it possesses a clear mission, a plan
to achieve that mission, and the capacity and willingness to measure
its success or failure. Absent a defined mission and the identification
of attendant student and institutional outcomes, a law school lacks
focus and its curriculum becomes a collection of discrete activities
without coherence. If a school does not assess its performance,
it can easily be deluded about its success, the effectiveness of its
pedagogical methods, the relevance of its curriculum, and the value
of its services to its constituencies. A law school that fails to assess
student performance or its performance as an institution, or that
uses the wrong measures in doing so, has no real evidence that it is
achieving any goals or objectives. A law school that lacks evidence of
achievement invites demands for accountability.17
It may not be possible to prepare students fully for the practice of law in
three years, but law schools can come much closer than they are doing today. It is
17
MUNRO, supra note 4, at 3-4.
8
Best Practices for Legal Education
especially important for law schools to make an institutional commitment to do the
best they can to prepare their students for practice.
An important step is to articulate clear educational objectives for the
program of instruction and, preferably, to describe those objectives in terms of
desired outcomes. Outcomes-focused education is becoming the norm throughout
higher education. In fact, regional accrediting agencies are requiring institutions of
higher education, including some law schools, not only to state educational outcomes
but also to prove that their students are attaining those outcomes.18 Legal education
programs in the United Kingdom and other countries have outcomes-focused
curriculums, and a few law schools in the United States are making progress toward
becoming outcomes-focused. It is time for all law schools to make the transition.
Descriptions of desired outcomes of legal education should include statements
of what graduates should know, what they should be able to do, and how they should
do it. We describe some general outcomes that all law schools should seek to achieve
as they try to develop basic competence.
The key recommendations in this document are set forth below.
Setting Goals (Chapter Two)
1.
Law schools should demonstrate a commitment to preparing their
students for bar examinations and for law practice. They should engage
in a continuing dialogue with academics, practitioners, judges, licensing
authorities, and the general public about how best to accomplish this goal.
2.
Law schools should clearly articulate their educational goals and share them
with their students.
3.
Law schools should shift from content-focused programs of instruction to
outcomes-focused programs of instruction that are concerned with what
students will be able to do and how they will do it, as well as what they will
know on their first day in law practice.
4.
The primary goal of legal education should be to develop competence, that is,
the ability to resolve legal problems effectively and responsibly.
5.
Law schools should help students acquire the attributes of effective,
responsible lawyers including self-reflection and lifelong learning skills,
intellectual and analytical skills, core knowledge and understanding of law,
professional skills, and professionalism.
Organizing the Program of Instruction
(Chapter Three)
6.
Law schools should organize their curriculums to develop knowledge, skills,
18
See, e.g., Standards 2 & 4, WESTERN ASSOCIATION OF SCHOOLS AND COLLEGES, ACCREDITCOMMISSION FOR SENIOR COLLEGES AND UNIVERSITIES, HANDBOOK OF ACCREDITATION (2001), available at http://wacssenior.org/wasc/Doc_Lib/2001%20Handbook.pdf (last visited September 19,
2006) [hereinafter WESTERN ASSOCIATION ACCREDITATION HANDBOOK].
ING
Executive Summary
9
and values progressively; integrate the teaching of theory, doctrine, and
practice; and teach professionalism pervasively throughout all three years of
law school.
Delivering Instruction
(Chapters Four, Five, and Six)
7.
Law schools should use teaching methods that most effectively and efficiently
achieve desired educational objectives, employ context-based instruction
throughout the program of instruction, and employ best practices when using
any instructional methodology.
8.
Law schools should create and maintain healthy teaching and learning
environments.
9.
Law schools should enhance the quality of their programs of instruction with
technology and by making appropriate use of practicing lawyers and judges.
10.
Law schools should have effective teacher development programs and
establish learning centers.
Assessing Student Learning (Chapter Seven)
11.
Law schools should use best practices for assessing student learning,
including criteria-referenced assessments, multiple formative and summative
assessments, and various methods of assessment.
Evaluating the Success of the Program of
Instruction (Chapter Eight)
12.
Law schools should regularly evaluate their effectiveness and use best
practices for conducting such evaluations.
Many of our recommendations do not have cost or time implications, and
others have none beyond the initial effort involved in making the transition from
current practices. It will require hard work and, perhaps, additional or reallocated
resources to implement some of our recommendations. We are convinced, however,
that the major impediment to reforming legal education is a lack of vision and
commitment, not a lack of resources. Hopefully, this document provides some of the
needed vision and will inspire more people to become committed to implementing
positive changes in legal education.
Facing up to the challenge: It's time to prepare law students for their profession
Page 1 of 4
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Home / Legal Rebels / Facing up to the challenge: It's time to prepare law students for their profession
THE NEW NORMAL
Facing up to the challenge: It’s time to prepare law students for
their profession
Posted Jan 29, 2015 8:45 AM CST
By Michael Roster
The legal profession is under immense pressures. Clients are demanding steep
discounts and increasingly insist on fixed prices or other forms of value-based fees.
Law firm realization rates (that is, revenue received versus what was reported on
time sheets) once averaged 92 percent, fell to the lower 80 percent range in recent
years and are now moving to the 70 percent range. Many clients won’t allow junior
associates to work on their matters, and many law firms aren’t even hiring recent
graduates. And many well-known firms have failed or alternatively undertook
mergers that one knowledgeable observer calls disguised liquidations.
Meantime, law school applications are down 38 percent since 2010. To maximize
U.S. News rankings, generous scholarships are offered to first-year applicants with
high GPAs and LSAT scores while other qualified applicants are placed on waiting
lists so the yield looks good. Schools are simultaneously admitting as many as 80 or more second-year
transfer students and up to 200 or more LLMs in order to help close the widening budget gap. Never mind that
law schools were cash cows until the past 20 years when other priorities took over.
Michael Roster
And yet law school graduates, having gone deeply into debt, find they actually don’t know how to practice law
and increasingly can’t find work. They were taught interesting theory but typically weren’t taught the skills and
even the substantive material they need for their profession.
For example, all first-year U.S. law students take a course in contracts. Later, they take courses in corporate
law, real estate and other substantive areas that all rely heavily on contracts. Yet most have never seen or
drafted a contract in any of their courses by the time they graduate. Any rational layperson would ask: How
can you teach contracts without looking at a contract?
Here’s another example. It’s been reported that half or more of the lawyers in London’s Magic Circle law
firms—firms that compete directly with top tier U.S. firms—didn’t go to law school. They spend three years for
their undergraduate degree and then complete a one-year program on the knowledge and skills needed to
practice law, for four years total. In the U.S., we require four years solely for the undergraduate degree and
then three more years for law school, for a total of seven years and up to $450,000 in cost. And yet after
seven years of this advanced education, our law school graduates largely lack the knowledge and skills to be
lawyers.
As law firms return to a business model where profitability turns on expertise and efficiency versus how many
hours can be racked up, law school graduates who are much farther up the learning curve will have a
competitive edge.
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An Audacious Goal for Legal Education
With that background, let me propose an audacious* (#chapter4) but very realistic goal for legal education:
By 2018, every graduate from a U.S. law school will have the knowledge and skills currently expected
of a second-year lawyer or higher and as such can function as a midlevel associate, a solo
practitioner, an agency or judicial officer, a junior faculty member or in similar capacities. To achieve
this proficiency, every student will have had courses or comparable experiences involving all of the
following: traditional substantive law, client skills, social service, advocacy and dispute resolution,
government and administrative processes, and teaching and scholarly inquiry.
This goal is readily achievable with existing resources. And to put it bluntly, there’s no excuse for not doing it,
especially given the market pressures that are sending clear messages to lawyers and educators alike.
Key elements
Here’s what is meant by each of the elements in the proposed goal for legal education:
• Traditional substantive law. This includes the rigorous training that helps first-year law students learn to
challenge assumptions, consider alternative views and defend their positions. That’s a two- to three-month
process which then can be enhanced while at the same time developing substantive expertise and
professional skills.
• Client skills. This means knowing how to communicate with clients, assess the competing issues at stake,
counsel clients on risks and alternatives, develop a formal or informal project management plan, execute on
that plan and interact with other parties. It includes a wide range of professional and ethical issues, such as
what to do with clients who are skirting or breaking the law, what to do when you have information that is
important but not known to the other side, and the like.
• Advocacy and dispute resolution. This means an ability to present a client’s position, whether in court, before
an arbitrator or mediator, in front of legislative and regulatory bodies, or vis-à-vis opposing parties.
• Government and administrative processes. A significant part of modern law, in the U.S. and worldwide, is
through governmental and administrative processes. An understanding of these processes and how to
effectively represent clients is essential for a modern-day lawyer
• Teaching and scholarly inquiry. Some law schools pride themselves on the number of law school professors
they produce, and among law school deans, this often is the most important factor when assessing competing
law schools. Whether or not this is a valid standard doesn’t matter. Every law student should have a minimum
exposure to scholarly research, and likewise, one of the best ways to learn a subject is to teach it. Teaching
likewise can help develop the skills needed to supervise and mentor others, and if you think about it, what
lawyers do vis-à-vis clients, judges, administrative bodies and others is largely a form of teaching.
Not a trade school
Every profession has certain substantive knowledge at its core (basic sciences in medical school, for
example). But professional school graduates then need to acquire the more advanced knowledge and skills
that are required to practice their profession. Professions by definition can’t be reduced to a series of rules but
involve learning how to constantly make difficult trade-offs and judgment calls. And to assure law school
graduates have these skills doesn’t make law school a trade school. Rather, it’s what any professional school
should, at a minimum, be doing.
Block scheduling
A related reform will be to move to block scheduling, as many leading U.S. medical schools already have
done and at least some business school faculty are doing. In block scheduling, rather than taking three to five
courses in fits and starts through a semester, students take one or two courses in intensive blocks of time. I
teach one section of my advanced contracts course, for example, in five Saturday sessions, three going a
half-day and two going for the entire day.
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My first year I was concerned whether this would be too much for students to handle, even though this is what
their working lives will be like. It turns out the students remained intensively involved throughout the sessions,
and as others also have seen, there was much greater comprehension and retention since this approach
allows for ongoing interactions and a mastery of the material.
This approach also gets away from the semester-end or year-end pressure of all exams coming at once. Plus
it allows students to use the ongoing feedback to improve themselves as they take on subsequent segments
of the curriculum.
Why it’s doable
I said at the outset that achieving this goal for legal education is doable with existing resources. It would
require only modest adjustments in what we teach and why we teach it. Adjunct faculty can provide the
substantive knowledge and skills that the tenured faculty might lack. This also means better coordination
between the tenured and adjunct faculty so that, for example, the basic elements of a contract are taught at
the same time as the theory of contracts, or the interaction of evidence and civil procedure can be explored at
the same time advocacy skills are developed.
If there are doubts about the traditional curriculum versus one with these modifications, one approach would
be to create a separate track, even at the so-called top 20 schools. That track would deliver a three-year
course of study, including all of the traditional curriculum but also the elements needed to achieve the
audacious goal above. Students could then select which version of curriculum they want to pursue.
Resulting careers
The legal education goal intentionally includes preparing students for a wide range of possible careers—an
important element since no career path today is guaranteed.
• Midlevel associate. Some would ask, how can a law school graduate already be at a second-year lawyer
level? I used the knowledge and skills matrix used by a number of leading U.S. law firms in developing my
advanced contracts course so that most students are at a second-year lawyer level by the end of the course,
and many are well above that.
• Solo practitioner. Because of the scarcity of jobs—which is likely to become all the worse as law firms reduce
leverage and the turnover of lawyers in response to client and economic pressures—more students are
starting their own solo practices or working in areas tangential to law. A target for the audacious goal in legal
education must be that our JD graduates have the knowledge and skills to immediately enter the profession
without the further mentoring we had otherwise expected would come from starting at a law firm.
• Public service. There’s a lot of talk that we have too many lawyers, and yet most observers believe we don’t
have enough lawyers serving the needs of lower- and even moderate-income individuals, families and
businesses. Plus, law is a profession that rightly emphasizes pro bono and other forms of public service.
Every law school graduate should have experience and be prepared for what is needed in public service,
whether they subsequently engage in it full time or as volunteers.
