Rarely is the question asked: Is our law students learning?

Posted in Uncategorized on August 30th, 2010 by bl1y

When you graduated, did you feel competent to practice law?

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Over at the Prawf’s Blawg there has been a bit of a debate over the value of “doctrinal” and “theoretical” legal education taught by mainly academic, non-practitioner professors.  First, Brent Newton (Adjunct Professor at GULC and Washington College of Law, and deputy staff director for the US Sentencing Commission) published an article titled Preaching What They Don’t Practice: Why Law Faculties’ Preoccupation with Impractical Scholarship and Devaluation of Practical Competencies Obstruct Reform in the Legal Academy, and then a bunch of professors decided to weigh in.

Newton’s thesis can be summed up by two main points.

First, many law professors are unqualified to train attorneys:

Such impractical scholars, because they have little or no experience in the legal profession and further because they have been hired primarily to write law review articles rather than primarily to teach, lack the skill set necessary to teach students how to become competent, ethical practitioners.

And second, that recent grads are really screwed by this lack of training:

The recent economic recession, which did not spare the legal profession, has made the complaints about American law schools’ failure to prepare law students to enter the legal profession even more compelling; law firms no longer can afford to hire entry-level attorneys who lack the basic skills required to practice law effectively.

Then, Richard Garnett (Associate Dean at Notre Dame Law) posted a response to the article here. You can read the whole thing if you want, but here’s the gist of it [and sense many of the comments and posts in this discussion are quite lengthy, assume everything I quote here is just a excerpt]:

It is essential that law schools provide, value, and reward the best possible legal-skills training to those students we are training to become lawyers.  But, it is also essential to remember — those in the practice who are criticizing legal education need to remember — that we are not only “training lawyers”; we are also forming professionals: citizen-leaders and teachers who play a vital role in the project of securing and defending the rule of law in the service of the common good, as well as in helping people avoid and solve technical legal problems.

Ian Bartrum (Assistant Professor at Drake) added his two cents in the comments:

I think that the most effective practical education will inevitably happen on the job, where necessity and repetition reinforce the everyday skills that a particular career path requires. Law practice is thus particularly suited to provide technical training, but perhaps not as well suited to teaching the kind of abstract skills learned in the classroom. That is the opportunity that law school provides. And there is nothing wrong with that, to my mind. We simply learn one part of lawyering in school and another part on the job.

Kristen Holmquist (Resident Lecturer at UC Berkeley) then posted a draft of a paper on this subject.  Here’s the abstract:

Since the 2007 release of the Carnegie Report on the status of legal education, energy around reform has been tremendous. Indeed, schools of every rank have taken heed of the Report’s finding that while law school teaches students to think like lawyers, it woefully underprepares them to act as such. This essay challenges Carnegie and its conclusion that law school successfully teaches lawyerly thinking. The Report artificially severs an attorney’s thinking from her doing and thus belies the interrelatedness of understanding, experience, evaluating and creating. It defines ‘thinking like a lawyer’ downward to a crisp and detached doctrinal analysis – one that looks more like law-as-puzzle than a serious attempt to solve complex human (or corporate) problems. This narrow view obscures the context and content that lawyers work with and within, and it fails to reflect the more complex take on lawyering that lawyers and lawyering theorists describe. Sophisticated empirical and theoretical accounts of lawyering recognize the recursive nature of knowledge and experience in a way that broadens our understanding of what it means to think like a lawyer.

Through this essay I attempt to fold context and content back in to our notion of lawyerly thinking. And I propose curricular and pedagogical changes that law schools might adopt to better reflect and encourage this richer, fatter, understanding. While it is true that students’ lack of practical training may deny them the ability to write a fantastic brief, legal education’s problems are bigger than that. Law school’s consistent focus on case-method learning may also deny students the opportunity to engage in higher-order thinking about law and policy, about problems and goals, about potential paths, obstructions, and solutions.

Having trouble making sense of that? Me too. It’s a lot of that fashionable, progressive, airy double-speak that tends to be the hallmark of contemporary academia because, apparently, using words in their ordinary manner and in easily comprehensible ways is way overrated.  But, to cut through the ivory fat for you, here’s the point of her paper:

Law students need more experience that resembles actual legal work.

Why did it take 39 pages to make that argument? Because law journals don’t publish one-liners, and you can’t build a CV with unpublished articles, no matter how clear and succinct your reasoning is.

