DISMISSED FOR LACK OF EVIDENCE

April 12, 2012 § 11 Comments

Evidence is no longer a required course of study at either of the law schools in Mississippi.

That may be old news to you, but I heard of it for the first time only last week. You can click on either or both law school links over there on the right and check for yourself. You’ll have to do a lot of digging to find the info; I recommend you go straight to the school catalogs in .pdf format.

I am sure the academicians have a good reason for this development. I’m guessing – I haven’t “interviewed” any deans or anyone else – that it has something to do with the bar exam, and not law school itself, being what they consider the real certification of skills.

Still, when I think of subjects at the core of being a lawyer, evidence certainly ranks right up there in the top few. A good grasp of the law of evidence requires one to bring to bear the very analytical legal skills that distinguish the legal profession from other fields of endeavor.

Moreover, the law of evidence informs much of what a lawyer does in the everyday practice of law, regardless whether that lawyer ever personally sets foot in the court room. A lawyer’s advice about the drafting of a contract is shaped by the distinct possibility that it may have to be in evidence at trial some day. Advice to clients about how to make a proper paper trail and document activities is based on evidentiary considerations. When a client asks advice about what his or her liability might be if sued, the lawyer has to evaluate the evidence, taking into account what may or may not be admissible in evidence.

As I see it, law school has three primary functions: (1) to teach the law; (2) to teach how to find the law when one is not sure what the applicable law might be; (3) and to analyze the problem like a lawyer so as to bring (1) and (2) to bear.

Of the many areas of study that might be required, I nominate evidence as one that may be unparalleled in its ability to teach law students how to think like a lawyer. Now, I am not an academician. I am a mere trial court judge toiling away in an obscure corner of Mississippi, so my opinion, I am sure, carries little weight on this subject. But based on 33 years of practicing law and 5 years on the bench, I have to say from a purely nuts-and-bolts standpoint that a solid grasp of evidence would be in my top 3 of essential subjects to have if you expect to succeed as a lawyer (FYI, I nominate contracts, civil procedure and evidence).

And yet, by making evidence an elective, the subject has been assigned the same academic weight as other elective courses, which include Venture Capital, Law and Literature, and Legislation at MC; and Gaming Law, Bioethics, and Legal History of Slavery at OM. Not to say that any of those courses are not worthy of being included in a proper curriculum, but are they as essential to the core function of a lawyer as is Evidence?

It seems that the function of law schools has shifted from my era, when we were admitted to practice by diploma privilege after completing a rigorous, mostly required curriculum, to the current, when completion of law school is merely the gateway to admission to the bar exam, and it is up to the students to select (with a few exceptions) what he or she prefers to study.

In 1980, or thereabouts, Mississippi abolished “reading for the bar,” under which an aspiring lawyer would study the law on his or her own under the tutelage and supervision of a lawyer in good standing. After the prescribed period of study, with a certificate of the tutorial lawyer in hand, one applied to take the bar exam. Wisely, under that system, the experienced lawyer directed his tutee’s attention to the things that mattered, which included a hefty dose of Wigmore.

Now one must pay a law school – handsomely – for the same experience, sans the same dose of practicality.

I shiver at the thought of lawyers setting foot in my court room who have no grasp of the nuances of the best evidence rule, parol evidence, hearsay, or even how to get a document into evidence. I shiver for myself and for their poor clients. Some point out that the MRE is so much easier to understand and apply than the old mix of statutes and case law. True. But having a set of rules and understanding them enough to use them properly and effectively are entirely different things. Rules only take you so far. There are cases interpreting those rules that one must learn about. And the rules are neither crystal clear nor do they address everything one needs to know. Cite me a rule, for example, on what objection applies in any given situation. Or tell me how MRE 803(3) pertaining to wills applies in a will contest? Or when does past recollection recorded apply instead of refreshed recollection, and vice versa? Some elucidation is required for even the most astute student.

But, you say, prospective lawyers still have to pass evidence on the bar exam. Yes, but I would be more comfortable knowing that the student who was certified by the law school as being ready to take the bar exam had actually studied and passed evidence courses rather than merely mastered enough of an outline to pass the bar exam.

In the UK there is a two-tiered system: solicitors, who sit in their offices, advise clients, draft wills and other papers, do property work; and barristers, who are certified to have the skills to do litigation.

