Getting A Real Education From Law School
By Wallflower • March 17, 2007•Curriculum and Classroom Dynamics
(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.
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12 Comments
CarolynElefant March 17, 2007
Personally, I believe that practical training in law school is somewhat overrated. Of course, law schools should require some clinical programs, but other than that, I think that law students would do better to focus on skills like writing and legal reasoning that are far more difficult to acquire in legal practice.
Throughout my time in solo practice, I have hired more than a dozen law students and recent graduates on a short term basis. The ones who were most useful to me were those with excellent research and writing skills, rather than those who’d had practical training in other positions.
It’s not that difficult to show someone a complaint or corporate papers and have them prepare a decent enough draft. Moreover, lawyers all have different techniques. Some prefer very basic, template like complaints. Others prefer a more detailed statement of the events. In other words, even if a student learns how to draft a complaint or a will for one attorney, it may not meet the standards of another. By contrast, legal research and analysis skills transfer across the board.
My advice to students is to spend law school honing your legal research and writing techniques. Once you are on the job, you will have very little time to pick up these skills and lawyers will not have the patience to train you on what you should have learned in law school. If you are avid to learn skills, spend some of your free time down at the court, watching trials and appellate arguments. You will learn quite a bit from observing how law is practiced and it doesn’t cost you anything. Get a PACER account and review the filings in federal court cases and you will get a sense of what a case looks like. Many law firms post sample corporate documents and complaints on line. There’s lots of practical material out there.
Carolyn Elefant
Law Offices of Carolyn Elefant, Washington DC
http://www.carolynelefant.com
My Shingle.com - Inspiring Solo and Small Firm Lawyers
jtdonner March 18, 2007
I believe both the post and Carolyn’s comment include some valid points. The fact is that it is now the norm for students to intern with a firm or government law office for one if not two summers. On top of that, most schools do, indeed, allow students to earn course credits by interning with the state attorney’s office, public defender, etc., during the school year.
Jeffrey T. Donner
DONNER LAW FIRM PL
http://www.donnerlawfirm.com
http://www.exceptionalclientservice.blogspot.com
jessie March 18, 2007
Not all students go to law school to become client-based practitioners. I hope to pursue a policy career in government, so a year of service-centric clinical courses would be unattractive to me. I’m in my second “policy” clinical right now. I don’t think the clinical curriculum structure is particularly well suited to policy work. The most interesting are often less discrete than in litigation or transaction practices. This makes them less accessible to a part time, short term clinical intern. I’ve relied much more on my summer internships to provide me with practical skills for the future. I may be in the minority, but right now a law degree is a prerequisite for a remarkably broad range of job descriptions. That means law schools are filled with intellectually diverse student bodies. Because I have found law school so interesting I would hate to lose that in favor of a more practical technical degree.
KHernan881 March 19, 2007
I actually think there is more utility in the current law school format than a sort of intern approach that is advocated in this post. Honestly, that may be because I know that I’ll get a lot of supervision and training from a big law firm. I think for many lawyers the program presented here is just a way to shift the cost of practical on-the-job training from firms to law schools and I fail to see the utility in that. I think the real reason why the analogy to medical school breaks down is not so much because one handles life and death and the other legal liability but because of the time frame that such decisions are made in. There is a lot of utility in making a med student spend years in practical training so as to expose them to a wide variety of situations in the hopes that they will be able to diagnose and treat properly when they are finished. The kinds of situations that lawyers face professionally are just not as time sensitive. Lawyers can typically consult and research before treating a legal problem. Therefore, it is consulting and researching that she really needs to know how to do. (Before somebody responds with an off-the-wall emergency legal situation to rebut my claims… I think the current legal education system does prepare a lawyer to spot issues and draw from a vast knowledge of legal principals in order to solve general legal problems quickly when necessary.) The truth is that I don’t want a 30 year old doctor that just finished her surgical residency to operate on my heart nor do I want a fresh-out-of-school lawyer taking on my case or writing my merger agreement. Nothing beats experience but I would not give any credit to a law school internship program in my evaluation of a lawyer.
