Does Law School Prepare You to Practice? Part 1
ByThere’s a great deal of criticism lately as to whether law schools should provide an education that better prepares students for practice. The Legal Satyricon says:
“When you learn how to be a doctor, you work on cadavers until you learn how to work on real people. When you learn to fly a plane, you spend some time in the simulator. If you want to be a lawyer, you still need to attend law school. Unfortunately, most of the legal academy doesn’t think it should stoop to actually teaching students how to be lawyers.”
I actually think that we need to divide the critique into litigation and transactional areas.
As to litigation, I’m not sure it’s fair to say that law schools do a poor job of training law students. Most law schools have elaborate moot court programs, offer trial practice and have litigation focused legal writing classes. Perhaps they could focus more on document review skills (though that would be mighty boring) or, better yet, motion practice and deposition training as well. Nevertheless, when I graduated from law school and clerked for a judge in a trial court, I was definitely not lost and found the proceedings approachable. But I did find that learning state rules of procedure, amassing necessary forms, and, obviously, learning substantive law to be the areas I needed to improve upon. Perhaps these skills could be added to law school litigation training.
However, I ended up practicing as a transactional attorney, and I could not have been less prepared. I was surprised to discover that the vast majority of a 1L contracts course does not help you much in drafting and negotiating deals. Senior attorneys had to sit down and walk me through everything as if I’d never attended law school, and I definitely felt like I was starting from close to zero (of course, we think our WhichDraft.com contracts provide a great deal of that training at your fingertips).
We do need to remember, though, that the bulk of quality litigation training in law school is farmed out to adjunct professors, as the full time faculty is mainly focused on research and writing, as well as the rather amorphously defined skill of teaching students to “think like lawyers.” What I find interesting is that, instead of defending oneself by pointing to the useful litigation training currently offered, some people seem to think that no actual practice skills need to be taught at all. David Papke noted:
“We don’t want law school to be lawyer-training school. When we cave in to demands of that sort from the ABA and assorted study commissions, we actually invite alienation among law students and lawyers. Legal education should appreciate the depth of the legal discourse and explore its rich complexities. It should operate on a graduate-school level and graduate people truly learned in the law.”
And PrawfsBlog notes that the entire law professor profession is biased against practice, such that having substantial legal experience can prevent one from being an attractive candidate in the professor hiring market:
Having more than a few years of practical experience on your resume can be deadly for someone entering the teaching market. . . . The most sought after new hires often have advanced degrees in other disciplines, with little to no legal experience . . . Interdisciplinary or “theoretical” scholarship is viewed as weighty, while characterizing scholarship as “practical” may be the worse criticism one can hear. Treatises, practice guides, and books at many schools are entitled to almost no weight in tenure decisions. Legal publications in bar journals and popular press are often scorned, while non-legal publications are severely discounted. Legal writing and clinical faculty at some schools are still viewed as second-class citizens. And a distinguished legal career is often worth less than one publication with a leading law review. Courts perennially complain that legal scholarship is no longer helpful. The division between academia and practice seems as great as it has ever been.
What I find most interesting about this yawning divide between academia and practice, is that, for the life of me, I can’t understand why this needs to be the case. If you are a professor focused on the empirical legal studies movement, why can’t you teach actual practice skills in the context of your research? If you write about discourse analysis, why can’t you analyze a contract negotiation? If you are an economics and the law scholar, why can’t you instruct students on the economic administration of law firms and explore the nature of perverse incentives?
It seems to me that, as a profession, we can bridge this chasm.
If you enjoy this content, add me at twitter.com/JasonAnderman, thank you.
3 Comments
July 16th, 2009 at 8:43 am
[...] kicked off an intriguing discussion in the LinkedIn Legal Innovation Group about my recent post: Does Law School Prepare You to Practice? Thanks, Jordan, for using the post as a jumping off point for this [...]
July 16th, 2009 at 8:52 am
There’s a nice debate going on about this post over in the LinkedIn Legal Innovation Group: http://www.linkedin.com/newsArticle?viewDiscussion=&articleID=50462455&gid=1850762&split_page=1#comment_6.
July 19th, 2009 at 9:57 am
I wanted to include all of the comments from LinkedIn here:
Comments (14)
1. Jordan Furlong
Jason Anderman of WhichDraft makes an interesting point: law schools get a lot of grief for not preparing students to practise law, but you could argue they do a pretty decent job on the litigation side, with moot courts, clinics and the like. It’s on the transactional side that they really fall down. Does anyone know of law schools with practical, skills-based transactional law offerings?
