Elder Law in Practice: The Case for Specialization and Focus On Substantive Law Areas in Clinical Programs

As clinical legal education has developed and matured, a growing body of scholarship has been devoted to discussing the ways in which virtually any clinical setting can further a law student’s understanding of and ability to master the essential lawyering skills identified by the MacCrate Report. Treacherous as it is to attempt to generalize among the myriad trends in clinical education, there appears to be a dichotomy in approach and structure that does exist, depending on whether a clinical program adopts the assumption that clinics provide skills training or whether clinics are conceived as professional practice models. Although every client’s case is specific and involves some particular substantive area of the law, if approached from the standpoint of the skills model, any case or issue (or even no case but a hypothetical) and any substantive area of the law will do to transmit to law students the essential lawyering skills that are needed for practice. Vladimir’s speech quoted above suggests that it will make no difference to the person in need whether his cries are answered by a doctor, a lawyer or a professional golfer, because we are all human, and all capable of responding to each other’s needs. But in point of fact, if the injured person is the victim of an auto accident, he will probably be much better served, at least with respect to his immediate needs, by the doctor. A careful reading of the speech shows that Vladimir concedes this when he states that others may be “better.” However, our individual weaknesses are not to be used by us as an excuse for inaction when we are placed in a situation where action is called for and we are the only ones available to respond. Even if the professional golfer cannot personally provide treatment to the injured victim, he can call 911 and stay with her until help arrives. By analogy, most law students are so desperately lacking with respect to knowledge of the actual practice of law that any experience provided will be beneficial. Thus, one need not dispute the importance of skills training nor denigrate or derogate those programs that operate along a general practice model by accepting a variety of cases without insisting on specialization. One would rather argue for recognition that such general practice clinics are in fact professional practice models of a sort that may be in dwindling supply in the legal profession, much as general practitioners in medicine were a dying breed before third party managed care payors reinvigorated the notion of the “primary care” generalist physician. There is clearly a place for such lawyering, even within the increasing complexity and specialization of the legal profession. The purpose of this paper is simply to challenge the notion that clinics are a fungible commodity, that one size fits all and that if a law student has enrolled in one clinic, the student has experienced all there is to experience of professional practice and all that clinical education has to offer. It is hoped that challenging the assumption of complete interchangeability among clinics will facilitate an acknowledgement that the experience of a particular practice is uniquely valuable. One also hopes that legal education will come to incorporate the notion that the detailed exposition of substantive law that is afforded within the context of a clinic will be qualitatively different from (and thus not duplicative of ) substantive law courses offered as part of the traditional classroom curriculum.