Legal Education for the Non-Lawyer

When you think of “Legal Education” you probably think of law school and becoming a lawyer.

And if you’ve heard much about law school, you know that to get there, you must first graduate with a bachelors degree (typically, a four year process). Then comes the difficult LSAT (law school entrance exam). Then comes a grueling three years of law school which puts many students in major debt — say $50,000 to $250,000 worth of debt. To become a lawyer, one must then pass the brutal two day bar exam (three days in some states).

What legal education, if any, should the non-lawyer have? Plenty.

No, I’m not talking about law school.

No, I’m not talking about going to college and getting an associates or bachelors degree in criminal justice.

I’m talking about k-12 education, and based on what I see in my community, people are not getting educated in the practical realities of our legal system. I think there is a basic level of legal knowledge or education that I think everyone should learn prior to becoming an adult. This post discusses some of these issues. I do not, however, hold myself out as having fully explored this issue. My suggestions and ideas here are a starting point for discussion, not a manual for immediate implementation.

By saying everyone needs a basic level of legal education, I am not disagreeing with a local judge who will sometimes ask pro se litigants (people coming to court without an attorney): “Would you try to do brain surgery without a brain surgeon?” The law may not be as complicated as brain surgery, but the analogy is well taken. Lawyers are needed. There’s too many thousands of laws on the books for the non-lawyer to always know what to do. Truthfully, there’s too many thousands of laws on the books for any given lawyer to know what to do in all circumstances, which is why it’s important for a lawyer to refer cases outside his or her realm of expertise. And besides the statutes and regulations (what you think of when you think of a “law on the book”), there’s literally hundreds of years worth of case law piling on top of itself in which appellate and supreme court judges try to clarify and explain the law so it can be applied to complicated facts on the ground.

Recognizing the need for legal expertise, what kind of non-expert knowledge should everyone be taught?

People may disagree about the ultimate purpose of education, but here are some thoughts given by the U.S. Supreme Court and some noted historians (historians quoted by the Supreme Court).

(1) Public schools “are educating the young for citizenship.” We do not want to “strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.” Tinker v. Des Moines, 393 U.S. 503 (1969).

(2) “[P]ublic education must prepare pupils for citizenship in the Republic. . . . It must inculcate the habits and manners of civility as values in themselves conducive to happiness and as indispensable to the practice of self-government in the community and the nation.” C. Beard & M. Beard, New Basic History of the United States 228 (1968), quoted by the U.S. Supreme Court in Bethel School District v. Fraser, 478 U.S. 675 (1986).

(3) “These fundamental values of ‘habits and manners of civility’ essential to a democratic society must, of course, include tolerance of divergent political and religious views, even when the views expressed may be unpopular.” Bethel School District v. Fraser, 478 U.S. 675 (1986).

If part of a public school’s job is to educate children for citizenship and teach them important principles of our government, schools should teach children to understand their rights.

(A) The Right to Remain Silent.

It’s all very well and good for a student to know “I have the right not to incriminate myself.” This is a “mere platitude” — a pointless saying, a worthless bit of information until you actually understand how our system works. So the education must be deeper than “you can’t be forced to talk to a police officer. It goes a lot deeper: in almost all cases when a police officer is investigating a crime, it is dangerous to talk to the officer. If you haven’t watched this video, watch it now.

As a criminal defense attorney, it never ceases to amaze me how many people (often innocent of any substantial wrongdoing) think that the law enforcement officers questioning them are looking out for their good. This is especially annoying in circumstances where both parties were wrongdoers, but for one reason or another, the officer gets a bias in favor of one person who gets off completely free while the other person has to spend thousands of dollars fighting the case to keep from being thrown into jail.

(B) The Right to Represent Himself/Herself and not have ex parte communications take place.

I have seen situations in Court where the judge and one or more attorneys go back and talk in chambers about a case while a party (who does not have an attorney) is left in the courtroom waiting to see what happens. This is completely inappropriate and should never happen. If you have an attorney, then when they all go back to chambers, you are being represented by your attorney. Your rights are protected even with you sitting in the courtroom. But if one party of the case is not represented in that conference in chambers, then ex parte communication is happening. Ex parte means, essentially, without a party. Some parties are getting to have the ear of the judge while some parties are left out without any way to know what’s going on and with no way to put in input or put in his side of the story.

Is this getting too technical? Is this really an issue that schools should teach students? Perhaps you wouldn’t get this technical, but I do think that all American adults should have a firm understanding of the idea of “due process” and “fair notice.” They should have a firm understanding that our laws actually do try to track with universal concepts of fairness. The party sitting out in the courtroom unrepresented in the “secret conference” knows that this situation is unfair but he does not necessarily understand that this specific issue is at the very heart of our justice system. Our justice system is very specific about what kind of communications can take place ex parte, and there are very few exceptions to the rule that ex parte communications are NOT to take place. Every party must have a free and open opportunity to be present when any other party is getting the ear of the judge.

(C) Shout out to Constitution Project: Our local judge, Douglas D. Gaston, has spearheaded an educational program called the Constitution Project. I was directly involved in the program in 2013 and 2012, but only in a minor way. It has grown considerably, and I have not been involved this past year. I think that this program does teach important things about how our legal system works, and probably does have an impact on the students who participate in helping them acquire the type of knowledge that I’m discussing in this post.

(D) Going back to the Supreme Court quotes above, I think it would be a valuable thing for a school to analyze the quoted values of public education and apply those specified values to these and similar questions: “How can we better prepare people to navigate a society with thousands of laws and regulations applying to virtually every aspect of life?” “How can we help our students internalize and understand the ‘liberties’ we know as mere timeless proverbs so that are better equipped to know when their rights are in danger so they can defend them?”

As I mentioned earlier, this post is merely a staring pointing in a much broader discussion. This discussion should be going on among public school administrators and people interested in the education of our children and the direction of our country is headed.

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Posted in 5th Amendment, criminal defense, criminal law, education, politics
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