Dean Rodney Smolla: How Experiential Learning Makes Better Future Lawyers

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Transcript

ABA Law Student Podcast

Dean Rodney Smolla: How Experiential Learning Makes Better Future Lawyers

03/12/2020

 

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Intro: Welcome to the official ABA Law Student Podcast, where we talk about issues that affect law students and recent grads. From finals and graduation to the Bar exam and finding a job, this show is your trusted resource for the next big step.

 

You are listening to the Legal Talk Network.

 

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Jake Villarreal: Hello and welcome to another episode of the ABA Law Student Podcast. I am your host Jake Villarreal and I am a third year law student at Washington University School of Law in St. Louis. I am excited to be hosting today’s show because we are going to be talking with the Dean of Delaware Law School, Rodney Smolla.

 

Rodney, welcome to the show.

 

Rodney Smolla: It’s good to be with you.

 

Jake Villarreal: Thank you. Rodney, before we get started, please tell us a little more about yourself, where you grew up, how you got started in the law and what you are up to now in your career.

 

Rodney Smolla: I grew up in Chicago, went to a public high school in the Chicago suburbs, no one in my family had ever been to college and that means a vast extended family of hundreds of cousins all over the Midwest. I had never met a lawyer in my life and I went to college to be a football player. So I got the wonderful opportunity to play football at Yale and I got hurt early on in my career back before they had surgery to repair torn ACL ligaments and so that made me a little bit more of a student, but I still knew almost nothing about the law or law school.

 

I happened to wander into a course for undergraduates that was taught at the Yale Law School by a famous law professor named Charlie Black and I thought it was fascinating, but even so I just essentially wandered into law school.

 

And I went to Duke Law School in 1975. I graduated in 1978. I then clerked for a judge on the Fifth Circuit in Mississippi and the Fifth Circuit’s headquarters was in New Orleans.

 

Then I went back to Chicago and worked for a large corporate law firm, Mayer Brown, and after a while decided I might enjoy an academic life. So I started teaching at DePaul and then I went to University of Illinois, then I went to University of Arkansas, then I went to University of Denver, then I went to College of William & Mary, then the University of Richmond, and when I was at Richmond I became the dean of the law school at Richmond.

 

And then I went from Richmond to Washington and Lee and I was the dean of the law school of Washington and Lee. Then I became a University President for a while, and so I was the President of Furman in Greenville, South Carolina. And now I am ending the fifth year of my time here as Dean at Delaware Law School, Widener Delaware Law School.

 

So I have been an academic and a lawyer for almost 40 years. I also throughout that entire time have been an active litigator and so I have argued in state and federal courts all over the country, including the US Supreme Court and I continue to do that even as a dean. I will typically have a few cases going on at a time and be writing briefs and doing oral arguments in federal circuits or state supreme courts throughout the country.

 

So I have had a very interesting career and professional life and this is from someone who had never met a lawyer in his life, really even the first day of law school, I knew nothing about the profession or lawyers or what it meant to practice law, let alone study it.

 

Jake Villarreal: Yeah, that’s amazing, you have been all over the country for your career doing a variety of really interesting things from litigation to academia and now in a kind of management setting being the dean of a law school.

 

Do you credit that desire to explore and try all these different career paths to that feeling of when you were entering law school of not being committed to a particular discipline or field of practice yet?

 

Rodney Smolla: Well, I suppose maybe I do, but I also don’t want to underrate sheer serendipity. I mean it’s not like I had some plan and followed it or can figure out a cause and effect, it’s just accidents of life and chance to a large degree.

 

(00:04:47)

 

The one defining theme that has been relatively consistent is that fairly early on my focus became constitutional law and also tort law that intersects with constitutional law; defamation and invasion of privacy and that sort of thing, and so most of the litigation work that I have done over the years has been that consistent theme, dealing with civil rights and civil liberties sorts of issues, but beyond that I would say sheer dumb luck and accident has a lot to do with it.

 

Jake Villarreal: That’s fantastic. I love that specialty. I am in the First Amendment Clinic now and I think issues of constitutional law are incredibly important in the current day and age especially. Are there any cases coming up either in the Supreme Court or in any of the other courts that you are watching particularly closely or think are interesting?