• Agency or judicial officer. Another career path is to go into the judiciary or become administrative hearing
officers, mediators, arbitrators or providers of alternative legal services. Part of a required law school course of
study should include the basic substantive knowledge and skills for any graduate to be able to go into these
areas of law. And for those who start at law firms or pursue other career paths, having a basic understanding
of the agency and judicial processes will actually make them better lawyers when practicing before these
tribunals, or when later in their careers they move into the judiciary or other government entities.
• Junior faculty member. In other parts of the university, graduates with advanced degrees often go into
university teaching. Forty years ago, U.S. law schools started granting a doctorate degree (JD) instead of the
long-standing bachelor’s in law (LLB). But if we want to justify that what we do in law school produces actual
doctorates, at very least students should be exposed to the challenges and rigors expected of other doctorate
degree-holders. That includes basic teaching and research. Moreover, one of the best ways to learn a field is
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to teach it and engage in basic research, and this should apply to everyone getting a doctorate in law—that is,
a JD. It’s also a way to identify early on those who have extraordinary skills in both teaching and research and
to assist them to enter into true academic (albeit also professional) careers.
Conclusion
Many areas of education use what is called backward curriculum planning. In this process, you first identify
what outcomes you want. In law, this means what substantive knowledge and professional skills are needed
for becoming a lawyer. Having identified those areas, you would next ask, how would we know a given
student has mastered the relevant knowledge and skills? Through written exams? Other approaches?
Once those questions have been answered, and only then, do you ask, so what is the best way to teach that
knowledge and those skills?
I think anyone who undertakes this kind of inquiry in a neutral fashion would likely design a law school
curriculum similar to the audacious goal proposed here.
This goal is readily doable, and with existing resources. There’s no excuse for not doing it, especially given
the legitimate expectations of our students, our profession, our clients and society itself.
* ()This article’s audacious goal for legal education borrows from the concept of a “big hairy audacious
goal” in the book by Stanford business school professors James C. Collins and Jerry I. Porras, Built
to Last—Successful Habits of Visionary Companies. New York: Harper Collins.
Michael Roster is former managing partner of Morrison & Foerster’s Los Angeles office and co-chair of the
firm’s financial institutions practice group worldwide. He subsequently was general counsel of Stanford
University and Stanford Medical Center and then of Golden West Financial Corporation. He is a former chair
of the Association of Corporate Counsel and the Stanford Alumni Association, a former outside director and
vice chair of Silicon Valley Bank and currently a director of MDRC in New York. For the past five years he has
been teaching an advanced contracts course at the University of Southern California Gould School of Law.
Editor’s note: The New Normal (http://www.abajournal.com/topic/the_new_normal) is an ongoing discussion between Paul
Lippe (http://www.abajournal.com/authors/4767), the CEO of Legal OnRamp, Patrick Lamb (http://www.abajournal.com/authors/4768),
founding member of Valorem Law Group and their guests. New Normal contributors spend a lot of time
thinking, writing and speaking about the changes occurring in the delivery of legal services. You’re invited to
join their discussion.
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BEYOND PRACTICAL SKILLS:
NINE STEPS FOR IMPROVING
LEGAL EDUCATION NOW
R. Michael Cassidy*
Abstract: It has been five years since the Carnegie Report Educating Lawyers called upon law schools to adopt an integrated approach to professional education that teaches practical skills and professionalism across the
curriculum. Yet so far, very few schools have responded to this clarion call
for wholesale curricular reform. Considering the inertial effect of traditional law school pedagogy and the institutional impediments to change,
this delay is not surprising. A fully integrated approach to teaching professional skills (such as the medical school model) would require major resource reallocations, realignment of teaching responsibilities, redesign of
courses, and changes to graduation requirements. While I fully support
such comprehensive reform, the pragmatist in me knows that it will take
years to accomplish. My goal in this essay is to offer a “self-help” remedy
for faculty members and administrators interested in responding to the
Carnegie Report’s call for a greater emphasis on experiential education,
but uninterested in waiting for the committee deliberations, reports, faculty votes, and tough resource trade-offs that lie ahead. We drag our heels
at our own peril and to the serious disadvantage of our current students.
What follows is a description of nine changes that individual faculty members and deans can make now to improve the professional education of
law students. Although each initiative when viewed in isolation may seem
modest, collectively they could have a huge impact on our programs.
“When You Come to a Fork in the Road, Take It!”
—Yogi Berra
Introduction
Legal education is at a crossroads. In a series of studies over the
past two decades, reports commissioned by the American Bar Association (ABA) and the Carnegie Foundation for the Advancement of
Teaching have concluded that our nation’s law schools are failing to
-------------------------------------------------------------------------------------------------------------------------------
* © 2012, R. Michael Cassidy, Professor of Law, Boston College Law School. I am grateful to my colleagues Alexis Anderson, Frank Garcia, Ray Madoff, and Judy McMorrow for
their helpful comments on an earlier draft and to my research assistant Kevin Smith (Boston College Law School, Class of 2013) for his very capable editing assistance.
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[Vol. 53:1515
prepare graduates adequately for the practice of law.1 Proposed reforms include providing more practical skills training for our students
and adopting teaching practices that focus more effectively on simulated client experiences.2
The critics’ focus has shifted from the dearth of practical skills
training in the law school curriculum to the lack of integrated skills training. The ABA’s MacCrate Report in 1992 enumerated ten fundamental
skills required of every young lawyer and decried the lack of emphasis
on practical skills at most law schools.3 Although the MacCrate Report
may have helped fuel the expansion of clinical and externship offerings
at many U.S. law schools, it did not bridge or even narrow the divide
between experiential education and doctrinal law school courses.4 The
more recent 2007 Carnegie Report, Educating Lawyers, favors a rethinking of legal education in a more integrated approach that crosses this
doctrinal/clinical divide and that emphasizes practical skills and professional identity at all levels of the curriculum.5
Providing students with the analytical skills necessary to “think like
lawyers” by teaching them to read and dissect appellate decisions may
no longer be sufficient to meet the demands of the legal marketplace.
In a provocative series of articles in the New York Times, columnist David
Segal has criticized the structure, content, and price of legal education.6
“Law schools have long emphasized the theoretical over the useful, with
-------------------------------------------------------------------------------------------------------------------------------
1 See Am. Bar Ass’n, Legal Education and Professional Development—An Educational Continuum, Report of the Taskforce on Law Schools and the Profession: Narrowing the Gap 259–60 (1992) [hereinafter MacCrate Report]; William M.
Sullivan et al., The Carnegie Found. for the Advancement of Teaching, Educating
Lawyers: Preparation for the Profession of Law 12 (2007) [hereinafter Carnegie
Report].
2 MacCrate Report, supra note 1, at 259–60; Carnegie Report, supra note 1, at 12-14.
3 See MacCrate Report, supra note 1, at 135, 240, 259–60. The MacCrate Report recommended ten skills groups in which law students should be fluent before graduating:
problem solving, legal analysis and reasoning, legal research, factual investigation, communication, counseling, negotiation, litigation and alternative dispute resolution, organization and management of legal work, and recognizing and solving legal dilemmas. Id. at
135; John O. Sonsteng et al., A Legal Education Renaissance: A Practical Approach for the Twenty-First Century, 34 Wm. Mitchell. L. Rev. 303, 369–70 (2007).
4 Sonsteng et al., supra note 3, at 370. At most U.S. law schools, participation in a clinic
is still not required for graduation, and experiential learning is not well integrated into the
mainstream doctrinal curriculum. Keith A. Findley, Rediscovering the Lawyer School: Curriculum Reform in Wisconsin, 24 Wis. Int’l L.J. 295, 309 (2006).
5 Carnegie Report, supra note 1, at 12--13.
6 See David Segal, The Price to Play Its Way, N.Y. Times, Dec. 18, 2011, at BU1; David
Segal, What They Don’t Teach Law Students: Lawyering, N.Y. Times, Nov. 20, 2011, at A1 [hereinafter Segal, What They Don’t Teach].
2012]
Beyond Practical Skills: Nine Steps for Improving Legal Education Now
1517
classes that are often overstuffed with antiquated distinctions . . . .”7 The
growing expectation of law firms is that graduates should be better
trained during law school on the skills necessary to practice law.8 Because clients increasingly are balking at being billed for time spent by
first- and second-year associates, law schools that do not modify their
curricula to emphasize practical skills may find themselves at a competitive disadvantage in placing their graduates.9
Although all signals presently point toward preparing more “practice ready” lawyers, how exactly this will be accomplished remains to be
seen. Calls for adopting the medical school model of integrating lecture
courses with practice rotations, culminating with an apprenticeship on
the model of a medical residency, is one of the most frequently cited
alternatives.10 Yet pragmatists among us recognize that an integrated
approach to curricular reform in legal education will occur slowly, if it
occurs at all. Several other commentators—and the Carnegie Report
itself—have noted the inertial effect of traditional law school pedagogy
and the institutional impediments to meaningful change.11 Wholesale
redesign of the curriculum will require additional study, commitment of
financial and intellectual resources, and consensus building among faculty members with diverse perspectives and incentives.
This Essay suggests an interim approach. My objective is to offer a
“self-help” remedy for faculty members and administrators interested in
responding to the Carnegie Report’s clarion call for greater emphasis
on practical skills, but uninterested in waiting for the committee deliberations, reports, faculty votes, and tough resource trade-offs that lie
ahead. We drag our heels at our own peril and to the serious disadvantage of our current students. What follows is a brief description of nine
steps that individual faculty members and deans can take now to improve the professional education of our students. The first five propos-------------------------------------------------------------------------------------------------------------------------------
7 Segal, What They Don’t Teach, supra note 6.
8 Ann Marie Cavazos, Demands of the Marketplace Require Practical Skills: A Necessity for
Emerging Practitioners, and Its Clinical Impact on Society – A Paradigm for Change, 37 J. Legis. 1,
6 (2011); see Segal, What They Don’t Teach, supra note 6.
9 Cavazos, supra note 8, at 6–7; see Segal, What They Don’t Teach, supra note 6.
10 See Roy Stuckey et al., Best Practices for Legal Education 251–53, 279–80
(2007); Christine N. Coughlin et al., See One, Do One, Teach One: Dissecting the Use of Medical
Education’s Signature Pedagogy in the Law School Curriculum, 26 Ga. St. U. L. Rev. 361, 414–
15 (2010).
11 Carnegie Report, supra note 1, at 189--90 (“[E]fforts to improve legal education
have been more piecemeal than comprehensive.”); Nancy B. Rapoport, Eating Our Cake
and Having It, Too: Why Real Change Is So Difficult in Law Schools, 81 Ind. L.J. 359, 366
(2006)(“But there’s very little innovation at the core of legal education. We’re still playing
Christopher Columbus Langdell’s song—not his song of innovation in legal education, but
the monotonous refrain of education in the form of Socratic classes and case law.”).
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[Vol. 53:1515
als are pedagogical improvements that individual faculty members can
make in the courses they presently teach.12 The next three steps are
new courses and one co-curricular project that would significantly improve students’ professional development.13 The final recommendation relates to the faculty appointment process.14 Although each initiative when viewed in isolation may seem modest, collectively they could
have a huge impact on our students and our programs.
I. Collaboration
Traditional law school assignments—whether papers or examinations—are typically completed by students working alone.15 Yet the
practice of law, regardless of the setting, is much more commonly undertaken as a group activity.16 “The image of Atticus Finch working single-handedly and tirelessly to solve his client’s legal problems may have
romantic appeal, but in real life the delivery of legal services is more
likely handled by a team.”17 Lawyers work in tandem with other lawyers,
paralegals, social workers, accountants, and expert witnesses, such as
doctors, scientists, and engineers.18 Therefore, law schools must do a
better job of preparing lawyers to work collaboratively. Group projects
and presentations should be routinely incorporated into course requirements, just as they are so commonly utilized in business schools.
