Family Law Education Reform Project Initial Draft of Findings and Recommendations

January 31, 2005

Our thanks to our students and our colleagues–in various disciplines–who have helped us thus far. Don’t abandon us now: we’re still far from the goal. A special word of appreciation to Hofstra University Law School’s Center for Children, Families, and the Law, and its Director, Andrew I. Schepard, and to the Association of Family and Conciliation Courts and its Executive Director, Peter Salem. Partial funding for this project provided by the JAMS and Johnson
Foundations.

Introduction: The Family Law Education Reform (FLER Project )

The last two decades have seen substantial – even dramatic – changes in the practice of family law, most particularly the infusion of nonlegal professionals into the court system. As this sea change has occurred, however, law school curricula and teaching have remained relatively static. The result, predictably, is that young lawyers entering family law practice often find themselves unprepared for what they encounter. A substantial and growing gap between family law teaching and family law practice undermines the best efforts of new family lawyers, and leaves them ill prepared to assist families and children in separation, divorce, and dependency matters. Today’s family lawyers need a thorough understanding of the appropriate – and inappropriate – uses of dispute resolution services, the emotional impact of family conflict, case management processes in the family courts and the rise of, and critique of, unified family courts. Yet the materials from which most family law professors teach contain nary a word on any of these topics.

“Traditional” family law teaching materials emphasize litigated cases, nearly to the exclusion of everything else. What message does this emphasis convey to students? One strong possibility is that students conclude that litigation is the norm in family law, with the “good” lawyer being the one who wins cases for her client. The published materials rarely, if ever, describe the tightrope family lawyers walk in an area where the outcomes for all parties and their children are inherently linked. Indeed, a student may study assiduously in most family lawcourses and never once see the literature documenting the harm children suffer from intractable parental conflict. Discussion of the pervasiveness of domestic violence is also missing from many traditional family law materials, as is treatment of the rapidly expanding phenomenon of unrepresented litigants in family court.

In reality, today’s family courts incorporate a wide variety of dispute resolution procedures and are populated by professionals from multiple disciplines. Many jurisdictions have unified family courts that group a range of issues – from divorce and custody to juvenile crime to child support – under one roof, with a single judge. Specialized courts for domestic violence, drug abuse, and permanency planning also dispense both mental health and legal services, involving the courts in interventions in the family that are designed to meet therapeutic goals. As a result, family court judges do not serve only as adjudicators. They may also oversee a multi-disciplinary group of service providers all engaged with the children and families whose cases are before the court. This complex mix of professions, skills and roles is still evolving. In addition to lawyers and judges, mediators, custody evaluators, guardians ad litem, parent educators and parenting co-ordinators are all powerful actors in today’s family courts. Indeed, today’s family lawyer works in a world where understanding the work of dispute resolution and mental health professionals may be as essential as knowledge of governing statutes and constitutional doctrine.

The goal of the FLER Project is to provide family law teachers with the ideas, tools and materials they need to bring family law teaching in line with family law practice, and to help students become effective and reflective family law practitioners, leaders and policy makers. The course modules and model curricula that will emerge from this project will be designed to provide the next generation of family lawyers with an understanding of the range, complexity, and interdisciplinary nature of family law practice. They will stress sensitivity to the legal, emotional, and process needs of family members. More grandly, it is our hope that future generations of family lawyers will not only provide more informed and effective advocacy to the families they serve, but will also serve as catalysts for positive change in their broader communities.

The FLER Project also aims to connect to the larger undertaking of “building the educational continuum” forcefully articulated in the MacCrate Report on legal education. That report presented an analysis of fundamental lawyering skills and professional values which all lawyers should seek to acquire. The ten lawyering skills included the following: problem solving; legal analysis and reasoning; legal research; factual investigation; communications; counseling; negotiation; litigation and alternative dispute resolution procedures; organization and management of legal work; and recognizing and resolving ethical dilemmas. The four basic professional values were listed as provision of competent representation; striving to promote justice, fairness, and morality; striving to improve the profession; and professional self-development. These professional skills and values particularly resonate within the mission of teaching law students in order to enhance the performance of family lawyers. Attorneys who focus on the resolution of family problems must be prepared to handle an especially wide array of ethical and emotional dilemmas, are called upon in their daily practice to exercise a broad range of skills, and must know how effectively to interact with professionals from other disciplines.

The FLER Project also shares many of the aims of the “Best Practices” Project of the Clinical Legal Education Association (CLEA). CLEA’s endeavor is a long term effort to examine and describe the best practices for law schools to prepare students to practice law. Recognizing that “[m]ost new lawyers are not as prepared as they could be to discharge the responsibilities of law practice,” the CLEA project

seeks to provide a framework within which law schools and licensing authorities can establish minimum qualifications for law graduates that promote public protection, competence, and accountability in the delivery of legal services. Our primary concern is the potential harm from incompetently rendered legal services. A law school’s educational program should guarantee that each graduate will have the knowledge, skills, and values necessary to meet a new lawyer’s legal and moral obligations to clients.

Studies of legal education in the past generation have generally concluded that “most graduates of law schools lack the minimum competencies to provide effective and responsible legal services,” and that the profession is failing to meet its obligation to provide access to justice, one of the core values identified in the MacCrate Report.

The full report is available in PDF format below:

Attachments to this Article

AFCC Draft Report

J. Herbie DiFonzo

J. Herbie DiFonzois Professor of Law at Hofstra University School of Law. Professor DiFonzo has published broadly on the intersection of family law and juvenile justice. He served as the co-reporter (with Prof. Mary E. O'Connell) of the Family Law Education Reform (FLER) Project, a national effort to improve family… MORE >