 

Rodney Smolla: I am involved in a case not as one of the principal lawyers but as one of the authors of an amicus brief and a really interesting lawsuit that’s going to be heard in the US Supreme Court on March 25. And it involves a challenge to the way that the State of Delaware selects its judges. Delaware is the only state in the United States that requires political balance on its courts and effectively what that means is every other appointee to the Delaware judiciary is a Republican or a Democrat, it kind of rotates back and forth between the two major parties and this results in a very politically balanced, very highly respected judiciary.

 

And the US Court of Appeals for the Third Circuit struck that down claiming that it violated the First Amendment because it has the effect of excluding people that are not Republicans, are not Democrats from eligibility to the Delaware Supreme Court. And so I in this case am defending Delaware, defending its system and it’s a really intriguing combination of First Amendment law and federalism law, the rules that permit states to organize themselves and set up their own systems of government. So I am watching that very carefully. I think that will be a fascinating case.

 

Jake Villarreal: Yeah. There is a lot going on there. So much of our nation’s corporate law comes out of Delaware and I had no idea that the court was structured that way.

 

Rodney Smolla: And a big part of our brief is that the reason Delaware is so pivotal and influential in corporate law is that corporations voluntarily choose to incorporate here because they have such faith that they will get a fair and even and very professional treatment in the Delaware courts. And so we have argued that the effort to take politics out of the judiciary has been one of the reasons it’s influential.

 

And the other quick thing I will say which is really fascinating is without getting too deeply into the First Amendment, generally patronage is not permitted, so you generally can’t condition government employment on affiliation with a political party, but there is an exception for certain positions and this is often loosely called the policymaking exception. That’s a bit of a misnomer, but that’s what it’s often referred to.

 

And the Third Circuit said well, judges don’t qualify for that, because judges do not make policy, judges simply follow the law, that they are not policymakers. And so a big part of our brief has said well, that’s not really right, judges do make policy, not in the same way that executives or legislators do, but they do make a kind of policy. And so this case also has in play the very nature of what it means to be a judge, which is another fascinating point.

 

Jake Villarreal: Yeah, there is definitely a lot of moving parts there. That’s amazing. Do you have any advice for students who are in school now who might be interested in doing constitutional law litigation in the future?

 

Rodney Smolla: I get asked this question a lot and unlike many areas of law it’s hard to just say well, I am going to practice constitutional law and that’s what I am going to do. So there are a few different avenues.

 

One is there is enormous opportunity pro bono to participate in very interesting litigation. And so once you are in your first job and you have settled in and gotten familiar with the rhythms of law practice and settled in, you have opportunities even as a very young lawyer, a new lawyer to volunteer. You can volunteer to assist all sorts of public interest groups or all sorts of other public pro bono sorts of litigation, in which help is always needed and that’s one way to do it. You don’t get paid necessarily for doing that, although sometimes you can recover attorney’s fees in a civil rights case, but that’s one avenue.

 

(00:09:50)

 

And the other is just to be resilient and adaptable. There was a time when people went to work for a law firm and they worked in that firm for 30 or 40 years, those days are gone and the profession is very mobile, would not at all be unusual for graduates of a law school this spring five years from now or ten years from now to look back and have been in two, three, four jobs. So that resiliency and that willingness to move around a bit until you think you found the right spot is important. And that’s true in whatever field you might want to practice.

 

And so a lot of times law students put everything into that first job and that’s understandable because that’s really critical, but I think it’s good to have a sense of perspective and realize maybe that will be where you spend your career, but the odds are it won’t be and there will be other things that come down the road that you will end up doing.

 

Jake Villarreal: Yeah, definitely. The industry has changed so much and you have gotten to see a lot of it from the perspective of a dean, being the dean at multiple law schools now. Are there any other trends that you have noticed, either in changes that are happening in law schools or changes that are happening in the legal industry more broadly?

 

Rodney Smolla: Yeah. So I think we have to be careful when we talk about the legal industry and the legal market, because there is really so many different sub-pieces to it. There is the big law firms, the top 100 law firms that are in the major cities, but that’s a tiny fraction of the profession. And so we need to be careful that we don’t think that what’s happening at the large international law firms is indicative of what’s going on throughout the profession.