Then we get a very lengthy post from Paul Horwitz (Associate Professor, Alabama, RMFT):

[O]ur discussion of the practice vs. theory, or experienced vs. inexperienced, debate in the law schools should not ignore the huge stock of very experienced and skilled practitioners who already fill our law schools at all levels.  Most law schools already take tremendous advantage of both adjunct teachers and clinicians.  (The ambiguity in the phrase “take tremendous advantage” is intended!)  Students with a strong practical bent already have a ready supply of teachers who fit that bill, and many of them avail themselves of those opportunities.

So, now I guess I’ll weigh in.

First, let’s note that Richard Garnett, Ian Bartrum, and Paul Horwitz are each completely lacking in practice experience, at least as far as their faculty profiles would indicate. So, we’re not talking about highly informed opinions when it comes to what lawyers do and what they need to know to do it. It’s very hard to understand what thinking like a lawyer is when you’ve never thought as a lawyer.

Kristen Holmquist has worked as an associate at Irwell and Manella, and then at Caldwell, with a total of about 5-6 years as a practicing attorney. She might know what she’s talking about, if only it wasn’t so hard to understand her writing (as a former practitioner, I’m just going to assume her writing style and language are just a result of the publication game).

But, among all of these people writing about whether lawyers are prepared to enter the work force, none of them asks a very simple, obvious question: What do recent grads and young lawyers think?

If there’s anyone qualified to answer whether or not their legal training prepared them to be competent attorneys it’s the attorneys.  Some may feel over confident in their skills, but for the most part a recent grad who’s been asked to analyze a private equity deal between a US corporation and its Cayman Island partner will know whether he’s completely lost or not.

Instead of getting into highly theoretical debates about what “thinking like a lawyer” entails, why not ask the students what they found useful, what turned out to be a complete waste, and what they wish they had taken or wish they had the opportunity to take?

To get the ball rolling, here are my thoughts:

(1) Despite what law professors will tell you about the “opportunities” to take experiential classes (clinics and the like), most of these classes are extremely competitive to get in to. These opportunities exist only for a small fraction of students, not for everyone who wants them. Law professors tend to ignore class lotteries and the possibility of scheduling conflicts when touting the opportunities their school offers.

(2) Upper level writing classes are pretty much nonexistent. You may do some writing in moot court (if you can get in), but that’s about it.  Legal research and writing classes (or “lawyering” if you’re fancy) should be a requirement every semester, not just the first year.  They could be scaled back credit hour wise, maybe making them a 1 credit per semester class. This would allow for students to continue getting feedback on writing once they have a basic grasp on some law (first year you’re often too overwhelmed by the law to really focus on writing), and you would get the opportunity to work with different professors with (hopefully) different practice backgrounds.

(3) Upper level non-litigation skills classes are also pretty much nonexistent. We had negotiations, and alternative dispute resolution (and I managed to get into both), but these aren’t really skills that are going to be put into use by your average corporate department junior or mid-level associate.  It’s usually the client doing the negotiating, and if lawyers are present, it’s not the junior kid. These classes would however have been useful to students going to work in a small firm’s family law practice. But, for the huge number of us who are going into corporate work, there’s not really any options for skills training.

(4) Too many professors pass the buck when it comes to skills training, saying that the best place to learn black letter law and develop skills is on the job, and the class room is simply better suited to teaching theory.  There are two problems with this.  First, any meaningful discussion about the big picture stuff, social policy and all that, requires a working knowledge of the underlying black letter law and the real world dynamics that frame the debate. You know where I heard the most intelligent social policy discussions? Law firm practice group meetings. The partners could talk about what new rules would really mean for clients and for the public, because they were in actual contact with clients dealing with these issues.

But, more importantly, law professors must come to terms with the fact that many of their graduates do not have the opportunity to learn on the job.  There are far fewer opportunities to work at law firms of any size, and many grads are forced to enter whatever practice area happens to be hiring, meaning their training will be of little use to them if they ever want to move in to their preferred area. And, a growing number of young lawyers are finding that their only opportunity to gain “on the job training” is to hang up a shingle and work for themselves in a solo practice.  The truth of the matter is that law grads are expected to hit the ground running on day one. Yes, no one expects them to be industry experts yet, but when you’re billing $100-300 an hour, it’s too late to only be starting your training.

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