Most people probably think of lawyers as advocates in court, perhaps the most common image of lawyers in popular culture. In law schools, students not only focus on lawyers’ courtroom roles, but the vast majority of their education is based on reading reports of the work of appellate courts. Although law schools pride themselves on teaching students to “think like a lawyer,” a recent report of the Carnegie Endowment for the Advancement of Teaching suggests that legal education is more about teaching them to “think like a judge.” It is well known that, in reality, the vast majority of lawsuits never go to trial, let alone appellate courts, and most lawyers believe that their clients are generally better off by resolving matters out of court. Although it is important that parties have access to courts, which provide important social benefits, parties more often need lawyers to help solve their problems in the shadow of the courts, well before courts adjudicate the issues.
What can be done to help lawyers better serve parties’ and societies’ interests in resolving legal conflicts? Unfortunately, legal education has not provided much leadership in helping new lawyers deal with the realities of legal practice. Fifteen years after the 1992 MacCrate Report’s critique of legal education, the Carnegie Report finds that law schools in the United States still rely heavily on the predominant “case-dialogue” method of instruction, which focuses on teaching legal analysis. The Carnegie report finds that this approach has “valuable strengths” but leads students to overlook important aspects of lawyering. It states:[S]tudents are led to analyze situations by looking for points of dispute or conflict and considering as “facts” only those details that contribute to someone’s staking a legal claim on the basis of precedent. . . . By contrast, the task of connecting these conclusions with the rich complexity of actual situations that involve full-dimensional people, let alone the job of thinking through the social consequences or ethical aspects of the conclusions, remains outside the method.
Although there has been some movement in the legal academy to address the concerns expressed in the MacCrate and Carnegie reports, these changes have been relatively modest and have not affected the predominant ethos of legal training.
In recent decades, there have been dramatic innovations in lawyering, which have been driven by lawyers and the courts themselves. Mediation and arbitration are in the mainstream of legal practice, and there are numerous variations of these and other dispute resolution processes. Since the 1990s, an enthusiastic movement of family practitioners has developed Collaborative Law as an important new dispute resolution process. Even more recently, lawyers have developed a variation of that process, called “Cooperative Practice.”
Dr. Lambe is Associate Professor and Director, LL.M. Program in Dispute Resolution, University of Missouri School of Law. J.D. Hastings College of Law, Ph.D, University of Wisconsin-Madison.