Law schools traditionally do thing: teach students to “think like lawyers.”
Through the Socratic method and study of case law, law schools give students tools to analyze and understand the law. But as we all know, learning to think like a lawyer doesn’t prepare to students to practice as lawyers. Law schools teach students to analyze and understand Judges’ opinions, but the practice of law is much more than that.
Law schools don’t cover everything else that comes along with being a lawyer. What to do when a client walks through your door, sits down, and asks for help. How to respond when the client says they have been charged with aggravated assault, or they need a business or formation, or that they want a divorce. Hell, how to even get clients through the door in the first place. New lawyers are faced with countless problems that law schools historically don’t teach them how to solve.
A Problem Solving Framework For New Lawyers
Such is the basis of a law review article, Problem Solved: Preparing Students for Practice Using Problem Solving to Connect Legal Knowledge, Theory, and Skills by Professor Kathleen Vinson. The abstract:
Monday morning you listen to a voice mail from a corporate client explaining that it just discovered one of its manufacturers overseas produced toys containing lead paint. This client asks you to draft a press release announcing a recall of these toys, alerting its customers, but cautiously avoiding any admissions of liability.
The following day, in another case, you need to advise a client, who professes his innocence, whether he should accept a guilty plea or proceed to trial. The next day, you are asked by your supervisor to argue a motion to dismiss a complaint, but you have concerns there is no legal or factual basis to support the motion. Finally, another client, who owns an apartment building, seeks your help when his tenant accuses another tenant of sexually harassing her.
These are just some of the types of problems lawyers could face in just one week. Would law students know how to solve them? No matter what the legal issue or setting, understanding and applying a problem-solving methodology and focusing on the client in each case can help prepare students for practice.
Students engaged in problem solving in law school benefit from experiencing the primary role of a lawyer: a problem-solver, enabling students to see the connection between legal knowledge, theory, and skills to help achieve a client’s goals.
Vinson then provides the methodology she uses to teach problem solving to students.
- Who is the client?
- What are the facts?
- What are the client’s goals?
- What are the legal constraints and opportunities?
- What are the ethical and moral constraints?
- How do you proceed?
Who is the client?
“…a client may be a landlord and other interested parties may be tenants. Or a client may be a corporation. Or more than one client may be involved, such as a government agency, the State, the governor, and your supervisor.
In some situations, it may be unclear whether a client/attorney relationship has formed. For example, if a friend or neighbor casually asks for advice about his problem, an initial consideration should be whether there is a client/attorney relationship before anything is done to help solve the problem.”
You must thoroughly understand clients. Surface level understanding of clients is insufficient if you’re helping them solve their problems. Often times understanding the client is what leads to understanding the problem. And sometimes the client isn’t even “the client.”
The other day I was speaking to an associate who was in the office on a Sunday, grinding away but about to leave in the afternoon, when she got an email from a partner that a motion needed to be on his desk at 8 AM the following morning. In this instance, for the associate her “client” was her partner. She was there late into the evening.
What are the facts?
“A client will often seek an attorney to help solve or avoid a practical or legal problem. The facts of a client’s problem are often incomplete and need to be further developed or investigated. Problem solving involves thinking not only about what are the relevant facts, known or unknown. Problem solving requires understanding inconsistent or ambiguous facts. Students need to comfortably deal with ambiguity and realize that problem solving often does not result in one correct answer.
Clients don’t walk into a lawyer’s office with a hypothetical, a multiple-choice question, or an identified specific legal issue…”
This is a common lament I hear from experienced lawyers talking about taking on new lawyers (especially Millennials) as associates. Millennials expect there to be some sort of “right” answer. Or they have difficulties thinking through the problem.
New lawyers must push forward with limited information and work towards finding out everything they can about an issue when it is presented to them.
What are the client’s goals?
“A client may have more than one goal, the goals may be conflicting (short-term v. long-term goals), inchoate, or ambiguous. Problem solving also requires students to look at the problem from different perspectives—from the client’s, as well as his opponent’s perspective.”
Clients often come into a law firm and have no clue what they want or need. Lawyers must sit down with a client, discuss the issues, and work towards developing goals together. Many clients operate from a position of ignorance of the law. They know they need help, but they don’t know what type of help they need.
It’s a lawyer’s job to figure out what needs to be done.
What are the legal constraints and opportunities?
“The facts and the law help frame the issues involved in your client’s case. Thus, in addition to researching facts, researching the law will uncover legal opportunities and constraints. Research may involve statutes, regulations, cases or other sources.
Unlike in law school classes where all the problems are germane to a particular area of the law (contracts, torts, property, etc.), the problem may not involve just one area of the law but instead may involve multiple legal issues and sources of the law…”
This is veering towards a SWOT Analysis, which is a useful starting point when looking at a matter. SWOT is one of those things that all business people know of, but very few lawyers seem to. Lawyers go through the same sort of process, just in a bit more haphazard fashion.
But it’s something they have to struggle through on their own because they are never given a model framework to use in law school. Law schools don’t need to re-invent the wheel, just walk across campus to the B-school and have them come teach SWOT methodology to the 1Ls. Done.
What are the ethical and moral constraints?
“Legal education often focuses on “cardboard clients”—one-dimensional characters—that only exist within class discussions on professional responsibility and ethical obligations. These cardboard clients, however, are ill suited for problem solving, where students should understand the reality of actual clients as whole persons, with complex lives and relationships to the “fullest dimension.””
This was true in my experience and almost every other lawyer I speak to agrees. Ethical quandaries presented in law school are almost laughably simplistic. In the words of a seasoned lawyer I am friends with, you should put your mind in the gutter, then go below that.
People and businesses come into your office with incredibly perverse situations and ask you to do questionable things at times. Having a strong moral character is necessary for the practice of law, but you also can’t impose your morals on your client.
How do you proceed?
“Students must think of all available options, including non-legal solutions. Consider what would be best financially, emotionally, personally, morally, religiously, politically, and psychologically…In evaluating and weighing options, considerations of cost and efficiency are important, as well as whether the goals of the client and others conflict.
The short term and long term goals of the client should be reviewed as well. In addition, whether an option would create new problems or make the problem worse is critical to examine. Would doing nothing be a reasonable option worth considering? What is the simplest solution?”
The big question. What now? Think through each step, push against the problem until it cracks, and find the best solution for your client.
That’s why the client is in your office. It’s your job to figure out how to solve their problems.
Vinson, Kathleen Elliott, Problem Solved: Preparing Students for Practice Using Problem Solving to Connect Legal Knowledge, Theory, and Skills (May 30, 2014). Suffolk University Law School Research Paper No. 14-15. Available at SSRN: http://ssrn.com/abstract=2443903 or http://dx.doi.org/10.2139/ssrn.2443903