Some Possible Arguments In Favor of Testing Lawyers For Speediness of Analysis:
Part Three In a Series on Timed Tests and Legal Education

By VIKRAM DAVID AMAR

Friday, Apr. 15, 2005

In my last column, I introduced some arguments suggesting that the speed with which one is able to process information and ideas is not as valuable a skill in the legal profession as might be assumed. In contrast, one's ability ultimately to reason through to arrive at the best answers to address a situation presented - regardless of the time (within reason) that doing so may take -- may be the crucial skill for which the profession should test.

Accordingly, the argument went, law school and bar exam formats that place substantial weight on speed may not do a very good job of measuring the skills that matter most in the real-world practice of law. And if that is so, it's a serious problem - for such tests include crucial indexes such as the Law School Admissions Test (LSAT) and the lengthy "multistate" component of the bar exam, as well as many law school exams in which students are asked to spot and analyze numerous issues in the space of a few hours.

In today's column, my last one in this series, I continue to analyze this question. Here, I will consider some possible counterarguments that may justify the inclusion of at least some significant speed element in legal testing - though probably not as heavy an emphasis on speed as our current testing regime contains.

The Case Against Extremely Time-Pressured Exams: They Do Not Simulate Real World Practice

The following hypothetical, provided by Professor Bill Henderson (whose work I also referred to in earlier installments in this series), helps distill the critique of speed-pressured exams:

At 8:00 a.m. a law firm partner directs a junior associate to write a memo on an important legal issue. The partner wants the memo done promptly, but does not provide a specific deadline.

The associate then works in the library for a while. At 11:30 a.m., the partner asks her what she's got. She turns over ten pages that resemble the result of a typical law school Blue Book exam -- imperfectly organized and sloppily written, but containing the germ of some important ideas. The partner instructs the associate to "make it better, though not necessarily longer."

At the end of the day, the partner asks the associate to turn in her revised draft. Similar to the result of an eight-hour law school exam, the new memo is easier to follow and contains legal analysis that is much clearer and more cogent. There are still some wrinkles to be ironed out, however, and the partner then tells the associate to convert the memo into a legal brief, nailing down all the details and finer points, such that the document can filed in court in the ongoing or imminent litigation.

Four days later, the associate turns in a final version. It's a well-crafted, finely-written and detail-oriented brief that thoroughly and carefully advances the legal position favored by the firm's client - the equivalent of an "A" grade law school term paper.

As Professor Henderson argues: "This hypothetical illustrates the fact that the memo delivered at 11:30 a.m. is a mere snapshot of a work in progress. An analysis hurriedly prepared in there hours may or may not be indicative of the work product that might arrive at the end of the day or the end of the week."

This, then, is the argument that speed-based exams do not simulate the real-world, where a lawyer almost always has at least between eight and forty hours to do a job, and rarely has only three or four. (The need for instant response, as well, is generally restricted to trial lawyers in the courtroom or appeals lawyers at oral argument or lawyers who are counseling clients in an emergency - and as I noted in my prior column, such situations represent only a small fraction of legal practice.)

The Importance of Speed Even in Weeklong Projects

There is likely much to the claim that law schools place too much emphasis on speed-based exams - three- and four-hour "racehorse" exams make up an overwhelming majority of law school tests, and eight-hour take-home exams and papers are used by pretty sparingly, especially in the first year of law school, which some say sets the tone for the entire three-year experience. (And the Bar exam in all states is also a very time-pressured affair.)

But I do think that speed plays more of a role in real world legal success than Professor Henderson's analysis described above would suggest. Even within the contours of his posited memo/brief assignment, speed may be more critical than he acknowledges.

Let's return to his hypothetical for a moment: When the associate spent her first three hours in the library, presumably researching and reading cases, the speed with which she could identify, process and internalize the precise holding and the reasoning of each of the initial cases she consulted determined how many cases overall she could look at to give her a tentative answer - or at least a tentative framework for an answer -- to the question(s) posed.

In addition, the speed with which she could understand, organize, and categorize the reasoning and language of the initial cases she looked at determined how thoroughly she could pursue secondary, but perhaps ultimately quite important, lines of cases that her analysis of the initial cases might lead her to.

My experience, admittedly personal and anecdotal, is that people who are good at addressing issue-spotting exams quickly are also good at doing and processing legal research quickly. And quite often, the intuitions and leads you develop in the first few hours of researching a legal issue frame the issue and related issues in ways difficult ever to redo. This means, in turn, that the utility of much of the next ten to fifteen hours you spend after your initial processing is dictated by the sophistication and validity of the your initial conceptualization.

