As legal education attempts to implement an approach that systematically moves beyond issue spotting, we bump against the limits of both our knowledge and our curriculum. Consider the third and fourth tools in the Five Tool Lawyer framework:
Tool #3: “Use legal judgment to assess actual risks with spotted issues.”
Tool #4: “Problem solve for best way to meet client’s needs with minimal risk.”
How much do most lawyers know about how to “assess actual risks”? What does it mean to “use legal judgment” to perform that assessment? How do lawyers “problem solve for best way to meet client’s needs with minimal risk”? And, what are law schools doing to teach these skills?
In the last forty plus years, law schools have made significant progress towards theorizing and teaching a range of legal skills needed for practice. Law schools have professionalized the teaching of legal research and writing, and added courses teaching professional skills such as interviewing and counseling, negotiation, and pre-trial and trial advocacy, along with clinics that provide opportunities to use those skills in real-life settings. More recently attention has turned to the skills of transactional work. But despite some notable work, both our understanding of lawyer risk assessment and problem solving skills and our teaching in these areas are just developing.
The idea of “lawyers as problem solvers” has long been a catch phrase in the profession. In the past quarter of a century both academic research and courses have burgeoned in areas potentially relevant to problem solving, including negotiation theory and alternative dispute resolution, especially mediation, as well as perspectives such as law and economics and critical race theory.
Attention has also turned to problem solving as such: a few schools have added courses on “problem solving,” notably Harvard with its 1L Problem Solving Workshop; the ABA Section of Dispute Resolution sponsors the Legal Education, ADR and Practical Problem Solving (LEAPS) Project to integrate practical problem-solving into law school courses; problem-solving courts and courses about them have mushroomed; and movements such as collaborative law for resolving family law disputes taken root.
To the extent that using legal judgment, assessing actual risks, and problem solving to meet the client’s needs are taught in law school, however, they are more often taught implicitly through legal practice in clinics, than explicitly as discrete skills.
So I am pleased to report that my law school, the University of Washington School of Law, just voted to add a course on Decisionmaking for Lawyers to our curriculum. The course was proposed by Randy Kiser, an experienced complex commercial litigation attorney turned empirical researcher and consultant, teaching similar offerings at Pepperdine and UC-Irvine. It will draw on a range of sources and methods to teach students about effective decision making.
The course will review empirical research on settlement offers in cases that went to verdicts, lessons from cognitive psychology and behavioral economics concerning common decision errors, and institutional impediments to good decision making. But it will also go beyond conveying knowledge to develop students’ decision making skills through analyzing case studies and placing students in simulated decision making and forecasting situations. And it will place both knowledge and skills in the context of lawyer’s duties and legal obligations to clients.
I look forward to watching this course evolving and seeing how it can broaden the range of tools our students have begun to develop by the time they graduate. And, as I noted in my previous post, Five Tool Lawyers and Legal Education, “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.”