As Professor Gerry Hess has noted, working in a group increases a student’s appreciation for diversity, decreases their sense of isolation, and
helps them learn to mediate conflict.19
It is especially important for law students to learn how to collaborate with non-lawyers. Client problems are rarely purely “legal” in nature.20 The pursuit of a client’s objectives or the resolution of their disputes often requires lawyers to work collaboratively with professionals
from other disciplines.21 Law schools affiliated with universities are es-------------------------------------------------------------------------------------------------------------------------------
12 See infra notes 15--53 and accompanying text.
13 See infra notes 54--75 and accompanying text.
14 See infra notes 76--81 and accompanying text.
15 See Stuckey et al., supra note 10, at 236–38.
16 Gary A. Munneke, Everything You Need to Know (About Practicing Law) . . . You Learned
in Law School, N.Y. St. B.A. J., May 2009, at 32, 34.
17 Id. at 32.
18 See Alexis Anderson, Lynn Barenberg & Paul R. Tremblay, Professional Ethics in Interdisciplinary Collaboratives: Zeal, Paternalism and Mandated Reporting, 13 Clinical L. Rev. 659,
662 (2007).
19 Gerald F. Hess, Heads and Hearts: The Teaching and Learning Environment in Law
School, 52 J. Legal Educ. 75, 94–95 (2002).
20 See Anderson et al., supra note 18, at 660.
21 See id. at 661.
2012]
Beyond Practical Skills: Nine Steps for Improving Legal Education Now
1519
pecially well situated to prepare their students in multi-disciplinary collaboration, by fashioning group projects in upper-level courses that are
cross-listed with other graduate departments.22 For example, at Boston
College we offer a course entitled “Advising the Business Planner,” in
which graduate business (MBA) students are required to develop a
business plan for a new venture and law students are paired with them
to serve as legal advisors to the fictional new company.23 A similar collaborative model could be developed in many other courses; for example, in a Forensic Evidence course, law students could be paired with
graduate nursing students to develop medico-legal protocols for the
collection of evidence samples in criminal cases.
II. Oral Examination
As the MacCrate Report recognized, effective communication skills
are essential to the practice of law.24 Yet law schools primarily teach, reinforce, and evaluate only one form of communication—written.25 Outside of moot court and advocacy courses, oral expression is not heavily
emphasized.26 Whether lawyers are communicating in the courtroom,
in the boardroom, or in individual meetings with current or prospective
clients, their success depends on effective oral expression. Oral communication and listening skills are especially relevant to interviewing
and counseling clients, a task performed by virtually all practicing attorneys.27
-------------------------------------------------------------------------------------------------------------------------------
22 Dean Christopher Edley has argued that one of the advantages of a law school affiliated with a great research university is that it has the tools and capacity to train multidisciplinary problem solvers. Christopher Edley, Jr., Fiat Flux: Evolving Purposes and Ideals of the
Great American Public Law School, 100 Calif. L. Rev. 313, 326 (2012) (“[T]he Great Law
School must forge strong alliances with other professions and disciplines within the university. The traditional silos of academic departments must be overcome to create a culture
of collaboration.”).
23 Nathaniel Kenyon, Course Enables Management, Law Students to Plan Ahead, B.C. Chron.
( Jan. 16, 2003), http://www.bc.edu/bc_org/rvp/pubaf/chronicle/v11/ja16/planner. html.
24 MacCrate Report, supra note 1, at 172–73.
25 See Carnegie Report, supra note 1, at 109–11, 174–75.
26 I do not consider in-class Socratic dialogue sufficient to prepare our graduates for
the extensive oral presentations—formal and informal—that will define such a large part
of their professional roles. For the reasons discussed in Part III, Socratic questioning often
is designed to have a student identify and articulate a narrow legal concept or the holding
of a single case; in the interests of time if not sensitivity, I suspect that few of us use class
questioning to tie together multiple legal doctrines by reference to complex fact patterns.
See infra notes 33--40 and accompanying text. Moreover, in its modern form, Socratic questioning does not tend to capture meaningful participation by 100 percent of class members because students so often are provided with the option to “pass.”
27 Sonsteng et al., supra note 3, at 347.
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One vehicle for emphasizing oral communication across the law
school curriculum is to incorporate oral presentations and/or examinations in smaller classes. Written essay examinations are not sufficiently
accurate in predicting students’ understanding of the material or their
ability to apply what they have learned to new contexts.28 The literature
on teaching and evaluation suggests that multiple assessment formats
provide students with a better opportunity to demonstrate their ability
and knowledge and allow them to practice responding to unanticipated
questions—which is an essential lawyering skill.29 Many law school faculty already use oral evaluation techniques in seminars, whereby students are responsible for presenting draft research papers to classmates.30 A similar objective could be accomplished in smaller lecture
classes with enrollments of thirty or fewer students, and with final grades
based on a mixture of oral and written examinations.31 With the commitment of fifteen hours of evaluation time (one-half hour interview
per student),32 faculty members could both improve their assessment of
learning outcomes and provide a valuable practice experience for their
students.
III. Working through Problems
The MacCrate Report identified problem solving as one of the ten
most important skills for attorneys.33 “Lawyers solve problems, and they
work with raw materials much more complex and variable than judicial
opinions.”34 Yet traditional law school pedagogy based on the Langdellian case method teaches a very specific and particular type of analytical
reasoning.35 The case method presumes that lawyers, as social “scientists,” can study appellate decisions to uncover legal principles, classify
and organize these principles, and then develop a structure that will
allow them to apply the doctrines to a more general set of facts in order
to reach a solution to legal questions.36 This process of conceptualiza-------------------------------------------------------------------------------------------------------------------------------
28 Id. at 346–47.
29 Id. at 404–05.
30 See Coughlin et al., supra note 10, at 411.
31 My friend and colleague Professor Frank Garcia devotes the last two class periods in
one of his courses to graded “mini” oral examinations, where he questions each student
for ten minutes. This method is less time intensive and more efficient than full oral examinations conducted in a faculty member’s office.
32 This fifteen-hour estimate does not necessarily assume additional grading time, if the
faculty member cuts back on the scope and duration of the written examination.
33 MacCrate Report, supra note 1, at 135.
34 Findley, supra note 4, at 302.
35 Id. at 299--300, 302.
36 Id. at 298.
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tion and categorization—so heavily emphasized in law schools for the
past 150 years—employs an inductive form of reasoning and teaches
students to reason from specific examples (i.e., appellate decisions) to
universal propositions. A problem-oriented approach to law teaching,
by contrast, forces students to employ a more deductive reasoning
strategy.37 Rather than being presented with an end product of a case—
the appellate decision—students are given the raw material of facts and
are asked to identify objectives, strategies, and potential solutions.38
It is important to distinguish a “problem” from a “hypothetical.”
The latter, ubiquitous in legal education, employs a very specific factual
scenario to illustrate a single legal doctrine. For example, in an Evidence course a professor might provide the students with a short vignette to illustrate the excited utterance exception to the hearsay rule.
The question students are asked to grapple with is whether an identified out-of-court statement meets the requirements of the particular
exception. Answering the hypothetical still requires inductive reasoning—asking the students to apply a discernible legal principle to a set
of facts. Problems, on the other hand, work in both directions, with
multiple legal issues and compound facts. Problem solving is “the process by which one starts with a factual situation presenting a problem or
an opportunity and figures out the ways in which the problem might be
solved or the opportunity might be realized.”39
In many so-called “podium” courses, law students are first exposed
to problems during the final examination. The classic “issue spotter” —
where students are asked to study a set of facts, discern the possible legal issues, identify alternatives, and propose solutions—demands both
deductive and inductive reasoning strategies. The irony here is that
such exposure comes primarily at the end of the semester through an
evaluative instrument rather than a teaching opportunity.40 The students
typically do not work through the problem with the instructor and with
classmates to learn from their application of facts to law (rather than
law to facts). This is easily fixed. Faculty members can present students
with problems at the end of each section of the syllabus to help them
process the material studied to date and review these problems with the
------------------------------------------------------------------------------------------------------------------------------37 See id. at 316.
38 Id. at 318. See Sharon L. Beckman & Paul R. Tremblay, Foreword: The Way to Carnegie,
32 B.C. J.L. & Soc. Just. 215, 216 (2012) (“The case method misses a great deal of the
practice of law by neglecting clients, the role of fact development and ambiguity, the importance of judgment and reflection, and the ethical underpinnings of serving others in a
professional role.”).
39 Anthony G. Amsterdam, Clinical Legal Education—A 21st-Century Perspective, 34 J. Legal Educ. 612, 614 (1984).
40 Sonsteng et al., supra note 3, at 346.
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students either in class or in smaller study groups. For example, in a
Criminal Law course covering homicide, students might be provided
with a detailed police report and asked to place themselves in the shoes
of the prosecutor to determine what charges to present to the grand
jury (helping them distinguish between degrees of murder and manslaughter). In a Trusts and Estates course, students might be presented
with an intake interview from new clients outlining a couple’s assets
and objectives and asked to make recommendations about ways to
structure legal instruments that would accomplish the clients’ financial
and personal goals. Through these techniques, students can develop
problem-solving skills throughout the semester.
IV. Exposure to Foreign Law
Our graduates increasingly will be practicing in a global environment. The social, political, economic, and legal consequences of globalization must be better understood and addressed in legal education.41
As the interconnectedness between countries grows, an exclusive emphasis on domestic law inadequately prepares our graduates to counsel
clients who will do business globally (such as through e-commerce,
trade, international business transactions, investments, and banking).42
Yet transactional lawyers are not the only attorneys who practice globally; all sorts of legal problems cut across national lines, including marriage and divorce, adoption, human rights, and the management of estates and international trusts.43
A greater exposure to foreign laws not only will prepare our graduates to practice in a global environment, but it will also equip them
with a deeper understanding of the choices made by our own legal system. Many legal questions are simply unanswered by the express terms
of a statute or the four corners of a judicial opinion. Lawyers need a
more panoramic view of the law to argue from analogy for an extension
or novel application of domestic law.44 Cosmopolitan lawyers (and
judges) simply have more colors on their palates from which to choose
in fashioning creative solutions to modern legal problems.
-------------------------------------------------------------------------------------------------------------------------------
41 See generally Anthony A. Tarr, Legal Education in a Global Context, 36 U. Tol. L. Rev.
199 (2004) (arguing that law schools should develop strong international and comparative
law programs).
42 See id. at 200.
43 See Winston P. Nagan & Danie Visser, The Global Challenge to Legal Education: Training
Lawyers for a New Paradigm of Economic, Political and Legal-Cultural Expectations in the 21st
Century, 11 ILSA J. Int’l & Comp. L. 9 passim (2004).
44 See Lawrence v. Texas, 539 U.S. 558, 572–73 (2003) (looking to international law to
interpret domestic constitutional protections).
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Many U.S. casebooks in core subject areas are beginning to incorporate comparative perspectives.45 Although it may be tempting to skip
these casebook sections to save time, streamline our syllabi, and cut
back on reading assignments, that is an unfortunate choice. I have witnessed firsthand how a Criminal Law course is enriched by a comparative discussion of how other countries define the crime of rape. Similarly, some Contracts professors may incorporate a discussion of the
United Nations Convention on Contracts for the International Sale of
Goods (CISG) in their discussions of the law of sales.46 These efforts
should be continued and intensified across the curriculum.
V. Emphasis on Practical Judgment
Good judgment is perhaps the most important and highly valued
character trait a lawyer can possess.47 “Judgment” is the ability to deliberate well—to accurately assess a complex situation, to recognize and
identify alternatives, and to select the course of conduct most likely to
achieve the desired ends.48 This is an iterative process—it requires sensitivity to the salient features of a factual situation, an appreciation of
the multiplicity of concerns at stake, and an ability to perceive, evaluate, and assess the probability of various outcomes and obstacles.49
Although some may argue that one cannot “teach” good judgment,
that is only partially true.50 We can all help model good judgment for our
students. Judgment can be fostered by having students work closely with
more experienced lawyers and watch what they do.51 Certainly the vehicles in the curriculum that are the most conducive to modeling judgment are clinics and externships, where students work closely with ex------------------------------------------------------------------------------------------------------------------------------45 Janet Koven Levit, Sanchez-Llamas v. Oregon: The Glass Is Half Full, 11 Lewis &
Clark L. Rev. 29, 36 (2007).
46 See Tarr, supra note 41, at 203.
47 Daisy Hurst Floyd, Pedagogy and Purpose: Teaching for Practical Wisdom, 63 Mercer L.
Rev. 943, 945 (2012) (“Wisdom is the distinctive value that a lawyer brings to a client.”).
