“Little Staff Attorneys”

January 21st, 2016 / By Deborah J. Merritt

At the AALS meeting, a friend of mine (and tenured professor) stood chatting with a few tenured colleagues from other schools. Conversation turned to work that another professor had done in a clinic. “Yeah,” said one of the professors, impressed, “and they didn’t even have a little staff attorney to do all the work.” My friend protested this derogatory reference to staff attorneys, and the professor apologized, but the remark was telling.

This is how all too many tenured professors think of clinical work, clinical professors, and staff attorneys; the same attitude applies to legal writing professors. This work, we assume, is simplistic and doesn’t merit our full attention. It can be done by “little” people.

Professors who teach legal writing and clinics are, indeed, “little people” in most of our law schools. They earn less than tenured faculty, have less job security than tenured faculty, and share fewer governance rights. Yet these professors teach students the heart of lawyering. They teach students how to write like lawyers, how to speak with and write to a wide range of audiences, and how to solve lawyering problems.

After thirty years teaching all types of courses (doctrinal law, interdisciplinary subjects, legal writing classes, and clinics) I’m convinced that clinical and writing professors have the greatest impact in teaching students to think like lawyers. Tenured faculty prompt that work in the doctrinal law classroom, but first-year students learn how to do it in their legal writing classes. That’s where they “think” in writing and without leading questions. They also receive personalized, formative feedback that improves their thinking.

Similarly, clinics challenge students to think and strategize, not just within the narrow confines of a classroom question or appellate argument, but within the context of negotiating with an adversary or performing other multi-dimensional tasks. Analyzing an appellate opinion within the four walls of a classroom is much easier than using that opinion (along with a few other opinions, statutes, and uncertain facts) to frame a negotiating strategy for a client who depends upon you.

Why do doctrinal law faculty persist in thinking that legal writing and clinical professors do work that is less intellectually challenging or valuable than the work they do? It’s partly self interest; everyone likes to think that their own work is most important–and to protect their higher salary and governance privileges.

It’s also partly ignorance. Many tenured faculty know little about what happens in law practice, law school clinics, or legal writing classes. Some are not particularly good legal writers, despite their focus on scholarship. Even if they are good writers, they might not know how to teach someone else how to write.  Ignorance can make us defensive; we diminish the importance of the things we don’t know.

I’ve also come to think that tenured law faculty constitute a type of cult. We have very specific criteria for admission to this cult, we engage in a narrow range of permitted behaviors, and we celebrate common rituals–one of the most valued of which is deciding who will be allowed to join our cult.

We need to escape this behavior and recognize the challenging, important, and time-consuming work that clinical and legal writing professors perform. We already recognize how much work they do. It’s time to acknowledge–and reward–the importance of that work.