Maybe we could adopt a similar dichotomy here. I propose that our two-tiered system would be divided along the lines of who has not studied evidence and who has. Those who have not, we could call “shopkeepers” or “legal retailers.” And those who have studied evidence we would call “Lawyers.”

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§ 11 Responses to DISMISSED FOR LACK OF EVIDENCE

  • […] I posted here on April 12, 2012, about what, to me, was the startling discovery that Evidence is no longer a required course at either MCLaw or Ole Miss Law. The post prompted quite a response. Ole Miss Dean Richard Gershon submitted a brief reply here. […]

  • […] posted here about the disappearance of Evidence from the subjects required to graduate from law school, […]

  • Billy Stage says:

    I agree with Reggie cocnerning law school. I graduated last May and was admitted to practice last September. Although I am a new lawyer, I was a criminal investigator for almost nine years, so I am not new to the courtroom.

    I think the core courses – that generally apply across the board – should be required and I think Evidence is one of them. After that, instead of taking legal literature clases, there should be a focus on practice. I would imagine the first year focusing on core classes, the second focusing on research, writing, and trial practice, and the third year split between extern/internships and bar study.

    Currently, you graduate in May, cant take the bar exam til July, and dont get your results until September. That is four months I cant necessarily work, earn money, and support my family (as a lawyer). Then, when I am finally admitted, I know have to start learning how to do my profession. I learned more in one semester of internship than most of my other classes combined – and a big reason was that I was dealing with real cases, real issues, and real evidence.

    • Larry says:

      There is no question in my mind that there needs to be more emphasis in law school on the nuts and bolts of practice. Dean Gershon sent me an email that mentions some steps that Ole Miss will be taking in the near future to do just that.

      On the other hand, don’t overlook that learning to study the law and understand it, and to find different ways to apply and view it, are all important practical training, too. I think too many lawyers nowadays don’t spend enough time thinking about and studying the law of their cases and trying to devise novel ways to apply the law.

      There is certainly a balance in the study required to produce well-rounded lawyers. Right now, law students would be better served if that balance were to tilt a little more to the practical, in my opinion.

  • Judge your post brings one of my many peeves about our profession. I was an x-ray tech for 10 years. Our training, not to mention that of a physician, involved hands on clinical time. When I graduated I knew what to do. A doctor doesn’t do his first operation after openign a practice – he’s done plenty before being turned loose on the world. We dont do that. Succinctly, law schools do NOTHING to prepare lawyers to practice law.

  • Ben McMurtray says:

    For what it’s worth, while Evidence is not “required” at Ole Miss, it is pushed very highly. The professors are very clear that anyone who actually intends to practice law needs to take evidence as well as Civ Pro II. For that reason, the school offers at least 200 spots each year for evidence classes and about 150 for Civ Pro II. Considering that there are less than 500 students at the school, and students are here for three years, there is plenty of room available to whoever wants to take evidence. Also, just about every 2L I know (I’m a 2L) has taken or will take evidence before they graduate.

    • Anderson says:

      That’s good to know, but it doesn’t clear up why Civ Pro, for instance, isn’t “pushed very highly” instead of required.

      The ulitmate way to push a class highly is to require it. I would like to hear from UMSOL as to why they don’t require Evidence any more but do require other subjects. (Or do they?)

    • Larry says:

      To me, not requiring evidence to become a lawyer is like not requiring a person to study and pass a course on rebuilding an engine in order to be a mechanic. If you want the badge “Lawyer” with your name, you should master the lawyerly skills, of which evidence is the epitome.

      As for the professors urging students to take the course if one intends to practice law, does that mean that the students who for some reason are getting a law degree but NOT intending to practice law are driving curriculum decisions? That’s even goofier than I had imagined. Law school should be training people to practice law. If you want to do something else with your JD, fine. But learn what it takes to be a lawyer and shuck it later if you like. Otherwise, the title of lawyer means something entirely different than what we are holding out to the public.

  • Anderson says:

    Btw …

    “I shiver at the thought of lawyers setting foot in my court room who have no grasp of the nuances of the best evidence rule, parol evidence, hearsay, or even how to get a document into evidence.”

    Sure you don’t mean “the thought of EVEN MORE lawyers …”?

  • Anderson says:

    That is just nuts. The new dean needs to change that, pronto.

    Why have *any* required courses if you’re not going to require Evidence?

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