Preparing for Practice
As law practice pressures and demands grow,
expectations mount as to what law schools must do to prepare tomorrow's
lawyers. Seasoned practitioners, new lawyers, and law school deans and
educators discuss what law schools currently are doing and what changes
might be necessary. One conclusion stands out: Law schools alone can't
solve the dilemmas surrounding lawyer preparedness.
by
Dianne Molvig
What should law schools teach law students to prepare them to be
practicing attorneys? Consider this sampling of viewpoints:
- "Society's contract with the law schools is to train lawyers, not to
produce half-lawyers, taught some of the theories of the law, but not
how to put those theories into practice."
- "It goes without saying that a proper law course would include
instruction on the management of a law office, the handling of clients,
the development of a practice, the charging of fees, practical legal
ethics, and the benefits flowing from participation in professional
organizations and movements."
- "Law schools ... do not purport, nor should they be expected, to
train students so that upon graduation they will be equipped with all
the necessary know-how of practice."
- "My ... prophecy is that legal education will continue to struggle
with the problem of practical education, and will almost surely not
solve it to the satisfaction of everyone. The question cannot be
resolved by turning the law schools into full-time clinics."
You might well assume that such comments came out of present-day
legal education journals or conferences. In fact, the above remarks,
written by a practicing attorney and two law school deans, date back to
the early 1950s.1
Fast forward 50 years, and it's clear that the controversies in legal
education endure. "The general perception in the practicing bar is that
law schools are not doing enough to prepare law students for the
profession," notes John Feerick, dean for 19 years at Fordham University
School of Law in New York City, and before that a practicing attorney
for 21 years in a large Manhattan law firm. On the other hand, academic
lawyers "have a perception that practicing lawyers are telling them what
to do," he adds, "but aren't willing to help" in preparing new lawyers
for practice. Feerick is the chair of the American Bar Association (ABA)
Legal Education Section's Professional Committee. He also cochaired the
National Dialogue on the Legal Education Continuum, a conclave held in
Dallas in February 2000 to bring together some 500 bar leaders and law
school deans nationwide to air their views on legal education.
Surfacing at the National Dialogue were several points of contention
and consensus among the practicing bar and academic lawyers - and many
still unanswered questions, such as: What are the respective values of
legal scholarship and practical skills training? Who should provide
transitional education for new lawyers? What's happened to mentoring,
and how can it be restored?
The point of the conclave was not to nail down precise answers to
these and other questions, but to build understanding between the
practicing and teaching legal communities about each other's roles and
expectations. "No one would claim we reached an ideal," Feerick reports.
"We're never going to reach an ideal, and I don't think we'll ever see
agreement on what that should be."
Indeed, some observers, such as Howard Eisenberg, dean of Marquette
University Law School in Milwaukee, suggest the debate ought to never
cease - in the profession as a whole and among legal educators
themselves. It's that struggle between countering viewpoints that keeps
law schools dynamic. When the debate is over, it will mean one view has
won out, stifling and perhaps even denigrating the other, and legal
education will be poorer for it. "I sometimes talk about the people in
law schools as being divided between the sheet metal workers and the
ivory tower philosophers," Eisenberg says. "That expresses the tension
between those who want only the practical and those who want only the
theoretical. In a law school, that tension is enormously healthy and
necessary."
If divergent views are a sign of health, then legal education in
Wisconsin and elsewhere seems destined to thrive. In the May Wisconsin
Lawyer, you read about who is going to law school,
what students are learning, and where they go upon graduation. Here
you'll read about an array of opinions on the current state of law
school education, coming from seasoned practitioners, new lawyers, and
law school deans and educators. They discuss what they think law schools
are doing well, what changes might be necessary, and what law schools
can do to better prepare new lawyers for the world of practice. Part of
the latter involves teaching lawyering skills and knowledge, which can
be tricky to define in the first place. But as you'll see, the issue of
preparedness gets even more complicated than it may seem at first
glance.
Vital Skills
Along with legal analytical and reasoning
skills, the ability to communicate well ranks high on numerous lists of
essential lawyering skills.2 Legal employers and law
school graduates alike ranked these as the most important skills in
Assessment 2000, a survey study conducted last year by attorney and
U.W. Law School Assistant Dean Carolyn Lazar Butler for the University
of Wisconsin Law School, Madison, with funding from the Benchers
Society. From that study, "a clear message was that we do a wonderful
job teaching people to analyze legal issues and legal problems," says
Dean Kenneth B. Davis Jr., "but we need to do better at working on
communication and other kinds of professional skills."
St. Louis attorney Diane Yu hears the same sort of reactions
as she visits law schools and talks to lawyers across the country in her
capacity as chair of the ABA Legal Education and Admissions to the Bar
Section. "One of the concerns I hear about most is writing quality," Yu
says, "and specifically, what's persuasive writing versus just a bunch
of words."
Both Wisconsin law schools pour significant resources into teaching
legal writing. Still, it seems they could never do too much, as legal
employers see it. All first-year law students at both schools take legal
writing as a requirement, and they can follow up later with an advanced
legal writing course. Nearly two-thirds of employers surveyed in
Assessment 2000 believe that advanced legal writing should be a part of
a law student's basic education, in addition to the introductory
course.
And yet law students often don't take full advantage of opportunities
in law school to improve their writing skills, or realize that such
opportunities are available to them, says Laura Dunek, a 1996 U.W. Law
School graduate who now teaches a first-year legal writing and research
course there. She's also president of the State Bar of Wisconsin Young
Lawyers Division.
