Kudos to California

August 12th, 2015 / By Deborah J. Merritt

In February 2012, the California Bar Association appointed a task force to “examine whether the State Bar should develop a regulatory requirement for a pre-admission competency training program.” The group, dubbed the “Task Force on Admissions Regulatory Reform” (TFARR), oversaw hearings, deliberations, and consultations with key constituencies. It issued an initial report in 2013, which was adopted by the bar association’s board of trustees, then held a second round of hearings and deliberations to refine the recommendations for implementation.

That second report has been approved by the bar and awaits action by the California Supreme Court. What’s noteworthy about all of this? If approved, law graduates seeking to join the California bar will have to meet three new requirements. Law schools around the country will also have to help their California-bound students satisfy the first requirement: demonstrating completion of “15 units of practice-based, experiential coursework.”

I see both positives and negatives in the California proposal but, on balance, it’s a strong step forward. The proposal is a lengthy one, so I will explore it in several posts. To start, here are the features I find most appealing:

Process

The TFARR reports suggest a very thoughtful process. Academics and practitioners seem to have spent a lot of time talking with one another, as well as pondering what would be best for clients. The final report carefully considers objections from various stakeholders (especially law schools) and responds to them. I think we should listen to what the California task force has to say, not just because the state is big and diverse, but because intelligent people devoted a lot of attention to this proposal.

Practice-Based Experiential Coursework

For academics, the most controversial part of the California proposal is its requirement that students complete “15 units of practice-based experiential coursework . . . designed to foster the development of professional competencies.” The requirement is more demanding than the ABA’s recent mandate that students complete 6 hours of “experiential” courses; this difference has drawn strong opposition from some law school deans.

But let’s look more closely at the terms of the California proposal. Students can fulfill 6 of the 15 units through work with outside employers–including paid positions with private firms. This is an innovative idea that I explore further below.

California also allows students to count fractional parts of an academic course, as long as the course offers at least a half credit of the “practice-based experiential coursework” described in the requirements. In my 4-credit Evidence course, for example, I could devote one-eighth of the semester to an exercise (or a set of 2-3 exercises) that would allow my students to explore evidentiary principles in the context of motion writing, fact gathering, negotiation, ethical quandaries, or other professional work. I know professors who already do this, with appropriate feedback and reflection; it’s a great way to teach evidence. Courses structured like this would generate 1/2 credit toward the California requirement.

The California Task Force, furthermore, does an excellent job of defining the educational experiences that develop professional expertise. Too many professors still assume that “practice-based” courses consist solely of finding the courthouse, filing some papers, and listening to war stories from adjuncts.

As the California report suggests, those images are far from the truth. First-rate professional education draws from decades of cognitive science work illuminating the ways in which professionals develop expertise. That science, like the TFARR report, recognizes that there are four keys to cultivating expertise: teach the conceptual underpinnings, give students an opportunity to apply concepts in novel settings, provide feedback, and encourage student reflection.

Those parameters describe first-rate teaching, and it is especially appropriate to use those techniques to teach the competencies described in the California report. As knowledge of legal doctrine spreads rapidly through the population, lawyers’ professional expertise depends increasingly on their ability to apply that doctrine in the context of expert interviewing, counseling, cost-benefit analysis, and project management. Those skills are not trivial add-ons; they are complex cognitive activities that lawyers need to know and integrate with their knowledge of legal doctrine.

Is 15 Hours Too Much?

A prominent group of deans has objected to the California proposal partly on the ground that a 15-hour requirement is too much, too soon. But from a client’s, employer’s, or student’s perspective, it’s hard to believe that 15 hours of practice-based education is too much.

First, we’re talking about high-quality educational experiences, ones that provide both conceptual development and feedback. Courses that satisfy the California requirements will embody top-of-the-line pedagogy. Second, these educational opportunities will occur in just the areas where clients and employers find lawyers deficient.

