Sunday, February 14, 2010

Hands-Off Education

Was anyone's driver ed experience like this...?

The instructor walks into the classroom and greets everyone. He informs the class about what a great decision they made in choosing his school and that he looks forward to spending the year with them.

Somebody in the back groans and wonders aloud why they have to spend such an excessive amount of time in class to learn how to drive. The instructor appears sympathetic and apologetically notes that this is the minimum amount of instruction the National Association of Driving Schools permits. He then smiles slightly to himself, and a student in the front row swears she hears him mutter, "Plus, I get more money this way..."

Despite his alleged misgivings about the duration of the course, he does make sure to emphasize the value of the classroom instruction. Again, the class murmurs amongst themselves and an incredulous pupil or two inquires as to how much time will actually be dedicated to operating a motor vehicle.

The instructor dismisses the question by noting that all students will spend a brief time in a simulator that replicates the driving experience. After seeing the shocked looks on the faces of his students, he adds that a few will be allowed to operate an actual automobile under the supervision of an instructor, but these select students will have to decide if they want to drive in the city, in the suburbs, or on the highway.

Now that he has explained the school's approach to driver's ed, he instructs the students to open their text books. Once again, however, he is interrupted. The students want to know why their books are filled with narratives of other people's driving experiences rather than any sort of instructions as to how to operate a motor vehicle or information about the rules of the road.

Irritated, the teacher says that simply memorizing rote instructions and the transit laws won't teach them anything about being effective drivers. The students refuse to relent. They inform the instructor that previous graduates did just fine on the exams by purchasing third party materials that did nothing more than provide step by step instructions and straightforward explanations of the rules for driving.

Exasperated, the instructor grudgingly concedes that some of their protests are valid, but he insists that he must conduct his course in this manner in order to properly prepare the students for driver's license exam. To buttress his justification, he begins to read aloud a sample problem from the state licensing exam:

"Bobby gets into his car and heads towards work. He begins to back out of his driveway as another car comes traveling along down his street in a densely populated area at 35 MPH. After leaving his driveway, he approaches a stop sign (lacking any supplementary information) and prepares to make a left turn onto a busy street. After successfully making the turn, he receives a cell phone call from his friend, Jack.

After traveling on the main street for 1/2 a mile, Bobby then seeks to merge onto the highway. He enters the on ramp and sees a yield sign. After merging onto the highway, Bobby sees flashing emergency lights behind him. Once the situation has resolved, Bobby continues until traffic slows. He notices that all other vehicles are merging to the right, and a police officer is present, directing traffic away from the left two lanes.

Discuss all traffic related issues Bobby faces on his way to work."

After he concludes with the example, one wise acre points out that they will still have to take a supplementary course in order to properly prepare for the driver's license exam. The instructor surprisingly acknowledges this with a sardonic smile. "Yes," he says, "I look forward to teaching that course as well."

There's a reason why this doesn't remind you at all of your driver's ed course: Because this is an absurd way to teach anybody how to do anything! If driver's ed operated like this, we'd all have about a 50% chance of dying on the roads on the way to work in the morning.

Now, I have enough respect for my readers to believe that you all recognized where I was going with this story faster than the average political science student is able to recognize that Animal Farm is an allegory of the history of the Soviet Empire - which, given the current economy, doesn't actually seem so bad right now.*

I also recognize that like with any spoof, the subject matter that is being lampooned is a bit more complex than its detractors give it credit.

Nonetheless, I don't think I'm too far off the mark. Driving schools teach people how to drive. Typing schools teach people how to type. Clown colleges even teach people how to be clowns. Why on earth don't law school actually teach people to be lawyers?

Sure, if the so-called T-14 schools want to bill themselves as academic programs that can't deign themselves to do anything that might suggest that they bear any resemblance to trade schools, so be it. Their students can go off to fancy law firms that want to hire exceedingly bright people to mold into their images. This may be the route tomorrow's elite law firm partners, federal judges, and legal academics should take in order to enter into the upper echelons of society of which us plebeians who couldn't crack a 170 LSAT score can only dream.

