Research repeatedly demonstrates that lawyers do not need to memorize extensive bodies of law to be minimally competent. Almost 50 years ago, Robert Schwartz asked 1200 California lawyers to rate the importance of 15 different skills and practice areas. Only 4% of the respondents believed that memorizing legal concepts was essential to their practice. Almost one-third (29.3%) replied that memorization was "not useful" in their practice. Memorization received more "not useful" ratings than any other item on the survey.
Deerdra Benthall-Nietzel conducted a similar survey among Kentucky lawyers. Once again, "memorizing legal concepts" ranked last in importance among 30 skills and knowledge areas.
The Building a Better Bar study confirms these findings among more recent lawyers (pp. 24-25). The new lawyers and supervisors participating in that study emphaticallly rejected doctrinal memorization as essential for new lawyers. On the contrary, they characterized memorization as "malpractice" or "a bad way to practice law." Legal principles are too detailed, too varied among jurisdictions, and too changeable to support practice from memory.
As lawyers gain experience in practice areas, they begin recalling legal rules from memory. A prosecutor or defense lawyer does not need to continuously check the mens rea for theft or the penalty for that crime in their jurisdiction. That type of recall, however, is not necessary to begin practicing in an area. Instead, new lawyers need familiarity only with threshold concepts within areas of law