Appendix A
Report of the working group
on the education of lawyers and admission to the bar in Tennessee
Legal education is a lifelong process. The training of lawyers
takes place on a continuum that begins before law school and extends
on indefinitely throughout a lawyer's professional career.
In the judicial system of the future as envisioned by the Commission
on the Future of the Tennessee Judicial System, lawyers will continue
to play a vital part. To function effectively in their role in
representing clients in legal disputes, they will need not only
a broad range of knowledge and skills, but a particular mindset.
The system of the future will require lawyers who are both disposed
and trained:
? to attend conscientiously to their client's interests from
the beginning to the end of the relationship, with sensitivity
to all of the human factors involved;
? to resolve every dispute by the least combative and least expensive
means available, and
? when trial is indicated, to try the case skillfully and wisely,
at the least possible cost to all concerned (in human as well
as financial terms).
Educating lawyers for the judicial system of the future in Tennessee
poses a significant challenge for law schools and the organized
bar. To some extent, meeting that challenge will be a matter of
capitalizing on changes that are already taking place. But more
will be required.
Changes Now Under Way
The traditional three-year law school curriculum emphasized knowledge
about the law and the legal system (including legal philosophy)
and several fundamental skills: legal analysis and reasoning,
legal research, and oral and written communication in certain
very specific contexts. The traditional modes of instruction were
(and are) classroom dialogue, lecture and hypothetical problem-solving.
The examination that new law graduates were required to take
to gain admission to the practice of law ("admission to the bar")
tested for the knowledge and skills emphasized in the traditional
law school curriculum. Opportunities for post-admission "continuing
legal education" for lawyers were available, but lawyers were
not required to avail themselves of them.
Over the course of the last two decades, the curriculum at many
law schools has been substantially transformed. Some of the changes
anticipate the requirements of the judicial system of the future
as envisioned in the Commission's report.
Courses have been instituted in interviewing and counseling,
negotiation, alternative dispute resolution, pretrial litigation
(the conduct of lawsuits from their inception to the eve of trial),
and trial practice. Often these courses are taught by means of
sophisticated simulations in which students assume roles as lawyers
and judges. In many instances the teachers are in fact accomplished
trial lawyers and judges.
A basic course in the ethics of the profession is required of
all law students, generally in the second year. To emphasize the
importance of ethical considerations, some law schools introduce
them pervasively in first-year courses and in special programs
for first-year students.
All four Tennessee law schools now offer clinical courses in
which students in their third year of law school observe and assist
in the work of state or federal judges, or (with the permission
of the Tennessee Supreme Court) represent clients under the close
supervision of an attorney who is sometimes also a member of the
faculty.
At points on the legal education continuum subsequent to law
school, other important developments have recently taken place
in Tennessee:
? Chapters of the American Inns of Court have been established
in Memphis, Nashville and Knoxville. Patterned on the British
model, the Inns of Court bring together judges, expert and novice
trial attorneys, law professors and law students, to facilitate
the transmission of wisdom and knowledge about the profession.
? All new admittees to the bar in Tennessee must take and pass
the Multistate Professional Responsibility Examination, which
tests for detailed knowledge of the profession's ethical canons.
? It is now a condition of maintaining a law license in Tennessee
that every lawyer take 15 hours of continuing legal education
annually, including three hours devoted specifically to professional
ethics.
New Directions
The judicial system envisioned by the Commission will impose
new standards on lawyers in several areas in particular: the interpersonal
aspects of lawyering; skill in resolving legal disputes by negotiation
and other means short of trial; and the wise and efficient conduct
of lawsuits.
The key to meeting the challenge of preparing lawyers to function
effectively in the system of the future will be collaboration
between law schools and the practicing bar along the whole continuum.
Such collaboration could take many forms. These in particular
seem to us to be worth pursuing:
? Increased exposure for law students to the client's perspective
on the law, the legal system and lawyers. Good clinical work,
in which students represent clients in actual disputes under the
careful supervision of experienced attorneys, is a proven vehicle
for this, but other alternatives should be carefully investigated.
? Development of a code of good practice for clerking relationships,
encouraging lawyers to provide the students they employ with experiences
that will help the students grasp what the practice of law really
entails.
? Integration of negotiation and alternative dispute resolution
into the core law school curriculum. Requiring that all students
take courses in these areas would be one means of accomplishing
that, but only one. There is no apparent reason why negotiation,
mediation and other forms of settlement could not be woven into
the basic framework of the curriculum as trials and appeals are
now.
? Training for law students and new lawyers in trial skills beyond
the basics. For example, many novice attorneys are familiar with
tools in the trial lawyer's kit, such as the forms of discovery
in civil cases, but have no real conception of how to use them
sparingly and economically.
? Access for law students and new lawyers to instruction in the
mechanics, and particularly the economics, of law practice. Many
mistakes lawyers make in their relationships with clients stem
from economic pressures that result in part from lack of knowledge
as to how to run a law practice in a businesslike way.
? Continuing discussion between the law schools and the Board
of Law Examiners concerning what to test for on the bar examination.
Students' course choices in law school are heavily influenced
by what is "on the bar." If skills are important, testing for
those skills on the bar exam will send an important message.
? Serious, high-grade, mandatory continuing legal education for
new lawyers, emphasizing essential skills and knowledge that cannot
be effectively conveyed in three years of law school.
? Programs at every level that sustain and rekindle the idealism
many lawyers-in-training bring when they embark on the study of
law.
We offer these suggestions not as items on a fixed agenda, but
as areas for joint exploration by law schools and the organized
bar, as the judicial system in Tennessee evolves toward the fulfillment
of its potential as a just, fair and humane system for all.
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