Statement from the AALS Section on Clinical Legal Education
August 17th, 2015 / By Deborah J. Merritt
The AALS Section on Clinical Legal Education has issued an excellent statement about California’s proposal to require bar applicants to complete 15 units of practice-based experiential coursework. I have already written two posts supporting this proposal, and agree with the views expressed in the Section’s statement. Here is the statement in full:
AALS Section on Clinical Legal Education Statement of Position Regarding the State Bar of California Task Force on Admissions Regulation Reform (TFARR) Experiential Education Requirement*
The Association of American Law Schools Section on Clinical Legal Education (“AALS Clinical Section”) applauds the Trustees of the State Bar of California for unanimously adopting the proposal of the Task Force on Admissions Regulation Reform (“TFARR”) to require applicants to have completed 15 credits of experiential education prior to sitting for the California Bar. The AALS Clinical Section is made up of hundreds of legal educators, including many in California who have dedicated their professional lives to preparing students for the practice of law through in-house clinics, externships, and other experiential educational offerings. In recent years, we collectively and individually have been involved in efforts to ensure that our JD students are more ready for practice, consistent with calls for such training made by bar associations, alumni, prospective students, and fellow educators. Many of us have participated actively in state bar associations and on bar committees, allowing us to appreciate the goals of both the legal academy and state regulators. With these experiences and perspectives in mind, we believe that the TFARR proposal, which encourages the integration of 21st century lawyering skills into the core of legal education, presents a significant opportunity to better prepare students to meet the demands of clients upon admission to the bar.
As the Clinical Legal Education Association (CLEA) and other stakeholders have noted, the legal profession has lagged far behind every other profession in regards to required pre-licensing professional skills education. Numerous studies over the past four decades by the American Bar Association (ABA) and others have decried this lack of practical training and called for reforms to the required law school curriculum.[1] As a result of these reports, the ABA recently increased the number of credits of experiential education required of JD students from 1 to 6 credits.[2] While this represents a significant increase for law students, it corresponds to less than 8% of the JD program. It is also 4 times less than the practical training required of social workers and nurses and more than 6 times less than the practical training required of physicians.[3]
A. The Proposal Reflects an Increased Demand for Experiential Opportunities
Law students also have been clamoring for more experiential education opportunities. The greatest evidence of this demand is the criteria students rely upon when choosing a law school. These choices have become ever more important for law schools facing declining application numbers. A Law School Admission Council study in 2013 found that clinics/internships were among the most influential factors for prospective students in deciding whether to enroll at a given law school, behind only location and employment of graduates (77% of respondents considered location to be a very important factor and 68% classified clinics/internships as very important).[4] In fact, experiential offerings were more important to these prospective students than the cost of the institution, the personal attention they would receive, a school’s ranking, and the reputation of faculty. In addition, a survey conducted in 2004 of recent law school graduates found that opportunities for professional skills training (including clinical courses and legal employment) were rated as the most helpful law school experiences in successfully transitioning to practice.[5] Surveys conducted by the National Association for Law Placement in 2010 and 2011 likewise found that lawyers in the private, government, and non-profit sectors attached great value to their law school clinic experiences.[6] Thus, from the viewpoints of prospective law students, recent graduates, and more senior lawyers, practical training is vital.
B. The Proposal Permits Great Flexibility and Aligns with the ABA Rules
We are aware that TFARR took these factors into account and that it crafted and revised the final proposal over several years during which it worked closely with California law schools, practitioners, and the judiciary, and engaged in extensive information gathering, including numerous opportunities for public comment. The result is a proposal that gives law schools guidance on developing and evaluating experiential learning offerings while simultaneously giving schools flexibility to design these offerings in ways that suit particular institutional missions, student bodies, and relevant legal markets. First and foremost, the proposed California bar rules provide a “safe harbor” for courses that comply with the revised ABA standard, thus allowing ABA-accredited schools to offer programs that simultaneously satisfy both requirements. Under both sets of rules, virtually any topic taught in a real-client or simulated setting will satisfy the ABA and the California Bar, including interdisciplinary courses developed in collaboration with other professional schools. Skills learned can be as diverse as law practice management, client counseling, practical writing (including transactional writing), and pre-trial preparation.
