Teaching “Doing” as a Lawyer During Law School

In doctrinal courses, we are used to teaching students to think critically, an activity often referred to in the legal education domain as “thinking like a lawyer.” This thinking component is central to what lawyers do. But Lee Schulman, a co-author of the Carnegie Report (2007) and author of “Signature Pedagogies in the Professions,” in Daedalus 52 (Summer 2005)and a former professor at Stanford U. has observed that preparing students for the professions requires not only thinking critically, but also acting and performing with integrity. (Integrity is a nice way to describe ethics, using new vocabulary to wrap lawyering in a high standard.)

The ideas of action and performance are not new, but when held up alongside critical thinking, they create a nice trilogy of legal education outcomes. Acting is how lawyers interact with others, prepare, and behave while working, but not performing. Performing is when a lawyer is engaged in a law practice activity requiring competency, such as oral argument, examining a witness at a deposition or trial, or mediating a dispute.

Now that I have provided some background, my essential point in this brief blog post is as follows — If acting and performing are so important, we should be teaching students to do these things throughout law school, starting on the very first day of the first year of school, woven throughout doctrinal courses as well as clinical and legal writing offerings. Learning science supports this integration. In learning science, it has been shown that engaged learners perform better. Creating deliverables is a way to engage students in a positive fashion. Deliverables such as, “Do a direct examination of the plaintiff in this case,” or “Take a picture of an easement on real property and explain why,” or, “Write down ten questions you would have of the plaintiff in this case if you were able to ask them,” are just some illustrations of deliverables. Role-playing generally falls within the rubric of a deliverable, since students must give a performance as an attorney, judge, witness or other person – just not as a student.

Yet, it is hard to get out of our own way. After teaching for a long time, we develop habits that are difficult to shake, and taking risks with new approaches provides its own set of issues as well. But if legal education is really transitioning students through school into practice – and not just teaching discrete substantive segments – we probably ought to try doing something like this, even if only as a Beta test.

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