48 See Daniel Mark Nelson, The Priority of Prudence: Virtue and Natural Law
in Thomas Aquinas and the Implications for Modern Ethics 42–43 (1992).
49 See David McGowan, Developing Judgment about Practicing Law 2–3 (2011);
see also Lawrence B. Solum, A Tournament of Virtue, 32 Fla. St. U. L. Rev. 1365, 1385 (2005)
(discussing the Aristotelian virtue of practical wisdom, or phronesis, in the context of judging, and defining this virtue as the “ability to perceive the salient features of particular
situations” and to “size up a case and discern which aspects are legally important”).
50 McGowan, supra note 49, at 2–3; see Jeffrey M. Lipshaw, The Venn Diagram of Business
Lawyering Judgments: Toward a Theory of Practical Metadisciplinarity, 41 Seton Hall L. Rev. 1,
72–74 (2011) (discussing how business judgment for the corporate attorney can be defined and how it might be taught).
51 Aristotle believed that phronesis was achieved over time by seeking out wise mentors
and observing how they operate. See Aristotle, Nicomachean Ethics bk. VI, at 179–80
(Christopher Rowe trans., Oxford Univ. Press 2002) (c. 384 B.C.E.).
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perienced faculty members or carefully selected practicing lawyers in
solving live-client problems.52 But these are not the only places in law
school where judgment can be emphasized and modeled.
Faculty should more regularly utilize practitioners in their podium
courses to model practical judgment. For example, in a Civil Procedure
course, a faculty member could invite to class a panel of distinguished
practitioners involved in a recently settled mass tort action to discuss
how the plaintiff class was structured and certified and what considerations went into negotiating an acceptable settlement. In a Mergers and
Acquisitions course, a faculty member could invite to class counsel for
two recently merged companies to discuss how the deal was structured
and, in particular, what factual and financial considerations guided the
companies’ choice of legal alternatives. Certainly there are costs and
complications associated with such panels—difficulties of planning and
scheduling, trade-offs with respect to lost lecture time, and so forth.
What I am suggesting, however, is that we all should be sensitive to the
value of such experiences in training future professionals, and be willing
to incorporate them in our teaching where feasible and appropriate.53
VI. Professional Formation Retreats
A legal career—even the most stable and fulfilling—is peppered
with difficult clients, bad bosses, long hours, and hard cases. Depression is four times more likely for lawyers than other professional groups
in the United States.54 One factor potentially contributing to this
alarming statistic is that young lawyers are left to grapple with important issues of professional identity on their own, without any conceptual
-------------------------------------------------------------------------------------------------------------------------------
52 See Phyllis Goldfarb, A Theory-Practice Spiral: The Ethics of Feminism and Clinical Education, 75 Minn. L. Rev. 1599, 1692–94 (1991) (“If teaching doctrine is the aim of traditional
education, then teaching ‘doctrine in a vacuum’ frustrates that aim. Legal rules and principles grow out of historical, social, cultural, and ethical contexts. For students to understand fundamentally and work creatively with rules and principles, they must appreciate
the contexts from which these rules and principles emerged. Adopting the clinical and
feminist emphasis on the development of context as a prelude to understanding would
enrich the traditional classroom environment.” (footnotes omitted)).
53 See Floyd, supra note 47, at 956–57 (offering some creative ideas about how to incorporate pedagogy for practical wisdom into a first-year Civil Procedure course).
54 Leslie Larkin Cooney, Walking the Legal Tightrope: Solutions for Achieving a Balanced Life
in Law, 47 San Diego L. Rev. 421, 442 (2010); see also Lawrence S. Krieger, The Inseparability of Professionalism and Personal Satisfaction: Perspectives on Values, Integrity and Happiness, 11
Clinical L. Rev. 425, 427 (2005) (describing how lawyers, in addition to having the highest incidence of depression of any occupation, also suffer from high rates of emotional
distress).
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framework to guide them.55 Our students deserve a reservoir of
strength and self-awareness to help navigate the difficult times that lie
ahead for them in the legal profession.
The Carnegie Report recommended three apprenticeships essential to the professional formation of lawyers: the intellectual or cognitive
apprenticeship, the apprenticeship of practical skills, and the apprenticeship of identity and purpose.56 With respect to the final apprenticeship, students need to explore the core commitments and values that
underlie the legal profession.57 Unfortunately, there is very little space
within a hectic three-year course of study for a conversation about these
meta-issues. Outside of the clinics, issues of professional identity and
purpose seem to be paid lip service by speakers during orientation and
commencement, and then largely ignored in between.58
A weekend “professional formation” retreat might help fill this
gap. Students, faculty, and select alumni would come together in an
informal setting to discuss some of the core competencies and values
underlying the role of lawyers in our society. At this retreat, students
might be exposed to a wealth of literature on these important topics—
Anthony Kronman, Reed Loder, David Luban, and Thomas Schaffer
are scholars who come quickly to mind. Willing and empathic faculty
and alumni would lead the discussion as facilitators. Key questions upon which students might be invited to reflect during the retreat would
include: (1) what are the core values of the legal profession?; (2) what
does it mean, morally and ethically, to be a lawyer?; (3) how should lawyers shoulder the mantles of power and authority in their professional
lives?; and (4) what does it mean to “flourish” as a lawyer and how, if at
all, is that different than flourishing as a person?59
A two-day professionalism retreat may only scratch the surface of
these important questions. But if we want the conversation to continue
throughout practice, we must begin it during law school. My suspicion
is that outside of the clinics, these discussions are happening infre-------------------------------------------------------------------------------------------------------------------------------
55 See Coughlin et al., supra note 10, at 369 n.47 (comparing medical school graduates’
sense of professional identity to that of law school graduates).
56 Carnegie Report, supra note 1, at 8, 27–28.
57 See id. at 8, 13–14, 31; Beverly I. Moran, Disappearing Act: The Lack of Values Training
in Legal Education—A Case for Cultural Competency, 38 S.U. L. Rev. 1, 16 (2010).
58 See Stuckey et al., supra note 10, at 29, 170.
59 Some but not all of these important questions lay at the heart of a vocational discernment retreat we offer at Boston College Law School twice per year. The “Sidebar”
program is designed to help students examine what they want to do with their professional
lives. Although the program itself is ecumenical, it is loosely based on St. Ignatius’s Spiritual Exercises. The retreat’s objectives are to help students discover their vocation in the
law and to enable them to make personal and professional choices that are faithful to their
values.
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quently for most law students in the United States today. One approach
to this deficit is to offer weekend professional identity retreats twice per
year and to strongly encourage (if not require) participation by any law
student who does not intend to enroll in a clinical or externship program.60
VII. Career Paths Course
The legal profession has become increasingly mobile. One of the
key findings of the “After the JD” studies61 is that attorneys in the United States “change jobs more often today than they did in years past.”62
Forty percent of today’s law school graduates will change jobs within
three years of graduation.63 In the five-year period between 2003 and
2007, lawyers in the “After the JD II” study held on average two different
jobs.64 Perhaps more significantly, lawyers are switching jobs between
and among practice settings: fifty-two percent of lawyers in the “After
the JD II” study changed practice settings at least once by their seventh
year after graduation.65
How, if at all, should law schools respond to this sharp rise in lawyer mobility? First, we should help our students make thoughtful choices about their job decisions, so that they are less likely to be surprised
or disappointed about the law practice environment in which they start
their careers. For the top tiers of our classes, this may help them avoid
the “tunnel vision” that so frequently causes some of our most successful law students reflexively to seek positions at large corporate law
firms.66 For the bottom tiers of our classes, this might help students
identify less commonly pursued career paths. In addition to helping all
------------------------------------------------------------------------------------------------------------------------------60 Segal, What They Don’t Teach, supra note 6 (“The majority of law students [in the
United States] still graduate without any clinical experience.”).
61 Through a series of longitudinal studies of a nationally representative sample of law
school ( J.D.) graduates from the class of 2000, the American Bar Foundation and the National Association of Law Placement (NALP) have tracked career mobility for the first three
years after graduation (“After the JD I”) and in years four to seven after graduation (“After
the JD II”). See NALP Found. for Law Career Research & Educ. & Am. Bar Found., After the JD: First Results of a National Study of Legal Careers 13 (2004) [hereinafter
After the JD I], available at http://www.americanbarfoundation.org/uploads/cms/docu
ments/ajd.pdf; Am. Bar Found. & NALP Found. for Law Career Research & Education,
After the JD II: Second Results from a National Study of Legal Careers 12 (2009)
[hereinafter After the JD II], available at http://law.du.edu/documents/directory/publi
cations/sterling/AJD2.pdf.
62 After the JD II, supra note 61, at 54.
63 See Cooney, supra note 54, at 438 (noting that forty percent of associates leave before
their third year of law firm practice).
64 After the JD II, supra note 61, at 54.
65 Id. at 55, tbl.7.1.
66 See Hess, supra note 19, at 78.
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of our students think about their first job after law school, we should
expose them to a broader conversation about career trajectories in the
law, which will better equip them to assess professional opportunities as
they arise throughout their careers. Each of these objectives can be accomplished by offering a “Career Paths” course (e.g., “Planning and
Managing a Legal Career”).67
A “Career Paths” course can enable students to construct a framework for assessing their professional skills and values. These so-called
“Career Paths” courses seem to be offered routinely in MBA programs,
typically by a faculty member in a Business School’s Organizational Behavior Department.68 Yet such courses remain uncommon at law
schools.69 The goal of a careers course would be to have students engage in a self-assessment process that will help them clarify their professional interests, skills, and values.70 After such a self-assessment, students would study the demographics of the legal profession, career options in different labor markets, and key competencies in various professional roles. They would also examine work-life balance issues in various sectors of the industry and the likelihood of being able to integrate successful careers in particular specialties with other personal and
professional goals. The ultimate objective of the inquiry would be to
help students create a professional development plan that will provide
them with a framework for assessing career options. Such a framework
not only will allow students to make better choices when considering
career paths, but it also will help them make a more personal connec-
-------------------------------------------------------------------------------------------------------------------------------
67 Suffolk University Law School offers just such a career paths course. Course Descriptions, Law Practice Planning: Law as a Career and an Enterprise (Seminar), Suffolk Univ.
Law Sch., http://www.law.suffolk.edu/academic/jd/course.cfm?CourseID=222 (last visited Aug. 27, 2012). UCLA School of Law recently offered a career paths course targeted
specifically to students intending to practice in the public interest field. Faculty, Richard
Abel, UCLA Sch. of Law, http://law.ucla.edu/faculty/courses/Pages/richard-abel.aspx
(last visited Aug. 27, 2012) (listing “Planning a Career in Public Interest Law” as a course
offering).
68 See, e.g., Brad Harrington, Syllabus, MB 830: Career Management and Work-Life Integration, (Fall 2007), http://workfamily.sas.upenn.edu/sites/workfamily.sas.upenn.edu/
files/imported/syllabi/harrington.pdf (detailing Boston College Carroll School of Management Professor Brad Harrington’s course for MBA students).
69 Michael Serota, A Personal Constitution, 105 Nw. U. L. Rev. Colloquy 149, 150
(2010).
70 There are possible variations on my proposed careers course. See Serota, supra note
69, at 150, 158--62 (recommending that law schools offer a course on “professional satisfaction,” in which students would explore the intersection between their personal values and
professional opportunities).
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tion between their competencies, skills, and aspirations and the requirements needed to be successful in particular areas of practice.71
VIII. Law Practice Management Course
Employment patterns for lawyers entering the profession have
changed dramatically in the past ten years. The percentage of recent
graduates joining small firms (two to twenty-five lawyers) or starting
their own law practices has increased over the past decade.72 The “Law
Practice Management” course is an important vehicle for exposing students to some of the critical business issues they will confront in the
practice of law.73 Yet fewer than one-third of U.S. law schools appear to
offer such a course in their curriculum.74
The “business” of being a lawyer is not something that we should
assume our students will be exposed to gradually in a large firm setting,
with an extensive safety net of senior lawyers, accountants, public relations personnel, and human resources staff to support them as they
learn. A rigorous Law Practice Management course would cover topics
such as fee arrangements, billing, and collections; creating and maintaining systems for conflict-of-interest checks; business development
and marketing; records retention and management; long-range strategic planning; and information systems technology for lawyers. Indeed,
information technology is increasingly important in our profession, as
both lawyers and their clients look for new and innovative ways to leverage technology to provide legal services in the most efficient manner
possible.75
-------------------------------------------------------------------------------------------------------------------------------
71 See, e.g., Jennifer Gerarda Brown, Reform at the Micro Level: Planning for a Life in the
Law, 43 Harv. C.R.-C.L. L. Rev. 645, 645–48, 650 (2008) (describing Quinnipiac Law
School Professor Jennifer Brown’s conception of such a careers course for law students).
