The “five tool lawyer” immediately captured my interest as both a highly compelling metaphor and a potentially incomplete and misleading one, at least for law students thinking about their careers, and law schools contemplating their curriculum. Compelling, because it moves beyond issue spotting v. problem solving to articulate the stages of problem solving, targeting a spotlight on often overlooked aspects. Incomplete or misleading, because it compresses so much into stage 5, and, to a lesser extent stage 1. If a central goal of articulating the metaphor is to encourage change in legal education, those omissions should be acknowledged, along with the changes that have taken place in legal education over the past quarter to half a century .
What’s compelling? By focusing on risk, the metaphor highlights two often neglected stages of the lawyer’s work – “use judgment to assess actual risks” and “problem solve for best way to meet client’s needs with minimal risk.” At the same time, it implicitly places the legal problem in the larger context of the individual’s life, or the business’s health. And it underscores the fact that lawyers need to know how to assess the significance of legal risks within that larger context.
And why do I say that the metaphor misleadingly compresses too much into tools 1 and 5?
Tool 1 helpfully emphasizes the importance of interviewing skills, understanding what the client wants, and gathering facts – all good. But it also implies that fact gathering is solely a matter of interviewing skills, ignoring alternative methods of gathering facts.
More significantly, in Tool 5 the metaphor compresses into one category a host of varied skills for implementing the problem solving plan in the multiple contexts lawyers inhabit — what we at UW Law have articulated as Advising, Transactions, and Disputes, as well as Public Policy. For advising, the key skills involve post interview counseling, often with significant intercultural and interdisciplinary concerns. Transactional lawyers must develop negotiation and drafting skills. Resolution of disputes takes place in both traditional and “alternative” forums, each of which requires overlapping, but distinct knowledge and skills. A quick list includes pre-hearing preparation, negotiation, and written and oral advocacy in administrative hearings, arbitrations, mediations, trials and appeals. This is a long list without even adding in the need to engage students explicitly in what the Carnegie Foundation’s volume Educating Lawyers defines as developing a professional identity. Legal Education for Five Tool Lawyers Over the past 45 years, law schools have increasingly, though unevenly, provided students with opportunities to learn both Tool 1 interviewing skills and many of the Tool 5 skills. Initially, skills teaching focused primarily around tasks required for litigation and dispute resolution. But in recent years these efforts have expanded to encompass transactional skills.
One vehicle for teaching skills has been simulation oriented skills courses drawing on many of the methodologies popularized by the National Institute for Trial Advocacy (NITA) and addressing a wide range of individual skills. A smaller number of schools offers courses that seek to integrate a mix of skills, typically learned in the context of a complex ongoing simulation. Skills are also taught through faculty supervised practice opportunities, or community placements supervised by attorneys in the community, although those offerings have additional course objectives beyond individual skill development. The approaches usually lumped under simulation, in-house clinics and externships have always overlapped significantly and in recent years creative combinations and variations have emerged. One approach is the “lab” course attached to a doctrinally focused course. The lab requires students to perform lawyering tasks that apply the substantive course’s legal concepts in either real or, more typically, simulated cases. Alternatively, faculty teaching substantive courses may incorporate one or more simulation exercises, or even structure the entire course around an extended simulation.
At law schools with a rich experiential curriculum, students already face challenging questions of choice. How much should a student focus on learning more substantive law in order to facilitate issue spotting and how much should they focus on developing the skills needed to develop the other four tools of a five tool lawyer?
What are the trade-offs? Do current methods of teaching substantive law develop significant issue spotting skills? Or do students simply memorize, perform a “brain dump” for an exam and then forget most of what they learned? Do students need “experiential anchor points” in order to transfer doctrine learned into practice? Some commenters contend that newer generations are “just in time” learners not “just in case” learners, with less interest in learning doctrine in a classroom just in case they may need the knowledge years later.
All of this is suggests three key points as legal education attempts to move forward:
- Modern legal education has already gone significantly beyond focusing solely on issue spotting.
- In order for law schools to make room for developing the tools of risk assessment and problem solving in light of risk, law schools will need to either develop more efficient and effective ways of teaching legal doctrine, abandon the focus on doctrine and issue spotting in favor of teaching students how to learn new areas of law, or decide that a sufficient amount of doctrine can be taught alongside basic and sophisticated skills in experiential courses.
- If legal education is to help students begin developing each of the five tools, a much more thoughtfully integrated approach to teaching them is likely to be needed.