 

I think that a lot of the changes are obvious. The Internet has had a profound impact on all of society, including law practice. Technology has had a gigantic impact on law practice at all levels. And so becoming technically adept and knowing how to navigate e-discovery and e-filings in courts and all of the other ways that technology impacts practice is critical.

 

I think the biggest overall evolution that I have been a major player in is that when I went to law school it was almost entirely doctrinal, clinics were just beginning to appear, practical courses like trial practice courses and negotiation courses were just beginning to appear. Legal ethics and professionalism courses were just starting. They were created largely in reaction to the Watergate scandal.

 

And I think that what has happened over the last 15 years or so, I have been a major proponent of this, is that law schools have realized that after about the first year or year-and-a-half law students pretty much have all the legal doctrine that they are going to need to pass for the Bar exam and that can be crammed into their heads really. I mean who can remember that many subjects.

 

And what students need more of is experiential learning. They need more live client experiences in clinics, placements in externships and internships, simulated classroom experiences in which there may not be live clients, but the tasks that you are doing emulate the tasks of actual practice, so that you can develop your skills as writers, develop your skills as drafters, develop negotiation skills, the ability to work in teams, the ability to work with clients, understanding the human side of practice, becoming articulate as an advocate, as an advisor, those sorts of things.

 

That’s really the joy of being a lawyer and that’s more the way medical schools operate. They don’t train doctors from books, they train doctors by starting with a lot of science and then transitioning into the practice of medicine and law schools are getting there, we have made a lot of progress and I think we need to make more along those lines.

 

Jake Villarreal: Yeah, I completely agree. I have done a number of practical experiences in law school and it’s by far been the most illuminating and educational parts of my education.

 

At the institutions where you have been a dean and a professor, what sort of interesting initiatives or changes have you seen to give students more opportunity to do hands-on work in a way that really resembles what they will be doing after they graduate?

 

Rodney Smolla: Well, I think across the country some of the innovations are exactly what you would think, the creation of more clinics, the assignment of people whose job it is on the faculty to place students in real world settings. So I think there has just been more of that.

 

(00:14:55)

 

When I was at Washington and Lee, we made a decision to turn the entire third year into experiential learning and that required because Washington and Lee is in a relatively small college town, Lexington, Virginia, that required the law school to create a lot of simulation courses. And I’m a real believer in that, because you can create exercises that are very much like a real practice environment, but that force students to take legal doctrines and legal theory and translate them into documents and activities that resemble practice, and I think that’s a really, really rich way to learn, and I encourage law schools to do more of that.

 

Jake Villarreal: Yeah, that’s fantastic. Do you have any advice for law students who are maybe doing their first practical experiential course about how they can either perform the best they can or get the most that they can out of that experience?

 

Rodney Smolla: Yeah, well, obviously you have to dive in. There’s no substitute for that, or what I’m going to say may seem trite, but I actually mean it. It’s shocking what you can do by just googling a problem. And so, almost any document that a law student has to prepare; a complaint, a draft motion for summary judgment, first draft of a brief, certainly almost any advocacy-related document, any court-related document, you can find examples. I mean, you can find it from legal databases like Westlaw and Lexis, but you can just google the very court that you’re in and up will come PDFs of similar filings and I really am a fan of encouraging that, seeing how it’s been done before and paying attention to those forms and those details.

 

If there is an opportunity to have someone to check your work product, of course that’s going to be tricky, because it will depend on the nature of the setting you’re in and the confidentiality rules that apply, I think that’s enormously valuable.

 

And then, again, this may seem trite but as a country we’re not the greatest writers and despite the terrific education that most students who go to law school have had, law students like a lot of us are not naturally clean, direct, crisp, clear, graceful writers, and that’s worth everything in law practice. That is golden in law practice to develop that.

 

So, fixing one’s writing and being attentive to what is good writing and what is not good writing, and when I say “good writing” I mean to some degree professional legal writing, but also just basic writing skills that you use in any setting is enormously important.