Finally, and perhaps most important, these are the areas in which lawyers have the most potential to demonstrate their value. Clients can find legal doctrine on the web, through courthouse self-help materials, and through online services like Just Answer. Businesses increasingly have turned to compliance officers, human resource specialists, and other non-lawyers for help with legal doctrine. The potential advantage that lawyers hold over these competitors is the ability to integrate legal doctrine with lawyering-specific skills like interviewing, counseling, problem solving, and project management.

Lawyers have a special way of doing all of those things; we don’t interview like cops or counsel like social workers. But we need to teach students those ways, explore the concepts that undergird them, and help students practice. No one is born “interviewing like a lawyer.”

If we don’t give students a foundation in more of the skills that are special to our profession, we will hamper their ability to succeed in a competitive market. Knowledge of legal doctrine used to be lawyers’ competitive advantage; now it is the combination of that knowledge with other lawyer-specific skills.

Will these 15 hours diminish the amount of legal doctrine that law students learn? To some extent, but not nearly to the extent that critics seem to fear. Many professors already use practice exercises to teach advanced areas of legal doctrine; sophisticated concepts are hard to grasp without that contextual application. To the extent we lose some doctrinal principles along the way, that’s consistent with the traditions of legal education: we aim to teach fundamental cognitive processes that students can apply throughout their professional careers.

Clerkships and Apprenticeships

One of the most intriguing aspects of the California proposal is its creation of clerkships or “apprenticeships” that can fulfill up to 6 units of the practice-based education requirement. The rules for these experiences are different than those imposed by the ABA for credit-bearing externships. Most notable, students can be paid for these experiences. Summer and school-year jobs, in other words, can count. To do so, the employer must provide “an orientation session, active supervision, a system for assignments, timely oral and written feedback, a diversity of tasks and an opportunity for reflection.”

Once again, TFARR hits the nail on the head in terms of developing professional expertise. These requirements are just the ones that cognitive scientists have identified as essential for developing professional competency. If employers and schools take these requirements seriously, students will have much more educationally enriching workplace experiences. Many jobs already contribute to students’ education, but ones that follow these rules will add considerably more value.

Will law schools and employers take these requirements seriously? As professionals, we will be bound to do so; as educators, we should be eager to improve the quality of our students’ workplace experiences. On the employer side, I think that employers will discover a self interest in following these rules. These rules offer a template for educating new lawyers, one that many employers lack. If employers follow the California principles, I think they will realize enhanced productivity from their law students–as well as greater value from the graduates they hire more permanently.

At the very least, this is an experiment well worth trying. The California apprenticeship model lays the foundation for new types of collaboration between law schools and employers. That’s an outcome that could benefit schools, students, employers, and clients in myriad ways.

Clients

Let’s finish with clients, who are the focus of our professional obligations. Why does the California proposal help clients?

Lawyering is incredibly hard. It requires a wide range of knowledge, many interpersonal skills, and an ability to juggle very different inputs while problem solving (What does the client say she wants? What does she really want? What will the law allow? Could I change that law if I challenged it? Is the key fact I’m assuming true, or did that witness lie? How much time will my employer let me spend on all of this?)

The outcomes of this difficult task seriously affect other people’s lives. People go to prison, they lose custody of their children, they forfeit their businesses and homes. Or, sometimes, they prove their innocence, expose a civil rights violation, buy a dream home, or create a business that benefits an entire region.

Given the importance of our work to clients, combined with the difficulty of our tasks, we can never be complacent about legal education. We joke about how slowly law schools change, but it’s no joke. Schools have made many laudable changes during the last 35 years, but we were playing catch-up on many of them.

Every year, we ask our first-year students to stretch their minds and work harder than they’ve ever worked before. We need to do the same. Will we have to stretch ourselves to provide the opportunities required by the California proposal? Maybe, but it’s time for that stretch.

Like our students, we can learn to think in new ways and we can push ourselves to achieve more–so that they and their clients can achieve more. Let’s just do it.