Pericles Should Learn to Fix a Leaky Pipe – Why Trial Advocacy Should Become Part of the LLB Curriculum (Part 1)

  • Willem Hendrik Gravett University of Pretoria Faculty of Law


It is a sad fact that at most university law schools in South Africa, a student can graduate without ever having set foot in a courtroom, and without ever having spoken to, or on behalf of, a person in need of advice or counsel. The past several years have witnessed a swelling chorus of complaints that the current LLB curriculum produces law graduates who were "out of their depth" in practice. My purpose is to make a case for the inclusion in the LLB curriculum of a course in trial advocacy. This endeavour of necessity invokes the broader debate over the educational objectives of a university law school – a debate memorably framed by William Twining as the two polar images of "Pericles and the plumber". My thesis is that the education of practising lawyers should be the primary mission of the university law school. The first part of this contribution is a response to those legal academics who hold that the role of the law school is to educate law students in the theories and substance of the law; that it is not to function as a trade school or a nursery school for legal practice. With reference to the development of legal education in the United States, I argue that the "education/training" dichotomy has been exposed as a red herring. This so-called antithesis is false, because it assumes that a vocational approach is necessarily incompatible with such values as free inquiry, intellectual rigour, independence of thought, and breadth of perspective. The modern American law school has shown that such so-called incompatibility is the product of intellectual snobbery and devoid of any substance. It is also often said that the raison d'être of a university legal education is to develop in the law student the ability "to think like a lawyer". However, what legal academics usually mean by "thinking like a lawyer" is the development of a limited subset of the skills that are of crucial importance in practising law: one fundamental cognitive skill – analysis – and one fundamental applied skill – legal research. We are not preparing our students for other, equally crucial lawyering tasks – negotiating, client counselling, witness interviewing and trial advocacy. Thinking like a lawyer is a much richer and more intricate process than merely collecting and manipulating doctrine. We cannot say that we are fulfilling our goal to teach students to "think like lawyers", because the complete lawyer "thinks" about doctrine and about trial strategy and about negotiation and about counselling. We cannot teach students to "think like lawyers" without simultaneously teaching them what lawyers do. An LLB curriculum that only produces graduates who can "think like lawyers" in the narrow sense ill-serves them, the profession and the public. If the profession is to improve the quality of the services it provides to the public, it is necessary for the law schools to recognise that their students must receive the skills needed to put into practice the knowledge and analytical abilities they learn in the substantive courses. We have an obligation to balance the LLB curriculum with courses in professional competence, including trial advocacy – courses that expose our students to what actually occurs in lawyer-client relationships and in courtrooms. The skills our law students would acquire in these courses are essential to graduating minimally-competent lawyers whom we can hand over to practice to complete their training. The university law school must help students form the habits and skills that will carry over to a lifetime of practice. Nothing could be more absurd than to neglect in education those practical matters that are necessary for a person's future calling.

Author Biography

Willem Hendrik Gravett, University of Pretoria Faculty of Law

Senior Lecturer, Department of Procedural Law




Anderson and Cats 1981 Wash U L Q
Anderson TJ and Catz RS "Towards a Comprehensive Approach to Clinical Education: A Response to the New Reality" 1981 Wash U L Q 727-792

Aristotle "Rhetoric Book I Chapter 3"
Aristotle "The Rhetoric Book I Chapter 3" in Roberts R (trans) The Rhetoric and Poetics of Aristotle (Random House New York 1984)

Asper 1965 Md L Rev
Asper LD "Some Old Fashioned Notions about Legal Education Accompanied by Some Ultra-Conservative Suggestions" 1965 Md L Rev 273-299

Ayer 1993 Mich L Rev
Ayer DB "Stewardship" 1993 Mich L Rev 2150-2162

Borthwick and Schau 1991-1992 U Mich J L Reform
Borthwick RJ and Schau JR "Gatekeepers of the Profession: An Empirical Profile of the Nation's Law Professors" 1991-1992 U Mich J L Reform 191-238

Brownsword 1996 Law Teacher
Brownsword R "Where are all the Law Schools Going?" 1996 The Law Teacher 1-27

Burger 1967-1968 Washburn L J
Burger WE "Remarks on Trial Advocacy: A Proposition" 1967-1968 Washburn L J 15-24

Burger 1973 Fordham L Rev
Burger WE "The Special Skills of Advocacy: Are Specialized Training and Certification of Advocates Essential to our System of Justice?" 1973 Fordham L Rev 227-242

Burger 1980-1981 Fordham L Rev
Burger WE "Some Further Reflections on the Problem of Adequacy of Trial Counsel" 1980-1981 Fordham L Rev 1-25

Campbell 2014 Stell LR
Campbell J "The Role of Law Faculties and Law Academics: Academic Education or Qualification for Practice?" 2014 Stell LR 15-33