 

So, things like ‘The Elements of Style’, a little tiny book that you can get in any bookstore in the country by Strunk and White, that this one of the classics of good writing. There’s about 15 or 20 pages in the middle of that, very short little book, that I go back and reread all the time, as I think about bad habits that I may get into as a writer, and you’re talking to someone that’s written almost 20 books and hundreds of articles and tons of briefs, but we all get sloppy in our writing and being attentive to that and trying to constantly police your writing to make it as clean and crisp as it can be is of enormous value.

 

Jake Villarreal: Yeah, it’s so important for us to keep growing as writers. Keep learning new tricks and keep practicing, that all is amazing advice. Besides rules for writers, are there any sources, books, websites that you would recommend to people who are interested in learning more about how to take either their legal writing or their writing in general to that next step?

 

Rodney Smolla: There are a number of lawyering process books that are typically assigned and depending on how the law school is set up, courses that deal with fundamental lawyering skills, and these are books that teach you the elements of brief writing, the elements of writing a case if you’re clicking for a judge and so on, and you can find those from the legal bookstores and so on, I’m not going to endorse any particular one, but they are remarkably good.

 

And so those basic lawyering skills sorts of texts whether you are taking a course that requires them or you simply want to do some background reading on the elements of the actual practice are easily accessible and you can — that will be your first Google research job to figure those out on your own.

 

(00:19:53)

 

Jake Villarreal: Awesome. Thank you. And you are still actively involved in litigation even as a law school Dean, do you ever work with either current law students or recent graduates?

 

Rodney Smolla: Yeah, the answer is I do the time. So, for example, in the Amicus brief I just wrote in the U.S. Supreme Court I had 14 of our law students volunteering to help me do it, and I think it’s enormously valuable. They can help with research, help with drafting, help with proofing and cleaning things up and it’s also very — I think useful to see how an advocate goes from the raw material of the problem that is presented to a finished product that can only be so long and has to be in certain forms and has to be clean and effective, and so, I do try to do that all the time, whenever there’s an opportunity.

 

Jake Villarreal: Yeah, that definitely sounds like a win-win. The students get this amazing practical experience and you and the other litigators get a lot of help doing the research and writing that, goes into that finished product. Is there anything that you really like to see from the law students who are working on these cases with you?

 

Rodney Smolla: You know, it’s not so much that, that’s what I like to see develop in a law student is the — I guess what Oprah Winfrey might call the “It” factor, it’s the realizing that the practice of law involves judgment, and the idea that you are evolving and understanding what things are useful to your case, what things are not useful, what things are perilous, what things will turn off others, what things will persuade others, so that’s an advocacy in advising clients, which is a gigantic part of law practice.

 

Most of the advising of clients is not the recitation of legal rules, it’s helping the client think through what is the wise course for me. Should I settle this matter, should I litigate this matter, should I just ignore this problem because it’s not worth the energy and the expense of dealing with it or should I confront it? There’s often a powerful human elements for students to gradually learn how to exercise their judgment and kind of a cousin of that is the ability to tell people what they do not want to hear, a major part of being a good lawyer is to be able to say one’s own client. I know this is not what you were hoping to hear from me, but this is my advice, this is what I think you should do, so the maturity to learn that.

 

And then finally the ability to advocate and represent someone zealously but maintaining civility and a sense of a respect towards all involved is enormously important. I think law students may sometimes get the erroneous message from media accounts or from dramatic confrontations in our political world or from movie scripts that being a lawyer, as being a street warrior and what I have found is many times I’ve made friendships with people that were opposing counsel, have cordial, respectful relations, even when our clients are very much at odds, I don’t channel that, I don’t channel the anger or the bitterness, and in fact I try to reduce it in dealing with the other side, and I think for law students to learn how to not be over-the-top in their demeanor written and verbal even though they care passionately about an issue isn’t a really important lesson.

 

Jake Villarreal: Yeah, it’s definitely a small world I feel like the legal industry sometimes, and I know that you were talking about advising clients and how important of a process that is and maybe one that we don’t talk about enough. I was wondering and you mentioned earlier that the legal ethics courses came out of Watergate, which I had no idea that that was the case, but it makes so much sense now that you’ve said it.

 

I was wondering if you’ve noticed any trends or if you have any ideas about new emerging issues regarding ethics for lawyers that maybe the current generation of new lawyers and law students are going to have to come into contact with that other generations might not have had to.

