Student Learning Outcomes for Lawyering Skills
I. Goals of Experiential Courses
NYU School of Law’s first-year Lawyering program and upper-level experiential courses are designed to achieve the following goals:
(1) Provide instruction in key aspects of the core lawyering skills that are used in most forms of legal practice. It is not necessary or possible for a law school to turn out accomplished lawyers who are capable of using lawyering skills at the level of highly skilled lawyers. It is, however, possible – and desirable – to teach basic aspects of such core skills as interviewing, counseling, and negotiation, so that students have the needed foundation for the lawyering tasks they will need to perform at the start of their career and so that they can avoid the kinds of first-level errors that are disruptive of performance and unnerving to the performer. In this way, graduates will be well-positioned at the start of their career to provide their clients with the quality of representation to which clients are entitled.
(2) Teach models of planning and decision-making for a range of situations, including those in which facts are currently unknown and not subject to confident prediction, and in which options involve differing and uncertain degrees of risk.
(3) Provide students with a basis for understanding the interaction of legal analysis with human behavior, including interpersonal dynamics and communication. This includes developing an understanding of the ways that factors such as self-interest, language, culture and other biases may affect a lawyer’s interactions and communications with others; understanding how the development and present of legal analysis and problem solving is impacted by historic and current under-representation, including on the basis of race, ethnicity, sex, gender identity, sexual orientation, socio-economic status, religion, and mental or physical disability; and developing the skills needed to collaborate effectively across diverse experiences, perspectives, and identities.
(4) Expose students to the demands, constraints, and methods of thinking in role as lawyers. Students should learn to assess the effects of a partisan role upon perception, interpretation, and analysis. Students should acquire the ability to analyze situations from others’ viewpoints. Students also should develop an understanding of the need for dispassion in forming judgment about matters in which they have a motivational interest or partisan role. They should learn how to achieve objectivity without diluting loyalty to their client and the perspective that flows from that loyalty.
(5) Provide students with the skills of self-reflection and learning from experience. Fundamental to successful legal practice is the ability to learn from successes and failures, and thereby to engage in continuous learning. This requires that all lawyers have the ability to reflect rigorously on their own lawyering performances, extract the lessons that can be learned from them, and use those lessons to improve the lawyer’s skills and subsequent performances.
II. Fundamental Lawyering Skills
NYU School of Law’s J.D. curriculum is designed to ensure that students graduate with at least entry-level competence in the following lawyering skills:
1. Problem Solving
In order to develop and evaluate strategies for solving a problem or accomplishing an objective presented by a client or other entity that has employed the lawyer’s services, a lawyer should be familiar with the following skills and concepts:
(a) Identifying and Diagnosing the Problem. Effective legal problem solving requires that the lawyer acquire an accurate and complete understanding of the client’s situation and objectives, including:
(i) The precise circumstances and needs that make the situation a problem for the client;
(ii) The legal, institutional, and interpersonal frameworks in which the problem is set;
(iii) The macro- and micro-level of social identity and difference that may impact the client’s situation and objectives;
(iv) The client’s “goals” – the resolution of the problem that the client would consider optimal and the range of alternative possible outcomes ranked in accordance with the client’s preferences, needs, and interests;
(v) The limits of what is presently known;
(vi) The optimal timetable for resolving the problem;
(vii) The financial resources that a client is prepared to allocate to solving the problem and, when economy is required, the courses of action or potential solutions that the client is willing to forgo because of their relative cost.
(b) Developing a Plan of Action. The development of a plan of action requires that the lawyer:
(i) Engage in a systematic and creative identification of the full range of possible plans of action, drawing upon both the client’s insights and the lawyer’s independent analysis in considering possible solutions to the problem and possible means for achieving each of the potential solutions;
(ii) Evaluate the comparative efficacy and desirability of the various possible plans of action;
(iii) Tentatively settle upon a plan of action that accounts for contingencies, including the emergence of relevant factual or legal information at a later time.
(c) Implementing the Plan. As tasks are completed, new information is learned, or unanticipated events take place, the lawyer should be attentive to the need to revise the plan of action, the allocation of responsibilities for its implementation, and/or the timetable for its implementation.
2. Factual Investigation
In order to plan, direct, and (where applicable) participate in the process of factual investigation, a lawyer should be familiar with the following skills, concepts, and processes:
(a) Planning a Factual Investigation: The development of a coherent and effective investigative strategy ordinarily requires:
(i) The formulation of a “working hypothesis” of the legal and factual theories upon which the lawyer will rely to achieve the objectives;
(ii) The use of that working hypothesis to determine the directions of investigation (including the facts to be gathered and the order in which to gather them), while keeping in mind the need to guard against overly restricting the investigation to the current working hypothesis and thereby excluding information that is potentially germane, and the need to be alert to the advisability of revising the working hypothesis as new facts are learned;
(iii) An assessment of the degree of thoroughness that is required of the investigation in light of the purposes of the investigation, the time available, the client’s resources, and other pertinent variables.
(b) Implementing the Investigative Strategy. The implementation of an investigative strategy requires systematic monitoring of results as they are obtained and constant consideration of the need for modification of the strategy as new facts are learned.
