Law firms have been off-loading practical skills training on law schools for decades, leading to an explosion in clinical training and externships. In a 2005 AALS Newsletter, former Iowa dean Bill Hines listed "Ten Major Changes in Legal Education Over the Past 25 Years." This is what he wrote about practical skills training:
Law schools’ commitment to formal training in a wide range of practice skills was still taking shape in 1980. Many schools had already developed successful legal clinics in house or outside the school in the local community. The feasibility of teaching certain lawyer skills through simulated practice settings was being explored and debated. Throughout the decade of the 1980s, however, the practicing bar continued to pressure law schools to do even more to prepare graduates to enter practice with higher levels of practical skills. This pressure gained focus and momentum with the publication of the McCrate Report in 1992, which conceptualized law training as an educational continuum involving specific responsibilities on the part of both law schools and the practicing profession. The McCrate Report identified ten basic lawyer skills and four fundamental values it recommended legal education should be primarily responsible for teaching, leaving it to mentors in the bar to hone these skills and reinforce these values during the early years of practice.
Initially much of the law school world resisted or ignored most of the recommendations of the McCrate Report, but after a decade of considering them and confronting continued pressure from the bar on the accreditation process to implement them, there are few law schools today whose curricula do not strongly reflect their influence. The recent ABA report on curriculum changes between 1992 and 2002 notes that one pronounced trend has been the growth in opportunities for students to gain practical experiences in representing clients within supervised clinical settings and the proliferation of courses emphasizing discrete professional skills, such as factual investigation, interviewing, counseling, negotiation, mediation, and litigation -- the core agenda of the McCrate Report.
The Clinical Section of the AALS has long been one of the Association’s largest and most active sections. The Section maintains a valuable listserv focused on teaching techniques, and it is the only AALS section to offer a professional development conference for its members annually.
One other notable curricular development in this area since 1980 is the enormous growth in the availability of externships that allow students to perform legal work for credit in public interest firms or government offices. This type of opportunity for students to gain practical professional experience outside law school became so popular in the 1990s that an elaborate set of new accreditation standards became necessary to assure the academic integrity of the enterprise. While some schools still bristle under these additional regulations, the new standards generally succeed in balancing the benefits from an enriching professional experience with the need for qualified supervision and a substantial educational component.
Has it made a difference? Are graduating law students better prepared now for the practice of law than they were in 1980? I don't know the answers to those questions, but I know that law firms still complain about the ineptitude of first-year associates.
Today, the W$J Law Blog describes an interesting response to this problem (via the gated NLJ). The Atlanta firm of Ford & Harrison has decided to eliminate billable-hour requirements for first-year associates. That's not to say that the firm won't bill any of those hours, just that associates will spend more time on activities that are explicitly understood to be training exercises.
It's not clear to me that this is anything other than business as usual. Recognizing the training inherent in work done by new associates, most firms don't bill all of the hours recorded by those associates. Nevertheless, I was encouraged to see this more explicit recognition of the law firm's role in practical skills training. Perhaps someday soon we can move beyond the charade that law schools will prepare students to "hit the ground running."
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1. Posted by Adam White on August 17, 2007 @ 16:19 | Permalink
"Perhaps someday soon we can move beyond the charade that law schools will prepare students to 'hit the ground running.' "
Or perhaps the better response is to redouble our committment to turning law schools into institutions that create lawyers.
Or, failing that, to eliminate the requirements that make law school a necessity for those who want to be lawyers.
2. Posted by Gordon Smith on August 17, 2007 @ 16:39 | Permalink
I was curious how long it would take for someone to make that comment. You are a pretty quick draw, Adam.
3. Posted by Adam White on August 17, 2007 @ 17:15 | Permalink
I'd hate to think I'm so predictable.
4. Posted by Cathy on August 17, 2007 @ 21:27 | Permalink
I enjoyed my clinical experiences at law school, namely a trial advocacy class and lots of moot courts. But I went back to school for the academic education. There's no way I would have paid $100,000+ for little more than a glorified apprenticeship.
5. Posted by Bill Henderson on August 19, 2007 @ 7:38 | Permalink
Gordon, Three comments:
1) When I read Bill Hines' "Ten Biggest Changes" essay a couple of years ago, I was struck by how SMALL the big changes really were. Further, they were all reactive rather than proactive. And I wrote an email to Bill Hines to tell him so.
2) As the recent Carnegie Report found, clinical legal education has been an incremental change. If law school created some clinics (staffed by folks with employment contracts rather than tenure who don't attend faculty meetings), the school could be responsive to pressures from the ABA while the governing faculty could carry on business as usual. The programming at the AALS annual meeting makes clear that clinical/skills training is peripheral to the interests or careers of most law professors. Many clinicians view MacCrate as an unfulfilled mandate.
3) Like Adam, the "charade" comment got under my skin. If it is a charade, it is because we are pretty happy with how well the current system works for us. If we want to alter our current model (i.e., walk away from the current system of professional rewards), we could probably image how to reallocate our time and resources over a three year curriculum to better prepare students for practice. Some (typically lower ranked law schools) already work on this business model. Further, not every student will get a job in a firm large enough to have a formal training program. If the question is, "how do we best prepare students for practice?", there is plenty of room for imagination here.
6. Posted by A. Rickey on August 19, 2007 @ 9:15 | Permalink
Make that three for whom the "charade" comment got under my skin. I went to law school solely because I wanted to become a lawyer, and it's a credential necessary to get into the positions I wanted. I didn't want to be an academic, and still don't. The practical value of my experience was, really, as an extended (and very expensive) prep course for BarBri.
The sole exception to this was my clinic. I walked into that clinic a confirmed believer in the value of originalism, and walked out a legal realist, my eyes opening after two hours in a New York City housing court. No lecture course or seminar was ever going to manage that, certainly not a dozen lectures from Jeremy Waldron.
Law school doesn't prepare students to be lawyers because, frankly, they're not there for the students. If there's any charade we need to move beyond, that's it.
7. Posted by mmm on August 21, 2007 @ 15:25 | Permalink
Of all of my complaints about law school it is that law school teaches mostly how to be a litigator. Even the clinics are largely litigation driven. While I occasionally crack open a case or have to draft a brief, I certainly do not spend most (if any) time during a week doing those things. And, yet, these are pretty much the only skills taught.
Most of the folks I know in some high value groups like corporate, intellectual property, etc. probably would have to have someone find their Westlaw account information that they haven't touch since they were given it years ago.
Yet, those skills that I do use daily: contract drafting, negotiations, client relationship, strategic thinking, and problem solving are not the focus of any basic law school training. If anything, they're an after-thought.
A perfect example of this failure is courses like contracts. Sure contracts are a staple of almost every lawyers billable time, yet the contract course offered in law school focuses on silly cases that teach us very little about how to draft good, valid, enforceable, and unambiguous agreements.
I'm not sure if there is any empirical evidence, but I would imagine most lawyers are not litigators and have no desire to be.
So, if I had to guess why most first years are not prepared, it's because law school fails them on these points.
- Mike on Jack Welch,
- MDF on Refco Attorn
- David on Jack Welch,
- Kate on Jack Welch,
- Ray Campbell on Jack Welch,
- David on Jack Welch,
- David on Jack Welch,
- Joe on Jack Welch,
- Katy on Jack Welch,
- lbr85 on Who Can Acce
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