By
Jordan Furlong National Magazine Editor-in-Chief
posted 3 days ago
2. Denis Campbell
This opens an important debate about the purpose of schooling. An MBA does not prepare one to lead a corporation. An MS in Accounting does not a skilled auditor or tax advisor make. An MA does not prepare a writer to win a Pulitzer Prize.
What higher education is supposed to do is teach one how to think and rationalise one’s way through problems. Then as an associate, staff accountant, junior executive, or beat reporter… one is mentored and taught the real world skills by supposed leading elders within the tribe.
There was a time when accountancy & legal firms used staff accountants and associates as prime training grounds to help them hone their skills and prepare for greater responsibility.
When firms took the short term profitability step of “eating their young” in the ‘90 and ’00s by flattening their pyramids to put more money in their pockets (and because they also arrogantly expected the client to pay for their attorney’s to learn!) a lot was lost.
Then schools were blamed for not preparing 22-24 year olds to come out of school as tiny self-contained profit generating units. Fix the model, get back to a true training culture vs. demanding 1,600-2,000 hours out of every associate and you go a long way to solving this debate.
By
Denis Campbell Owner, UK Progressive e-magazine; BBC, HuffPo, Guardian and PokerNews.com contributor.
posted 2 days ago
3. Matthew Homann
In my view, the only people who don’t realize law schools are trade schools are the Professors and Deans. Accountants learn to account, business students learn about how to run businesses and writing students write. Law schools don’t teach students to do 1/10th of the kind of things people expect every lawyer to be able to do (read a contract, draft articles of incorporation, write a will, etc.) to say nothing about learning about the business they’re about to enter.
And as to Jordan’s point, I think law schools can do a decent job of preparing students for litigation — which would be great if any actually got to try cases. A better preparation for “litigation” associates is to have an entire semester where they answer the same twenty five interrogatories over and over and over.
Another point on the litigation and other clinical courses is that they’re often the only classes in most schools taught by real lawyers as opposed to tenured professors.
By
Matthew Homann Founder of LexThink, Legal Thinker, Innovational Speaker, Gifted Facilitator, Dad.
posted 2 days ago
4. Victoria Pynchon
Law schools that see themselves as trade schools don’t teach their students what they and society need most – how to make the system better, faster, more efficient and how to craft laws serving the needs of all citizens. My students at a local law school resisted a lesson in which I suggested the class write a uniform employment act to replace the patchwork of employee protections we have now. At least one class member was so irritated by this exercise tha he/she wrote in his/her final evaluation that I was supposed to be teaching them what the law WAS, not what it could be. That said , the third year of law school is a total waste of the students’ time. I continued my own summer clerkship into year 3 learning how to be a lawyer 40 hours a week, skipped most of my classes; borrowed outlines from the students who’ amjured the classes I was taking – scored my own first and only amjur and graduated in top 10% of my class. Year 3 should either be eliminated or devoted to practice
By
Victoria Pynchon Mediator and Arbitrator of Complex Commercial Litigation at ADR Services, Inc.
posted 2 days ago
5. Jason Anderman
This discussion has inspired me to write a second post on the topic. I’d love to get your thoughts on it here: http://www.whichdraft.com/wp/?p=77 (Does Law School Prepare You to Practice (Part 2)?)
Denis, I would point to my closing paragraph:
“What I find most interesting about this yawning divide between academia and practice, is that, for the life of me, I can’t understand why this needs to be the case. If you are a professor focused on the empirical legal studies movement, why can’t you teach actual practice skills in the context of your research? If you write about discourse analysis, why can’t you analyze a contract negotiation? If you are an economics and the law scholar, why can’t you instruct students on the economic administration of law firms and explore the nature of perverse incentives?” ( http://www.whichdraft.com/wp/?p=75 )
Given that I believe we can still teach theory in the practice realms using the above examples, could you give us your take as to why you feel so strongly that the “think like a lawyer” approach should not be married with teaching practice skills? I’d appreciate your thoughts on the matter.
Matthew (by the way, it’s great to see a fellow Washington University alumnus here), I actually did get a chance to try a criminal law case in law school before a mock judge and jury, and learned a great deal, but I agree, I would have learned even more if I could have dived into interrogatories and gained basic working knowledge of the discovery skill set.
By
Jason Anderman President of WhichDraft.com
posted 2 days ago | Delete
6. Jason Anderman
I do want to emphasize that Denis and Victoria’s points are well taken, and I would never want to lose a theoretical approach in this pursuit. I just don’t see it as a zero sum game. We can have both theory and practice in law school.
Victoria, I really like your point, having found many of my law school classmates only show interest in “what the law WAS, not what it could be.”
