June 27, 2009
Recent Developments in Lawyer Skills Training
Posted by Gordon Smith

Two years ago, I was asked to offer some advice to then-incoming Dean Erwin Chemerinsky as he builds the law school at UC-Irvine. Paul Caron asked me to be provocative, so I obliged, advising the Dean to "concentrate your resources on what law schools (should) do better than legal employers – classroom instruction." That may not seem so provocative, but the corollaries -- eliminate the legal writing program, moot court competitions, student-edited law reviews, clinics, or any other co-curricular offerings -- inspired a lively discussion on the blog, and I have been told by more than one legal writing instructor that the discussion continued in other fora. All to the good, in my view.

With regard to legal writing, I say a bit more here, but that is not the focus of this post. Here I am more interested in the continuing debate about skills training. In a particularly thoughtful follow up to my original post, Steve Hurley at Wisconsin wrote this:

Long ago, we substituted schools for apprenticeships as the premise for the practice of law. Few would argue that that was bad. But, is not the teaching of "skills" the academic institutionalization of an apprenticeship? If so, is it the exclusive way that a lawyer ought be prepared? Did we throw away too much of apprenticeship when we saw that schools could better teach the core curriculum? We can offer an approach to skills which the marketplace can't; but, so too can the marketplace offer an equally valid approach which we cannot. Thus, for example, we coordinate, just as Smith suggests, with prosecution and defense offices to offer our students a place in the market in which to learn trial and criminal practice skills. In doing this, don't we recognize the validity, at least in part, of Smith's suggestion? And ought we not explore further ways in which to do this?

With that background, I was particularly interested in this story about Drinker Biddle and this story about the Howrey law firm, both of which are creating a new skills training program for young associates. The idea is to pay new associates a smaller salary in exchange for a much lower number of billable hours. Instead of billing clients, new associates will be able work on pro bono matters and receive skills training from experienced lawyers.

These changes were prompted by the recent economic downturn (ATL: "Instead of just firing associates, deferring first years, no offering summers, or instituting across the board salary cuts, Howrey seems to be trying to do a little more than waiting for the recession to end."), but I hope they portend a movement by firms to take greater responsibility for skills training, rather than blaming law schools for not doing something that we are ill-equipped to do well.

Thanks to my colleague Cliff Fleming for bringing these developments to my attention.

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Comments (7)

1. Posted by Mehrsa Baradaran on June 28, 2009 @ 14:50 | Permalink

I learned more about "lawyering" during a week of pre-trial work in a pro-bono case than I did the entire year of my "lawyering" class, which was based on hypotheticals. I completely agree that these programs could be eliminated (or replaced with real client services work) without much lost to "legal education."

2. Posted by Jake on June 28, 2009 @ 22:37 | Permalink

Agree that "lawyering" classes based on hypothetical litigation are a waste of time.

Disagree that law schools should throw their hands up, declare surrender, and leave it to law firms to provide skills training to fledgling lawyers. Law schools would have a better case on this point if they focus on admitting applicants who have any real world skills to begin with.

3. Posted by MDF on June 29, 2009 @ 9:51 | Permalink

Running a law journal was one of the most useful management training exercises I've engaged in. And given that lawyers are rightly viewed as being, in general, terrible managers, I'm not sure getting rid of student-run journals would be a good idea. (I'm also not convinced that peer-reviewed journals offer better scholarship, in aggregate.)

4. Posted by Larry Rosenthal on June 29, 2009 @ 10:25 | Permalink

Leaving skills training to practice may work for the best capitalized law firms, but for, say, government and public interest law firms, and even the small firm, this suggestion is little short of disaster.

Larry Rosenthal
Chapman University School of Law

5. Posted by Miriam Baer on June 29, 2009 @ 13:57 | Permalink

As someone who taught Lawyering, I always find it interesting when someone says "I didn't learn anything from my lawyering class [or, "I learned more from my externship than my lawyering class]" and then concludes that simulation-based classes should be eliminated. No doubt, simulation-based classes can be taught badly. Moreover, they will always lack the credibility of "real-life" legal experiences.

But, as noted in the comments above, not everyone will get the training they need in real life, and externships during law school are notoriously variable in terms of their value.

But perhaps more interesting for me is the extent to which people are willing to extrapolate their own personal experience into an educational policy (good or bad). For a number of reasons, I learned fairly little in my 2L Evidence class at law school. The fact that I learned so little, however, does not mean that law schools should abandon the course. I imagine most people would (rightfully) laugh at me if I suggested such a thing.

By the same token, even if you thought the simulation-based course taught you nothing, it is quite possible that others learned more than you did, or that you learned more than you realized, or that you could have learned more had the simulations been slightly different (as opposed to tossing out the entire course).

Again, I'm not sure what the answer is here. It seems to me that law schools have to use some judicious caution when adopting different models because it is simply not clear what employers will value over the next five years.

6. Posted by DavidE on June 30, 2009 @ 12:27 | Permalink

Legal academia is unbelievably backwards in this. I'm admittedly ignorant of the actual reasons for the switch to a school model from apprenticeship, but the only redeeming quality I see is the ability for everyone who qualifies to have access to the training to become a lawyer. The fact that it used to be an apprenticeship and now isn't does not justify the failure to provide practical training in school.

Now, the classes that are generically offered are not without merit, to be sure, and certainly some amount of classroom education is imperative to provide a basic understanding of the legal system. Further, I understand how much harder it would be to provide realistic legal experience instead of reusing a syllabus and a case book year after year. And, regrettably, it's unclear how a dramatic change in legal education could even occur at a law school with tenured professors and potentially overbearing alumni and private sector influence. In the end, though, what is the justification for the school model when new JDs are not competent practitioners? What are we really accomplishing in school when people only learn to be lawyers once they are on the job? As it stands, law school appears to be merely a barrier to entry into the field.

But a new law school, unburdened by tenured professors set in their ways or alumni worried about prestige, with the ability to chart a new path...Gordon, I so wish that your advice to Dean Chemerinsky had been to strive to teach students how to practice law. It's an environment without demanding clients, greedy partners, and where legal professionalism could actually be fostered.

Finally, let's not forget the double whammy in your actual advice: these students would find it incredibly hard to land jobs where they might have a chance of getting the training they thought law school would provide. With fewer extracurriculars to put on a resume that already will look exactly like everyone else's and the problem of competing from a school with a lower ranking than many, who's going to hire these kids? When are they actually going to learn??

The last poster had a very telling line when she said "It seems to me that law schools have to use some judicious caution when adopting different models because it is simply not clear what employers will value over the next five years." Employers are not the constituents. Students are. Until legal academia recognizes this, the interest of the student will never be represented and law schools will continue to do a disservice to their graduates.

7. Posted by business lawyer Irvine on July 25, 2012 @ 5:40 | Permalink

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