(c) Deciding Whether to Conclude the Process of Fact-Gathering. This determination requires an assessment whether the investigation has yielded as much of the desired information as it is practicably likely to yield, or that further investigation is not worthwhile given the information it is likely to produce, the amount of time and resources it is likely to consume, and other pertinent variables.
(d) Evaluating the Information That Has Been Gathered. This requires critical scrutiny of the facts to assess: their accuracy and reliability; how they fit together; any inconsistencies between the facts and the likely reasons for any such inconsistencies; the conclusions they support, and what courses of action are appropriate in light of these conclusions.
Effective interviewing of a client or fact witness or other individual requires familiarity with the following skills, concepts and processes:
(a) Communication skills and processes:
(i) Listening, and impediments to listening;
(A) Choices and effects of question formulation (open and closed questions, leading and non-leading questions, consecutive and non-consecutive questions, etc.);
(B) Choices and effects of question sequence;
(C) Effects of formulation, sequence, and the context of the interview on shaping (consciously or inadvertently) the narrative and the opportunity for the client of witness to tell her or his own story.
(D) "Active listening" and similar techniques:
(E) Precision in questioning and answering;
(I) awareness of imprecision, ambiguity, omission, in one's own communications and others';
(II) techniques for systematic control of levels of precision;
(iii) Analysis of the possible dimensions of description and inquiry;
(iv) The psychology of perception, memory, conceptualization, and articulation;
(v) Analysis of the factors that may affect interpersonal dynamics, including implicit or express biases, cognitive biases, multilingual communication, cross-cultural experiences, and/or other differing lived experiences and indentities.
(vi) Non-verbal communications.
(b) Planning to conduct an interview:
(i) Questioning one's a priori assumptions - e.g., that the way to acquire information is to ask questions specifically seeking it; that interviewers (or lawyers) ask questions, and interviewees (or witnesses) answer them; that one's interviewee will (or won't) share these assumptions;
(ii) Identifying one's objectives in the interview and deriving an agenda;
(iii) Anticipating the interviewee's expectations, assumptions, preconceptions, concerns and recognizing how these may influence the agenda;
(iv) Identifying potential positive and negative motivators, and planning to deal with them;
(v) Contingency planning, and methods for eliciting and interpreting information which enable the interviewer to determine which contingency s/he is confronting, before s/he becomes committed to one plan or another.
(c) Responsiveness during the interview;
(i) Monitoring the way the interview is going, and reassessing one's agenda when appropriate;
(ii) Taking account of probabilities while avoiding the danger of stereotyping in forming impressions of the interviewee;
(iii) Discerning clues and picking up on them; remaining attentive to unanticipated openings.
In order to counsel a client effectively, a lawyer should be familiar with the following concepts, processes, and skills:
(a) The nature of the attorney-client relationship, including:
(i) The respective roles of attorney and client in identifying the problem, assessing considerations, and decisionmaking:
(ii) The nature of the counseling relationship in general and as applied to the functions of the lawyer;
(iii) Norms for defining an appropriate attorney-client relationship (e.g., the values and vices of directive and nondirective roles for the attorney).
(b) Methods for establishing an appropriate attorney-client counseling relationship, which requires familiarity with methods for:
(i) Establishing and maintaining rapport;
(ii) Understanding and accepting the client’s values and objectives, and working out an appropriate relationship between these and
(A) the attorney’s own view of what is important or good for the client;
(B) legal, economic, institutional, social, and other factors pertinent to the situation;
(iii) Assessing the implications of the attorney-client relationship for the client’s subsequent satisfaction or dissatisfaction, as s/he looks back on the whole affair;
(iv) Examining problems and methods of communication in
(A) Breaking down the problem and potential solutions analytically;
(B) Explaining “the law” to the client;
(C) Coming to a common understanding of the respective roles of attorney and client.
(c) Decisionmaking methods, including:
(i) Integrating legal and factual analysis;
(ii) Integrating both of these with the client’s frame of reference;
(iii) Assessing probabilities and risks in predicting the probable outcomes of options:
(A) Determining the level of confidence that should be required of predictions for various purposes and in various situations;
(B) Making the predictions;
(C) Communicating the predictions and the attorney’s confidence or lack of confidence in them to the client, and involving the client in the process of prediction and of setting the appropriate level of confidence for predictions;
(iv) Analyzing situations involving a broad array of options and a high degree of unpredictability as to the consequences of choice among the options;
(v) Dealing with legal uncertainty when:
(A) The relevant legal framework is intractably unclear;
(B) The attorney doesn’t know the law and can’t practicably ascertain it by the time when the client demands and/or needs answers;
(C) The attorney doesn’t know the law and can’t practicably ascertain it without an expenditure of resources that may be out of proportion to what’s at stake for the client.
Effective negotiation requires familiarity with the following skills, concepts, and processes:
(a) The basic concepts of negotiation: its objectives, dynamics, and conventions.
