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Is Skills Training Overrated…The Fourth Circuit Shows Why

by Carolyn Elefant on April 6, 2010 · 9 comments

in Courts & Practice, Gaining Competence, Trends

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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]

  • Peter Goselin

    I would have reached quite the opposite conclusion about legal education based on the same set of facts.
    The skills training I received in law school, and the training that I have tried to give law students who have worked for me as externs or clerks, always made the nuts and bolts of practice a strong focus. Knowing what you know and don’t know about the particular forum in which you find yourself is critical, as are local rules and chambers practices. My observation is that law students whose studies do not include plenty of practical training are more likely to have wonderful insights into obscure causes of action and less likely to understand why you might have to ask another practitioner (or your secretary or paralegal!) how some mundane but necessary task is performed.

  • http://www.valanduseconstructionlaw.com Timothy R. Hughes

    The most important statement in this case is at footnote 4:
    “At oral argument, Appellant’s counsel explained that he made the affirmative decision not to contact opposing counsel after the deadline for filing dispositive motions had passed because he did not want to remind them of the deadline for filing dispositive motions.”
    Assuming the virus excuse is real, they do not bother to check and see if anything is filed and just hope? And then ask relief after not having opposed a summary judgment motion on appeal?
    I have to say I fail to see how this relates in any way to skills training in law schools instead of a pretty boneheaded decision by counsel to choose wilfull ignorance at their obvious peril instead of a trip to the clerk’s office.

  • http://www.adamsdrafting.com Ken Adams

    Carolyn: You might want to bear in mind that “skills training” can mean different things to different people. I’ve routinely heard contract drafting described as something that falls under skills training, but I gather you don’t see it that way. Ken

  • http://solopracticeuniversity.com Susan Cartier Liebel

    Carolyn, I’m on board with both Timothy and Peter on this one. This guy outsmarted himself and that has nothing to do with skills training in law school. Skills training in law school doesn’t teach you to rely on what you learned in the jurisdiction where your law school is and utilize it exactly the same way in any other jurisdiction regardless their rules any more than learning to swim in a swimming pool translates to expertise in swimming in the ocean. BUT it does teach you the fundamentals of swimming. You still have to exercise discretion and know when you are out of your depths. This guy got caught making a ‘pretty boneheaded decision’ as pointed out. It’s not an argument against skills training in law school.

  • http://67.225.230.212/~sh1ngl3 Carolyn Elefant

    I think perhaps Ken is correct – it may be a matter of definitions. I do think that contract drafting (an underdeveloped craft) falls within the rubric of writing and analysis – and as such is a “skill” and is taught in law school (well at least writing is, I know that contract drafting isn’t taught in most places except where folks like Ken are on board). It’s just that when I hear people advocating for skills training, many say “I want to know how to draft a complaint. How to file a case in court.” They want to learn discrete technical functions that I just don’t think are all that important because they are not transferable. What matters more are big picture ability – to analyze, ask the right questions, know the difference between courts and how to read rules. I assume that law schools today are not teaching that stuff, and they should.

  • Tim Donoughue

    I agree with most of the comments posted, but would offer an additional 2 cents:
    The vast majority of the ‘skills’ training I have had, given or seen relates primarily to communication. For example, you have all of that critical thinking, but now you need to communicate that to a court. So, you need training on how to do that in writing (pleadings, briefs, motions, contracts) and orally (in a trial, a motion hearing, appellate oral argument, client meeting). The focus in my experience is on generally-applicable principles rather than specifics of practice in any jurisdiction.
    I agree that this is a case about the value of local counsel and a boneheaded decision, not about skills training.

  • http://www.twitter.com/VBalasubramani Venkat

    This is off-topic, but my reaction when I read this case was: people make a big deal about having an “actual office,” but it’s just as important to have your email/website working.

  • AnonymousFrustratedAtty

    I can tell you that most of this room full of contract attorneys fresh out of law school wish they had skill training.
    I don’t think anyone went to law school thinking that they would be small business persons at the end. Most believed the brochures sent out that 90% of the graduating class had jobs and the median income was north of 80K. The professional responsibility profs drill into your head that you need help to practice law when you first get out. Throw in the socratic method that engenders risk aversion…and the result is a very scared set of academic superstars. The top 10% of course, have their pick of opportunities – but there’s always going to be a bottom 90.
    After piling on debt and expecting a job to be at the end of 3 years of intellectual hazing a good 1/2 of the 190+ law school graduates had a rude awakening. There is no job @ the end of the tunnel. There is no group of attorneys waiting to “mentor” you for free. I have yet to read your book, but i’d be very impressed if you were able to find regulatory work clients based on solely on your skills in erudition garnered from law school.
    60+k in the hole, no job in sight, what would should happen to these people?
    Having spent all of that money at a school for professionals – shouldn’t the law school take note of what has been happening for decades?
    Throw in the recent upheavals in the economy, and the field of law really has a problem.
    Furthermore, your conclusion that skills training in law school give new lawyers false confidence doesn’t follow from the example you’ve given.

  • Kenneth Bethune

    I’m a current law student at a 4th Tier Law School. I have done everything I can to take practical or “skills” based courses because I have always intended to open my own office. I’ve found some helpful, others less. But, many of my classmates are realizing that they have no job opportunities and might have to go out on their own, and they are petrified about the lack of skills that they have.
    My “skills” classes were Pretrial Lit, Trial Practice and Intro to Legal Practice. However, I took Contracts, Wills I & II without ever producing a single document.
    My Oil & Gas classes were pretty good about exposing us to real oil & gas leases, but that prof is an adjunct who deals with them everyday and finds that skill important.
    Didn’t this lawyer in question get the typical law school approach to critical thinking? How did that work out for him?

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