Saturday, January 1, 2011

On the absence of truly "foundational" lawyering skills

A question for 2011:

What are the foundational skills of law practice?

And a possible answer: There aren't any.

Of course, there are a lot of skills that competent lawyers need to possess and employ. Although one law job is by no means necessarily the same as the next, there are probably even some skills -- an understanding of how cases and statutes work, for example -- that almost all practicing lawyers make use of.

But I mean "foundational" in a different sense -- not what do you need to be a competent attorney, but what do you need in order to learn how to be a competent attorney. Are there some skills, in other words, which lawyers need to learn first, before they can learn other elements of the total repertoire they will ultimately need?

This is the question to which I think the answer is no. We can test the correctness of this arguably counterintuitive answer by asking ourselves whether someone could begin his or her preparation for a legal career only by studying legal doctrine. American law schools in a sense are organized as if that were so -- hence the immersion in legal doctrine in the first year. But many of our students come to law school after years of experience in jobs such as paralegal positions. What these students have done, presumably, is to begin their "preparation" by engaging in circumscribed forms of the practice of law itself -- reviewing documents, perhaps, or organizing trial files, or conducting initial interviews of potential clients. Some paralegals no doubt also get initial training in the meaning and manipulation of legal doctrine, but for those who don't, the fact is that they were able to begin their acquisition of legal expertise by studying something other than legal doctrine.

To say that no particular starting point is essential leaves many possibilities still to be explored. Perhaps some particular starting point is desirable even though not essential. Perhaps some set of skills, or some combination of knowledge and skills, needs to be assembled in the course of "preparation" -- though not necessarily right at the start of the process -- for a lawyer to develop successfully. These are issues worth close examination (look for further posts this year).

But for the reasons I've just expressed, I think it is a mistake, in considering how to structure legal education or the broader process of lawyers' "preparation," to start from the idea that there is some single foundational point that must be the rock on which everything else is later assembled.

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