72 Compare Class of 2011 National Summary Report, NALP ( July 2012), http://www.
nalp.org/uploads/NatlSummChart_Classof2011.pdf (finding that, of law school graduates
entering firm practice after their graduation in 2011, 6.0 percent entered solo practice and
53.4 percent entered a small firm practice comprising two to twenty-five attorneys), with
Trends in Law Firm Jobs–Classes of 1982–2001, NALP Bulletin (Oct. 2002), http://www.
nalp.org/2002octtrends (finding that, of law school graduates entering firm practice after
their graduation in 2001, 2.8 percent entered solo practice and 40.2 percent entered a
small firm practice comprising two to twenty-five attorneys).
73 See Gary A. Munneke, Managing a Law Practice: What You Need to Learn in Law School,
30 Pace L. Rev. 1207, 1214–16 (2010) (providing a more complete description of potential
content in a Law Practice Management course).
74 See Debra Moss Curtis, Teaching Law Office Management: Why Law Students Need to
Know the Business of Being a Lawyer, 71 Alb. L. Rev. 201, 206 (2008).
75 See William D. Henderson, Three Generations of U.S. Lawyers: Generalists, Specialists, Project Managers, 70 Md. L. Rev. 373, 382–88 (2011). Professor William Henderson examines
legal automation and process improvement as a tool for containing costs in the context of
corporate representation. Id. It is certainly as important, if not more important, for our
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Beyond Practical Skills: Nine Steps for Improving Legal Education Now
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Although a Law Practice Management course might be especially
useful for third-year students intending to enter the profession in solo
or small firm environments, it might also be extremely worthwhile for
students intending to practice in medium to large firm settings. Students in the latter category would enter the profession with their eyes
open to the business realities of law practice, would be prepared at an
earlier stage of their careers to assume the mantle of leadership in their
firms or departments, and would be more fully equipped with a “parachute” should they jump later to solo or small firm practice.
IX. Attention to the Appointments Process
As modest as they may seem, the changes I propose above have
enormous implications for the faculty appointments process. To realize
fully the changes called for in the Carnegie Report, law schools must
continue to broaden and deepen their clinical and externship offerings, make sure those programs are on sound financial footing, provide
contracts and privileges to clinicians sufficient to attract and retain
highly qualified faculty, and bridge the professional and cultural gaps
that exist at many institutions between clinical and so-called “podium”
faculty. Those complex issues are beyond the scope of this Essay.76 But
even in hiring podium professors, we need to be highly attentive to the
implications of future curriculum reform on our hiring decisions.
Several studies have documented the alarming lack of practice experience possessed by faculty members entering the legal academy. A
1991 study reported that at the “top seven” law schools in the United
States, only sixty-three percent of the faculty possessed prior practice
experience.77 For those having such experience, the average length of
time spent in legal practice was 4.3 years.78 Merely a decade later, another study suggested that the median practice experience of nonclinical and non-legal writing professors hired at top-tier law schools
between 2000 and 2009 had declined to one year, excluding judicial
students to appreciate the potential capacity for technology to help improve access to justice for the lower and middle classes in our society.
76 See generally Margaret Martin Barry et al., Clinical Education for This Millennium: The
Third Wave, 7 Clinical L. Rev. 1 (2000) (describing the history of clinical education);
Peter A. Joy & Robert R. Kuehn, The Evolution of ABA Standards for Clinical Faculty, 75 Tenn.
L. Rev. 183 (2008) (detailing the history of the ABA’s clinical faculty standard).
77 Robert J. Borthwick & Jordan R. Schau, Note, Gatekeepers of the Profession: An Empirical
Profile of the Nation’s Law Professors, 25 U. Mich. J.L. Reform 191, 219 (1991).
78 Id.
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clerkships.79 If the goals of the Carnegie Report are to be realized, this
trend needs to be reversed. Faculty with substantial practice experience
have more real-life examples to draw from in fashioning problems and
simulations for their students, are better positioned to serve as career
mentors, and will be more capable of participating meaningfully in the
formation of professional identity through retreats and co-curricular
activities.80 Certainly there are specific legal disciplines where practice
experience is less critical than in others. For example, in searching for
colleagues to teach legal history or jurisprudence there may be sound
reasons to hire a J.D./Ph.D. whose practice experience is limited or
nonexistent. But these should be the exceptions, not the norm.
A second focal point during the hiring process should be a candidate’s interest in and capacity for innovation in the classroom. A candidate interviewing for a position to teach a podium course (e.g., Contracts or Family Law) typically is asked to explain how they would approach the course and what teaching methods they would employ.81
Too often, the answer provided by candidates to “the teaching question” is some version of “I would do what my favorite professor [X]
did.” When appointments candidates have not reflected on this question beyond choice of casebook and topics to be covered, that is a fairly
strong indication that they do not rank teaching as a particularly high
priority in their constellation of responsibilities as law professors
and/or that they are unlikely to approach the role with novel ideas for
improvement. We should recruit and hire only those candidates who
possess the energy, excitement, and innovative spirit necessary to challenge the status quo and envision what truly is possible in legal education.
Of my nine proposals, this one surely will engender the most controversy. Hiring faculty members with more practice experience will for
some conjure up images of legal academy as “trade school,” a pejorative
label that undoubtedly contributes to faculty divisiveness on the important subject of curriculum reform.82 By now, however, it should be be-------------------------------------------------------------------------------------------------------------------------------
79 Brent E. Newton, Preaching What They Don’t Practice: Why Law Faculties’ Preoccupation
with Impractical Scholarship and Devaluation of Practical Competencies Obstruct Reform in the Legal
Academy, 62 S.C. L. Rev. 105, 129–30 (2010).
80 See Moran, supra note 57, at 41–42 (describing how professors’ uniform experiences
limit faculty bodies’ perspectives).
81 Don Zillman et al., Uncloaking Law School Hiring: A Recruit’s Guide to the AALS Faculty
Recruitment Conference, 38 J. Legal Educ. 345, 353 (1988).
82 See Lipshaw, supra note 50, at 34 & n.115; Segal, What They Don’t Teach, supra note 6;
see also Brian Leiter, David Segal’s Hatchet Job on Law Schools . . ., Brian Leiter’s Law
School Reports, (Nov. 20, 2011, 5:14 PM), http://leiterlawschool.typepad.com/
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yond peradventure that law schools are both graduate schools in the
humanities and professional schools; faculty members have a responsibility both to contribute to the advancement of intellectual discourse
about the law and to train their students as future practitioners. Just as
it is fallacious to suggest that a faculty member should either engage
students in close doctrinal analysis or teach them law practice skills
(they should do both), it is equally fallacious to suggest that an emphasis on new pedagogical methods necessarily represents a devaluation of
scholarship. Clearly we must hire faculty members who have both a capacity to engage in rigorous, insightful scholarship and a capacity to
serve as innovators in the classroom.
Conclusion
It has been five years since the Carnegie Report Educating Lawyers
called for an “integrated” approach to legal education that teaches professional skills and ethics across the curriculum.83 Yet only two schools
that I know of—Washington and Lee University School of Law and
Vermont Law School—have undertaken what may arguably be considered an integrated approach to curriculum design.84 The fact that the
legal academy has been so slow to respond since 2007 is not surprising—a fully integrated approach to teaching professional skills (such as
the medical school model) will require major resource reallocations,
realignment of teaching responsibilities, redesign of courses, and a
change to graduation requirements. Although I fully support such a
comprehensive approach, the pragmatist in me knows that it will take
years to accomplish.
My goal in this Essay has been to suggest some modest, interim
reforms that are perfectly attainable in the short run and can be undertaken now to better prepare our graduates for the practice of law. Individual faculty members and administrators who support the ideals of
the Carnegie Report should undertake these initiatives immediately,
without waiting for the results of faculty studies and fundraising initiatives. None of these nine proposals require substantial new resources or
major structural changes to the law school program.
leiter/2011/11/another-hatchet-job-on-law-schools.html (offering a provocative rejoinder
to David Segal’s article in the New York Times).
83 Carnegie Report, supra note 2, at 12.
84 See Margaret Martin Barry, Practice Ready: Are We There Yet?, 32 B.C. J.L. & Soc. Just.
247, 259–62, 270–72 (2012) (describing curricular reforms at Washington and Lee University School of Law, Vermont Law School, and other institutions). Professor Margaret Barry
offers her own provocative suggestions for a model law school curriculum. Id. at 266–76.
1532
Boston College Law Review
[Vol. 53:1515
Recommendations I to V are pedagogical approaches that can be
undertaken by individual law school faculty members in the courses
they presently teach. We are all in charge of our own classrooms and do
not need to wait for permission to improve our pedagogical methods.
Experimenting with new methodologies will not only improve the educational experience for our students, but it will also reinvigorate and reenergize us as teachers. Many of the teaching methods I have described
above are already being used by some of the most effective law professors across the country.85
Recommendation VI is a student services initiative that interested
Deans for Students could undertake as a pilot project (with the support
and participation of committed faculty and alumni) as a vehicle for exploring issues of professional identity in a casual, retreat-like setting.
Recommendations VII and VIII are new courses that Academic Deans
could enlist qualified adjuncts to teach beginning next year, modeled
quite readily after courses already being taught at some law schools and
many business schools across the country. Finally, Recommendation IX
is a challenge to all of us, in exercising our individual votes in the appointments process, to remember the conclusions of the Carnegie Report and to exercise our fiduciary responsibilities in a fashion that maximizes our potential to make real progress toward those goals.
My proposals are not substitutes for a thoughtful, integrated approach to experiential education. I certainly hope they will not be used
to placate reformers and avoid the very hard work that lies ahead. Yet
considering that it may take decades to realize the full promise and potential of the Carnegie Report, none of us should be content to let the
perfect be the enemy of the good. Our current students deserve our
best efforts to make progress now toward improving the professional
education of lawyers, even if it means proceeding in a piecemeal fashion.
------------------------------------------------------------------------------------------------------------------------------85 See Stuckey et al., supra note 10, at 275.
Drinking is a Problem for 1 in 3 Lawyers Study Finds | National Law Journal
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Drinking is a Problem for 1 in 3 Lawyers,
Study Finds
Junior associates have highest rate of alcohol abuse.
Karen Sloan, The National Law Journal
February 3, 2016
More than a third of practicing attorneys in the United States are problem drinkers and 28
percent struggle with depression, according to a new study conducted by the American Bar
Association and the Hazelden Betty Ford Foundation.
Researchers surveyed nearly 13,000 attorneys nationwide—to date the most
comprehensive effort to quantify substance abuse and depression rates in the
profession—and found that those problems are far more common among attorneys than
other professionals.
For example, 15 percent of physicians and surgeons are problem drinkers based on the
amount of alcohol they consume or the frequency they drink, compared to 36 percent of
lawyers.
“This long-overdue study clearly validates the widely held but empirically undersupported
view that our profession faces truly significant challenges related to attorney well-being,”
said Patrick Krill, an attorney who runs a substance abuse treatment program for lawyers
and judges at Hazelden and a co-author of the study. “Any way you look at it, this data is
very alarming, and paints the picture of an unsustainable professional culture that’s harming
too many people.”
The study, titled “The Prevalence of Substance Use and Other Mental Health Concerns
Among American Attorneys,” appears in the February edition of the Journal of Addiction
Medicine.
Study co-author Linda Albert, a representative of the ABA’s Commission on Lawyer
Assistance, called the numbers “disheartening,” but added that the new data should help
leaders throughout the profession better address the problems of lawyer substance abuse
and mental health.
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Page 2 of 3
Richard Carlton, the director of the State Bar of California’s Lawyer Assistance Program,
said he hopes the study will generate more interest in the scope of these problems and lead
to greater financial support for lawyer assistance programs across the country.
