The Tale of Two Students

August 19th, 2015 / By Deborah J. Merritt

A recent statement by a group of deans offers a telling insight into the way law schools envision their graduates’ practice experience. In the course of criticizing California’s proposal to require 15 units of experiential education, the deans contrast two types of students.

On the one hand, the deans worry that California’s proposal “could seriously hamper the student who wants to practice tax law and whose future employer advises taking as many specialized courses as possible in that field.” Students who are going to practice tax, they imply, need to learn a lot of legal doctrine; those students don’t need to spend much time learning about negotiation, client counseling, drafting, or other practice-based matters during law school.

On the other hand, the deans suggest that if California’s bar authorities are worried about new “graduates who seek to ‘hang out a shingle,’ or engage in other areas of direct representation or fields requiring particular training, there are many ways that a state bar might reform its regulatory structure to certify a higher level of competency for particular kinds of practice.”

Why do graduates who engage in “direct representation” need a “higher level of competency” than junior tax lawyers? Because the tax lawyer (or at least the one these deans have in mind) is going to work for a large law firm that will be able to tutor her gradually in client representation. In its traditional form, legal education doesn’t teach students to represent clients directly. Instead, we assume that employers will take care of all that.

False Assumptions

That assumption worked, for a time, for law school graduates taking jobs in firms that served corporate clients. Those firms could afford to train new lawyers; they also had a large body of work (e.g., document review and legal research) that new lawyers could profitably perform while learning to represent clients. The clients, meanwhile, seemed content to subsidize some new lawyer learning.

The assumption never worked very well for other other employers. Small law firms, legal aid offices, public defenders, and many government offices have always needed new lawyers who could engage immediately in direct representation. These employers and their new hires struggled to complete the work that law schools left undone.

Our traditional model of legal education, in other words, prepared graduates to work for an employer with substantial supervisory assets. Big firms and their corporate clients had those assets; other employers and clients did not. We favored the former over the latter, simply by the way we structured our curriculum.

The New Economy

Today, of course, the assumption doesn’t work well even for the largest firms. All employers want new lawyers with more practice sophistication than graduates typically possess. Stiff market competition drives those demands: clients can shop around for law firms, and firms have their pick of hungry new lawyers.

Law schools have responded, and we are starting to educate students more directly for their professional roles. Still, as this deans’ statement reflects, schools reflexively protect parts of the curriculum that benefit students headed for large firms–rather than eagerly embracing educational experiences that will benefit all of the graduates who begin working with clients immediately.

Why do we do this? Why do law schools worry first about preparing students for large firm practice–relegating those engaged in “direct representation” to the shadows, where they will somehow, somewhere obtain the “higher level of competency” they need to represent clients?

Getting It Backwards

Our system of legal education is upside down. We should educate all future lawyers to engage in direct representation; that’s what lawyers do. JD students who want to be lawyers need to study basic legal doctrine, legal research, legal writing, case analysis, statutory interpretation, the principles of professional responsibility, and legal reasoning. Our curriculum has grown to accommodate most of those subjects relatively well.

Rather than rounding out their study with advanced doctrinal subjects, however, these students should study professional skills like interviewing, client counseling, negotiation, deal making, financial analysis, drafting, and advocacy. Future lawyers should, finally, have experiences that tie all of those elements together in supervised client representation.

The latter experiences should displace advanced doctrine in the JD curriculum for four reasons. First, all lawyers use a subset of these skills, just as all legal fields build upon the foundation concepts taught in the first year. It makes sense to teach basics at the beginning of a professional’s career.

Second, these experiential courses reinforce the legal doctrine learned in other courses. I audited a Trial Practice course a few years ago and cringed as my Evidence students (who had taken their exam just a week earlier) failed to remember basic evidentiary principles. After a few weeks in Trial Practice, however, their knowledge returned–stronger and deeper than ever. When students ask me how to prepare for the bar exam, I tell them to take courses in bar subjects accompanied by experiential courses that reinforce that learning.

Third, law schools actually teach professional skills better than employers do. Sure, a new lawyer can learn something by watching a more senior practitioner. But if he asks the senior lawyer how she accomplishes a particular task, the senior lawyer is likely to say something like “I don’t know, I just do.” Academic settings are much better than workplaces for identifying underlying principles, reflecting on how and why things work, providing supervised practice, and developing new approaches. These advantages hold for the professional learning we call “skills” as well as for bodies of legal doctrine.

Finally, if lawyers need advanced doctrinal training in an academic setting, we have plenty of programs to fill that need. Law school teaches students how to think like lawyers precisely so they can learn new legal doctrines on their own. For areas that are too complex for that self learning, graduates have an increasing array of options: traditional LLM programs, online courses, professional workshops, and certificate programs. Today’s graduates will practice law until 2055 or beyond. Doesn’t it make sense for them to learn basic skills first and purchase new instruction in legal doctrine when they need it?

Conclusion

If we’re serious about either serving clients or educating students for good practice opportunities, we need to turn legal education rightside up. Lawyers have a monopoly over direct representation of clients on legal matters, nothing else. It’s time to take seriously our responsibility–and our opportunity–to educate students for that role.

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