Abnormal Interviews: Rodney Smolla, Lawyer and President of Furman University [Part 2 of 2]

Last week, in a series of posts, we analyzed the law school paradigm through a product liability lens.  Accordingly, we posed some questions to someone who has unique perspective on such issues.To that end, today, we continue our series, “Abnormal Interviews,” in which we conduct brief interviews with law professors, practitioners and other commentators in the field.  For this installment, we turn once again to Rodney Smolla, President of Furman University right here in Greenville, South Carolina.  As we noted in the first part of our interview with him yesterday, President Smolla is a former practicing attorney and former Dean of Washington and Lee University School of Law, where he worked to overhaul the school’s third year curriculum.  Yesterday’s interview focused on ethics and general practice issues, while today, we focus directly on legal education.

ABNORMAL USE: What is the goal of a legal education in your opinion?  Is it “to think like a lawyer?” Or is it to be prepared from a practical standpoint to actually practice law in the real world?

RS: . . . [I]t is not either of those two things because the practice of law is not either of those two things primarily.  The practice of law is not the manipulation of legal doctrine and legal theory and thinking like a lawyer very much because we all do that and we all do that equally well.  We all largely master that after the first year of law school; so the basic tools of thinking like a lawyer, which is the famous mantra that is listed forever and is enormously important, but 90 percent of that work is accomplished in the first year of law school.  The mechanics of law practice are important but easily learned in practice and to some degree usually learned even within law school.  But most lawyers are not paid because they are good mechanics.  Eighty percent of law practice, I’d argue, and the thing that you get really paid to do, and the thing that distinguishes the best from the average lawyers, from the substandard lawyers, is judgment.  Judgment, problem solving, advising clients, counseling clients, advocating for clients is almost entirely judgment.  What law schools largely ignored was that middle band of practicing law, which is everything.  It’s taking the intellectual part, the understanding of res ipsa loquitur, the understanding of strict liability standards, the understanding of failure to warn doctrine, the understanding of inherently dangerous products theory, all of which are relatively easy to master in their basic intellectual component in a first-year torts course, and maybe a second or third-year products liability course, all those legal doctrines, the theories, the economics behind different approaches, are intellectually interesting.  But most good law students get it and understand what res ipsa loquitur is or they understand the difference between strict liability and negligence, they understand assumption of risk, they understand those doctrines.  We don’t get paid by our client to recite those doctrines, nor do we get paid because we understand the rules of the local court system on interrogatories or request for documents.

What we get paid for is translating that into the messy picture of a product that explodes and injures somebody, the multiple parties that were involved, the economic pros and cons of settling rather than pursuing the matter, the human factors that will influence what we think a jury would do, what we think an appellate court would do, or the trial judge would do, the business interests of the client, the full range of matters that are implicated if we recalled this product or don’t, if we add this warranty or don’t, if we settle this case or don’t, the creativity it may take to come up with different ways to resolve the case, different ways to defend the case, or if you are on the plaintiff’s side, different ways to bring the case to the plaintiff’s side – that’s all judgment, creativity, relationships with client, relationships with opposing counsel, that is the art of practicing law.  It’s complicated, it’s messy, it’s heavily dependent on facts, heavily dependent on the human equation, and law schools need to do better in exposing students to that, exposing students to problem-solving, to creativity, to how you interact with clients, how you interact with opposing counsel, how you interact with judges.  People who have criticized either law schools that are entirely theoretical or law schools that are pointed to as being pedestrian because they are too practical, I think missed the boat.  What you want is to work on that middle range.  I think that law schools for a long time ignored that range but they are starting to move and you’re starting to see a transformation.  What will evolve from that is a healthy blend of the kind of classical first-year instruction that we have, basic courses, some building on that in upper-class courses, but a richer mix of about a third to a half of the rest of law school being more problem-oriented, simulation of legal problems, less concerned with teaching a lot of doctrine, and more concerned with teaching students how to translate that into the kinds of judgment that you have to make as a lawyer.  That’s a long answer but I hope that builds for you in what you want to do.

AU: As dean of the law school at Washington & Lee University, you overhauled the third year curriculum, perhaps to address these issues of judgment as part of a legal education.  Tell us some of the specifics that you implemented for the new third year program.

