(Part two of a two-part post. The first part of this post can be found here).
No thinking person would believe it reasonable to train doctors to treat disease by scrupulously avoiding contact with actual human bodies that have actual diseases, disfigurements, and injuries. Doctors hold human lives in their hands, and a mistaken diagnosis or incorrect treatment can have devastating consequences. This is why we require medical students to spend hundreds of hours studying physiology and anatomy, and why we require new doctors to complete internships designed to hone skills of diagnosis, treatment, and patient care: we recognize that practical experience is necessary in order for doctors to perform the tasks we will ask of them.
The same cannot be said of legal education. While it is true, of course, that lawyers and doctors work in radically different fields—unlike most doctors, most lawyers do not regularly make choices that could sicken, injure, or kill their clients—lawyers’ mistakes can still have devastating effects for their clients. A business merger that fails or intellectual property rights that are lost because of a lawyer’s conduct can cost a business millions in lost profits. Improperly drafted licensing agreements can open a party to antitrust liability and its specter of treble damages. Poorly executed estate plans can disinherit heirs apparent and thwart the desires of the testators or grantors. Inadvisable defense strategies can cost clients significant sums in compensatory or punitive damages or, in the criminal realm, their freedom and perhaps their lives. Lawyers and doctors do make different choices, with different consequences, but it should not be said that the consequences of legal error are not serious merely because they are usually not life-threatening.
Lawyers, law students, and law schools are all aware of these dangers, but the solution has not been to require internships or clinical education. Instead, attorneys are expected to abide by ethical rules instructing them not to accept cases in which they are not competent to act, and they can suffer disciplinary action and face civil liability if they do not follow those rules. This is not poor advice, but as a solution to our lack of practical training, it doesn't go far enough. A more logical solution would be to require clinical education or internships as part of legal education, perhaps making the third year a series of rotations through various kinds of legal practice, much as medical interns rotate through departments in a hospital. Law schools could form partnerships with law firms, individual practitioners, and government and private agencies and, together, these groups could create clinics for almost any area of practice in which there was student interest. The two-semester third-year internship program could be divided into four quarters, and students would have the option of devoting their time two or four rotations.
Devoting the third year to a variety of clinical experiences would expand students’ knowledge of the law and its practical applications and effects. With a quarter- or semester-long rotation in a business law clinic, students would be able to apply what they know about contracts, secured transactions, and protection of intellectual property. A rotation interning in a public defender’s or prosecutor’s office would give students with an interest in criminal law experience with arguing at bail hearings and filing motions. Family law or private client internships would give students so inclined an understanding of the drafting of wills or the negotiation of visitation between divorced parents. Students would have not just a grasp on the theory of law or what it means to “think like a lawyer;” they would have a greater understanding of how to cope with real-world legal problems and develop practical solutions.
A required practical element to legal education would benefit students, the firms and agencies at which they’ll work after graduation, and the public as a whole. Students would gain a greater understanding of the law and develop necessary practical skills, such as drafting legal documents and interacting with clients and coworkers. The internships would also give students the chance to get out of the classroom and the relatively insular law school community and into the real world, where they can see how important our work as attorneys can be. While most law students experience aspects of legal practice through their summer jobs, the two- or three-month summer job (cushioned as it is by the many social events) could not compare to a nine-month internship program involving two to four legal practice areas.
The firms and agencies for which students will work after graduation would gain more competent employees, which would mean the employers would need to spend less time training new attorneys on the basics of law practice and (hopefully) new attorneys would make fewer mistakes. With legal practice basics already mastered (or at least less a mystery than they are to many third-year law students), firms could divert some of the funds currently spent training attorneys on basic legal practices to other areas, such as training in specialized areas of the firm’s practice or subsidizing tuition or sabbaticals for attorneys seeking additional undergraduate or graduate degrees. Clients would benefit from the third-year internship program by avoiding at least some of the costs of legal mistakes. Additionally, with young attorneys more capable of handling various aspects of legal practice at an early stage in their careers, tasks such as document review and red-lining—currently the domain of such young associates—could be done by less costly temp lawyers and paralegals.
Finally, the public would reap the benefits of a better-trained legal profession in at least two ways. First, better-trained attorneys would be less likely to make the simple errors that often trip up new attorneys, saving the public the costs of litigating the disputes arising from these errors. Second, some of the rotations in the third-year internship program would be devoted to serving legal needs that currently go unmet or underserved. For example, artists needing representation in copyright disputes, but who otherwise could not afford their own representation, could apply for help from an intellectual property clinic. Students in corporate clinics could aid owners of small businesses in drafting contracts or incorporating their businesses. Family law and private client interns could provide estate planning services to working-class people unable to afford legal help.
The question is not how mandatory internships could benefit students, employers, or the public, because the benefits are patently obvious. The question is why practical training is not already a required part of legal education.