Granted, the writing and organization of a memo or brief will surely improve over time, and as the writing and organization evolve, gaps in reasoning that were once obscured may become apparent and can thus be addressed. But it is hard (not impossible) to ever reopen your mind completely, once you have begun thinking about a set of facts in a particular legal way. For that reason, it helps if the instinct you develop in the first few hours of thinking about something is a good one.

This is especially true because most real-world legal problems do not have a single, "right," answer. Rarely is there a published decision right "on point," that provides complete clarity about a party's rights and responsibilities. (And if there were, perhaps speediness would still be at a premium - for finding the "on point" decision quickly, in the very unusual case that there is one, saves the client time and money.)

Instead, the vast majority of litigation involves drawing analogies and distinctions from related cases and related areas of law. And since there are a limited number of analogous contexts and legal fields that one can explore even in a week's time, locking into the most potentially fruitful areas of comparison as early as possible is what sometimes separates great lawyering from more ordinary representation.

Speed in Litigation Versus Speed in Transactional Practice: The Differences

Are my observations here necessarily limited to the world of litigation? Many might intuit that corporate and other transactional lawyers spend so many hours drafting each important document that is part of a deal that they have plenty of time to think through every detail. Thus, some observers might suggest that, in this area, processing speed is not nearly so important as are meticulousness and diligence.

As Professor Henderson puts it, "a client who has a complex tax problem or a high-stakes corporate transaction is unlikely to want a speedy work product at the expense of accuracy. Thus, hundreds of billable hours are expended late into [each] night in an effort to eliminate potential errors."

Perhaps stamina is more important than quickness here. But let me say that my friends who practice high-level corporate work (about which I understand very little, I must confess) tell me that not infrequently complex issues arise very late in a deal. At that point, there aren't hundreds -- or even tens -- of hours available to decide how to redraft key documents to accomplish objectives or overcome issues that have arisen quite unexpectedly.

Thus, thinking through quite quickly what the potential implications of changing one provision will be on the rest of a deal that has taken months to structure frequently requires more speed than is commonly appreciated. And more wrinkles arise very late in the corporate day than one might expect, because it is only when a transaction is coming close to fruition - is actually going to happen -- that some people with a stake in the deal really begin to focus on the how consummation of the deal will really change things, and thus begin to suggest important revisions whose legal and practical implications are crucial.

Why Schools Do What They Do: Tradition, Grading Convenience, and Fear of Cheating

Are reasons of the kind I've suggested here sincere explanations for why most law school exams feature time-pressured as much as they do? I rather doubt it.

My sense (informed by a dozen years of teaching at four different law schools) is that law professors, like the other pillars of legal culture, are pretty tradition-bound and conservative. Accordingly, they tend to do things as things have been done before until some compelling case for change is made.

Many in the legal academic world may opt for time-pressured issue-spotting exams for this simple reason of inertia. Or because the professors themselves likely succeeded on racehorse exams to get the grades generally required to enter the professorial ranks. Or because such exams yield an easy-to-discern curve that facilitates the grading spread required by most law schools. Test-makers may also rightly worry about the fact that take-home exams and papers present the difficult if not intractable problem of illicit collaboration - if a law student works with, say, a roommate on a take-home exam, who but they will ever know it? Only if their answers are too convergent may suspicion be raised.

All in all, then, the stubbornness of the status quo is not hard to understand at all.

It's Time to Base Reform on Empirical Data

But it seems to me that as empirical legal scholarship becomes more prevalent and more relevant, the time has come to obtain data from legal practice institutions themselves; relying on the kind of anecdotal and personal analysis I have here is simply not very satisfying.

Moreover, when we seek real-world data, we should cast our net widely - asking not just law firms, but also public interest lawyers and public agencies and clients of lawyers as well - to see what tasks and skills are the ones most important to quality lawyering.

To take but one example, as private practice becomes a more bottom-line oriented business, I would be interested in hearing whether lawyers believe analytic speed helps impress, recruit and retain clients, and if so in what ways.

Devising the kinds of surveys to elicit these and other kinds of relevant information for systematic study may not be easy. But if we really want to find out whether legal testing is serving the legal community well - which I should think is the most important, if infrequently posed, question - then perhaps academics need to be involving the end-users more, as they structure their internal operations.


Vikram David Amar is a professor of law at the University of California, Hastings College of Law in San Francisco. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author of the Cohen and Varat constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.

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