What are law schools teaching?

Graduate School Law School
1

<p>The following are some exerpts from an interesting opinion published in today's Wall Street Journal about the debate over what law schools should be teaching their students. I think that anyone interested in attending law school or practicing law will find this interesting. This is just an opinion.</p>

<p>"Meet the Clients
By CAMERON STRACHER
January 26, 2007; Page W11</p>

<p>The recent arrest of Anderson Kill & Olick paralegal Brian Valery for practicing law without a license raises a number of questions about how the ersatz Fordham graduate could have gotten away with representing corporate clients in complex litigation -- without ever having gone to law school. The more salient question, however, is: Would it have mattered if he had?</p>

<p>Legal education has been taking a beating recently. This month the Carnegie Foundation for the Advancement of Teaching issued a report criticizing the Socratic case method that dominates law-school teaching. According to the report, it does little to prepare lawyers to work with real clients or to resolve morally complex issues. Several months ago Harvard Law School announced a reform of its first-year curriculum to require classes in "problem solving," among other things. There appears to be an emerging consensus that although law schools may teach students how to "think like a lawyer," they don't really teach them how to be a lawyer.</p>

<p>It is hard not to agree. One of the biggest problems with the current state of legal education is its emphasis on books rather than people. By reading about the law rather than engaging in it, students end up with the misperception that lawyers spend most of their time debating the niceties of the Rule Against Perpetuities rather than sorting out the messy, somewhat anarchic version of the truth that judges and courts care about. When they graduate, young lawyers rarely know how to interview clients, advocate for their positions, negotiate a settlement or perform any number of other tasks that lawyers do every day. In short, they are woefully unprepared to be lawyers, despite the outrageous hourly fees charged for their services.</p>

<p>By giving students the false idea that being a lawyer is all about intellectual debate, we also drive the wrong students to law school in the first place. The hordes of English majors who fill our classes might think twice if they knew that economics and mathematics -- with their emphasis on problem-solving -- are the best preparation for a career in law. Flowery prose is seldom valued by an overburdened judiciary.</p>

<p>In addition to misleading students, the current system harms clients who often assume that their lawyers have more experience than they do. The system works for no one except, perhaps, lawyers at the biggest firms who can hire teams of associates to do the legal research that the case method is good at teaching. It should come as no surprise that most members of law-school faculties are big-firm refugees who graduated from elite schools and have little incentive to change the system."</p>

<p>"These days, to call law school a "trade school" is considered an insult to the establishment. Professors are firmly entrenched in their intellectual camps and pursue their academic agendas. Faculty members with "real world" experience are rarely hired on that basis alone -- although it is quite common to hire professors who have clerked for judges but never practiced at all. The Carnegie Foundation is to be admired for advocating more clinical education, in which students will have an opportunity to learn some hands-on skills.</p>

<p>But at the moment law-school clinics are short-term experiences. Students engage in limited representations in a specific field of practice, usually with a liberal tilt. (When was the last time, for example, that a law school opened a clinic to help small-business owners deal with claims brought against them under the Americans with Disabilities Act?) A few more clinics will not change the fundamental prejudice against experiential training when the entire system is rigged against it."</p>

<p>"Law is not brain surgery. It is a skill that can be acquired through practice and repetition. This is perhaps the most interesting lesson from Brian Valery, the over-ambitious paralegal: He fooled those around him who ought to have known best. In the late 1990s, I litigated against another paralegal who later pleaded no contest to five criminal misdemeanor charges of unlicensed law practice. What struck me about him at the time was how good he was at his job. He blustered, bluffed, threatened and cajoled with the best of them. He knew the law and argued it capably. But then again, he learned his trade the old-fashioned way: He practiced it."</p>

2

<p>
[quote]
The hordes of English majors who fill our classes might think twice if they knew that economics and mathematics -- with their emphasis on problem-solving -- are the best preparation for a career in law

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</p>

<p>Obviously not the only point of the article, but this is good for me to hear.</p>

3

<p>i have to say, i agree with a lot of what this person has to say, but i can't say its anything new -- i heard a lot of the same types of issues when i was in law school -- how it would do nothing to prepare us for the practical realities of being a lawyer. it was a great intellectual pursuit, but had little to do with what being a lawyer was really like.</p>

<p>i think there are still some states where you can still be admitted to the bar without attending law school, but rather by "reading the law" by working with a practicing lawyer for several years -- i think i even recall being told during an interview once about a paralegal at the given firm who was trying to do this. yet although that would seem to give a direct hands on aspect to the preparation for the bar, it certainly doesn't seem to be considered a preferred or prestigious route to the career.</p>

4

<p>Why don't firms just improve their on-the-job training programs?</p>

<p>At first glance, in the effort to prepare better lawyers, it seems like improving on-the-job training is more practical than revolutionizing the way law schools teach. I assume that practice in a law school environment is a very poor substitute for the real thing. Plus, changing the faculty and curriculums at law schools across the country would be a large task that, even if it yielded benefits, would still possibly not justify the effort required for the change.</p>

<p>The authors suggests that law schools teach students how to think like a lawyer, but not how to be a lawyer. Isn't the ability to be a lawyer exactly what on-the-job-training should teach?</p>

