In legal education, we are making cola and presenting it as wine

California’s Napa Valley is the most famous vineyard in the United States. Its wineries give a special touch to the beautiful summer colours until they vanish in the horizon, or are suddenly brought to a halt by unexpected mountains.

Napa is the birthplace of famous, exclusive, large and small wineries. Napa prides itself on being host to some of the finest wines produced outside the Mediterranean belt.

It is not wine that brought me to the Napa Valley. I spent two short and fruitful days here as part of a bigger agenda than wine, yet strikingly similar to wine in the way it is made.

A small group of law professionals were analysing the future of legal education. Our host, a professor at the University of California-Berkeley and dean emeritus of a prestigious Chinese law school, has a deep passion for legal education.

The meetings took place at his beautiful home, located on one of the highest hills of the city, overlooking the Napa Valley, just an hour’s drive from San Francisco.

There were 10 of us from diverse backgrounds, from Harvard, UC-Berkeley, UC-Hastings, Cornell, Leeds and Strathmore. Four deans, three professors, a high-ranking American judge and two education experts, one of them from the medical school at Berkeley.

LESSONS FROM WINE-MAKING

It was an engaging, enlightening and brainstorming meeting on what is happening to legal education around the world and what lessons we should learn from the successes and failures of other professions, specifically medical education, to improve the output.

On the last day, I was taken for an amazing wine tour together with the dean and chancellor emeritus of the UC–Hastings, a professor from Berkeley, the dean of Leeds, and Justice Diarmuid O’Scannlain of the US Court of Appeals for the Ninth Circuit. Little did I know wine-making would teach me one of the biggest lessons I took away from this seminar.

Two of the smallest but more exquisite Californian wineries, Robert Sinskey and Turnbull, make small quantities of wine that are distributed to carefully selected restaurants around the world.

They are small and professional; they treat their grapes like children; their vineyards are fit to measure. They do not plant more than they are likely to harvest. The result is exquisite full-bodied Cabernets, fruity Merlots, and buttery Chardonnays.

Making lawyers is like making wine. There are so many variables, so many things that can go wrong, and not all is under control. Sometimes the best vineyards produce the worst grapes. Other times, unexpected rough conditions produce great wines.

TENDER CARE

For example, the severe drought California has suffered for the past decade has increased the acidity of the grapes thus making the wine’s quality far superior. But one thing is constant — no wine will ever come from bristles and thorn bushes.

So much care is needed for all to go well. Vines need the right weather, the appropriate distance between each other, organic fertilizers enriched with discarded grape skins, tender and loving care.

The harvester’s tender care, the right machinery, proper clay pots, good yeast, genuine wooden drums made of special timber … and more importantly, time, for good wine only matures with time.

I could not help but think that legal education is so much like wine-making. The expansion of law schools in the world, including Kenya, has made us forget the importance of care, conditions, expertise… we just wanted to produce wine and sell it, without paying due regard to quality. We may have ended up making Fanta, Coca-Cola or Ribena … not wine, but still want to call it wine.

This is how law schools became the cash cows of almost bankrupt public universities, and mismanaged private ones. In the process we have left legal education bankrupt.

Law students nowadays are reared like cattle into cluttered rundown spaces, with no libraries, no punctual lecturers, where dictation is the norm, where imagination is unknown, and innovation is not welcome.

CHOKING DREAMS

We destroy the ideals of brilliant youngsters, we choke their dreams … and the great lawyer that he or she was meant to be is reduced to a sarcastic “decent” thief.

Something similar had started to happen, worldwide, to medical education. But there was a difference. If a doctor did the wrong thing, people would die. If a lawyer did the wrong thing, people would go bankrupt or end up in jail … so it did not look too bad or urgent.

Now it is urgent, and legal educators around the globe are waking up to the fact that lawyers should look at medical education and learn from the story of its professionals.

William M. Sullivan, one of the most prominent modern advocates for a revival of professional responsibility, wrote an influential paper in 2005, titled “Work and integrity: The crisis and promise of professionalism in America”. Sullivan focuses on creating a new generation of professionals who embrace a stronger sense of social purpose.

For Sullivan, educational training should include a strong social and ethical component. An essential part of the work of an advocate is to understand the context so that they can give an intelligent response to the expectations others have of them in their relationships.

This is a sort of third apprenticeship that has been largely ignored. This is the excessive neglect that is turning the wine of law and lawyers into vinegar, before our eyes.

PASSION AND COMMITMENT

I highly recommend reading Neil Hamilton and Sarah Schaefer’s paper, “What Legal Education Can Learn From Medical Education About Competency-Based Learning Outcomes Including Those Related to Professional Formation and Professionalism.”

There is a clear worldwide shift in legal education towards this third apprenticeship. Hamilton and Schaefer advise, first, that we move away from a structure and process-based curriculum (exposure to specific content for a specified period of time) defined only by the expert judgment of faculty toward: (1) empirical research on the actual needs of clients and lawyers in the legal system; and (2) a competency-based curriculum and assessment of each student’s developmental stage with respect to the core competencies.

All competencies needed for effective practice should be emphasised, including the professional-formation competencies, and find appropriate thresholds to assess personal development.

The law curriculum should be aligned to include these competencies, design effective, formative, and summative assessments to determine whether students are achieving these competencies.

The end result will be a lawyer with the passion and commitment of a good doctor, not for the sake of money, but for the common good and the genuine and sincere good of his client.

IMAGINATION AND INNOVATION

According to Hamilton and Schaefer, the new lawyer should engender trust and confidence by caring about the person, taking into account individual personal needs and preferences; promote a respectful and trusting environment that embraces diversity and open communication; aim at getting proper personnel, resources, and adequate facilities; develop and practice superior communication skills which cannot be improvised; be disciplined in completing tasks and responsibilities and serve as a positive role model and mentor; and finally pursue scholarship, seek and generate new knowledge, and share it generously.

This is quite a task, and law schools should aim at this. For some reason we have got stuck in teaching the technicalities of a spiritless law, forgetting ethics and the soft skills that will make our future lawyers succeed or fail.

The best schools in the world have seen this. They are waking up to this reality, and they are trying to learn from other professions that have set the pace.

The late Fulton Sheen once defined modern teaching as the flow of information from the notes of the professor to the notebook of the student without passing through the brain of either.

This needs to change, and change requires imagination, innovation and a deep understanding of some key questions which I promise to deal with in next week’s post.

Dr Franceschi is the dean of Strathmore Law School. [email protected]; Twitter: @lgfranceschi