For the rest of us TTT graduates, this sort of pretentious hogwash has little relevance to most of the fields where we're likely to end up. People looking to file for bankruptcy, seeking a protection from abuse order, or who need somebody to defend them on their 4th DUI want somebody who knows how to file the right paperwork with the court and what to say and do during a hearing. They don't care if their lawyers can properly IRAC a hypothetical scenario in which somebody's house is simultaneously consumed by two different fires or if they can establish the policy justifications for a utilitarian rather than a retributive approach to crime.

If the employers and clients who are likely to hire us want attorneys who know the law, know the proper procedures, and know the rules of courts, why are these treated as tangential aspects of American legal education? As I alluded to in my above parody, only a small portion of law school is even dedicated to learning how to practice in a simulated environment (trial advocacy classes, etc.). Hands on training (such as clinics and externships) are usually only available to a select number of students, and even if you learn the basics of practicing in immigration court or representing the state in criminal/municipal court, you're only getting experience limited to that one practice area.

Some have said that even for attorneys who work on smaller issues, having a theoretically rigorous education is still necessary. I don't buy it. I worked for a personal injury law firm doing most of the tasks (save appearing in court) that the practicing attorney would have done. When I filled out complaints to submit to the court, there was plenty of research to do regarding the medical issues involved and the facts surrounding the case, but there was precious little legal reasoning involved.

In fact, let me give you the one line of law I included in each of the complaints: "Defendant X had a legal duty to do Y. X breached his duty of care because he didn't do Y. Ergo, X was negligent and the actual and proximate causes of Z's injuries."

You know what that's called on a law school torts exam? A "C-"...if you're lucky. At my office, it was standard cut 'n paste boilerplate.

I'm not joking. I just took a look at an old document I have on my computer to verify this.

Also, while I tend to consider most PI firms to be chop shops, this one was actually a pretty legitimate operation. It was run out of a nice downtown office. The attorney had a great reputation among the local bar, and he even treated me like a human being. We're not talking about some bottom feeder law office run just outside of the projects here.

I found the same dearth of legal reasoning when I interned at a big city prosecutor's office. Having confidence in court and knowing the law was far more important than being able to craft some fancy legal argument for entry level ADA's. Heck, the office just gave all of them crib notes on how to handle most disputes of law anyway. (Not like you couldn't just look these things up using rudimentary high school research skills.)

The one area of practice where it seems like legal acumen and well crafted arguments would be most helpful is appellate advocacy. I do not dispute that well reasoned argumentation is necessary in this field. I just don't see why this requires three years of theoretical-based education.

For one thing, the cynic in me believes that most judges are going to see legal precedent, etc. the way they want to see it regardless of the arguments presented to the court. (If constitutional law isn't just a euphemism for political theory, then I'm really a Supreme Court clerk with too much time on my hands.)

Moreover, appellate advocacy isn't that difficult. You look up the relevant cases, pull out the pertinent arguments, and then analogize them or distinguish them from the present fact pattern. The people who usually win those moot court and advocacy competitions are gifted writers and natural showmen. I don't know if you can teach this in the classroom, but three years of law school certainly isn't the road to improving such skills.

Now, I know I'm no law professor. Maybe I'm just missing that part of the brain that would allow me to recognize what a service learning "legal reasoning" is to America's budding attorneys. Maybe it's a secret they let you in on at Harvard and Yale. Perhaps if I had a financial stake in being able to hold onto a four hour a week job that pays six figures, I'd think differently.

Sadly, I am but a commoner, who never was permitted entry into the ivy covered campuses of America's truly elite schools. Please, therefore, bear with me as I humbly offer my own reasoning as to why I respectfully disagree with any defense of the current law school curriculum:

If you can safely operate a two ton weapon that can reach speeds of over 100 MPH after the state gives you your driver's license, it's inexcusable that you can't competently represent a client after the bar hands you your license to practice law.

Class dismissed.

* NB: Esq. Never is not a commie.


  1. How little law we actually learn after graduating! The questions our non-lawyer friends are likely to ask us are the very practical ones. Who cares about how well we can synthesize appellate cases?

