Vol 45. No. 2 Winter 2021 | School of Law | SIU

Vol 45. No. 2 Winter 2021

ARTICLES

Achieving Externship Success: An Empirical Study of The All-Important Law School Externship Experience

Anahid Gharakhanian, Carolyn Young Larmore, and Chelsea Parlett-Pelleriti .... 165

With law school externships more popular than ever, the need for an empirical evaluation of externship success is timely and essential. The promise of getting closer to practice readiness propels many law students to enroll in an externship (also known as field placements). However, no study has empirically measured whether and to what extent law students get close to first-year law practice readiness through their externship, or what factors lead to that success. Without such a study, the American Bar Association’s regulation of externships and law schools’ externship design decisions are made without the benefit of critical data. This Article describes the year-long, multi-school Externship Study conducted to concretely measure (1) whether and to what extent externships lead to practice-readiness and (2) which attributes of the law school, the externship placement, or the students themselves are the most important contributors to that success.

In this Article, the authors use statistical models, descriptive summaries, and a narrative summary to analyze data from hundreds of law students and the lawyers and judges who supervised them in externships. The results reveal a high level of externship success, measured in terms of practice readiness. The contributing factors to that success are noteworthy. For example, the Externship Study shows that neither law school entering credentials (e.g., median entering LSATs of 168, 158 and 153 for the surveyed schools) nor the academic component of the externship (i.e., class and related work in addition to the externship fieldwork – as low as 3.25 hours and as high as 27.5 hours for the surveyed schools) contribute to externship success. Moreover, law school GPA plays a very limited role in externship success. Instead, the most important factor that leads to measurable extern success is the student’s relationship with supervisor, feedback from supervisor, and nature of assignments at the placement. Other contributing factors include the students themselves, who play a critical role in their externship success – namely, their previous professional experience, motivation to work in the real world, as well as their attitude toward the externship. These findings warrant attention as a critical first step for data-driven externship policy and program decisions. 

Unscripted Mock Trial and Full-Scale Litigation In A College Setting

Robert A. Kearney............................................................................................. 233

Mock trial programs in colleges do more than give students a taste of the lawyer’s life. At their best, they serve students: by connecting them to professional standards, by placing them in a competitive, though simulated, environment that requires critical thinking, teamwork, and resilience, and by giving students “authentic” learning activities not possible in the classroom. But in order to provide students with more than just a taste of litigation, one liberal arts school’s business program annually offers an open-enrollment, unscripted mock trial class that is both mock trial and full-scale litigation, complete with hours of depositions, tedious discovery, motion work, and court appearances. The course is replicable by other schools and is nothing short of experiential education on steroids.  

Law Talk in A Brief Advice Clinic

Linda F. Smith .................................................................................................. 249

Over three decades ago, Sarat and Felstiner published a ground-breaking ethnographic study of divorce client-lawyer conversations. They concluded that lawyers portrayed "a chaotic 'anti-system' in which [clients] cannot rely on the technical proficiency, or good faith, of judges and rival lawyers" but need to rely on their own lawyers' insider status to achieve reasonable outcomes. Although lawyers initially described the law and procedure to their clients, they rarely referenced that rational description when explaining what had occurred or would occur in their clients' cases. This law talk may have gradually and ultimately persuaded the clients to reach reasonable settlements, but it did so at the cost of client distrust of and cynicism about the legal system.

Today most divorcing parties do not have attorneys providing full representation for them. Instead, clients represent themselves, often relying on brief advice from attorneys. This raises a question: How do attorneys today portray the legal system to clients attempting to navigate it themselves? Does their law talk fail to link law and procedure to what happens in the clients' cases, engendering cynicism? Are they similarly critical about judges, other attorneys, and the legal process? Do they suggest the clients need to have an "insider" attorney on whom to rely?

This study answers these questions by analyzing thirty-six attorney-client conferences and thirty-nine attorney-student consultations from a brief-advice clinic. These pro bono attorneys present -- to both their clients and the law student volunteers -- a rational legal system with understandable procedures and fair jurists. They provide candid advice even when the client is unlikely to achieve a particular goal, neutral information about how to make any argument, and encouragement. They never intimate that pro se parties need an "insider" attorney who knows the idiosyncrasies and proclivities of incompetent judges and untrustworthy opposing attorneys.

This Article concludes by theorizing why there is such a sharp contrast between the 1980s study and this contemporary study of "law talk" between attorneys and their clients. 

The Cognitive Power of Analogies In The Legal Writing Classroom

Patricia Montana ................................................................................................... 311

New law students traditionally learn better when they can connect what they are learning to a familiar non-legal experience. Analogies allow students to build on a familiar network of knowledge, making the learning more comfortable and the material more accessible. Integrating the use of analogies into the teaching of legal analysis and writing in a systematic way is a powerful teaching device. It is one that easily can break down the processes of legal research, analysis, and writing into simpler terms, thereby helping new law students understand, develop, and ultimately master these essential lawyering skills. This Article therefore proposes that faculty incorporate analogies into their classroom teaching by experimenting with interesting and engaging ways to connect all parts of the curriculum to the students’ existing knowledge base. This proposal has its roots in cognitive learning theory, which expounds that experts use prior knowledge or contexts, referred to as schemata by cognitive psychologists, to facilitate problem solving.

NOTES 

Tax Grab: A Comparative Analysis of State Legislation Following the Supreme Court’s Decision in Wayfair

Matthew Dolan....................................................................................................... 337

“Tax Grab” offers an analytical review of the Supreme Court’s landmark decision, South Dakota v. Wayfair. Prior to this decision, research showed that states failing to collect sales and use tax from online retailers lost between eight to thirty-three billion dollars annually. After the ruling in Wayfair, there was a boom in state sales tax legislation that created challenges for online and out-of-state vendors all over the country. This note will review and categorize several of these new sales tax laws, outline some of the issues vendors now face, and discuss the realities of resolving those issues for both the states and vendors.          

A Brighter Path to Their Future: Comparing The Illinois And Kentucky Juvenile Delinquency Procedures And Proposing A New Program In Illinois

Brook L. Vandeveer ............................................................................................... 367

In 1986, Kentucky began the Court Designated Worker Program. This program operates in every county of Kentucky and assists thousands of juveniles every year. The goal of this program is to keep juveniles out of the formal court system when possible, ensuring that small mistakes do not negatively impact their future. This article addresses the differences between Kentucky’s program and the current juvenile procedures in place throughout Illinois, and proposes the adoption of a program similar to Kentucky’s throughout the state of Illinois.