RS: The Washington & Lee program was very dramatic, and I was very proud of the law faculty and very proud of the law school that it had the courage to take the steps it did.  The decision was to make a dramatic statement, turning the entire third year into a simulation of law practice, for actual practice experiences through the clinics that the law school ran, to reduce the number of subjects and just have a few subjects in which the student would be intensely engaged in the kinds of things I have described, with an eye towards teaching judgment, professionalism, writing, argument, conflict resolution, and what it really takes to practice law at a sophisticated level.  So the decision was made to do that, and after I left, the decision was made to continue to do it.  So it wasn’t just something that I personally was a champion of that the school embarked upon and is committed to for its future.  I am very proud of Washington & Lee for having the leadership in American legal education to do that and the law faculty continues to make adjustments.  They find things that work well, things that don’t work as well, and as you would expect, it continues to always try to tinker and improve it.  But the basic notion of making that third year a true transition to practice, is something they remain committed to.

AU: Were there any models at other law schools that you looked to when Washington & Lee was designing its own program?

RS: There were many models for individual courses; so we found examples at almost every law school in the country of a particular professor who taught a course that adopted new sorts of principles.  There was nobody that made the commitment to turn the entire third-year experience into that and to make it mandatory.  Of course, there were many law schools that had heavily emphasized clinical experience and may have made clinics the entire experience of a semester, for example.  Because we wanted this to be comprehensive and be available for every part of the curriculum, clinics were part of the mix of the Washington & Lee solution, but were only about a quarter of that mix.  The other 75 percent were simulations of law practice that covered many areas that traditionally weren’t the kinds of subjects where you’d have law clinics.  So that was very innovative and a real instructive change.

The other point worth making is we wanted to take the law school and put it out into the profession and also bring the profession into the law school.  We developed a lot of partnerships with law firms, lawyers, and judges in the area, and by the area, I mean not just Lexington, but reaching all the way to Washington and Charlotte and across Virginia and even relationships sometimes with lawyers who commuted from other major metropolitan areas to be part of this, which was a real commitment on their part.  We said we don’t want you to be an adjunct professor in the traditional sense; we don’t want you to come and teach a law school course in a traditional sense, we want you to treat this as if these are young lawyers in your law firm that you are bringing in on a matter in which you were the lead counsel and these were your associates and you’re walking them through their first grade products liability case or their first bankruptcy proceeding.  They are working side-by-side with you, through the first draft of materials to begin to interview clients and do the sorts of things that you would do; so we don’t want you to come be a law professor, or mentor, in the shelter of a law school environment, where your students get do-overs, and there’s no real client injured.  We found that practicing lawyers in law firms loved doing that and were very generous with their time and willing to be part of it; often we were able to pair a law firm with a member of the faculty, and as a team, they would create these experiences.  It was a marvelous growth experience for our law students.

AU: Do you see that sort of curriculum being the future of legal education or do you think it will remain entrenched in the Socratic method and case studies?

RS: I hope it’s the future and I am going to continue to be a champion for it being the future.  Don’t get me wrong – I love the Socratic method.  I love teaching first-year students.  I used to be a torts teacher.  I loved teaching first-year torts.  I loved teaching constitutional law, but I think after about a year of that, or a year and a half of that, it’s outlived its usefulness and the students have mastered that and they know how to think like lawyers.  Then we need to help them grow in other ways.

The other thing I believe is there was once a time, maybe 80 years ago in which the law school curriculum covered just about every subject matter that existed in American legal practice but the law has exploded.  You could never keep up with legal doctrine, you could never keep up with the expanse of subjects, and even within a field, if you’re just talking about the regulatory environment, the doctrinal environment, even within something like products liability law, you could never hope to master all the intricacies of all of the doctrines and the evolution of products law within a particular band of a particular industry in law school.  So you might as well give up that, because that’s not the point of being a lawyer.  The lawyer can keep up with their one area or their few areas and master what’s going on there and they go to conferences, subscribe to services, and so on – you want students to learn, master areas on your own, keep up with it, but there’s no way you’re going to get all of that in law school and that’s not the point of law school.  The point is that it’s to help you develop these competencies, not some pile of law that’s in your head.

AU: Today, there is an ongoing debate about the cost of a legal education, or for that matter any higher education, the debt load that creates for many students, and the value of that education, i.e. the salary the graduates of the institution can earn with their degrees.  Do you have any thoughts on the subject?

RS: I think it’s a very healthy and important debate to have.  There are probably some nuances and some differences between that debate at the bachelor’s degree level or that debate as it applies to public and private universities that are educating college students for their first college degree and how it applies within the professional school level, medical school and law school, for example.  It’s probably important to draw some distinctions between those two arenas.

