March 16, 2004

Schaeffer: Complications Mar The Law School Birthing Process

by Guest Contributor

Evan Schaeffer, a lawyer and writer from Illinois, devotes most of his blogging energies to Notes from the (Legal) Underground.-Ed.

Consider the newly created law school graduate, entering the legal marketplace for the first time. He’s fragile, sensitive, easily startled; he’s as naked as a newborn baby. Sitting down in his new office for the first time, he looks around and sees nothing but “one great blooming, buzzing confusion.” Despite a three year birthing process, he has only the foggiest notion of how to function as a real-life lawyer. He’d like to try to crawl, but he doesn’t know how. He’d like to wave his arms, to sit, to stand. He’d like to communicate. Yet each time he opens his mouth, he emits nothing but the legal equivalent of tiny little burps. Each of these utterances is greeted by his new nurturers with knowing smiles; every so often, his utterances are greeted with great peals of laughter.

It doesn’t seem fair, does it? Here we have someone who has just spent three tremendously difficult years to obtain a law degree. He enters the legal marketplace nearly broke, or even worse than broke; his head is filled with rules he doesn’t need; he’s unable to turn his law degree into money, except by joining a law firm. The failure of his law school to give him real-life, practical know-how has resulted in a complete dependence on others to help him grow into a lawyer. Wasn’t that what he was paying to learn?

I submit that something has gone horribly wrong with the delivery. But let’s abandon the metaphor. Assuming there is at least a little truth in these paragraphs, consider how outrageous it is. A failure on the part of law schools to impart practical legal knowledge to law students has created an over-dependence on law firms, the bigger the better. It’s nothing more than an economic reality: law school debt must be repaid; the larger the firm, the larger the salary. Besides, there aren’t a lot of options to law firms, since any option requiring real knowledge of the ins and outs of practical lawyering is off the table. (By practical lawyering, I mean knowing how to put an arm around a client and get him from Point A to Point B. Or to put it more crassly, knowing how to take a law license and turn it into cash.)

Law schools are justifiably renowned for teaching students to “spot issues” and “find the applicable legal rule.” But very rarely do law schools teach much about practical lawyering. Often the professors themselves don’t have the knowledge. Examples: How often do law students learn how issue-spotting and legal-rule-identifying might actually be used to help a living human being solve a legal problem? Or learn how to market one’s knowledge to get clients? Or how to identify and fill a niche? Or how to employ others to assist in the venture? Due to a failure to teach practical lawyering, a number of options are off the table at graduation. Few are brave enough these days to start a new firm from scratch—what used to be called “hanging out a shingle.” Many would like to work in-house at a corporation or join a small law firm that boasts greater freedom and flexibility than a large one, but these potential employers rightly balk at the thought of hiring “lawyers” whose education is not yet complete.

So that’s where we’re at: the law schools leave a huge chunk of a new lawyer’s education to the large law firms, which are economically structured to recoup the costs of completing the educational process for new law graduates. Is this such a bad thing? For many, yes. Some don’t have personalities suited to the regimented nature of law firm life. Others may not be strong enough to reject the “golden handcuffs” that the large firms invariably offer; knowing this in advance, a new graduate may desire to skip the big firm experience altogether to avoid the temptation. And what about the law school graduates who can’t land a job at all? For these unlucky citizens, law school is even a greater tragedy: they’ve obtained a law degree at great expense, but have nothing to do with it and no access to the second phase of their training.

Are there solutions to these problems? They begin with more practical, hands-on, real-life training for law students during law school. Not elective-type “fun” classes, but classes involving hard work and real practical experience with real clients and real lawyer mentors. A more radical solution would be to change the nature of the third year of law school altogether. Don’t many already consider it wasted? Turn the third year into an opportunity for a yearlong apprenticeship with actual lawyers under the umbrella of the law schools; the law schools would function in the role of ombudsman, facilitating the communication between the law students and their firms. (A few states offer avenues to legal practice through apprenticeships, but not always under the tutelage of law schools.)

