[B00550519] November 2010

4. What are the necessary legal skills for good lawyering, and how best can they
be developed in a university setting?
Aaronson defines lawyering as a term that encompasses learning about both
law and the practice of it1. The issue over what exactly constitutes a good
lawyer has been a hot topic of debate in recent years, with differing conclusions
emerging. If we take the word skill in its literal sense to mean ability acquired
through training2, then the general consensus is that there are core legal skills,
and generic transferable skills passed on during the course of legal education. 3
The word good would appear to have moral connotations attached to it,
especially given the nature of a lawyers work, I shall therefore also explore the
moral dimension of lawyer and legal education, and its implications.
The United Kingdom Centre for Legal Education outlines core skills by employing
the acronym D.R.A.I.N., which stands for drafting, research, advocacy,
interviewing and advising, and negotiation4. UKCLE sees this skill set as being
most applicable to the legal profession, however it also identifies numerous
transferable skills, which may be carried onto to other job types. Skills such as
communication, problem solving, teamwork, autonomy, numeracy and
intellectualism may be view as such transferable skills. However, these skills,
when view against the backdrop of Aaronsons Four Domains may be seen to
represent constituent parts of these domains, namely role conceptualization,
problem solving, decision making and practical judgment. 5
Aaronson is critical as regards the fact that while many students have access to a
wide variety of courses, most tend to stick to prescribe modules, rather than
venture into fields such as critical legal thinking, law and feminism or critical race
theory, courses which Aaronson believes enliven perspectives on law and
lawyering.6 He observes that while much of legal education is about socialising,
there is little explicit attention paid to helping students understand what is
happening to them professionally and what choices they may have. The issue
flagged here is that Aaronson believes more needs to be done to help students
reinvent themselves as legal thinkers.
The case method, as adopted as a teaching strategy by many universities comes
under Aaronsons scrutiny. While acknowledging that the ability to accurately
predict the outcome of a courts reasoning is a core legal skill, Aaronson finds it
too triumphant and forward within teaching circles and views this as an issue

1Mark N Aaronson, Thinking Like a Fox: Four Overlapping Domains of Good

Lawyering (2002-03) 9 Clinical L. Rev. 1

2 JM Sinclair et al, Collins English Dictionary (Third Edition, HarperCollins Glasgow

1994) 1448

3 UKCLE, General Transferable Skills (UK Centre for Legal Education, 18th
November 2010) <http://www.ukcle.ac.uk/resources/learning-and-learnersupport/ldn/> accessed 18th November 2010

4 UKCLE, supra <http://www.ukcle.ac.uk/resources/learning-and-learnersupport/rationale/> accessed 18th November 2010

5 Aaronson, supra
6 Aaronson, supra at 4

[B00550519] November 2010

which needs to be redressed.7 He submits his own view of what he believes a well
rounded legal education to be, a comprehensive legal education needs to start
with multiple aspects lawyering, not just overwhelmingly the study of case law,
because the task is to help students begin to develop expertise in law and legal
institutions while enriching, not narrowing, their understanding of the many
factors that affect human choices and aspirations.8 He suggests that the
demarcation of on what is good lawyering as opposed to mechanical lawyering is
how the student comes to understand complex real life situations, and the
psychological composition of them.
As regards my own experiences of university legal education, I must say that I can
relate to what Aaronson is saying. I am aware that a few of my friends who are
studying law at various universities in England have delved straight into cases of
torts, contract and criminal law, without beginning to critically consider, what is
law. As a result, they often find themselves confused with respect to having to
consider social or psychological factors involved with their cases. When
conducting my own research, I am particular grateful regarding the University of
Ulsters virtual learning environment, WebCT, especially given the comments of
Britain and Liber, VLEs should provide opportunities to improve the quality and
variety of teaching and learning that are not being achieved using current
methods9.
If we return to Aaronsons article, we can consider what he intends by role
conceptualization. In this particular instance, role conceptualization refers to how
the lawyer views his/herself and their roles within their reality. Aaronson notes the
importance of role conceptualization, as it will affect how situations are perceived
and interpreted and how the lawyer conducts himself within his/her social
setting10. Wade Mansell et al also note the effect of the perception of reality, as
our interpretation of it can also affect it.11 Aaronson highlights that traditional
approaches to teaching tend to put much focus on procedural process, and
interestingly, Floyd observes that popular culture would seem to prefer that more
was done in the way of providing substantive justice, than see all procedural
technicalities observed.12 For the lawyer, the conceptualization process ferments
the skills of advocacy, legal expertise and the ability to reconcile competing
obligations to clients, the legal system, the public and oneself. 13 In Aaronsons

7 Aaronson, supra at 6, 7
8 Aaronson, supra at 7, 8
9 Sandy Britain/Oleg Liber, A Framework for the Pedagogical Evaluation of
eLearning Environments
<www.jisc.ac.uk/media/documents/programmes/jtap/jtap-041.pdf> accessed
November 18th 2010

10 Aaronson, supra at 10
11 Wade Mansell et al, A Critical Introduction to Law (3rd End, Cavendish
Publishing, Glasgow 2004) 6