Carlson 1989 Ga L Rev
Carlson RL "Competency and Professionalism in Modern Litigation: The Role of Law Schools" 1989 Ga L Rev 689-729

Carrington 1992 Duke L J
Carrington PD "Butterfly Effects: The Possibilities of Law Teaching in a Democracy" 1992 Duke L J 741-805

Christensen 1984 Utah L Rev
Christensen AS "The Next Step: A Jurisprudence of Legal Advocacy" 1984 Utah L Rev 671-683

Civiletti 1981 ABA J
Civiletti BR "Clinical Education in Law School and Beyond" 1981 ABA J 576-577

Clare 1975-1976 St John's L Rev
Clare Jr RL "Incompetency and the Responsibility of Courts and Law Schools" 1975-1976 St John's L Rev 463-472

Cramton 1981 U Ark Little Rock L Rev
Cramton RC "Lawyer Competence and the Law Schools" 1981 U Ark Little Rock L Rev 1-15

Cramton 1982 J Leg Ed
Cramton RC "The Current State of the Law Curriculum" 1982 J Leg Ed 321-335

Devitt 1979 ABA J
Devitt EJ "Law School Training the Key to Quality Trial Advocacy" 1979 ABA J 1800-1802

Edwards 1992 Mich L Rev
Edwards HT "The Growing Disjunction Between Legal Education and the Legal Profession" 1992 Mich L Rev 34-78

Frank 1947 Yale L J
Frank J "A Plea for Lawyer-Schools" 1947 Yale L J 1303-1344

Frank Courts on Trial
Frank J Courts on Trial: Myths and Reality of American Justice (Princeton University Press Princeton 1949)

Gravett 2017 SALJ (forthcoming)
Gravett WH "Of 'Deconstruction' and 'Destruction': Why Critical Legal Theory cannot be the Cornerstone of the LLB Curriculum" 2017 SALJ (forthcoming)

Hegland 1982 J Leg Ed
Hegland K "Moral Dilemmas in Teaching Trial Advocacy" 1982 J Leg Ed 69-86

Holmes 1976 Columbia L Rev
Holmes EM "Education for Competent Lawyering: Case Method in a Functional Context" 1976 Columbia L Rev 535-580

Hunter 1996 Law Teacher
Hunter J "Teaching Plumbing with Periclean Ideals: Should it be Done? Can it be Done? Advocacy and Courtroom Scholarship" 1996 The Law Teacher 330-353

Imwinkelreid 1988-1989 Ga L Rev
Imwinkelried EJ "The Educational Philosophy of the Trial Practice Course: Reweaving the Seamless Web" 1988-1989 Ga L Rev 663-687

Kaufman 1978 ABA J
Kaufman IR "Continuing the Call for Courtroom Competence" 1978 ABA J 1626-1627

Keeton 1981 Md L Rev
Keeton R "Teaching and Testing for Competence in Law School" 1981 Md L Rev 203-222

Llewellyn Jurisprudence
Llewellyn KN Jurisprudence: Realism in Theory and Practice (Transaction Publishers New Brunswick 1962)

Louw and Broodryk 2016 Stell LR
Louw CH and Broodryk T "Teaching Legal Writing Skills in the South African LLB Curriculum: The Role of the Writing Consultant" 2016 Stell LR 535-553

Lubet 1989-1990 Cornell L Rev
Lubet S "Closed Minds and American Law Schools" 1989-1990 Cornell L Rev 948-958

Lubet 1990-1991 Notre Dame L Rev
Lubet S "Advocacy Education: The Case for Structural Knowledge" 1990-1991 Notre Dame L Rev 721-737

Lubet 1997 U Ill L Rev
Lubet S "Is Legal Theory Good for Anything?" 1997 U Ill L Rev 193-214

Madlingozi 2006 Pulp Fictions
Madlingozi T "Legal Academics and Progressive Politics in South Africa: Moving beyond the Ivory Tower" 2006 Pulp Fictions 5-24

Mannion 2009-2010 Pace L Rev
Mannion ME "Objections Overruled: The Trial Advocacy Course should be Mandatory" 2009-2010 Pace L Rev 1195-1206

McCarthy 2008 Stetson L Rev
McCarthy TF "The History of Teaching Trial Advocacy" 2008 Stetson L Rev 115-130

Modiri 2013 Stell LR
Modiri J "Transformation, Tension and Transgression: Reflections on the Culture and Ideology of South African Legal Education" 2013 Stell LR 455-479

Modiri 2014 Acta Academia
Modiri J "The Crisis in Legal Education" 2014 Acta Academia 1-24

Modiri 2016 Stell LR
Modiri J "The Time and Space of Critical Legal Pedagogy" 2016 Stell LR 507-534

