So if as my last post, “Where Should Lawyers Learn How To Practice” suggests, we know how to teach law students to practice law, why aren’t American law schools doing it with every student on a routine basis?
I believe there are two reasons:
First, it is a more expensive delivery model than the standard lecture/Socratic Method that dominates most legal education. My class at Vermont Law School, for example, had 6 students in it. A typical law school class might have a hundred to a hundred and fifty students. Teaching lawyering skills doesn’t have to be done in groups of 6, but one teacher can’t begin to teach as large a group as most law schools usually work with. So, if student to teacher ratio most go way down, one question comes right up: where would the money come from to do it?
Second, because it is not work that most law professors value and/or want to do. Most law professors are long on academic achievement and short on experience in the practice of law. The kind of practical teaching that I describe needs to be grounded in practice, not just in scholarship.
The accreditation rules for law schools, as written and applied by the American Bar Association, not only don’t require this kind of “skills” legal education, they discourage it. Among other things, the rules protect traditional scholarly law professor jobs by limiting the portion of a faculty that can be made up of adjunct faculty. And it is adjunct, part-time, faculty who are the teachers in touch with the actual skills needed to practice law.
The tenure rules at nearly all schools value traditional legal scholarship (mostly writing about the substance of the law) and discourage faculty who might be inclined to be scholars of skills-based legal education. And so do the professors who apply those rules to aspiring faculty.
The law schools will tell you that over the last 30 years they have come a long way in the direction of teaching law students lawyering skills by involving them in clinical education. To some extent that’s true. But the history of law school clinical faculty experience in succeeding on the tenure track tells a different story: that clinical education is still a step child.
Clinical education alone is no substitute for a well rounded, in-class grounding in lawyering skills. In clinical education, the needs of actual clients have to predominate over the educational needs of students. As a result clinical programs tend to be narrow in scope, and to involve completing routine and repetitive tasks.
In my own clinical experience (I admit, I did it some 35 years ago) I became an expert in sentence computation. I even brought and argued some litigation to challenge the continued incarceration of clients we contended were held after their sentences should have expired. It was great experience, but far too narrow to really have provided with the basics from which to practice law.
Clinical education really should be the icing on a three layer cake: two years of traditional legal education (providing plenty of time to teach students to think like lawyers and to provide an adequate knowledge base of the substance of the law itself) and a third year of lawyering skills. That third layer ought to be a solid grounding in skills based education topped with a frosting of clinical experience.
Next time: “What Has Legal Education Got to Do with Access to Justice?”
Rich
RSS Posts Feed
Subscribe by e-mail
Follow me on Twitter
{ 4 comments… read them below or add one }
Rich,
Thank you for this article on legal education. I am thankful that my law school required one year of lawyering process. It was a class of approximately 20 students that required us to perform mock interviews of clients, identify and research the potential issues, draft correspondence to an opposing counsel, prepare for a mediation and perform in a mock mediation. We also had a hypothetical case that we had to handle from initial client interview through making an appellate argument. The course also required the drafting of various pleadings and motions.
That lawyering process course combined with several semesters of family law and child advocacy clinical work gave me at least a “taste” of what I might encounter after graduation.
At The Straus Institute at Pepperdine University School of Law, I was required to mediate almost 30 cases and perform a semester-long externship. I chose to work with an arbitrator as my externship.
After that, did I feel prepared and knowledgeable about the practice of law? Not entirely.
I felt that I had been exposed to some things and made some mistakes that helped me learn. I did pass the Florida Bar exam on my first try. However, I did not feel knowledgeable about the real-world practice of law. What would have been better?
I think law school should be two years of substantive education and one year of apprenticeship. I believe an apprenticeship would get all students into a real-world law practice environment and provide them with first-hand exposure regarding the actual practice. Knowing the law in a person’s jurisdiction is certainly a good first step, knowing how to communicate effectively with people, clients and other lawyers, is another step in the right direction. Knowing how to negotiate with competitive and cooperative bargainers is another good step. However, requiring all law students to complete an apprenticeship would be ideal in my humble opinion.
Just some of my thoughts.
A.J. Grossman III, JD, LL.M.
Attorney at Law & CEO
Law Office of Grossman & Grossman P.A.
http://www.thegrossmanlawoffice.com
A.J.
Thanks for your comment.
Here in Vermont, we have substantial experience with apprenticeships. When I was admitted, every new lawyer here in Vermont had to do a 6 month clerkship with a Vermont lawyer or judge. Even today, a three month clerkship is required, although I understand that the requirement may be about to disappear.
When I was a member of our Board of Bar Examiners, we administered the program.
Unfortunately, the range of variation in the quality of clerkships was huge.
I worked as a law clerk to a member of our State Supreme Court. Actually, I was there for two years. I can’t imagine a better clerkship, as for the entire two years, I did research and writing on the law of our state. And I had the benefit of doing it with two excellent judges.
Even that clerkship, though, wasn’t really broad enough to prepare me to practice as I learned a lot of law, and only a little about the how of doing it.
As bar examiner, I learned that many clerkships were shear drudgery. Imagine working in a very narrow practice. I knew a clerk who did nothing but child support calculations for his whole clerkship. I knew another who did nothing but file and process mortgage foreclosures.
That doesn’t mean your point is wrong. It means that to do it well would take considerable regulatory guidance and real time and effort on the part of “masters” who would supervise apprentices.
Both require resources: translate money.
Such a system should probably happen, but it is even more difficult to create than what I propose: a skills oriented 3rd year of law school, quite like the experience you describe.
I guess I would say one step at a time!
Rich
Hi,
In 1987 Mark McCormack wrote a book entitled “The Terrible Truth About Lawyers”. In it he stated that “Only after graduation do young attorneys come to the depressing realization that 90 % of what they were taught in academia will never be used in practice and, conversely,90% of what they need to know in practice was never taught to them at school.”
He also stated that “…the standard law school glosses over or omits entirely the skills of interviewing counseling. negociating and drafting”.
Finally he argued that “…when you get pass all the mumbo jumbo the overwhelming majority of what lawyers do is basically high level research and make do paper work that takes to long and cost too much…”.
Are these points valid in 2011/2012?
Thanks
Dan,
I thinks have improved somewhat in the law schools, but have a long long way to go.
But lawyers do a lot more than “high level research and make do paper work.” If you don’t believe it, check out life in countries that don’t have a well developed rule of law. It’s a mess.
Rich