Category Archives: Legal Education

Remembering the human factor in the practice of law

The human factor in the practice of lawA century ago, Dean Roscoe Pound famously exhorted the legal profession to transform its institutions of justice and adjust its principles “to the human conditions they are to govern”, “putting the human factor in the central place”.

I read those words in law school but failed to appreciate their meaning – until I began to work with clients as a lawyer. A teacher wrongly accused of sexual assault by a pupil. A physician discriminated against because of race and gender, then subjected to retaliation and threats of violence. Parents who lost their only child because of a driver’s recklessness. These were the human faces of the law. No longer capitalized Law with imposing marble columns, law became human, substantially more than case book and statute, precedent and logic.

I thought of Pound’s words and remembered the faces of these long-ago clients when I read a letter in this week’s Massachusetts Lawyers Weekly from an attorney reflecting on the human element in the practice of law.

He described an experience in a family law class while he was still a student:

On the first day of class, [the professor] chose me to play the role of the lawyer advising a women in distress who was seeking legal advice about divorce….[The professor] played the role of the distressed woman client.

I jumped right in with both feet. I asked how she was doing. Well, you couldn’t have scripted a better blunder to demonstrate her point, and she let me know it right in front of my 100 or so classmates – a moment that is burned into my consciousness and I fear always will be.

The [professor’s] point was that, as lawyers, we are providing a service – a legal service. We are not counselors, comforters or friends. What the client needs at that moment from us is a clear dividing line, something she can rely on in a world turned upside down: clear, precise, level-headed guidance.

Many years after this incident, learning that a client was suffering a recurrence of cancer gave this lawyer a fresh opportunity to reassess his professor’s advice, concluding that “things aren’t quite as simple in life as she would have had us believe”.

I realized at that moment that sometimes our clients need us not to be lawyers; they need us to be human beings.

I can only imagine what this law professor might have thought of practices such as collaborative law or mediation – methods of resolving disputes that very much put “the human factor in the central place”.

It’s hard to believe that a commonplace act of civility could have provoked such punishment – public humiliation in front of an entire law school class – an experience the letter writer has plainly never forgotten. Where in the Rules of Professional Conduct does it say that you must abandon your humanity in exchange for the Esq. that adorns the end of your name?

What an extraordinary lesson to impart to students: that professionalism and compassion are somehow mutually exclusive.

Testing for negotiation skills, creativity: an LSAT for the 21st century

An LSAT for the 21st century

In the U.S., thousands of graduate school applicants sit each year for one or more of the standardized tests that most universities require as part of their admissions process.  One of them, the Law School Admission Test, known as the LSAT, measures the reading comprehension and verbal reasoning skills of hopeful attorneys-to-be — yielding results that purport to predict success in law school and in practice later.

But does the LSAT in fact measure the right stuff?

Researchers at the UC-Berkeley School of Law think that they have identified tests more accurate than the LSAT, according to a report by Petra Pasternak published at Law.com, “Berkeley Wants Research on LSAT Alternatives to Go National“. According to Pasternak,

Roughly 10 years have passed since Berkeley law professor Marjorie Shultz set out to find a more complete way to test students for admission to law school. This fall, she and Berkeley psychology professor Sheldon Zedeck have wrapped up their findings in a 100-page report, now available on the law school’s Web site. They say the LSAT, with its focus on cognitive skills, does not measure for skills such as creativity, negotiation, problem-solving or stress management, but that they have found promising new and existing tests from the employment context that do…

Jeffrey Brand, dean of the University of San Francisco School of Law, said that the research is welcome. Brand…said that passing the bar exam is clearly important.

“But we also need lawyers with the kind of skill sets that the world needs — like empathy, persuasiveness and the willingness to have the courage to do the right thing — which the LSAT does not measure,” Brand said.

Proponents of alternatives to the LSAT will no doubt have tough negotiations ahead of them as they endeavor to persuade the legal community of the merits of utilizing other measurement tools to predict effectiveness in law school and beyond. I wish them success: the legal profession and the public it serves can only benefit from this closer inquiry into what it takes to be an effective lawyer today.

Schoolhouse rock: singing law professor shakes up legal education

rock and roll shakes up legal educationI recently described how a good art education may help prepare the lawyers of the future.

Boston University law professor Mark Pettit has a different approach — he sings spoofs of popular rock-and-roll hits to help his students master contract law.

You can read all about it — and listen — right here.

(Hat tip to Lex Ferenda.)

Art education may help prepare future lawyers (and mediators)

Art teaches habits necessary for adult work lifeEducators and parents have long accepted the notion that introducing children to art fosters creativity, builds cultural literacy, and makes for well-rounded human beings.

Art education however may in fact achieve far more than that: namely, help children develop important skills and habits necessary to the work they will ultimately do as adults, according to a recent study described in a Boston Globe article, “Art for our sake: School arts classes matter more than ever – but not for the reasons you think“. Two researchers with Project Zero at the Harvard Graduate School of Education, Ellen Winner and Lois Hetland, describe the surprising results of their study and the implications they hold for the future of education.

They discovered that art teaches children key “studio habits of mind”, including persistence, expression, and the ability to make clear connections “between schoolwork and the world outside the classroom”–in other words, to see real-world applications for the lessons learned in class.

Researchers noticed something important at the very beginning:

The first thing we noticed was that visual arts students are trained to look, a task far more complex than one might think. Seeing is framed by expectation, and expectation often gets in the way of perceiving the world accurately. To take a simple example: When asked to draw a human face, most people will set the eyes near the top of the head. But this isn’t how a face is really proportioned, as students learn: our eyes divide the head nearly at the center line. … Observational drawing requires breaking away from stereotypes and seeing accurately and directly…Seeing clearly by looking past one’s preconceptions is central to a variety of professions, from medicine to law [emphasis added]. Naturalists must be able to tell one species from another; climatologists need to see atmospheric patterns in data as well as in clouds. Writers need keen observational skills too, as do doctors.

The authors conclude:

For students living in a rapidly changing world, the arts teach vital modes of seeing, imagining, inventing, and thinking. If our primary demand of students is that they recall established facts, the children we educate today will find themselves ill-equipped to deal with problems like global warming, terrorism, and pandemics.Those who have learned the lessons of the arts, however – how to see new patterns, how to learn from mistakes, and how to envision solutions – are the ones likely to come up with the novel answers needed most for the future.

How well did your own education prepare you to master those habits?

(Photo credit: Carlos Paes.)