Nuts and Bolts

April 22nd, 2013 / By Deborah J. Merritt

Should we teach law students the nuts and bolts of law practice, such as how to record a property deed or file a discovery request in a criminal case? Law schools traditionally disdain this type of teaching, arguing that graduates will master these tasks in practice and that the particulars vary from place to place. But there are at least four reasons why we need to teach students the nuts and bolts of lawyering, including how to file basic practice-related documents.

First, mastering these tasks gives students self-confidence as new lawyers. A lawyer who can’t file documents is like a doctor who doesn’t know how to use a stethoscope. Sure, you can learn on the job, but you’re not much of a professional until you do. One of our conventional claims in legal education is that we give students the tools and confidence to master new areas of law. The same rationale applies to giving students a basic set of practice tools. If we want graduates to be self-confident professionals who are eager to expand their learning, we should ground them in both theory and practice.

Second, these tasks are more complicated than most academics claim. The process for requesting criminal discovery may seem obvious: find a form request, adapt it to your case, take the request to the courthouse, and give it to someone. But these “obvious” steps raise a host of issues: Does it matter what form you use? Have there been any recent changes to the rules, which make some forms outdated? Exactly who is that “someone” who receives the request at the courthouse? Do you also have to serve the prosecutor directly? What type of response should you expect–documents, videos, electronic files? Will you have to make your own paper copies or bring a blank DVD to record the response? How soon will the discovery arrive? How will you know if the prosecutor has produced everything you’re entitled to? Do you need to renew your requests to obtain new materials? If the prosecutor is slow, what are the appropriate ways to nag the prosecutor for quicker compliance? If the discovery conflicts with your client’s claims, what are the best ways to discuss the conflicts with your client?

These challenges range from the mechanical (do I need to bring quarters for the copy machine?) to the legal (do I need to renew requests?) to the interpersonal (what’s the best way to handle a procrastinating prosecutor or recalcitrant client?). Some traditionalists may protest that schools can teach issues falling in the last two categories without attempting to replicate the first. We can teach the rules governing discovery in a criminal procedure course, and we already offer classes on client counseling and professional responsibility. Surely we can teach those parts of lawyering without educating students on the need to take a blank DVD to the courthouse for discovery.

Most of these more complex issues, however, become salient only after a student tries to file a specific document in the real world. In campus classrooms, it’s hard to remember all of these challenges, much less teach them. Real-world practice seems simple and straightforward–until we actually try to perform it. In my experience, as a professor who has taught both doctrinal courses and clinical ones, the nuts and bolts of law practice are harder and more complicated than doctrinal professors assume. Even when an initial step is straightforward, it quickly leads to more complicated issues that we rarely touch in doctrinal classrooms.

The third reason to teach the mechanics of lawyering is that students learn theory better when it’s linked to practice. It’s one thing to read Federal Rule of Criminal Procedure 16(c), which imposes a continuing duty to disclose without renewed discovery requests. It’s another thing to file your own motion, wonder whether you need to renew that motion, check the rules in your own state, and discover (usually) that a single request is sufficient. Even putting quarters in the copy machine gives the abstract process of “discovery” a reality that makes learning easier.

Cognitive scientists have shown repeatedly that humans learn in part through three-dimensional experience. Our brains store information more efficiently when we can tie abstract concepts to real world actions, rather than simply spinning a web of shapeless principles. Professional expertise is like a climbing plant: it needs a three-dimensional trellis to support growth. The scaffold, in both learning and gardening, is usually a humble structure; but it’s just as essential as the showy leaves and fruits.

Finally, students who explore the nuts and bolts of practice learn important lessons about how contemporary lawyers streamline their work. Printing and filing individualized discovery motions is tedious and costly. Does the jurisdiction allow electronic filing? Does the prosecutor’s office have a shortcut for requesting discovery? After months of filing four-page discovery requests, the students in my criminal defense clinic learned that other lawyers were obtaining discovery by completing a one-page form available at arraignment. The particular process adopted in our courthouse may not matter in their future practice, but the general lesson will stick: In contemporary law practice, there’s often a faster and cheaper way to turn those nuts and bolts. The lawyers who keep up with those changes have a competitive advantage.

Yes, the nuts and bolts of law practice vary from state to state, and these practices shift over time. But the same is true of legal doctrine. We assume that educating students in a set of doctrinal principles will help them master new principles after graduation. The same is true of the nuts and bolts: students will have to master new processes constantly, but they will learn faster–and with more confidence–if they’ve fastened some nuts and bolts before graduation.