In addition, under the California rules, the settings in which these skills can be learned include traditional courses, clinics and externships, uncredited clerkships, and apprenticeships. The proposal even allows for portions of a course to count, such that a 3-credit course that uses a contract-drafting exercise for 1/3 of the class time could count the 1-credit module towards the 15-credit requirement. Moreover, in a nod to schools experimenting with their first-year curricula, all but the first 4 units of first-year legal research/writing courses can count towards the 15 credits if they are taught through real or simulated client work. Finally, summer work that is uncredited is specifically allowed to count for up to 6 of the 15 required units. Thus, there are virtually limitless permutations of course, field, and uncredited work that law schools can offer to their students in order to meet both the ABA and California rules.
Moreover, the emphasis on skills (as opposed to substantive practice areas) provides schools the ability to tailor offerings to the local marketplace (e.g., oil and gas offerings in Texas or maritime law offerings at coastal schools). The result is that virtually any legal experience a student gains, whether in a law and policy reform organization or at the U.S. Patent and Trademark Office, can potentially count towards the 15-credit requirement. This provides a great deal of room for innovation, allowing institutions to experiment with the delivery of skills and professional training and draw upon generally under-utilized resources such as alumni.
As with any new undertaking, there will be a period of adjustment as schools begin to grapple with both the new ABA requirements as well as state requirements like those proposed by TFARR. TFARR has wisely taken this adjustment period into account by offering exemptions for licensed attorneys from other jurisdictions and allowing post-graduate apprenticeships (which can be paid) to meet the 15-credit requirement. This will ensure that schools have plenty of time to audit and/or ramp up their offerings, that lawyers who had not planned to practice in California still have access to that state’s bar, and that students have every opportunity to learn about and meet the requirements prior to their first bar admission.
Conclusion
Overall, the TFARR proposal presents a significant opportunity to improve the overall competency of new admittees to the State Bar of California. As students enter a rapidly changing and expanding legal marketplace, it is incumbent upon the Bar to ensure that law graduates have the doctrinal knowledge and professional and interpersonal skills needed to effectively and ethically represent clients in California. The TFARR proposal would advance this important obligation of the Bar and help legal education fulfill the demands of our students, their future clients, and the legal profession.
* * *
* Disclaimer in accordance with AALS Executive Committee Regulation 1.4: The opinions expressed here are not necessarily those of each member of the Section and do not necessarily represent the position of the Association of American Law Schools.
[1] The ABA’s 1979 Report and Recommendation of the Task Force on Lawyer Competency: The Role of the Law Schools (“the Crampton Report”) proposed that law school curricula pay more attention to providing professional experiences. The ABA’s 1983 Task Force on Professional Competence shared this perspective and recommended that the ABA make enhanced law school training in lawyering skills a top priority. A decade later, the 1992 ABA Report of the Task Force on Law Schools and the Profession: Narrowing the Gap (“the MacCrate Report”) recommended that law schools “develop or expand instruction” in fundamental lawyering skills and professional values; and the most recent, the ABA Task Force on the Future of Legal Education Report and Recommendation reiterated the “calls for more attention to skills training, experiential learning, and the development of practice-related competencies” and noted that the “balance between doctrinal instruction and focused preparation for the delivery of legal services needs to shift still further towards [the latter].” In addition, the Carnegie Foundation for the Advancement of Teaching publication, Educating Lawyers: Preparation for the Profession of Law (2007), found that courses that included real-life experience with lawyering could teach students all of the relevant professional competencies: intellectual, practical, and formation of professional identity and judgment.
[2] ABA Standard 303(a)(3).
[3] Robert R. Kuehn, Pricing Clinical Legal Education, 92 Denver L. Rev. 1, Appendix A (2015) (citing Molly Cooke et al., Educating Physicians: A Call for Reform of Medical School and Residency (2010); and Council on Social Work Educ., Educational Policy and Accreditation Standards, at Educ. Policy 2.3., Accreditation Std. 2.1.3 (2012)).
[4] The survey ranked factors based on the percentage of respondents who rated each factor as “4” or “5” on a 5-point scale, with “3” as “somewhat important” and “5” as “extremely important.” See Law School Admission Council, LSAC Report, May 2013, at 12.
[5] NALP Foundation for Law Career Research and Education & American Bar Foundation, After the JD: First Results of a National Study of Legal Careers 81 (2004).
[6] National Association for Law Placement & The NALP Foundation, 2010 Survey of Law School Experiential Learning Opportunities and Benefits 6 (2011); National Association for Law Placement & The NALP Foundation, 2011 Survey of Law School Experiential Learning Opportunities and Benefits: Responses from Government and Nonprofit Lawyers 7 (2012).
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.
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