Susan Cartier Liebel March 22, 2007
There are two primary components to becoming a lawyer; knowledge and application. One without the other is pointless. Today law schools emphasize knowledge only. Application is left to the employer if one manages to find a position upon graduation. When the application component is left to the employer, implicit in that is the assumption “one must work for another” first, in order to complete their legal education and before they can open up their own practice competently. If I’ve paid upwards of $100,000 for a legal education, I want it to be a complete legal education upon graduation. Therefore, a good law school should teach both knowledge and application in a well-designed curriculum where both primary components of becoming a complete lawyer are regarded with equal value. Upon graduation and passing the bar, I should be good to go. Unfortunately, for most of today’s law students this is not the norm. Students are paying a premium for the whole pie but getting only half. The pervasive attitude amongst academia is “that’s not our job. We are not technicians. We are academicians.” And quite frankly, true academicians should not teach the reality of working in the trenches if they haven’t been there recently. Therefore, law schools should integrate into their professorial ranks those who are proud of their war wounds obtained in the real legal world. And they should have input into the curriculum as their real world experience plays an important role in the law student’s education. It’s what the students want. And, they are the paying customer. Without them, the law school ceases to exist. Susan Cartier Liebel, Esq.
Build A Solo Practice, LLC
Newly Minted or Well Seasoned,
Teaching You How To Create and Grow Your Legal Practice
http://www.susancartierliebel.typepad.com
Eralon March 26, 2007
I agree with this wholeheartedly- the fact that you can graduate from law school with no experience and go out and practice is scary. I am fairly certain that I would not be competent as ANYONE’s lawyer right now… granted I’m a 2L but I get the picture that my 3L friends don’t feel all that differently. That said, I think the opportunities, at least at my school, are available but it seems to me that a lot of people don’t take advantage of them. Maybe that’s because they want to be law clerks or academics, I don’t know. I would guess that it also has something to do with the fact that you won’t see a courtroom for months, even years in a big corporate law firm which is where most of my classmates go to practice when they graduate. And since we’ve had lots of practice with Westlaw and Lexis and memo writing, the value of practical law school experience is diminished. Your firm won’t care if you represented abused kids or took securities regulation…and having actual clients is more time consuming than the class and you can’t skip it (which is a big drawback for SOME 3Ls I know ). Perhaps if we think practical education is more important, we should address it once we are professionals- through the bar. State bars could easily require a practical component. Most require a law degree and background check and whatnot. I mean we already have to take BarBri to get prepped for what law school is SUPPOSED to prep us to do. Why not put some responsibility onto the gatekeeper to the profession to start requiring a little more for entrance?
KHernan881 April 18, 2007
We had a guest speaker in one of my classes yesterday that is advocating adding a mandatory clinic to his law school curriculum and anticipates that it will spread to all top 100 law schools in a decade.
I was scared! I've figured out why…
Like Jessie (above) I didn't come to law school to be the sort of lawyer that a clinic teaches you to be. I do plan to practice law but I never plan to go to trial or file a brief.
The professor advocating for clinical education was clearly making a moral judgment about people like me - people who don't plan to use their J.D. to change the world or help the unfortunate. He went so far as to claim that because the law is a 'profession' I shouldn't be allowed to ignore the tools for social change that will be at my finger tips once I get admited to the bar. I have a real problem with this. What is wrong, afterall, with wanting to be a great transactional attorney that can help the businesses of America make more money?
He mentioned a clinic at his school that is transactional and is focused on assisting non-profits. Well, that would be my dream clinic. I have a sneaky feeling, however, that it would also be the dream clinic of the other 260 students enrolled in the business law program at my law school. My luck I would not get into the one clinic that would help me professionally and, instead, would get into a clinic that I am politically (and perhaps morally) opposed to. This leads me to my real problem with all of this…
Law school faculties lean decidedly left. At some schools the numbers reach more than 90% of the faculty donating to the democratic party. Any effort to offer an apolitical or balanced clinical program will be offset by the very fact that law schools won't find enough professors to operate clinics that would be desirable to conservative students.
