Remarks by the Honorable Linda Stewart Dalianis
Senior Associate Justice
New Hampshire Supreme Court
Franklin Pierce Law Center
May 17, 2008
Dean Hutson, members of the board of trustees, members of the faculty, members of the graduating class and your families and friends, I am honored to have been asked to speak at today’s commencement ceremony.
I heard that the graduating class really wanted Michelle Obama to deliver the commencement address. Well, she is taller than I am but I can tell you that when I got that call on the red phone at 3 a.m, I was ready on day one to do the job.
Seriously, whether I’m the back-up speaker or not, it is particularly sweet for me to be here today because my son, Matthew, is a member of the graduating class. Matt - Dad, Ben, Sarah, Courtney and I are very, very proud of you.
Okay, I got through that, so back to business. I know that many speakers see a commencement speech as a kind of memoir, an opportunity to draw from their own personal experiences as a source of advice and, perhaps, inspiration for the audience. I will do a little of that. I know Michelle Obama would have. And, I imagine that most commencement speakers talk about what life will be like beyond law school, something about which I am sure you are all wondering right now. But, to borrow one of Chief Justice Broderick’s favorite sayings, I’d like to “change the slide” a bit and spend my few minutes talking, not so much about what you will do tomorrow, as about the evolution of legal education and where that has placed you today - your jumping off point for tomorrow.
I can assure all your parents and friends in the audience that you have learned to think like a lawyer - you know how to apply the relevant law to the facts you face. But, I can also say that, because your experience with legal education has been here at Pierce Law, where the day-to-day practice of law and the relationship between lawyer and client is as highly prized as scholarship in doctrine and theory, you will find yourself not just thinking like a lawyer, but acting like one. Pierce Law has offered you a look at “client- centered training” and that is the path that evolving legal education is following today, across the country.
For all of the guests in the audience, who someday might be in need of a lawyer, this change in legal education is very important to you - it will offer you a more prepared, more client-sensitive lawyer, who will be focused upon the practical solution to your problems. After all, what being a lawyer is really about, is you, the client.
Pierce Law has long been sensitive to the practical realities of the profession of law and has done an exceptional job of offering programs designed to assist its students to become good practicing lawyers. From the school’s inception, emphasis was placed upon clinical programs, including civil and criminal practice and family law. In recent years, the school has developed innovative intellectual property clinics which offer IP students hands-on experience with trademarks, copyright and patent law.
Today, Pierce Law adds another element to its long and impressive commitment to practical legal training. This group of graduates includes the first class of Daniel Webster Scholars, 13 men and women who were selected to participate in a rigorous new program that focuses upon developing their skills as practicing lawyers.
In this two–year, comprehensive program, the only one of its kind in the nation, the Webster Scholars concentrate upon learning professional skills such as interviewing, counseling, fact-finding, communication, management of legal work, and negotiation. They go to court, make judgment calls and write about their development as people and as potential lawyers. Crystal Maldonado, one of our graduating scholars, described her experience this way: “This program makes the law school textbooks come alive.”1
This kind of practical training was not a part of my legal education. When I was a law student at Suffolk University in the early 1970s -and there were negligible numbers of women in law school in those days- there was next to nothing available by way of so-called clinical education for aspiring lawyers. I dutifully studied the “substantive” law, with the occasional “procedural” asides, all the while wondering exactly how this would help me to be a lawyer, to act like a lawyer.
My legal education was the norm. The famed Socratic method held sway. This is a drill fit for a scene in Legally Blonde: a haughty law school professor (Harvard of course) calls on an unsuspecting student and then questions and challenges the student about something in the casebook until the student scores a debating point -highly unlikely- or is entirely flummoxed in front of the class, at which point the professor moves on to the next victim. Anything less “purely” academic than the casebook method of substantive legal education -to name one amazing example, legal writing and research- was given short shrift by law schools.
Fortunately, in spite of my utter cluelessness about what it meant to practice law, I was able to get a decent job with a good law firm, Hamblett & Kerrigan in Nashua, which had 12 lawyers at the time. Like most firms 35 years ago, the members of the firm were eager to hire their “first woman lawyer.” And because it was a medium-sized firm for the day, the lawyers there were also willing and able to offer the rough equivalent of an apprenticeship to new lawyers.
In my case, the lawyers for whom I worked showed me what needed to be done, explained how to do it, took me along to watch them handle depositions and hearings and trials, patiently helped me to improve the work I produced for them and did not turn me loose in a courtroom to handle anything more daunting than a motion to continue, a misdemeanor arraignment or an uncontested divorce until I demonstrated that I was capable of handling more challenging matters. And that, I assure you, took a while.
In 1980, before some of you were born, I was appointed to the Superior Court and promptly forgot about legal education and the development of legal skills, as I was too busy trying to learn the whole new vernacular and practice that comes with being a trial judge.
But as my years on the trial court passed by, I began to be troubled by an obvious lack of skill and preparation in many lawyers who appeared in court. It was on display virtually every day. Young lawyers did not know how to address the court, or make an offer of proof or draft a coherent pleading. I don’t think it was the fault of those young lawyers, so much as it was a very clear indication of the state of the legal profession at that time -it had evolved into a bottom line business in which firms had little or no time or money to spend on training new lawyers- and the clients didn’t want to pay for the training, either. Too many inexperienced lawyers were “thrown to the wolves” so to speak, unfortunately, along with their clients.
I, like so many other lawyers and judges, began to ask whether the changing nature of the legal profession, and the new expectation that young lawyers would start producing right off the bat, meant that law schools needed to take a hard look at their traditional curricula and start thinking about practice as well as academics.