“I think it pretty much confirms what we suspected,” he said of the study’s findings. “The big
change is that I’m constantly asked, ‘What does the data show in terms of these problems
specific to lawyers?’ In the past I’ve had to say, ‘Well, there’s not much empirical data that’s
current.’”
However, Carlton said he was surprised by the finding that attorneys with 10 years or less of
experience had significantly higher rates of alcohol abuse than those with more experience.
That directly contradicts a 1990 study that found rates of substance abuse increased in
conjunction with professional experience.
According to the new study, nearly 29 percent of survey respondents in their first 10 years of
practice qualified as problem drinkers, which dropped to less than 21 percent for those
practicing between 11 and 20 years. More than 32 percent of lawyers under 30 qualify as
problem drinkers, compared with 26 percent of lawyers between the ages of 31 and 40.
Among the 23 percent of survey respondents who said they believe their drinking is a
problem, 27 percent said the problem began in law school, while another 44 percent said the
problem emerged during their first 15 years in practice.
“Taken together, it is reasonable to surmise from these findings that being in the early
stages of one's legal career is strongly correlated with a high risk of developing an alcohol
use disorder,” the study reads.
Today’s young attorneys are facing increased pressure due to soaring educational debt and
the difficult entry-level job market, said Patricia Spataro, director of the New York State Bar
Association’s Lawyer Assistance Program.
“The astronomical debt that they come out of law school with might be a factor,” she said.
“They may feel they have to take whatever job they can get. They just have to start paying
back those loans, and it becomes a desperate situation.”
Additionally, the reality of practicing law may not fit with the expectations—cultivated by
television shows and movies—held by young lawyers, Spataro said.
In light of the new data, lawyer assistance programs should place more emphasis on
intervening in the first 10 years of an attorney’s career, Krill said.
The study also examined substance abuse rates within different practice environments and
found that attorneys working in private firms had the highest rates of alcohol abuse. Among
those attorneys, junior associates reported the highest rate of problem drinking, followed by
senior associates then junior partners.
“That might point to the cultural nature of problem drinking,” Krill said. “When you’re at a law
firm, you’re inculcated into that culture, with these coping mechanisms. Problem drinking is
normalized within many law firms.”
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Drinking is a Problem for 1 in 3 Lawyers Study Finds | National Law Journal
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Law firm attorneys are also encouraged to socialize with clients, which often involves
alcohol, Krill noted.
Carlton said he is pleased the new study quantifies rates of depression and anxiety among
attorneys—an area often overshadowed by alcohol and drug abuse. In addition to the 28
percent of attorneys who experience high or mild levels of depression, 19 percent reported
experiencing anxiety, and 23 percent said they experience stress.
“Attorneys, law schools and law firms really need to get honest about these issues and get
proactive,” Krill said. “Until they do that, lawyer assistance programs won’t be able to
shoulder the load. We need a systemic response, and we now have the opportunity to make
some meaningful progress on this issue.”
Contact Karen Sloan at [email protected]. For more of The National Law Journal's law
school coverage, visit: http://www.facebook.com/NLJLawSchools.
Copyright 2016. ALM Media Properties, LLC. All rights reserved.
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2/4/2016
ORIGINAL RESEARCH
The Prevalence of Substance Use and Other Mental
Health Concerns Among American Attorneys
Patrick R. Krill, JD, LLM, Ryan Johnson, MA, and Linda Albert, MSSW
L
From the Hazelden Betty Ford Foundation (PRK, RJ); Wisconsin Lawyers
Assistance Program (LA).
Received for publication June 26, 2015; accepted October 25, 2015.
Funding: The study was funded by the Hazelden Betty Ford Foundation and the
American Bar Association Commission on Lawyer Assistance Programs.
Conflicts of interest: Linda Albert is an employee of the State Bar of
Wisconsin. Remaining authors are employees of the Hazelden Betty Ford
Foundation. No conflicts of interest are identified.
Send correspondence and reprint requests to Patrick R. Krill, JD, LLM,
Hazelden Betty Ford Foundation, PO Box 11 (RE 11), Center City, MN
55012-0011. E-mail: [email protected].
Copyright ß 2016 American Society of Addiction Medicine. This is an openaccess article distributed under the terms of the Creative Commons
Attribution-Non Commercial-No Derivatives License 4.0, where it is
permissible to download and share the work provided it is properly cited.
The work cannot be changed in any way or used commercially.
ISSN: 1932-0620/15/0901-0031
DOI: 10.1097/ADM.0000000000000182
ittle is known about the current behavioral health climate
in the legal profession. Despite a widespread belief that
attorneys experience substance use disorders and other mental
health concerns at a high rate, few studies have been undertaken to validate these beliefs empirically or statistically.
Although previous research had indicated that those in the
legal profession struggle with problematic alcohol use,
depression, and anxiety more so than the general population,
the issues have largely gone unexamined for decades (Benjamin et al., 1990; Eaton et al., 1990; Beck et al., 1995). The
most recent and also the most widely cited research on these
issues comes from a 1990 study involving approximately
1200 attorneys in Washington State (Benjamin et al.,
1990). Researchers found 18% of attorneys were problem
drinkers, which they stated was almost twice the 10% estimated prevalence of alcohol abuse and dependence among
American adults at that time. They further found that 19% of
the Washington lawyers suffered from statistically significant
elevated levels of depression, which they contrasted with the
then-current depression estimates of 3% to 9% of individuals
in Western industrialized countries.
While the authors of the 1990 study called for
additional research about the prevalence of alcoholism
and depression among practicing US attorneys, a quarter
century has passed with no such data emerging. In contrast,
behavioral health issues have been regularly studied among
physicians, providing a firmer understanding of the needs
of that population (Oreskovich et al., 2012). Although
physicians experience substance use disorders at a rate
similar to the general population, the public health and
safety issues associated with physician impairment have
led to intense public and professional interest in the matter
(DuPont et al., 2009).
Although the consequences of attorney impairment may
seem less direct or urgent than the threat posed by impaired
physicians, they are nonetheless profound and far-reaching.
As a licensed profession that influences all aspects of society,
economy, and government, levels of impairment among
attorneys are of great importance and should therefore be
closely evaluated (Rothstein, 2008). A scarcity of data on the
current rates of substance use and mental health concerns
among lawyers, therefore, has substantial implications and
must be addressed. Although many in the profession have
long understood the need for greater resources and support for
attorneys struggling with addiction or other mental health
concerns, the formulation of cohesive and informed strategies
for addressing those issues has been handicapped by the
46
J Addict Med Volume 10, Number 1, January/February 2016
Objectives: Rates of substance use and other mental health concerns
among attorneys are relatively unknown, despite the potential for
harm that attorney impairment poses to the struggling individuals
themselves, and to our communities, government, economy, and
society. This study measured the prevalence of these concerns among
licensed attorneys, their utilization of treatment services, and what
barriers existed between them and the services they may need.
Methods: A sample of 12,825 licensed, employed attorneys completed surveys, assessing alcohol use, drug use, and symptoms of
depression, anxiety, and stress.
Results: Substantial rates of behavioral health problems were found,
with 20.6% screening positive for hazardous, harmful, and potentially alcohol-dependent drinking. Men had a higher proportion of
positive screens, and also younger participants and those working in
the field for a shorter duration (P < 0.001). Age group predicted
Alcohol Use Disorders Identification Test scores; respondents 30 years
of age or younger were more likely to have a higher score than their
older peers (P < 0.001). Levels of depression, anxiety, and stress
among attorneys were significant, with 28%, 19%, and 23% experiencing symptoms of depression, anxiety, and stress, respectively.
Conclusions: Attorneys experience problematic drinking that is
hazardous, harmful, or otherwise consistent with alcohol use disorders
at a higher rate than other professional populations. Mental health
distress is also significant. These data underscore the need for greater
resources for lawyer assistance programs, and also the expansion of
available attorney-specific prevention and treatment interventions.
Key Words: attorneys, mental health, prevalence, substance use
(J Addict Med 2016;10: 46–52)
Copyright © 2016 American Society of Addiction Medicine. Unauthorized reproduction of this article is prohibited.
J Addict Med Volume 10, Number 1, January/February 2016
outdated and poorly defined scope of the problem (Association of American Law Schools, 1994).
Recognizing this need, we set out to measure the
prevalence of substance use and mental health concerns
among licensed attorneys, their awareness and utilization
of treatment services, and what, if any, barriers exist between
them and the services they may need. We report those
findings here.
METHODS
Procedures
Before recruiting participants to the study, approval
was granted by an institutional review board. To obtain a
representative sample of attorneys within the United States,
recruitment was coordinated through 19 states. Among
them, 15 state bar associations and the 2 largest counties
of 1 additional state e-mailed the survey to their members.
Those bar associations were instructed to send 3 recruitment e-mails over a 1-month period to all members who
were currently licensed attorneys. Three additional states
posted the recruitment announcement to their bar association web sites. The recruitment announcements provided a
brief synopsis of the study and past research in this area,
described the goals of the study, and provided a URL
directing people to the consent form and electronic survey.
Participants completed measures assessing alcohol use,
drug use, and mental health symptoms. Participants
were not asked for identifying information, thus allowing
them to complete the survey anonymously. Because of
concerns regarding potential identification of individual
bar members, IP addresses and geo-location data were
not tracked.
Participants
A total of 14,895 individuals completed the survey.
Participants were included in the analyses if they were
currently employed, and employed in the legal profession,
resulting in a final sample of 12,825. Due to the nature of
recruitment (eg, e-mail blasts, web postings), and that recruitment mailing lists were controlled by the participating bar
associations, it is not possible to calculate a participation rate
among the entire population. Demographic characteristics are
presented in Table 1. Fairly equal numbers of men (53.4%)
and women (46.5%) participated in the study. Age was
measured in 6 categories from 30 years or younger, and
increasing in 10-year increments to 71 years or older; the
most commonly reported age group was 31 to 40 years old.
The majority of the participants were identified as Caucasian/
White (91.3%).
As shown in Table 2, the most commonly reported legal
professional career length was 10 years or less (34.8%),
followed by 11 to 20 years (22.7%) and 21 to 30 years
(20.5%). The most common work environment reported
was in private firms (40.9%), among whom the most common
positions were Senior Partner (25.0%), Junior Associate
(20.5%), and Senior Associate (20.3%). Over two-thirds
(67.2%) of the sample reported working 41 hours or more
per week.
ß
Substance Use and Other Mental Health Concerns
TABLE 1.
Participant Characteristics
n (%)
Total sample
Sex
Men
Women
Age category
30 or younger
31–40
41–50
51–60
61–70
71 or older
Race/ethnicity
Caucasian/White
Latino/Hispanic
Black/African American (non-Hispanic)
Multiracial
Asian or Pacific Islander
Other
Native American
Marital status
Married
Single, never married
Divorced
Cohabiting
Life partner
Widowed
Separated
Have children
Yes
No
Substance use in the past 12 mos
Alcohol
Tobacco
Sedatives
Marijuana
Opioids
Stimulants
Cocaine
12825 (100)
6824 (53.4)
5941 (46.5)
1513
3205
2674
2953
2050
348
(11.9)
(25.2)
(21.0)
(23.2)
(16.1)
(2.7)
11653
330
317
189
150
84
35
(91.3)
(2.6)
(2.5)
(1.5)
(1.2)
(0.7)
(0.3)
8985
1790
1107
462
184
144
123
(70.2)
(14.0)
(8.7)
(3.6)
(1.4)
(1.1)
(1.0)
8420 (65.8)
4384 (34.2)
10874
2163
2015
1307
722
612
107
(84.1)
(16.9)
(15.7)
(10.2)
(5.6)
(4.8)
(0.8)
Substance use includes both illicit and prescribed usage.
Materials
Alcohol Use Disorders Identification Test
The Alcohol Use Disorders Identification Test (AUDIT)
(Babor et al., 2001) is a 10-item self-report instrument
developed by the World Health Organization (WHO) to
screen for hazardous use, harmful use, and the potential for
alcohol dependence. The AUDIT generates scores ranging
from 0 to 40. Scores of 8 or higher indicate hazardous or
harmful alcohol intake, and also possible dependence (Babor
et al., 2001). Scores are categorized into zones to reflect
increasing severity with zone II reflective of hazardous use,
zone III indicative of harmful use, and zone IV warranting full
diagnostic evaluation for alcohol use disorder. For the purposes of this study, we use the phrase ‘‘problematic use’’ to
capture all 3 of the zones related to a positive AUDIT screen.