 

Rodney Smolla: Well, I think the easy answer is the impact of the Internet and social media and so in my world, which is litigation-oriented, everything that’s on a person’s smartphone is potentially discoverable, everything that’s on a Facebook page is potentially discoverable.

 

(00:25:08)

 

And so one has to advise one’s clients not to delete that material, so they’re not in the position of a spoliating evidence and you also have to advise one’s clients to be chilled, to be careful about what they post, and write, and text when they’re embroiled in some sort of conflict because the odds are — it will come out. All lawyers have to be attentive to that and we have to be attentive to what we ourselves say and post in any forum because it could embarrass us, it could cause us professional damage, it could damage a client.

 

So that’s a new world, it applies to everybody, no matter where you are in the profession today, but it is something that obviously I never had to think about because it didn’t exist when I was a young lawyer. But your generation of law students who have to be very careful about it, and even in law school I think as you grow up through high school and college and you maybe work a bit before you go to law school at that stage of your life, you’re pretty free and easy about what you text, what you post, what you put on Facebook and Instagram, and the fact is once you become a law student you really got to be much more careful about that and be much more decorous because of the danger that something could come back to haunt you.

 

Jake Villarreal: Definitely. Yeah, I’ve been learning over the past year a lot about the subpoena powers and how much information you can get from Facebook and Apple and these other companies and it really is a big deal and I know you also do a lot of First Amendment Law, do you think that there are similar tech-related issues in First Amendment Law that we’re going to start seeing more-and-more of?

 

Rodney Smolla: Sure, there’s no question. So in almost every critical First Amendment doctrine and theoretical conflict that has evolved over the last decades as modern First Amendment Law has matured, now has its online version. In a large part of modern First Amendment conflicts has been taking the rules of the game that have evolved in physical space and translating them into cyberspace in the digital world, and so that’s of enormous importance, there’s a non-constitutional rule that weighs very, very heavily. It’s one of the most significant laws that affect our culture and law today, it’s called Section 230 of the Communications Decency Act and many people may never have heard of it, but it’s one of the most important laws that exist.

 

It’s a law that was passed by Congress that has been interpreted as giving absolute immunity to Internet service providers for the content posted by others. So you cannot sue Google for things that others place on Google. You can’t sue Facebook for things that people post on Facebook, and that’s now the center of tremendous controversy and whether that complete immunity will continue or whether there’ll be some new mechanism that will make providers responsible for damaging material that’s on the site at least after some degree of notice and an opportunity to take it down, I think will be a huge legal and cultural battle in coming years.

 

Jake Villarreal: Yeah, that’s very exciting. I’m going to make sure to follow those cases. It looks like we’re about at 30 minutes, and before we head out, I just want to ask you one last very important question. What is your favorite thing about being a Dean?

 

Rodney Smolla: Well, I’m a Dean, I also am a full-time teacher. I teach a full load at the law school. I think it’s being a leader and getting to have the opportunity to try to influence those in the law school. I don’t call the students “students”, I think of them as young lawyers in training, and to me that’s the most exciting thing, trying to help the students gain a sense of professionalism, a pride in the history and traditions of the profession, a commitment to the rule of law and to serving people, that’s what I care about and that’s the most fulfilling part of this job.

 

Jake Villarreal: Yes, I love that. Thank you so much. Before we close it out for today if our listeners would like to follow up or ask you questions, how can they reach you?

 

Rodney Smolla: Yeah, well, I’ll just spell my email and they can do it. They could google the Delaware Law School and they could probably reach me that way, but my email is very simple, it’s [email protected], and I’m happy to answer questions that come via email.

 

(00:30:20)

 

Jake Villarreal: Great, thank you so much.

 

Rodney Smolla: Take care, good to be with you.

 

Jake Villarreal: You too. Well, we hope you enjoyed this episode of the ABA Law Student Podcast.

 

I would like to invite you to subscribe to the ABA Law Student Podcast on Apple Podcasts, Google Podcasts or your favorite podcasting app. You can reach us on Facebook at ABA for Law Students and @abalsd on Twitter.

 

Signing off, I am Jake Villarreal. Thank you for listening.

 

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