A real turning point, as I see it, came in 1992, when a task force assembled by the American Bar Association Section of Legal Education and Admissions to the Bar took a hard look at what law schools teach and what law firms expect new lawyers to accomplish. Their work, which became known as the MacCrate report, neatly described the tension between legal educators and practicing lawyers:
The lament of the practicing bar is a steady refrain: “They can’t draft a contract, they can’t write, they’ve never seen a summons, the professors have never been inside a courtroom.” Law schools offer the traditional responses: “We teach them how to think, we’re not trade schools, we’re centers of scholarship and learning, practice is best taught by practitioners.”2
The MacCrate report focused upon “narrowing the gap” between the law schools and the practicing bar. In doing so, it identified the “skills and values” that every lawyer should acquire before taking on the responsibility of a client. In effect, these skills and values would be the “goals” of a law school education. Many of these skills have been included in the Pierce Law curriculum since its early days: problem-solving, legal analysis and reasoning, communication, counseling, organization and the ability to recognize ethical dilemmas. The MacCrate values, also emphasized by Pierce Law, include promoting justice, fairness and morality, working to improve our profession and striving for personal excellence.
Like so much good advice in life, this sounds simple and so right. The MacCrate report suggests that its skills and values are goals not just for law schools in teaching and curriculum development and for law students in preparing to be practitioners, but also for each of us lawyers, as we ponder our work and development as professionals. This is a self-evaluation process that never ends. I can attest to that.
I urge all 171 of you in the Class of 2008, the 120 new juris doctors, the Webster Scholars and the graduate students in intellectual property and international criminal law, as well as the rest of us -practitioners and academics- to take the MacCrate skills and values to heart today.
Since the MacCrate report appeared 16 years ago, a newly awakened collective interest in legal education has led to changes in law school curricula across the country. A summary of changes recounted in the ABA Journal in 2007 concluded that changes have ranged from “tweaks to transformation, but what is clear in every case is that today’s law school is not your father’s law school anymore.”3
It’s probably not your mother’s law school anymore, either. An ABA survey of law school curricula in the 10 years after the MacCrate report confirmed that the “single biggest alteration” in law schools was an investment in classes that address “the skills necessary to be a lawyer in the modern world.”4
I am proud to say that I have been involved in the development of the Webster Scholar program, which represents the culmination of many years of effort and cooperation among the New Hampshire Supreme Court, Pierce Law, the New Hampshire bar and the New Hampshire board of bar examiners. I dare say it might not have happened anywhere else, because few other places would seem to have the necessary synergy, and few other law schools would have been interested. This is part of a proud tradition of innovation and joint venture of which you can be proud as Pierce law graduates.
The way I see it, the legal education world, from Harvard on out across the country, has simply come around to the view that Pierce Law has held for much longer than the fifteen years that I have been working with the dean and faculty to improve lawyer education - that is, we have to make legal education relevant to today’s world, steep it in the MacCrate skills and values and give law students the tools with which they can practice their profession confidently right from the start. My dream is that someday we will be able to expand the Webster Scholar program to include any student of the law school who wishes to participate, and I have good reason to hope that my dream will come true.
On a day like today, I can’t help but look back on how much has changed in the 38 years since I began as a law student and later sat with so much pride in a crowd of law school graduates. As I look out at you, I am reminded, yet again, that there are lots of women in law school now, contributing to the profession, the judiciary, and legal academia.
Women won the right to apply for admission to the New Hampshire Bar in 1890. Eighty-four years later, in 1974, I was only the 50th woman ever admitted to practice here. Now, there are 2,108 women who are members of the New Hampshire Bar - one-third of the membership. No doubt, the profession is better for all of us and our clients, if men and women share in it. Don’t you agree gentlemen?
So, here you are, graduates of this unique law school, which has had its eye on the future of lawyering since well before many of the so-called elite institutions began to move in that direction.
Parents and friends, for years before these men and women arrived here, Pierce Law was fighting for what it believes constitutes a great law school. The faculty and administrators here have been leading the way in emphasizing something that you see now at all the major law schools - a new curriculum that better equips law students to make the transition to actual lawyering.
Graduates, no matter where you head out for today, all of you can be proud of your affiliation with this legal education. Congratulations.
As I close, allow me to put aside the discussion about the merger of theory and practice in legal education and share with you my one piece of advice about a profession that I have loved from the start: Do not listen to those who suggest that the law is not an honorable profession. This is a profession of which you should be proud.
Some time ago, someone gave me a poetic piece about being a lawyer, which I have found inspirational. It was written many years ago by Louis Lande, a member of the New York Bar. Let me paraphrase some of his words:
I am the lawyer
I displaced brute force with mercy, justice and equity.
I taught humankind to respect the rights of others to their property, to their personal liberty, to freedom of conscience, to free speech and free assembly.
I am the spokesperson of righteous causes.
I plead for the poor and the persecuted.
I maintain honor in the market place.
I am the champion of unpopular causes.
I am the foe of tyranny, oppression and bureaucracy.
I wrote the Declaration of Independence and the Rights of Man and the Emancipation Proclamation.
I fought in every war for liberty.
I seek the equality of humankind, regardless of race, color, sex or religion.
I am the leader in every crisis.
I am the scapegoat of the world.
But, I am the pioneer.
I am the just judge and the righteous ruler.
I hear before I decide.
I seek the best in everyone.
I am the lawyer.
Thank you for the privilege of addressing you on your very special day.
2 American Bar Association, Legal Education and Professional Development – An Educational Continuum, Report of the Task Force on Law Schools and the Profession: Narrowing the Gap at 4 (1992) (the MacCrate report)
3 Jill Schachner Chanen, Re-engineering the J.D, ABAJournal (July 2007), available at http://www.abajournal.com/magazine/re_engineering_the_jd at 2
4 Chanen, supra at 3