Would practicing lawyers want to assist in training students who will possibly be competing with them in a year? In short, yes: they do it already every time they hire a new graduate. I think many lawyers would welcome a return to an apprenticeship-type system, either out of respect for the traditions of the profession or because having a law school apprentice would serve an important need at their firms. If this sort of thing works, it might even be possible to cut out the middleman altogether: law school for two years, plus a year-long apprenticeship, then the bar exam.

I’m aware that many law schools already recognize the value of hands-on legal experience. But more is needed, sooner rather than later.

March 16, 2004 12:00 AM | TrackBack

Excellent post. If what you want is training in how to be a lawyer, perhaps an even more intensive training program would be appropriate for new lawyers, something more akin to med school. In med school, you have your schooling (3 years), your internship (1 year), and your residency (3 - x years). I have always wondered why law schools don't structure their programs in this way (2 years full schooling, 1 year internship or research, and 3 years residency).. If you REALLY expect law school to teach you how to be a lawyer, nothing short of this will do. If my experience working as a software engineer is any indicator, I highly doubt 1 year in an internship is really enough to get you "fully functional".

I know a lot of students enter law school thinking that when they graduate, they will "have what it takes" to be a sucessful lawyer, but why do they expect law school to be any different than any other type of university education? Graduating with a computer science degree certainly didn't give me what it takes to be successful as a software engineer, I enterred the work force with the same type of trepidation that many posters have described, and it was only years of working hard that allowed me to figure out what it really means to do my job. No amount of classroom learning could have prepared me for what I do on a day to day basis, and without some sort of internship/residency program, law school isn't going to provide this either.

While my education didn't prepare me for "how to be a software engineer", what it did prepare me for is "how to approach a problem like a software engineer". Is it bad that school didn't teach me how to be a software engineer? Only if I lacked the drive to find out how to be a software engineer and didn't realize the relevance of how to approach a problem like a software engineer. Part of the education process is to take the raw knowledge and apply it in real life, and this is something that nothing short of a law school residency is going to teach.

As for me, I look forward to the challenge of figuring out how to be a lawyer, and I don't expect law school to teach me this. What fun would it be if it was handed to me on a silver platter?

Posted by: Chris at March 16, 2004 09:34 AM

Why don't law schools run "co-op" or intership programs? Or do they? As a CPA, I found the experience of working in a real accounting firm invaluable (albeit as the lowest form of billable life in the office). I had 2 years of real experience on my resume before I graduated, so my period of acclimation once I got a real job was very short.

Posted by: Tina at March 16, 2004 02:15 PM

Actually, there is one law school that I know of with a co-op program, the king of co-op programs in the Northeast, Northeastern University. Their law program is not particularly highly rated (if usnews rankings mean anything to you) but it is a co-op program. It basically extends law school into 4 years instead of 3 interspersed with periodic co-op work, but I highly doubt that the minimal extra real world experience gives you that much of an advantage given the complexity of the job you are being asked to fill upon graduation.

Posted by: Chris at March 16, 2004 02:24 PM

I don't think that law schools yet recognize the value of the solo practitioner to legal education. First, solos can, through legal internship programs, provide the kind of practical experience that many law students crave and that can help them later on in practice. Second, solo attorneys can teach students both the ethics and business of law - all of which are necessary to a successful legal career, no matter what course is chosen.
I think many law schools still picture solos as harried, slovenly practitioners - the ones who fall asleep during capital trials or don't return client phone calls. But there are many solos and small firm practitioners who ar thoughtful and contemplative, who have much to say about ethics in practice, efficiency in providing legal services and making practical decisions (and what's wrong with pragmatism - as Howard Bashman's 20 Questions point out, Judge Posner (I think) considers himself a legal pragmatist - so what's wrong with being a pragmatist in practice?) Moreover, solo practice teaches lawyers to be autonomous and proactive - even fearless; developing those traits can keep lawyers in a poor job situation or who work with an abusive partner from feeling despondent or worthless.
I have offered to speak on solo practice at local law schools but have been rebuffed by the career offices - even though I run one of the most comprehensive repositories for resources on solo practice on the Internet. Here's hoping that articles such as yours, Evan and your weblog will give solo and small firm practice more exposure and credibility as well as a rightful role as part of a comprehensive legal education.

Posted by: Carolyn Elefant at March 17, 2004 12:13 PM
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