If the concern is that students graduate without a real appreciation for the responsibilities of the profession than institute a pro bono requirement for law school or start requiring some real life experience before entering law school. Don't force students to spend 5-6 precious law school credits honing a skill that won't help them practice after graduation. (Oh, by the way those precious 5-6 credits would cost me about $13,000!)
Let me spend my time taking classes on IPOs, venture capital financing, and Mergers & Acquisitions. These will make me a better attorney and isn't that the whole purpose of a professional school degree.
purrplegrrl May 02, 2007
<div align=“left”>I didn't realize the US system was different than ours. In Canada you have to do a year of articling for a law firm or other employer while you do you bar courses. At the end of that year (which comes after 3 years of law school), you can be called to the bar.</div><div align=“left”>Is there no articling program in the US? </div>
KHernan881 March 12, 2008
There is a post about this topic up at the MD Daily Record. I am interested to see what sorts of practical experience law schools that go this route will deem to be valuable for a law student's time and tuition.
veronica March 13, 2008
I think there are good points on all sides. Law schools do focus on knowledge rather than application, though they actually focus on a particular form of knowledge (not necessarily black letter law which many students don't meet properly until bar review courses). While practical client skills may not be useful to those entering policy roles some minimum experience would surely benefit practitioners and some kind of trade-off is necessary. I happen to think the primary responsibility is to training client-focussed lawyers.
Where I went to law school things were a little different. There was no college system, you entered law school at 17-18. But it was 4 years full time (5 years if you combine with an arts, science, commerce or econ degree). We were taught thoroughly in both WHAT the law is now, and how to research it to keep up with the changes. We had some participatory practical courses like advocacy (moots) and some elective options equivalent to clinics and workshops. But fundamentally we learned the law. I was struck by the advertising for LLM programs in the US that say "learn to think like a lawyer"... well presumably if you learn the law and how to keep abreast of the law you're also thinking like a lawyer, but not merely thinking like one.
So I think the lack of focus on black letter law in US law schools is not such a great idea. You don't get practical skills by talking about the policy issues or the drivers or how the Coase theorem says the rule SHOULD look. You get practical skills by doing lots and lots of problem-solving questions and learning to research and write good answers.
I agree that graduates entering firms don't know much. I think that's inevitable when you're entering the profession, and that doctors will tell you the same thing. The key is supervision in the early stages. I've been there in both jurisdictions and I was amazed at the arrogance of my peers who think because they have a degree they are a lawyer. At least in Australia this illusion was quickly knocked out of us. The partners made it clear that we really knew nothing until we'd applied our knowledge practically. That's why there is still an articles of clerkship model in many states there. You are a practitioner, but your mindset is different. It's very much pupil-teacher and there's more firm responsibility for your training. I don't think that overburdens sole practitioners because you would normally only have 1-2 articled clerks (2 is the limit per practitioner and you can't take an articled clerk until you're a principal of 5 years standing). Since masters have to swear affidavits that the clerk has done certain tasks and learned certain skills there is more seriousness about the role of firms in training lawyers.
Doing a bar exam and getting your full-fledged status immediately is, in my opinion, a dangerous path. It engenders too much arrogance about your abilities and not enough realization that you're just an apprentice (with or without the formalities).
While elective clinics and policy seminars will serve the needs of differently-focussed law students, the key that both groups need is the black letter law. I could write a whole post about why the Socratic method is a ridiculous way to attempt to teach that but that's for another day. Apprenticed articled clerks during the first year of practice would have a better chance to learn to apply their research, writing and application skills which hopefully would have been developed in law school.
Peg March 13, 2008
The school intends to replace ALL 3L classes with practical experience. See this post with decent links embedded.
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