If you’ve followed me at this site for a while, you’d discover that I’m not particularly a fan of skills training in law school. Sure, I’m familiar with and agree with much in the Carnegie Report, which argues that law school needs to incorporate more skills training. However, I’ve always believed that between clinical courses, moot court and internships, students who desire training can gain it; it doesn’t need to be mandatory. Moreover, in my view, the most important skills that law school can confer are sound analytical, research and writing skills which are tough to master or improve on the job. By contrast, it’s possible to get the basics of practical subjects like foreclosure law through a good (and often free) CLE program combined with supervised pro bono.
There’s another reason why I don’t endorse in depth skills training in law school: because a law school training program can’t possibly cover all of the minutia of the various jurisdictions where graduates may eventually practice. As a result, not only is skills training meaningless in most cases, but it can also give graduates a false sense of security, as a recent Fourth Circuit decision, Robinson v. Wix Filtration illustrates.
In Robinson, North Carolina attorney Charles Everage initially filed an employment action on behalf of his client in North Carolina state court. Defendant removed the case to the Western District Court of North Carolina, which proved a wise strategy. Following the close of discovery and in accordance with the deadlines set in the court’s scheduling order, Defendant filed a motion for summary judgement via the federal court’s electronic filing system. Everage failed to respond and the lower court court granted the Defendant’s motion. Subsequently, Everage sought post-judgment relief, arguing that due to a computer virus, he never received a copy of the summary judgement motion which is served through the court’s ECF system. The lower court refused.
By a 2-1 majority, the Fourth Circuit affirmed the lower court ruling, holding that a dismissal, without response, did not constitute a “manifest injustice” warranting relief. The court found that even accepting the computer virus excuse, Everage had two options available: he could have contacted opposing counsel to determine whether a summary motion was forthcoming (since the deadline on the case management plan had passed) or he could have checked to docket himself to see whether a motion had been filed. Everage apparently had no response to the second option; as to the first, he argued that he hadn’t contacted counsel to avoid “tipping him off” about a missed SJ deadline. The court didn’t buy this argument either; it concluded that “having chosen to litigate with his head in the sand,” Everage (and his client) would have to live with the consequences.
So what does all of this have to do with skills training? Plenty. Recall, Everage originally filed suit in North Carolina state court, a forum in which he was apparently quite comfortable (indeed, in a decade of practice, he’d never missed a deadline to respond to an SJ motion). Unfortunately, the mores of local practice weren’t much help in federal district court – and indeed, proved to be Everage’s undoing, as Judge Andre Davis explained in his concurring opinion:
Just as a little knowledge is a dangerous thing, it is equally true that a little local knowledge is invaluable. As the dissent intimates, there are districts, divisions, and cities and counties in this circuit in which what happened in this case would be highly unlikely to happen. That is to say, in some places, lawyers talk to each other frequently, even lawyers on opposing sides of disputes. They discuss, for example, in advance, proposed or expected motions and other litigation events; they stay in contact with each other during the pen-
dency of the case. Likewise, in some places, a district judge’s staff or a magistrate judge’s staff can be counted on to tele- phone a lawyer who has failed to file an opposition to a long- pending dispositive motion before the court rules on such a motion; in some other places, no such call can or should be expected from a chambers staff. In some places, a lawyer
(with or without the client’s assent) might herself call an adversary to inquire as to the lack of an opposition to a dispositive motion. But none of these things are required or expected in any district or any court; local legal culture drives these practices.
My guess is that Everage assumed that the local practice with which he was familiar. And that’s my fear with skills training: that lawyers will be taught a series of rote steps and provided with checklists that don’t necessarily transfer from one jurisdiction to another.
The solution? Teach lawyers to think critically instead. For example, what would have happened if Everage thought to ask himself: ”Gee, at least 70 percent of employment cases in Fourth Circuit cases are disposed of on SJ. Isn’t it odd that my opponent didn’t file? – and then check the docket). Or realized the differences between the ECF system and local state court practice and taken out the FRCP local rules to compare. Maybe this is what law schools have in mind when they discuss skills training – though to me it seems to be more along the lines of common sense.
[April 7, 2010 - update] The first two commenters make some good points. I suppose that if skills training taught students to ask questions and think critically, it would make a difference. However, usually, when I read about new lawyers lamenting the lack of skills training, they are looking for quick fixes like checklists, cheat sheets and specifics on how to file or draft a complaint. If practical skills could be taught in a way that extended to all situations, it might be effective. But I’m skeptical – and I fear that someone who learns how to file a complaint in district court in Montgomery County, Maryland may assume it’s done similarly everywhere and fall prey to this same outcome].
There’s also a second lesson that this case teaches which deserves mention:
The majority opinion does no more than make explicit that which common sense
and mature judgment make plain: lawyers have an obligation to their clients, to the profession, and to the court to pay attention. For practitioners in the legal profession, unlike those in some others, he who fails to pay attention may one day have to pay up.
Moreover, it’s not just that we lawyers will have to pay up, our clients do as well. [end update]