By
Jason Anderman President of WhichDraft.com
posted 2 days ago | Delete
7. Victoria Pynchon
Thanks Jason. I had not so great opinions about the student-body at the second-tier law school I taught at (many of which may not be justified and some of which might be generational, i.e., my generation was pretty much all about throwing out the bad and starting anew & this generation of law students seems far more focused on fitting themselves into the system that already exists). I do agree with my (too elitist) husband (Yalie snob) that some law schools teach too much “to the test,” i.e., getting their Bar Exam pass rates high. But really. You could pass the Bar Exam after one year of law school and certainly after TWO. If you aren’t “thinking like a lawyer” by the time of your first semester exams, you’re likely concluding that law school is not for you. I really like what you have to say about incorporating theory into practice. Some of that theory should be put into the service of exploring ways to avoid putting ANY highly educated person to the time-consuming, soul deadening and nearly completely wasteful and unproductive task of answering the same set of interrogatories over and over again. REALLY!! Though I couldn’t imagine wanting to engage in any lawyering task unrelated to litigating and trying cases when I was in law school, I would re-think that career goal today; I’d be more entrepreneurial and more focused either on business or on politics and the business of governing and self-governance. I’ve suggested to students of mine and others who ask that I think I’d get an MBA rather than a JD today; that the JD is quickly making itself outmoded in the way the Classics Departments at all major universities did. It will be nice to know and understand the legal system and legal history in the future but the world in not moving in a highly procedural, time-consuming, adversarial manner. Technology is out-running the legal system’s ability to keep up. We need to be training leaders, not bureaucrats. (I know, I know, why don’t I just say what I REALLY think?)
By
Victoria Pynchon Mediator and Arbitrator of Complex Commercial Litigation at ADR Services, Inc.
posted 2 days ago
8. Jason Anderman
Victoria, you make so many excellent points that I think I’ll be inspired tomorrow to write, “Does Law School Prepare You to Practice (Part 3)?”
And I will agree, I was much more ready to take the bar exam after my first year of law school than my third.
By
Jason Anderman President of WhichDraft.com
posted 2 days ago | Delete
9. Victoria Pynchon
Do continue to make waves on this issue. My step-son just entered legal practice last year & I want the legal world to be a better place for him!
Here, by the way, is an invitation to teach for NITA that just landed in my in-box. There’s no better way to contribute to the next generation of lawyers than to volunteer to teach deposition or trial skills for NITA. NITA teaching training and invitation to join the NITA teaching community below:
http://www.nita.org/page.asp?id=7&catid=22
The faculty of NITA form the bedrock of the organization. Over 1,000 strong, these wonderful instructors have become the true mentors of our participants, providing guidance, insight, and perspective through the critique we deliver in our unique learning-by-doing NITA programs.
So, who are our faculty, and how can you decide to join us? Our teachers are professors, lawyers, and judges who care about the justice system and its continued improvement. They have learned their craft from the best advocates, can identify the mentors who made a difference in their lives, and are willing to concentrate their efforts on improving the next generation, even those who might practice on the other side in a courtroom. NITA faculty members also are:
Prosecutors and criminal defense lawyers
Big-firm and small-firm lawyers
Government and private practice lawyers
Corporate counsel and legal aid lawyers
Representing the big and the little
Dedicated to the legal profession and the concept that the legal system is better when the process is promoted by effective and competent advocates on both sides of the case.
NITA faculty members concentrate on how to make the NITA program participant better, not by boasting about how great they are through war stories, though they have many. They show participants how to be better, not tell them what to do without examples. They demonstrate and then expect critique of their demonstrations. They remember how it was when they were a neophyte lawyer.
They are diverse and representative of our society and recognize that all people and entities should be eligible for effective counsel. They perform public service and private service and do so with a commitment to preserving the rule of law and the legal profession.
Want to join our ranks as volunteer faculty? Reach out to a NITA program director or to a lawyer who is a past or current faculty member. Come to a NITA Teacher Training Program; we do three each year. Think about writing a case file or a text for use in our programs, perhaps based on a case you have tried.
Join those of us who teach; it is one of the most rewarding experiences you will have in your legal career.
Sincerely,
Laurence M. Rose
President & CEO
By
Victoria Pynchon Mediator and Arbitrator of Complex Commercial Litigation at ADR Services, Inc.
posted 1 day ago
10.
It’s so great to see a discussion on this topic. Many thanks to Jason and everyone else for getting this dialog going. I still remember my first assignment as a first year corporate associate when I was told to go ahead and “start the due diligence” and look for the “change of control” provisions and determine if there were any problems to report. One small problem – what were they talking about!?