(b) Awareness of the differing nature of negotiations in different settings, e.g.:
(i) the difference between negotiating to terminate a relationship and negotiating to make one; factors that locate negotiations on the spectrum between these poles, such as ongoing relationships between the parties that transcend the subject of the particular negotiation;
(ii) the differences of negotiating in situations where negotiation and negotiating behavior are more and less traditionally accepted, procedurally formalized, and protocol-bound.
(c) The essentials of negotiation planning, e.g.:
(i) analytic techniques for establishing one’s settling point and predicting the other side’s;
(ii) analysis of leverage factors;
(iii) analytic techniques for devising alternative conceptualizations of what is in controversy, or what is in issue;
(iv) analytic techniques for packaging issues in varying relationships to one another;
(v) analytic techniques for designing, predicting, and interpreting concession patterns.
(d) Awareness of the competition/cooperation spectrum and of reasons for, techniques for, and consequences of, one’s location on this spectrum.
(e) Case analysis in a negotiation context:
(i) identifying one’s own objectives, one’s options as to goals and means;
(ii) evaluating the worth of one’s case;
(iii) exhausting alternatives: using possibility-tree and other analytic approaches to assure that nothing is overlooked in planning.
(f) Attorney-client relations in a negotiation context: the respective roles of counsel and the client in decision-making; problems and methods of communicating with the client in the process of identifying and evaluating options
(g) Thorough preparation: anticipation of the wide range of things that may happen at the bargaining table
(h) Perceiving and responding to the significance of interpersonal dynamics, cognitive biases, and implicit biases in the actual conduct of negotiations
(i) Analyzing power relationships and authority relationships in the actual conduct of negotiations.
Many problems facing individuals or groups cannot be effectively diagnosed, addressed or solved by the lawyer acting alone. Effective collaboration requires familiarity with the following concepts, skills and practices:
(a) Understanding the power of collaboration and the dynamics of a collaborative environment, particularly one that is inclusive of a diverse set of experiences, identities, and perspectives.
(b) Building strategic networks:
(i) Engaging input across disciplines to understand the scope of the problem;
(ii) Creating unifying goals to guide individual and group engagement;
(iii) Awareness that effective decision-making can involve multiple constituencies and stakeholders;
(iv) Building broad collectives to tap into multiple viewpoints and diversity of experiences.
(v) Developing versatility and practicing perspective-taking by exchanging ideas with peers who have varied views, experiences, and identities.
7. Legal Writing
Effective legal writing requires familiarity with the following skills, concepts, and processes:
(a) An understanding of the varied functions of writing in legal practice, including:
(i) Awareness of the differing approaches and techniques for the writing of different kinds of documents, depending on:
(A) the nature of the document (e.g., an executory document, as distinguished from an expository document);
(B) the purpose of the document;
(C) the intended audience of the document;
(D) the stage of the proceedings, state of the record, or other situational context of the document
(ii) Awareness that, as to some kinds of documents, the allowable range of approaches and techniques is fairly narrow, while as to others it is fairly broad; and a general sense of:
(A) the principal kinds of legal writings;
(B) which ones have narrower and broader range of allowable approaches and techniques;
(C) what approaches and techniques are clearly out of bounds for each of the principal kinds of legal writings;
(D) what considerations affect choice among allowable approaches and techniques;
(iii) Awareness of the considerations that affect choice among different kinds of documents in situations where there is an option.
(b) Familiarity with the processes and skills involved in:
(i) Effective formulation of legal arguments for presentation in a written document, including:
(A) Articulating legal theories effectively;
(B) Using research methods to find suitable documentation;
(C) Identifying the range of possible arguments and selecting among them based on strategic considerations and any other relevant factors.
(ii) Effective presentation of the arguments in writing, which requires:
(A) Development of an effective organizational structure;
(B) Analysis of the possible perspectives, experiences, and expectations of the intended audience to determine the most persuasive framing of the presentation;
(C) Consideration of the ways that factual and legal narrative support persuasive framing and can attune the audience to new lines of thinking that advance the writer’s position or set back the opposing side’s position;
(D) Presentation of ideas and views with precision, clarity, logic, and economy;
(E) Rewriting, revising, and re-revising the document until it has the optimal structure, framing, and wording to accomplish its strategic purposes.
8. Understanding of Litigation and Alternative Dispute-Resolution Procedures.
In order to effectively employ, or to advise a client about, the options of litigation or alternative dispute resolution, a lawyer should have an understanding of:
(a) The fundamentals of litigation at both the trial and appellate stages.
(b) The fundamentals of advocacy in administrative, executive, and other forums, including:
(i) An understanding of the factors to consider in deciding whether to seek relief in administrative, executive, or other forums and in selecting the particular forum or avenue for relief;
(ii) Familiarity with the skills required for effective advocacy in formal adjudicative or rulemaking proceedings and informal administrative, executive, or other proceedings.
(c) The fundamentals of alternative dispute resolution, including:
(i) An awareness of the range of nonlitigative mechanisms for resolving disputes, including arbitration, mediation, and conciliation;
(ii) An understanding of the factors that should be considered in determining whether to pursue one or another alternative dispute-resolution mechanism.