Morse 1982 L Libr J
Morse AL "Research, Writing, and Advocacy in the Law School Curriculum" 1982 L Libr J 232-264

Motala 1996 SALJ
Motala Z "Legal Education in South Africa: Moving Beyond the Couch-Potato Model towards a Lawyering Skills Approach – A Case for a Comprehensive Course on Legal Research, Analysis and Writing" 1996 SALJ 695-701

Nivala 1989 N M L Rev
Nivala J "From Bauhaus to Courthouse: An Essay on Education for Practice of the Craft" 1989 N M L Rev 237-264

Ohlbaum 1993 Temp L Rev
Ohlbaum E "Basic Instinct: Case Theory and Courtroom Performance" 1993 Temp L Rev 1-122

Pantaziz 2013 Advocate
Pantaziz A "The LLB" 2013 Advocate 22

Pertnoy 1994 Mo L Rev
Pertno, LD "Skills is not a Dirty Word" 1994 Mo L Rev 169-186

Pirie 1987 J Leg Ed
Pirie AJ "The Case for Systematic Instructional Design" 1987 J Leg Ed 576-597

Posner 1981 Yale L J
Posner RA "The Present Situation in Legal Scholarship" 1981 Yale L J 1113-1130

Schlegel 1984 Stanford L Rev
Schlegel JH "Notes towards an Intimate, Opinionated, and Affectionate History of the Conference on Critical Legal Studies" 1984 Stanford L Rev 391-411

Schultz 1992 J Leg Ed
Schultz NL "How do Lawyers Really Think?" 1992 J Leg Ed 57-75

Schwartz 1985 J Leg Ed
Schwartz LB to Brest P "'Of Law and the River,' and of Nihilism and Academic Freedom" 1985 J Leg Ed 1-26

Sedutla 2013 De Rebus
Sedutla M "LLB Summit: Legal Education in Crisis?" July 2013 De Rebus 8-10

Singo 2016 Stell LR
Singo D "The Role of South African University Law Clinics within the LLB Degree" 2016 Stell LR 554-574

Spiegel 1987 UCLA L Rev
Spiegel M "Theory and Practice in Legal Education: An Essay on Clinical Education" 1987 UCLA L Rev 577-610

Stein 1990-1991 Minn L Rev
Stein RA "The Future of Legal Education" 1990-1991 Minn L Rev 945-970

Stevens Law School
Frank J "What Constitutes a Good Legal Education" 1933 (unpublished speech) as quoted in Stevens R Law School: Legal Education in America from the 1850s to the 1980s (University of North Carolina Press Chapel Hill 1983)

Tauro 1976 B U L Rev
Tauro GJ "Graduate Law School Training in Trial Advocacy: A New Solution to an Old Problem" 1976 B U L Rev 635-649

Twining 1967 LQR
Twining W "Pericles and the Plumber: Prolegomena to a Working Theory for Lawyer Education" 1967 LQR 396-426
Van Marle 2010 SALJ
Van Marle K "Jurisprudence, Friendship and the University as Heterogenous Public Space" 2010 SALJ 628-645

Van Marle 2014 Acta Academia
Van Marle K "Reflections on Legacy, Complicity, and Legal Education" 2014 Acta Academia 196-215

Van Marle and Modiri 2012 SALJ
Van Marle K and Modiri J "'What does Changing the World Entail?' Law, Critique and Legal Education in the Time of Apartheid" 2012 SALJ 209-219

Wellington 1987 J Leg Ed
Wellington HH "Challenge to Legal Education: The "Two Cultures" Phenomenon" 1987 J Leg Ed 327-330

Wolfe 1980-1981 Tulsa L J
Wolfe JS "Exploring Trial Advocacy: Tradition, Education, and Litigation" 1980-1981 Tulsa L J 209-228

Woolman, Watson and Smith 1997 SALJ
Woolman S, Watson P and Smith N "'Toto, I've a Feeling We're not in Kansas Anymore': A Reply to Professor Motala and Others on the Transformation of Legal Education in South Africa" 1997 SALJ 30-64

Zitzke 2014 Acta Academia
Zitzke E "Stop the Illusory Nonsense! Teaching Transformative Delict" 2014 Acta Academia 52-76

Case law

United States v Antonelli Fireworks Co 155 F2d 631, 662 (2d Cir 1946)

Internet sources
Jappie 2012
Jappie A 2012 Many LLB Graduates out of their Depth accessed 30 July 2012

O'Brien Date Unknown
O'Brien P Date Unknown UJ Law Graduates Better Prepared for Work accessed 16 March 2017
  • Abstract 0
  • pdf 0
  • XML 0
Views and downloads are with effect from 11 January 2018