...expert lawyering is a matter of judgment and choice...
Law professors face a common educator’s dilemma: We must choose between leaving our students with satisfying oversimplification and insisting that they deal with discomforting complexity. Students commonly come to us with the expectation that in law school they will learn legal rules, so that as professionals they can apply those rules. But we know that things are not so simple.
Expert lawyering requires much more than learning and applying rules. It is the art of managing particular kinds of contingencies. Legal matters rarely have cookie cutter resolutions. The expert lawyer must be able to identify shifting personal, institutional or social goals in dynamic and usually complex factual situations in turn governed by usually ambiguous rules. The expert lawyer must then interact with others to refine and further the goals of those s/he represents.
Lawyering is a complex art because each element of a legal matter–goals, facts, rules, and interactions–is dynamic. Goals are subject to revision; both facts and rules are subject to interpretation; and interactions are subject to strategic management. Expert lawyering is not a matter of taking orders about goals, assuming facts and laws as given, and letting interactions unfold as they might.
Expert lawyering is a matter of judgment and choice.
How, then, should lawyers be trained? Should they be taught rules? Should they be taught to develop and exercise professional judgment? Jerome Frank famously asked, do we need “law schools” or “lawyering schools”? The answer is that the two things are inseparable. To understand legal doctrine fully is to understand how lawyers use and change it as they manage goals, facts, rules, and interactions.
Formal institutions for training lawyers in the United States began as “law schools” in the narrowest sense. They used treatise-based methods in which students read or were lectured from scholarly or commercial summaries of various bodies of law that they were expected to learn. This kind of learning by rote perpetuates the treatise writer’s or the lecturer’s interpretation of law as it stands, but it does little to develop students’ ability to interpret law themselves. Moreover, it confuses students about the extent of their professional responsibility and deludes them about the dynamic nature of the laws they will be called on to actualize.