  2. The casebook method is awful.

  3. Evidence was a requirment to our TRail Advocacy course (require capstone with 50+ students in it.) Other than the "Hearsay" objection, no one was able to state the other 11 trial objections. Narrative? Outside Scope? I don't even want to talk about foundation problems.

    What bothered me most was the 8 clinics that were offered only went to the top 25% of the 2L and 3L class. This was due to space problems. Who needed it more? the top 25%, who were getting OCI, or the bottom, "you are on your own," 50% of the class.

    Could you imagine an MD or DO who could not get CLErkship rotations due to class rank?

  4. I recall one of my profs recommending working for a judge for a year if you wanted practice in "getting the law right."
    Yeah, if there is such a thing. The egg head stuff is left up to professors who need to beat a "what if?" question to death. The "wow, that IS a good question!" stuff is left up to the corporations who have millions of dollars to spend on the issue of whether diversity of parties actually exists. The rest of what normal people run into is heavily codified so that there isn't a whole lot of room for hope for your case, but just complicated enough to where its a good idea that you have somebody who knows what they're doing so that you don't get screwed from the benefits of the couple of safety nets for a person in your position.

  5. A wall Street Journal article on yahoo today.

    The $555,000 Student-Loan Burden
    by Mary Pilon
    Tuesday, February 16, 2010
    provided by

    When Michelle Bisutti, a 41-year-old family practitioner in Columbus, Ohio, finished medical school in 2003, her student-loan debt amounted to roughly $250,000. Since then, it has ballooned to $555,000.

    Andrew Spear for The Wall Street Journal
    Michelle Bisutti borrowed $250,000 to pay for medical school. The debt has since ballooned to $555,000.

    It is the result of her deferring loan payments while she completed her residency, default charges and relentlessly compounding interest rates. Among the charges: a single $53,870 fee for when her loan was turned over to a collection agency.

    "Maybe half of it was my fault because I didn't look at the fine print," Dr. Bisutti says. "But this is just outrageous now."

    To be sure, Dr. Bisutti's case is extreme, and lenders say student-loan terms are clear and that they try to work with borrowers who get in trouble.
    But as tuitions rise, many people are borrowing heavily to pay their bills. Some no doubt view it as "good debt," because an education can lead to a higher salary. But in practice, student loans are one of the most toxic debts, requiring extreme consumer caution and, as Dr. Bisutti learned, responsibility.
    Unlike other kinds of debt, student loans can be particularly hard to wriggle out of. Homeowners who can't make their mortgage payments can hand over the keys to their house to their lender. Credit-card and even gambling debts can be discharged in bankruptcy. But ditching a student loan is virtually impossible, especially once a collection agency gets involved. Although lenders may trim payments, getting fees or principals waived seldom happens

    Yet many former students are trying. There is an estimated $730 billion in outstanding federal and private student-loan debt, says Mark Kantrowitz of, a Web site that tracks financial-aid issues -- and only 40% of that debt is actively being repaid. The rest is in default, or in deferment, which means that payments and interest are halted, or in "forbearance," which means payments are halted while interest accrues.

    Although Dr. Bisutti's debt load is unusual, her experience having problems repaying isn't. Emmanuel Tellez's mother is a laid-off factory worker, and $120 from her $300 unemployment checks is garnished to pay the federal PLUS student loan she took out for her son.

    By the time Mr. Tellez graduated in 2008, he had $50,000 of his own debt in loans issued by SLM Corp., known as Sallie Mae, the largest private student lender. In December, he was laid off from his $29,000-a-year job in Boston and defaulted. Mr. Tellez says that when he signed up, the loan wasn't explained to him well, though he concedes he missed the fine print.

  6. Loan terms, including interest rates, are disclosed "multiple times and in multiple ways," says Martha Holler, a spokeswoman for Sallie Mae, who says the company can't comment on individual accounts. Repayment tools and account information are accessible on Sallie Mae's Web site as well, she says.

    Many borrowers say they are experiencing difficulties working out repayment and modification terms on their loans. Ms. Holler says that Sallie Mae works with borrowers individually to revamp loans. Although the U.S. Department of Education has expanded programs like income-based repayment, which effectively caps repayments for some borrowers, others might not qualify.