The AUDIT is a widely used instrument, with well
established validity and reliability across a multitude of
populations (Meneses-Gaya et al., 2009). To compare current
rates of problem drinking with those found in other populations, AUDIT-C scores were also calculated. The AUDIT-C
is a subscale comprised of the first 3 questions of the AUDIT
2016 American Society of Addiction Medicine
Copyright © 2016 American Society of Addiction Medicine. Unauthorized reproduction of this article is prohibited.
47
J Addict Med Volume 10, Number 1, January/February 2016
Krill et al.
TABLE 2.
Professional Characteristics
n (%)
Total sample
Years in field (yrs)
0–10
11–20
21–30
31–40
41 or more
Work environment
Private firm
Sole practitioner, private practice
In-house government, public, or nonprofit
In-house: corporation or for-profit institution
Judicial chambers
Other law practice setting
College or law school
Other setting (not law practice)
Bar Administration or Lawyers Assistance Program
Firm position
Clerk or paralegal
Junior associate
Senior associate
Junior partner
Managing partner
Senior partner
Hours per wk
Under 10 h
11–20 h
21–30 h
31–40 h
41–50 h
51–60 h
61–70 h
71 h or more
Any litigation
Yes
No
12825 (100)
4455
2905
2623
2204
607
(34.8)
(22.7)
(20.5)
(17.2)
(4.7)
5226
2678
2500
937
750
289
191
144
55
(40.9)
(21.0)
(19.6)
(7.3)
(7.3)
(2.3)
(1.5)
(1.1)
(0.4)
128
1063
1052
608
738
1294
(2.5)
(20.5)
(20.3)
(11.7)
(14.2)
(25.0)
238
401
595
2946
5624
2310
474
136
(1.9)
(3.2)
(4.7)
(23.2)
(44.2)
(18.2)
(3.7)
(1.1)
9611 (75.0)
3197 (25.0)
focused on the quantity and frequency of use, yielding a range
of scores from 0 to 12. The results were analyzed using a cutoff score of 5 for men and 4 for women, which have been
interpreted as a positive screen for alcohol abuse or possible
alcohol dependence (Bradley et al., 1998; Bush et al., 1998).
Two other subscales focus on dependence symptoms (eg,
impaired control, morning drinking) and harmful use (eg,
blackouts, alcohol-related injuries).
Depression Anxiety Stress Scales-21 item version
The Depression Anxiety Stress Scales-21 (DASS-21) is
a self-report instrument consisting of three 7-item subscales
assessing symptoms of depression, anxiety, and stress. Individual items are scored on a 4-point scale (0–3), allowing for
subscale scores ranging from 0 to 21 (Lovibond and Lovibond, 1995). Past studies have shown adequate construct
validity and high internal consistency reliability (Antony
et al., 1998; Clara et al., 2001; Crawford and Henry, 2003;
Henry and Crawford, 2005).
Drug Abuse Screening Test-10 item version
The short-form Drug Abuse Screening Test-10 (DAST)
is a 10-item, self-report instrument designed to screen and
quantify consequences of drug use in both a clinical and
48
research setting. The DAST scores range from 0 to 10 and are
categorized into low, intermediate, substantial, and severeconcern categories. The DAST-10 correlates highly with both
20-item and full 28-item versions, and has demonstrated
reliability and validity (Yudko et al., 2007).
RESULTS
Descriptive statistics were used to outline personal and
professional characteristics of the sample. Relationships
between variables were measured through x2 tests for independence, and comparisons between groups were tested using
Mann-Whitney U tests and Kruskal-Wallis tests.
Alcohol Use
Of the 12,825 participants included in the analysis,
11,278 completed all 10 questions on the AUDIT, with
20.6% of those participants scoring at a level consistent with
problematic drinking. The relationships between demographic
and professional characteristics and problematic drinking are
summarized in Table 3. Men had a significantly higher proportion of positive screens for problematic use compared with
women (x2 [1, N ¼ 11,229] ¼ 154.57, P < 0.001); younger
participants had a significantly higher proportion compared
with the older age groups (x2 [6, N ¼ 11,213] ¼ 232.15,
P < 0.001); and those working in the field for a shorter duration
had a significantly higher proportion compared with those who
had worked in the field for longer (x2 [4, N ¼ 11,252] ¼ 230.01,
P < 0.001). Relative to work environment and position,
attorneys working in private firms or for the bar association
had higher proportions than those in other environments
(x2 [8, N ¼ 11,244] ¼ 43.75, P < 0.001), and higher proportions were also found for those at the junior or
senior associate level compared with other positions (x2 [6,
N ¼ 4671] ¼ 61.70, P < 0.001).
Of the 12,825 participants, 11,489 completed the first
3 AUDIT questions, allowing an AUDIT-C score to be calculated. Among these participants, 36.4% had an AUDIT-C score
consistent with hazardous drinking or possible alcohol abuse or
dependence. A significantly higher proportion of women
(39.5%) had AUDIT-C scores consistent with problematic
use compared with men (33.7%) (x2 [1, N ¼ 11,440] ¼
41.93, P < 0.001).
A total of 2901 participants (22.6%) reported that they
have felt their use of alcohol or other substances was problematic at some point in their lives; of those that felt their use has
been a problem, 27.6% reported problematic use manifested
before law school, 14.2% during law school, 43.7% within 15
years of completing law school, and 14.6% more than 15 years
after completing law school.
An ordinal regression was used to determine the predictive validity of age, position, and number of years in the
legal field on problematic drinking behaviors, as measured by
the AUDIT. Initial analyses included all 3 factors in a model to
predict whether or not respondents would have a clinically
significant total AUDIT score of 8 or higher. Age group
predicted clinically significant AUDIT scores; respondents
30 years of age or younger were significantly more likely to
have a higher score than their older peers (b ¼ 0.52, Wald
[df ¼ 1] ¼ 4.12, P < 0.001). Number of years in the field
ß
2016 American Society of Addiction Medicine
Copyright © 2016 American Society of Addiction Medicine. Unauthorized reproduction of this article is prohibited.
J Addict Med Volume 10, Number 1, January/February 2016
TABLE 3.
Substance Use and Other Mental Health Concerns
Summary Statistics for Alcohol Use Disorders Identification Test (AUDIT)
AUDIT Statistics
Total sample
Sex
Men
Women
Age category (yrs)
30 or younger
31–40
41–50
51–60
61–70
71 or older
Years in field (yrs)
0–10
11–20
21–30
31–40
41 or more
Work environment
Private firm
Sole practitioner, private practice
In-house: government, public, or nonprofit
In-house: corporation or for-profit institution
Judicial chambers
College or law school
Bar Administration or Lawyers Assistance Program
Firm position
Clerk or paralegal
Junior associate
Senior associate
Junior partner
Managing partner
Senior partner
n
M
SD
Problematic %
P
11,278
5.18
4.53
20.6%
6012
5217
5.75
4.52
4.88
4.00
25.1%
15.5%
1393
2877
2345
2548
1753
297
6.43
5.84
4.99
4.63
4.33
4.22
4.56
4.86
4.65
4.38
3.80
3.28
31.9%
25.1%
19.1%
16.2%
14.4%
12.1%
3995
2523
2272
1938
524
6.08
5.02
4.65
4.39
4.18
4.78
4.66
4.43
3.87
3.29
28.1%
19.2%
15.6%
15.0%
13.2%
<0.001
4712
2262
2198
828
653
163
50
5.57
4.94
4.94
4.91
4.46
4.90
5.32
4.59
4.72
4.45
4.15
3.83
4.66
4.62
23.4%
19.0%
19.2%
17.8%
16.1%
17.2%
24.0%
<0.001
115
964
938
552
671
1159
5.05
6.42
5.89
5.76
5.22
4.99
4.13
4.57
5.05
4.85
4.53
4.26
16.5%
31.1%
26.1%
23.6%
21.0%
18.5%
<0.001
<0.001
<0.001
The AUDIT cut-off for hazardous, harmful, or potential alcohol dependence was set at a score of 8.
Comparisons were analyzed using Mann-Whitney U tests and Kruskal-Wallis tests.
approached significance, with higher AUDIT scores predicted
for those just starting out in the legal profession (0–10 yrs of
experience) (b ¼ 0.46, Wald [df ¼ 1] ¼ 3.808, P ¼ 0.051).
Model-based calculated probabilities for respondents aged
30 or younger indicated that they had a mean probability of
0.35 (standard deviation [SD] ¼ 0.01), or a 35% chance for
scoring an 8 or higher on the AUDIT; in comparison, those
respondents who were 61 or older had a mean probability of
0.17 (SD ¼ 0.01), or a 17% chance of scoring an 8 or higher.
Each of the 3 subscales of the AUDIT was also investigated. For the AUDIT-C, which measures frequency and
quantity of alcohol consumed, age was a strong predictor of
subscore, with younger respondents demonstrating significantly higher AUDIT-C scores. Respondents who were
30 years old or younger, 31 to 40 years old, and 41 to 50
years old all had significantly higher AUDIT-C scores than
their older peers, respectively (b ¼ 1.16, Wald [df ¼ 1] ¼
24.56, P < 0.001; b ¼ 0.86, Wald [df ¼ 1] ¼ 16.08,
P < 0.001; and b ¼ 0.48, Wald [df ¼ 1] ¼ 6.237, P ¼ 0.013),
indicating that younger age predicted higher frequencies of
drinking and quantity of alcohol consumed. No other factors
were significant predictors of AUDIT-C scores. Neither the
predictive model for the dependence subscale nor the harmful
use subscale indicated significant predictive ability for the
3 included factors.
ß
Drug Use
Participants were questioned regarding their use of
various classes of both licit and illicit substances to provide
a basis for further study. Participant use of substances is
displayed in Table 1. Of participants who endorsed use of
a specific substance class in the past 12 months, those using
stimulants had the highest rate of weekly usage (74.1%),
followed by sedatives (51.3%), tobacco (46.8%), marijuana
(31.0%), and opioids (21.6%). Among the entire sample,
26.7% (n ¼ 3419) completed the DAST, with a mean score
of 1.97 (SD ¼ 1.36). Rates of low, intermediate, substantial,
and severe concern were 76.0%, 20.9%, 3.0%, and 0.1%,
respectively. Data collected from the DAST were found to
not meet the assumptions for more advanced statistical
procedures. As a result, no inferences about these data
could be made.
Mental Health
Among the sample, 11,516 participants (89.8%) completed all questions on the DASS-21. Relationships between
demographic and professional characteristics and depression,
anxiety, and stress subscale scores are summarized in Table 4.
While men had significantly higher levels of depression
(P < 0.05) on the DASS-21, women had higher levels of
anxiety (P < 0.001) and stress (P < 0.001). DASS-21 anxiety,
2016 American Society of Addiction Medicine
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49
J Addict Med Volume 10, Number 1, January/February 2016
Krill et al.
TABLE 4.