12 Timothy W. Floyd, Realism, Responsibility and the Good Lawyer: Nieburhian

Perspectives on Legal Ethics (1991-92) 67 Notre Dame L. Rev. 597

13 Aaronson, supra at 13

[B00550519] November 2010

view, the students ability to think as a lawyer should be encouraged much more
than it is currently.
Wasserstrom, too, explores the moral dilemma facing lawyers when he/she must
choose where, exactly, their loyalties lie. He submits it is in general irresponsible
and often, as a result, wrong for one person knowingly to say nothing of
enthusiastically, to assist another in securing some end or objective without
seriously considering moral worth the goodness or badness of that end or
objective.14 This further backs up Aaronsons belief that a university law education
should, at the very least, consider a critical insight into law and morality.
Wasserstrom asserts the importance of legal and technical competence, and so
proposes changing all aspects of the curriculum except in the areas of analytical
and argumentative skills.15 Furthermore, Wasserstrom submits characteristics,
such as benevolence and compassion, to be inherent qualities in a good lawyer.
Thus he raises the question of whether or not virtue can be considered a skill, and
if it can be thought of as such, can it be taught within the context of a university
setting? Cynically, the suggestion is that if it can be taught, it isnt being taught
very well.
Rather than remain an amoral facilitator16, or hired gun17, Floyd, Wasserstrom
and Aaronson demand that the lawyer use their skill to side with the appropriate
cause or reach judgment. According to Wasserstrom, failure to take a moral
stance could see the lawyer appear as a hypocrite, Lawyers regularly speak for
and on behalf of their clients and clients causes. If they genuinely believe in the
rightness and correctness of what they advocate, they must depart from their
amoral stance in order to reach this judgment. If they do not or should not care,
then they seem to be practitioners of a hypocrisy that in most contexts is not a
moral virtue. Luban goes as far to create a moral activist lawyer 18, who will reject
a client on moral grounds. This is sometimes resolved in university contexts by
applying roleplaying techniques to hypothetical scenarios in order that students
must carefully deduce the prescribed consequences of a particular course of
action.
Having considered elements which could be seen as being part of Aaronsons
dimension of role conceptualization, it would be now appropriate to discuss the
remaining dimensions of problem solving, decision making and practical
judgment. It is important to note that these three dimensions are inextricably
linked to one another, and are intertwined aspects of thinking about what to do
in different situations19 Aaronson sees these as vital to creating a an appropriate
working methodology that reflects core skills of lawyers. But, he is very clear at
distinguishing each from the other, Problem solving is a methodological approach
for preparing and organising to do different tasks, with a heavy emphasis on the
establishment and evaluation of explicit objectives. Decision-making refers to

14 Richard Wasserstrom, Legal Education and the Good Lawyer (1984) 34 J.

Legal Education 157

15 Wasserstrom, supra at 161

16 Wasserstrom, supra at 157
17 Floyd, supra at 589
18 Floyd, supra at 590
19 Aaronson, supra at 11

[B00550519] November 2010

what we do at significant junctures to facilitate making particular choices once we
have indentified and assimilated relevant knowledge and concerns. Decisionmaking describes the process that we use to reach a conclusion once we already
have substantial information in hand. The distinction between decision-making
and practical judgement addresses a different dimension in our thinking. It directs
attention to when we are able to rely on hard techniques and information for
making pivotal choices, and when we have to weigh and prioritise competing
concerns in a way that is non-formulaic.20
In the parameters of a university context, problem solving is often encouraged
through the case method: students are presented with the facts of a real or
analogous case and must consider the situation by weighing up facts and
assumptions, approaching from different perspectives and comparing
alternatives.21 The technical process behind decision-making on the other hand
should be viewed as mathematical, and linked with economics, as outcomes are
the result of the application of a strict logic. Aaronson proposes that FARFing or
fact-and-rule-fit could be taught so that students can quickly learn to establish
the facts of a particular matter and the resultant legal consequence, or as
summarised, X has occurred, and thus Y shall be the consequence. 22
Alternatively, the use of expected utility analysis to predict the outcome of a trial
could be used to evaluate the cost of a trial compared to a settlement. 23
Finally, with respect to practical judgment, Aaronson observes that the critical
dynamic in developing good lawyer judgment is the ability to be empathetic and
detached at the same time. Empathy involves imaginatively putting oneself in
someone elses shoes.24 This sentiment is not hauntingly dissimilar to the words
of Atticus Finch in To Kill a Mockingbird, If you can learn a simple trick Scout,
youll get along better with all kinds of folks. You never really understand a person
until you consider things from his point of view until you climb inside his skin
and walk around in it.25 The encouragement of practical judgment in to this
degree could only really be reached if the student has study law in a critical
enough manner to be able to literal step inside another persons skin.
In conclusion, while Aaronson perceives 4 dimensions of good lawyering, it is
very clear that these dimensions can be broken down into constituent
components such as legal acumen, deductive reasoning etc. However as
highlighted by a host of legal critics, the current curriculum in most universities
must be altered in such a way to train students into thinking like lawyers, by
expanding their experiential base of learning through a critical approach to legal
studies.

20 Aaronson, supra at 11
21 Aaronson, supra at 18
22 Aaronson, supra at 23
23 Aaronson, supra at 24
24 Aaronson, supra at 35
25 Harper Lee, To Kill a Mockingbird (first published 1960, Mandarin 1989) 33