5

<p>actually, if you think about other professions, doesn't it really seem somewhat strange that we do in fact turn lawyers out of law school with so little practical training, expecting them to get it once they are actually in the work force?</p>

<p>medical students don't graduate until they've seen patients. teachers don't graduate until they've student taught. those professions certainly also learn once they are on the job as well, but they're given some practical training before they're turned loose on the public. </p>

<p>revamping the way in which law schools teach certainly wouldn't be an easy task -- i think top law school even pride themselves on not dealing with the mundane issues of the practice of law -- and i'm not contemplating this will ever actually happen -- but if you really stop and think about it, if you were designing a system to turn out professionals whose job it is to guide their clients thru major decisions and legal matters, would you really design a system in which those professionals spend 3 years in an intellectual pursuit that never actually addresses how to service a client?</p>

6

<p>Maybe they could have a law school class on how to kiss up to partners.</p>

7

<p>I just can't help myself -- lskinner, is every response you make on this board always going to sound so jaded? You seem happy with your practice now, so you must have constructive and positive things to say.</p>

8

<p>"Isn't the ability to be a lawyer exactly what on-the-job-training should teach?"</p>

<p>I don't know. Unlike many other countries, the U.S. doesn't have an equivalent to internship/residency in the legal field. It would make sense to require a couple of years where lawyers are low-paid on-the-job learners before they become licensed to practice independently, just as doctors have to do. On-the-job training is a challenge when you're being paid $160,000. You have to start adding a lot of value right away, so it's hard to do things like observe a bunch of depositions unless you do it on your own time.</p>

9

<p>
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it's hard to do things like observe a bunch of depositions unless you do it on your own time.

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To be honest, though, medical residencies are the same way -- no time for anything except your responsibilities, and usually barely even that -- and the compensation is quite poor. Point being that it might not be the compensation which is driving young associates to be swamped with responsibilities.</p>

<p>Now, the confounding variable (pointing out a hole in my own argument) is that medical students DO get their third and fourth years where they can meander about the hospital and watch various things being done. So they've had that experience before and it's not as necessary as it would be for lawyers.</p>

10

<p>
[quote]
I just can't help myself -- lskinner, is every response you make on this board always going to sound so jaded?

[/quote]
</p>

<p>If by "jaded," you mean that I have a negative opinion of certain firms -- particularly BIG(f?)LAW firms, then yeah, it's unlikely that my opinion will change. But I always try to keep an open mind.</p>

<p>
[quote]
You seem happy with your practice now, so you must have constructive and positive things to say.

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</p>

<p>Positive and constructive ain't necessarily the same thing. The article you quote says the following:</p>

<p>
[quote]
When they graduate, young lawyers rarely know how to interview clients, advocate for their positions, negotiate a settlement or perform any number of other tasks that lawyers do every day.

[/quote]
</p>

<p>In my opinion, it's worth pointing out that many young lawyers will not be interviewing clients, negotiating settlements, or advocating their positions without extremely tight supervision for a long time after graduation. Perhaps it's not a positive thing to say, but there it is.</p>

11

<p>Hanna, that's the way it's done here in Canada. Law grads must article with a firm/lawyer/legal department for a year, then the bar admission course takes place over six or seven months at the end of which the grads are then able to practice. I wonder why that doesn't happen in the U.S.</p>

12

<p>Without jumping into the debate about whether there should be a change in legal education in the U.S. . . . </p>

<p>I think that article process followed in Canada would never be adopted here for a couple of reasons. First and most obviously, for better or worse, law schools and law firms here are clearly disinclined to veer from their respective traditional ways. In addition, many proponents of the U.S. legal education system often state that teaching law students how to think like lawyers and how to find the information that they may need creates a group of lawyers who are able to respond to changes in the law and in procedure, as normally happens over time. Each lawyer educated in this fashion is also then able to change practice areas, learn new material and to change course at any time during a career, not because they know A and B the day they leave law school, but because they learn A and then learn B on the job. </p>

<p>Second, law students in the U.S., on average, get out of schools with much more student loan debt than students in Canada, so the idea of getting paid poorly for a year following law school would be a huge disincentive, and potentially a huge problem, for bright students considering law school. </p>

<p>In the U.S., while newly minted lawyers in big law firms are required to step quickly up a very steep learning curve (one of the reasons why junior associates work so many hours -- it simply takes them a long time to get the work done), they do it on the job while being well paid. Let's be honest -- it's hard to complain about basically receiving on the job training for a few years while earning $160,000, then $170,000 and then $185,000 per year, plus bonuses. One thing a law student needs to very carefully consider when interviewing with law firms is the quality of the formal and informal training processes that a law firm uses to train their associates. (I am frequently asked by friends from other law firms if they can borrow or copy the written training materials compiled by my law firm for use during the weekly, required, lunchtime training that occurs during the first two years of practice.)</p>

<p>Additionally, I want to point out again (since there seems to be some confusion) that this writing that I posted is merely a statement of one person's opinion. It is not an article and should not be read as authoritative. I posted it here merely because I thought it presented an interesting point of view.</p>