Summary Statistics for Depression Anxiety Stress Scale (DASS-21)
DASS Depression
Total sample
Sex
Men
Women
Age category (yrs)
30 or younger
31–40
41–50
51–60
61–70
71 or older
Years in field
0–10 yrs
11–20 yrs
21–30 yrs
31–40 yrs
41 or more yrs
Work environment
Private firm
Sole practitioner, private practice
In-house: government, public, or nonprofit
In-house: corporation or for-profit institution
Judicial chambers
College or law school
Bar Administration or Lawyers
Assistance Program
Firm position
Clerk or paralegal
Junior associate
Senior associate
Junior partner
Managing partner
Senior partner
DASS-21 category frequencies
Normal
Mild
Moderate
Severe
Extremely severe
n
M
SD
12300
3.51
4.29
6518
5726
3.67
3.34
4.46
4.08
1476
3112
2572
2808
1927
326
3.71
3.96
3.83
3.41
2.63
2.03
4.15
4.50
4.54
4.27
3.65
3.16
4330
2800
2499
2069
575
3.93
3.81
3.37
2.81
1.95
4.45
4.48
4.21
3.84
3.02
5028
2568
2391
900
717
182
55
3.47
4.27
3.45
2.96
2.39
2.90
2.96
4.17
4.84
4.26
3.66
3.50
3.72
3.65
120
1034
1021
590
713
1219
n
8816
1172
1278
496
538
3.98
3.93
4.20
3.88
2.77
2.70
%
71.7
9.5
10.4
4.0
4.4
4.97
4.25
4.60
4.22
3.58
3.61
DASS Anxiety
P
n
M
SD
12277
1.96
2.82
6515
5705
1.84
2.10
2.79
2.86
1472
3113
2565
2801
1933
316
2.62
2.43
2.03
1.64
1.20
0.95
3.18
3.15
2.92
2.50
2.06
1.73
<0.001
4314
2800
2509
2063
564
2.51
2.09
1.67
1.22
1.01
3.13
3.01
2.59
1.98
1.94
<0.001
5029
2563
2378
901
710
188
52
2.01
2.18
1.91
1.84
1.31
1.43
1.40
2.85
3.08
2.69
2.80
2.19
2.09
1.94
121
1031
1020
592
706
1230
n
9908
1059
615
310
385
2.10
2.73
2.37
2.16
1.62
1.37
%
80.7
8.6
5.0
2.5
3.1
2.88
3.31
2.95
2.78
2.50
2.43
<0.05
<0.001
<0.001
DASS Stress
P
P
n
M
SD
12271
4.97
4.07
6514
5705
4.75
5.22
4.08
4.03
1472
3107
2559
2802
1929
325
5.54
5.99
5.36
4.47
3.46
2.72
4.61
4.31
4.12
3.78
3.27
3.21
<0.001
4322
2777
2498
2084
562
5.82
5.45
4.46
3.74
2.81
4.24
4.20
3.79
3.43
3.01
<0.001
<0.001
5027
2567
2382
898
712
183
53
5.11
5.22
4.91
4.74
3.80
4.48
4.74
4.06
4.34
3.97
3.97
3.44
3.61
3.55
<0.001
121
1033
1020
586
709
1228
n
9485
1081
1001
546
158
4.68
5.78
5.91
5.68
4.73
4.08
%
77.3
8.8
8.2
4.4
1.3
3.81
4.16
4.33
4.15
3.84
3.57
<0.001
<0.001
<0.001
<0.001
<0.001
<0.001
Comparisons were analyzed using Mann-Whitney U tests and Kruskal-Wallis tests.
depression, and stress scores decreased as participants’ age or
years worked in the field increased (P < 0.001). When comparing positions within private firms, more senior positions
were generally associated with lower DASS-21 subscale
scores (P < 0.001). Participants classified as nonproblematic
drinkers on the AUDIT had lower levels of depression, anxiety,
and stress (P < 0.001), as measured by the DASS-21.
Comparisons of DASS-21 scores by AUDIT drinking classification are outlined in Table 5.
Participants were questioned regarding any past mental
health concerns over the course of their legal career, and
provided self-report endorsement of any specific mental
health concerns they had experienced. The most common
mental health conditions reported were anxiety (61.1%),
followed by depression (45.7%), social anxiety (16.1%),
attention deficit hyperactivity disorder (12.5%), panic disorder (8.0%), and bipolar disorder (2.4%). In addition, 11.5%
of the participants reported suicidal thoughts at some point
during their career, 2.9% reported self-injurious behaviors,
and 0.7% reported at least 1 prior suicide attempt.
50
Treatment Utilization and Barriers to
Treatment
Of the 6.8% of the participants who reported past treatment for alcohol or drug use (n ¼ 807), 21.8% (n ¼ 174)
reported utilizing treatment programs specifically tailored to
legal professionals. Participants who had reported prior treatment tailored to legal professionals had significantly lower
mean AUDIT scores (M ¼ 5.84, SD ¼ 6.39) than participants
who attended a treatment program not tailored to legal professionals (M ¼ 7.80, SD ¼ 7.09, P < 0.001).
Participants who reported prior treatment for substance
use were questioned regarding barriers that impacted their
ability to obtain treatment services. Those reporting no prior
treatment were questioned regarding hypothetical barriers in
the event they were to need future treatment or services. The
2 most common barriers were the same for both groups: not
wanting others to find out they needed help (50.6% and 25.7%
for the treatment and nontreatment groups, respectively), and
concerns regarding privacy or confidentiality (44.2% and
23.4% for the groups, respectively).
ß
2016 American Society of Addiction Medicine
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J Addict Med Volume 10, Number 1, January/February 2016
Substance Use and Other Mental Health Concerns
TABLE 5. Relationship AUDIT Drinking Classification and
DASS-21 Mean Scores
attorneys aged 31 to 40 (26.1%), with declining rates
reported thereafter.
Levels of depression, anxiety, and stress among attorneys reported here are significant, with 28%, 19%, and 23%
experiencing mild or higher levels of depression, anxiety, and
stress, respectively. In terms of career prevalence, 61%
reported concerns with anxiety at some point in their career
and 46% reported concerns with depression. Mental health
concerns often co-occur with alcohol use disorders (Gianoli
and Petrakis, 2013), and our study reveals significantly higher
levels of depression, anxiety, and stress among those screening positive for problematic alcohol use. Furthermore, these
mental health concerns manifested on a similar trajectory to
alcohol use disorders, in that they generally decreased as both
age and years in the field increased. At the same time, those
with depression, anxiety, and stress scores within the normal
range endorsed significantly fewer behaviors associated with
problematic alcohol use.
While some individuals may drink to cope with their
psychological or emotional problems, others may experience
those same problems as a result of their drinking. It is not clear
which scenario is more prevalent or likely in this population,
though the ubiquity of alcohol in the legal professional culture
certainly demonstrates both its ready availability and social
acceptability, should one choose to cope with their mental
health problems in that manner. Attorneys working in private
firms experience some of the highest levels of problematic
alcohol use compared with other work environments, which
may underscore a relationship between professional culture
and drinking. Irrespective of causation, we know that cooccurring disorders are more likely to remit when addressed
concurrently (Gianoli and Petrakis, 2013). Targeted interventions and strategies to simultaneously address both the alcohol
use and mental health of newer attorneys warrant serious
consideration and development if we hope to increase overall
well being, longevity, and career satisfaction.
Encouragingly, many of the same attorneys who seem to
be at risk for alcohol use disorders are also those who should
theoretically have the greatest access to, and resources for,
therapy, treatment, and other support. Whether through
employer-provided health plans or increased personal financial means, attorneys in private firms could have more options
for care at their disposal. However, in light of the pervasive
fears surrounding their reputation that many identify as a
barrier to treatment, it is not at all clear that these individuals
would avail themselves of the resources at their disposal while
working in the competitive, high-stakes environment found in
many private firms.
Compared with other populations, we find the significantly higher prevalence of problematic alcohol use among
attorneys to be compelling and suggestive of the need for
tailored, profession-informed services. Specialized treatment
services and profession-specific guidelines for recovery management have demonstrated efficacy in the physician population, amounting to a level of care that is quantitatively and
qualitatively different and more effective than that available to
the general public (DuPont et al., 2009).
Our study is subject to limitations. The participants
represent a convenience sample recruited through e-mails and
Nonproblematic Problematic
M (SD)
DASS-21 total score
DASS-21 subscale
Depression
scores
Anxiety
Stress
9.36 (8.98)
3.08 (3.93)
1.71 (2.59)
4.59 (3.87)
M (SD)
P
14.77 (11.06) <0.001
5.22 (4.97) <0.001
2.98 (3.41)
6.57 (4.38)
<0.001
<0.001
AUDIT, Alcohol Use Disorders Identification Test; DASS-21, Depression Anxiety
Stress Scales-21.
The AUDIT cut-off for hazardous, harmful, or potential alcohol dependence was set
at a score of 8.
Means were analyzed using Mann-Whitney U tests.
DISCUSSION
Our research reveals a concerning amount of behavioral
health problems among attorneys in the United States. Our
most significant findings are the rates of hazardous, harmful,
and potentially alcohol dependent drinking and high rates of
depression and anxiety symptoms. We found positive AUDIT
screens for 20.6% of our sample; in comparison, 11.8% of a
broad, highly educated workforce screened positive on the
same measure (Matano et al., 2003). Among physicians and
surgeons, Oreskovich et al. (2012) found that 15% screened
positive on the AUDIT-C subscale focused on the quantity and
frequency of use, whereas 36.4% of our sample screened
positive on the same subscale. While rates of problematic
drinking in our sample are generally consistent with those
reported by Benjamin et al. (1990) in their study of attorneys
(18%), we found considerably higher rates of mental
health distress.
We also found interesting differences among attorneys
at different stages of their careers. Previous research had
demonstrated a positive association between the increased
prevalence of problematic drinking and an increased amount
of years spent in the profession (Benjamin et al., 1990). Our
findings represent a direct reversal of that association, with
attorneys in the first 10 years of their practice now experiencing the highest rates of problematic use (28.9%), followed
by attorneys practicing for 11 to 20 years (20.6%), and
continuing to decrease slightly from 21 years or more. These
percentages correspond with our findings regarding position
within a law firm, with junior associates having the highest
rates of problematic use, followed by senior associates, junior
partners, and senior partners. This trend is further reinforced
by the fact that of the respondents who stated that they believe
their alcohol use has been a problem (23%), the majority
(44%) indicated that the problem began within the first
15 years of practice, as opposed to those who indicated the
problem started before law school (26.7%) or after more than
15 years in the profession (14.5%). Taken together, it is
reasonable to surmise from these findings that being in the
early stages of one’s legal career is strongly correlated with a
high risk of developing an alcohol use disorder. Working from
the assumption that a majority of new attorneys will be under
the age of 40, that conclusion is further supported by the fact
that the highest rates of problematic drinking were present
among attorneys under the age of 30 (32.3%), followed by
ß
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51
Krill et al.
J Addict Med Volume 10, Number 1, January/February 2016
news postings to state bar mailing lists and web sites. Because
the participants were not randomly selected, there may be a
voluntary response bias, over-representing individuals that
have a strong opinion on the issue. Additionally, some of those
that may be currently struggling with mental health or substance use issues may have not noticed or declined the
invitation to participate. Because the questions in the survey
asked about intimate issues, including issues that could
jeopardize participants’ legal careers if asked in other contexts
(eg, illicit drug use), the participants may have withheld
information or responded in a way that made them seem
more favorable. Participating bar associations voiced a concern over individual members being identified based on
responses to questions; therefore no IP addresses or geolocation data were gathered. However, this also raises the
possibility that a participant took the survey more than once,
although there was no evidence in the data of duplicate
responses. Finally, and most importantly, it must be emphasized that estimations of problematic use are not meant to
imply that all participants in this study deemed to demonstrate
symptoms of alcohol use or other mental health disorders
would individually meet diagnostic criteria for such disorders
in the context of a structured clinical assessment.
The authors also thank the Hazelden Betty Ford
Foundation and The American Bar Association for their
support of this project.
CONCLUSIONS
Attorneys experience problematic drinking that is
hazardous, harmful, or otherwise generally consistent with
alcohol use disorders at a rate much higher than other
populations. These levels of problematic drinking have a
strong association with both personal and professional
characteristics, most notably sex, age, years in practice,
position within firm, and work environment. Depression,
anxiety, and stress are also significant problems for this
population and most notably associated with the same
personal and professional characteristics. The data reported
here contribute to the fund of knowledge related to behavioral health concerns among practicing attorneys and serve
to inform investments in lawyer assistance programs and an
increase in the availability of attorney-specific treatment.
Greater education aimed at prevention is also indicated,
along with public awareness campaigns within the profession designed to overcome the pervasive stigma surrounding substance use disorders and mental health concerns. The
confidential nature of lawyer-assistance programs should be
more widely publicized in an effort to overcome the privacy
concerns that may create barriers between struggling attorneys and the help they need.
ACKNOWLEDGMENTS
The authors thank Bethany Ranes, PhD, and Valerie
Slaymaker, PhD, of the Hazelden Betty Ford Foundation for
their contributions to the analyses (BR) and overall manuscript (VS).
52
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