Teaching "Lawyering" to First-Year LawStudents: An Experiment in ConstructingLegal Competence

I. IntroductionIntroduction to the Lawyer's Role (Lawyer's Role) at Washington and Lee University's School of Law is one of the small number of first-year "lawyering" courses taught at American law schools.(1) I taught the course during the spring semesters from 1991 until 1994. My purpose in writing this article is to record some of my impressions and thoughts generated by teaching the Lawyer's Role course -- in the context both of my experience practicing and teaching law(2) and of some recent empirical evidence(3) bearing on the apparent gap between the skills and values taught in law schools and those presumably needed in practice.When I began teaching law at Indiana University in 1947, the faculty basically taught legal theory and method. Legal theory was taught by a combination of lecture and case analysis, as it had been taught since Langdell.(4) As for method, we tried to teach students "how to think like a lawyer," not how to act like one. We made no effort to teach practical applications of theory or to teach how lawyers develop strategy or tactics. Outside of the classroom and the library, there were only a few law-related activities. Most law students sought selection to the law review, as was the case when I was in law school just before World War II, and only a small number were chosen. Beyond a required first-year moot court program administered by a student board, there were, as I recall, no additional activities in the curriculum.In the past fifty years, nontraditional, practice-oriented law school programs have proliferated. At Washington and Lee, in addition to law review and other publications,(5) there are five appellate moot court competitions,(6) two trial competitions,(7) two negotiation competitions,(8) and two client, counseling competitions.(9) Students staff in-house clinics serving patients at the Western State Hospital, a state facility for patients with mental disabilities, and prisoners at a federal prison for women in Alderson, West Virginia. Students participate in public interest externships at the offices of the U.S. Attorney, the local public defender, and Lexington Legal Aid. Students participate in the Virginia Capital Case Clearinghouse, a program to assist practitioners involved in death penalty cases. Altogether, about one-third of the students at Washington and Lee participate in some form of practice-oriented program before graduating. Moreover, first-year and second-year students, particularly, gain experience in law firm summer clerkships -- varying, of course, with the state of the economy -- a rarity in my time in law school. Today, far more students do judicial clerkships following graduation than did so during the early post-war years.I will confess that when I began teaching at Indiana I was skeptical about the value of non-traditional, practice-oriented programs. I did not want to be associated with a "trade-school." My principal teaching assignment was teaching Contracts to the entire first-year class. My approach was almost totally theoretical -- I believed that teaching practical skills should be left to the bar. Perhaps I was influenced by my lack of private practice experience at the time. My own teacher at Yale Law School, Myres McDougal, chided us that we were taught how to reorganize a railroad but not how to replevy a dog. It must have been assumed that every graduate would apprentice with an experienced lawyer in some kind of law firm setting where he or she(10) would learn how to replevy a dog.My pedagogical approach was almost totally theoretical -- "almost" because, in the course of teaching Contracts, I suspected that there was a sizeable gap between certain doctrines and actual business practice, at least that was my hunch. To satisfy my curiosity I initiated an empirical investigation into the relationship between practice and doctrine in the Indiana construction industry -- specifically, the binding or nonbinding effect of a subcontractor's firm offer to a general contractor. …