I agree that students need better preparation for transactional practice – especially in this era of clients demanding more value and more and more firms moving away from lock-step towards a merit-based system. Schools like Emory and others now have special transactional workshops and certificates, which is a step in the right direction.
I invite the group to check out our recently launched “Summer Associate Survival Guide” which, together with all of our resources, are available to students and law schools free of charge. We put together practical, nuts and bolts resources to help with questions like “how do I do due diligence” or “how do I run a closing.” Many schools and firms have been taking us up on this offer.
http://us.practicallaw.com/display.do?item=4-385-2542 . I’d love to discuss this with anyone that may be interested. I can be reached at ian.nelson@practicallaw.com.
By
Ian Nelson VP of Business Development and Marketing, Practical Law Company
posted 1 day ago
11. Victoria Pynchon
Thanks Ian!! I’ll post this on the lawyer connection site ( http://lawyerconnection.ning.com )
By
Victoria Pynchon Mediator and Arbitrator of Complex Commercial Litigation at ADR Services, Inc.
posted 1 day ago
12. Susan Cartier Liebel
Oh, how could I not step into this discussion!!! When I went to law school I had the good fortune to be part of a ‘real’ trial where I experienced everything from A-Z. The trial lasted a month and through finals (which I missed) concluding on December 24th. It is hands down the ONLY thing which gave me confidence I could open my own practice upon graduation which was my goal.
Before law schools, ABA, accreditation and more, lawyers learned as apprentices. 1. Learn. 2. Watch. 3. Do. This fundamental concept, the one most closely associated with the ‘we’re not a trade school’ mentality, is where we need to return to within the framework of law school This means learning, watching and doing within the three year period. One should be able to practice upon graduation…not highly complex issues (unless they have a previous background and mentor-type support) but basics with responsible assistance.
I do believe this is the job of law school but they’ve gotten a pass for many years because of the Big Law model. Get a job; they’ll train you. Law school doesn’t have to.
This is paying for the whole pie but only getting half. Now the law schools are caught up short not being able to sell ‘jobs’ and trying to find ways to sell the benefits of solo practice.
And for jollies – one of the classes I missed as a result of this trial was Trial Practice. The grade was based upon preparation for a mock trial and then doing an element of that trial. The tenured professors did not want me to get credit for the course because I did not complete the course. One ‘young’ professor stood up and said, ‘let me get this straight? She should not get credit for trial practice because she spent two months preparing for a real trial and then participating in the real trial instead of a fake trial?” After being put so eloquently, I was given credit for the course.
This is the mindset students are up against.
By
Susan Cartier Liebel Owner, Founder – Solo Practice University
posted 1 day ago
13. Denis Campbell
Late night ramblings here in the UK, the point I was trying to make and it seemed more elegant than it was eventually reduced to, was there is a need for balance.
If we adopt a pure technical skills based approach we produce formulaic, non-creative lawyers. If we err on the side of total erudition and Socratic methods above all else, we end up with functional illiterates who can score well on standardised tests (perhaps even bar examinations).
It is the full measure of the man or woman that most matters and we are all the sum of our experiences. While the grass may appear greener in the other professions, a 10-minute conversation in any of these other ‘trades’ would yield a similar result.
It comes down to leadership and engaging others. That is what we do in corporations. We wanted to bottle the dinner experience tonight for every business. My wife and I had a quiet dinner at a local restaurant wagamama, part of the global chain (well 3 and growing in the USA).
The manager sat down and joined us for a chat and we were blown away by his enthusiasm for work and knowledge of his company. He was engaged and excited and 40% of the staff who opened this restaurant with him two years before were still with him and the company.
My point, is someone trained and mentored this young man, treated him with dignity and respect, taught him to do the same and in a business where 95%+ turnover is the norm he is leading a highly efficient and well functioning team.
Law firms operate under the mushroom principal, keep them in the dark, throw s*** on top of them and the good ones will grow (and become as dysfunctional as their so-called leaders). Their only goal is to rise above by whatever means possible and to heck with anyone else.
That is the much bigger issue than how well the Uni system trains or fails to, they get one to good enough, it’s their mentors and leaders who either help take them to the next level or crush them.
Best,
By
Denis Campbell Owner, UK Progressive e-magazine; BBC, HuffPo, Guardian and PokerNews.com contributor.
posted 1 day ago
14. Victoria Pynchon
Susan, brilliant as always and Denis puts the explanation point on the entire discussion. Let’s continue shaking up the legal establishment at every point it needs the blinkers taken off.
By
Victoria Pynchon Mediator and Arbitrator of Complex Commercial Litigation at ADR Services, Inc.
posted 1 day ago