Overall, it’s a very important debate and I don’t think as a society, we’ve figured it out yet.  There are a lot of complexities.  My own thinking is evolving to separate the debate into two different types of questions.  One is the strategic question and the other is a more moral public policy question.

Strategically, from the perspective of universities and from the perspective of law schools, the pricing question is simply like any business question, what will the market bear?  Are there enough students that will come to this law school, at this price, to allow us to run at this level of activity.  A law school or a university can make those judgments based on how many applicants it has, how successful it is in filling its class, how much financial aid its clients have to give out in order to attract qualified students.  Those strategic judgments are not unlike any business judgment that any of our clients in the law would routinely make.  The answers to those strategy questions will vary depending on the school; some schools are more competitive than others; some schools will have tremendous applicant pressure because everybody wants to go there if they can, and value that and understands that those schools are successful in getting students jobs, and so they have the luxury of charging what the market will bear.  Other schools are less competitive, worry about filling their classes, maybe do not have the same success rate, and have to be very concerned about their price and the sensitivity of the price, although a lot of that is strategy, your position in the market.

Setting that aside, there is a giant moral dimension to this and that moral dimension is tied to the role education plays in our democracy, to our belief in the American dream, and upward mobility, to our belief that highly qualified students who could contribute to society, should go to college and go to law school if they want to be law students, and money ought not keep them out.  I believe in that personally as a value; I believe in that as a citizen.  I believe in that as a member of the profession.  So figuring out how to guarantee access to students from poor backgrounds and families from middle-class backgrounds where the cost of attending universities is approaching what it costs to own a home, in many cases more expensive than what it costs to own a home, is a giant issue facing the country.  Some might argue, well that’s the role of the public education, that’s what state universities are supposed to do, make education universally acceptable, and that’s why in-state tuitions are lower and that’s why we support in-state institutions with tax dollars, and state law schools fulfill that role in our society.  But I’m a believer that it’s also a part of the obligation of private universities and that private universities also fulfill a public function and have a public obligation.  I certainly feel that way about Furman.

I feel that Furman must remain a place that is accessible to students who grew up in poverty and students from lower-middle class background, or we’ll be failing the country and we’ll be failing society, we will be a less vibrant environment and a less rich environment, no pun intended, for our students.  So that means we have to work very hard to figure out how to finance that and how to raise the money you need and the scholarship money you need or manage our economic resources so that we can provide the scholarship aid to remain accessible.  I know that’s a long answer.  Value is not strictly an accountant’s calculation.  The value to the country and the value to an individual of a liberal arts education or a superb law school education that is rounded, rigorous, and develops a young lawyer in a whole sense, goes beyond simply their earning power and their ability to pay back loans.  That’s a fair part of the mix but there are so many other intangibles that make for life being fulfilling and I think that’s true of college.  I think being a lawyer is a wonderful life and very fulfilling for many members of the profession and that law school is still worth it, even as the market changes and the economics and the profession changes.

AU:  Setting aside the movie based on your book, Deliberate Intent, what’s your favorite legal movie?

RS: If it’s a legal movie, it’s an easy answer, To Kill A Mockingbird.  Not just my favorite legal movie, probably my favorite movie, period.  I just think it’s a magnificent movie.  It’s one of those rare examples in which the movie and the book are equally magnificent.  I think it’s one of the great works of literature in American history and the movie stands alone, on its own, with magnificent performances by everyone.  Atticus Finch is the most romantic, ideal vision of a moral, ethical, righteous lawyer that one could have.  I still cry when I see the courtroom scene in that movie.  So that’s my favorite.

BIOGRAPHY: Rod Smolla is a 1975 graduate of Yale University, where he was a member of the football team.  He graduated first in his class from Duke University Law School in 1978.  He is currently President of Furman University, in Greenville, South Carolina, a national liberal arts university founded in 1826.  President Smolla previously served as Dean and Professor of Law at Washington & Lee School of Law and at Richmond School of Law.  He also previously served as Director of the Institute of Bill of Rights Law at the College of William & Mary.  He is a nationally recognized scholar, teacher, advocate, and writer, and is one of America’s foremost experts on issues relating to freedom of speech, academic freedom, and freedom of the press.  President Smolla’s latest book, The Constitution Goes to College (New York University Press, 2011), describes the constitutional principles and ideas that have shaped American higher education.

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