    Heather Ehmke of Oakland, Calif., renegotiated the terms of her subprime mortgage after her home was foreclosed. But even after filing for bankruptcy, she says she couldn't get Sallie Mae, one of her lenders, to adjust the terms on her student loan. After 14 years with patches of deferment and forbearance, the loan has increased from $28,000 to more than $90,000. Her monthly payments jumped from $230 to $816. Last month, her petition for undue hardship on the loans was dismissed.

    Sallie Mae supports reforms that would allow student loans to be dischargeable in bankruptcy for those who have made a good-faith effort to repay them, says Ms. Holler.

    Dr. Bisutti says she loves her work, but regrets taking out so many student loans. She admits that she made mistakes in missing payments, deferring her loans and not being completely thorough with some of the paperwork, but was surprised at how quickly the debt spiraled.

    She says she knew when she started medical school in 1999 that she would have to borrow heavily. But she reasoned that her future income as a doctor would make paying off the loans easy. While in school, her loans racked up interest with variable rates ranging from 3% to 11%.

    She maxed out on federal loans, borrowing $152,000 over four years, and sought private loans from Sallie Mae to help make up the difference. She also took out two loans from Wells Fargo & Co. for $20,000 each. Each had a $2,000 origination fee. The total amount she borrowed at the time: $250,000.

    In 2005, the bill for the Wells Fargo loans came due. Representatives from the bank called her father, Michael Bisutti, every day for two months demanding payment. Mr. Bisutti, who had co-signed on the loans, finally decided to cover the $550 monthly payments for a year.

    Wells Fargo says it will stop calling consumers if they request it, says senior vice president Glen Herrick, who adds that the bank no longer imposes origination fees on its private loans.

    Sallie Mae, meanwhile, called Mr. Bisutti's neighbor. The neighbor told Mr. Bisutti about the call. "Now they know [my dad's] daughter the doctor defaulted on her loans," Dr. Bisutti says.

    Ms. Holler, the Sallie Mae spokeswoman, says that the company may contact a neighbor to verify an individual's address. But in those cases, she says, the details of the debt obligation aren't discussed.

    Dr. Bisutti declined to authorize Sallie Mae to comment specifically on her case. "The overwhelming majority of medical-school graduates successfully repay their student loans," Ms. Holler says.

    After completing her fellowship in 2007, Dr. Bisutti juggled other debts, including her credit-card balance, and was having trouble making her $1,000-a-month student-loan payments. That year, she defaulted on both her federal and private loans. That is when the "collection cost" fee of $53,870 was added on to her private loan.

  7. Meanwhile, the variable interest rates continue to compound on her balance and fees. She recently applied for income-based repayment, but she still isn't sure if she will qualify. She makes $550-a-month payments to Wells Fargo for the two loans she hasn't defaulted on. By the time she is done, she will have paid the bank $128,000 -- over three times the $36,000 she received.

    She recently entered a rehabilitation agreement on her defaulted federal loans, which now carry an additional $31,942 collection cost. She makes monthly payments on those loans -- now $209,399 -- for $990 a month, with only $100 of it going toward her original balance. The entire balance of her federal loans will be paid off in 351 months. Dr. Bisutti will be 70 years old.

    The debt load keeps her up at night. Her damaged credit has prevented her from buying a home or a new car. She says she and her boyfriend of three years have put off marriage and having children because of the debt.

    Dr. Bisutti told her 17-year-old niece the story of her debt as a cautionary tale "so the next generation of kids who want to get a higher education knows what they're getting into," she says. "I will likely have to deal with this debt for the rest of my life."

  8. This should constitute educational negligence. The law schools are producing graduates who cannot complete basic forms and motions!! The schools are cash cows. They are still relying on the pointless "teaching" method of Christopher Columbus Langdell.

    This is about the very cheapest way to "educate" large classes. The reality is that most lawyers and law students will never engage in appellate work. Yet, the schools figure it is up to the law firms to train them. Well, what about the VAST majority who will not get hired by a law firm?!

    Oh, that's right. The law schools don't give a damn about them. You see, these pigs get paid up front - thanks to an endless stream of tax dollars, i.e. student loans.


Web Analytics