Dunek believes law students need to be proactive in developing the
skills necessary to succeed in their legal careers. Now that she's an
instructor, Dunek makes sure her first-year law students understand the
importance of getting advanced training in legal writing and research
skills, whether through course work or practical learning experience. At
the beginning of the semester, she informs her students that of the 90
credits required to graduate, only three have to be in a legal research
and writing class, and the remaining 87 could all be in substantive law
courses. "I tell them they have to even the score a bit," Dunek says. "I
also tell them that, as hard as I may try, I can't give them everything
they need in three credits. With writing skills, you start with a
foundation, and then you build upon those skills."
And that, points out Madison attorney Joy O'Grosky, is a career-long
process. "Anybody who believes that people leave law school with all the
writing skill they need is misguided," says O'Grosky, who's been in
practice since graduating from the U.W. Law School in 1987. "I'm still
improving my writing, and I think anybody who's good at it does
that."
While O'Grosky sees adequate mechanical writing skills in the medical
malpractice litigation associates she trains in her law firm, what she
believes is severely lacking is new lawyers' ability to organize their
thoughts, which impacts the strength of both their oral and written
communications. And it's gotten worse during the 14 years O'Grosky has
worked with new lawyers, who have been graduates of many different law
schools.
The cause, she believes, is a growing dependency on computers. She
stresses that in no way is she condemning computers; she uses her own
heavily in all phases of her practice, from research to jury
presentations. But in young people, she sees a lack of being able to
think a matter through without having it laid out before their eyes on a
computer screen. "They can't think in their heads," O'Grosky contends.
"I'll say to them, 'Tell me if you think we should sequester witnesses,'
and they just sit there, looking at me. Then I say, 'Pound out your
answer on the computer.' You wouldn't believe the difference."
Because of this tendency, new lawyers' oral communications suffer
because they can't respond on the spot, as lawyers often must. As for
written communication, the generation that grew up with "cut and paste"
is accustomed to spewing out paragraphs and then rearranging them. "They
don't know how to outline or just sit down and think through the logical
flow of ideas first," O'Grosky observes. "So they'll move things around
on the screen, but the result is still disorganized. Things are just in
another place."
It's not a matter of blaming young lawyers for this deficiency,
O'Grosky emphasizes, nor of expecting law schools to fix it before young
lawyers enter practice. Rather, it's a sign of the times that legal
educators and practitioners both need to recognize and try to remedy.
"It's foolish to expect law schools to teach how to advocate (through
effective legal writing). That's what experienced lawyers have to be
willing to contribute. It's a challenge for all of us," she says. "We
have to find ways to teach people skills they have never had to
develop."
Street Smarts
In talking to attorneys nationwide in her ABA
work in legal education, "a concern I hear is that many new lawyers
don't have common sense," Yu reports. "They may be brilliant in some
ways, but they don't have a sense of street smarts, of how to function
in a fast-paced, business-driven environment."
 "There's been a
troubling change in the expectations of both the profession and our
students. In addition to providing substantive knowledge, they also want
us to provide all the skills training, the ethical training, the values
training, and increasingly we're seeing pressure to provide the business
and office management training ... [Y]et no one says what we should not
be teaching."
– Howard Eisenberg, dean, Marquette University Law School
|
Some would call it common sense or street smarts; to others it's
thinking on one's feet or problem-solving skills. Whatever the term
people use, it's a quality - or an aggregation of qualities - that
readies young lawyers for successfully tackling the real work of
lawyering. Legal employers want to hire new associates who can hit the
ground running. Legal educators, on the other hand, remind practitioners
that law school can only do so much. "I understand the pressures
employers feel to have people who can be economically productive from
day one," says Ralph Cagle, director of the general practice skills
program at the U.W. Law School. "But I don't care how well you train a
law student, the most important part of their training happens once
they're out in the world."
One way law schools try to give students a realistic glimpse of the
practice world in advance is by integrating both theory and practice
into the curriculum - for example, in such courses as trial advocacy or
pretrial practice. At the U.W., students engage in simulated casework in
the general practice skills course taught by Cagle. And both of
Wisconsin's law schools offer a wide array of clinical programs in which
students do actual legal work - helping poor people with legal problems,
working in district attorneys' offices, interning with judges, and much
more.
In Assessment 2000, U.W. graduates rated their clinicals as excellent
experience, and said they gained practical skills. Most surveyed
employers, however, reported that students' clinical experiences were
only of modest importance in their hiring decisions. Yet, many employers
may lack awareness of what clinicals involve, perhaps never having had
the experience themselves in law school.
G. Ahou Soomekh, a 1995 Marquette University Law School graduate and
now corporate counsel for a Los Angeles medical company, ranks clinicals
as the best part of her law school education. When she started law
school, she had no desire to become a practicing attorney. "Attorneys
got a bad rap," she notes. "I wanted to learn about the law, but I was
going to go into business or international relations, with a law degree
in my pocket." At Marquette, she did several clinicals in municipal
court defense work, the sports law clinic, and the Social Security
Administration - none of which pertain to her work today, but useful
nonetheless. "The clinics gave me the opportunity to see I could do
something good (in law practice)," Soomekh says. "That made a difference
for me. When I graduated, I ended up practicing law, which I hadn't
intended to do."
Clinicals help students pinpoint their likes and dislikes in law, and
give them some direction on their career path, points out Meredith Ross,
director of the Frank J. Remington Center, an umbrella for several of
the clinical programs at the U.W. Law School. For instance, some
students come in feeling sure they want to be litigators. "Then they
find out they don't like adversarial situations," Ross notes, "or they
don't like their clients. So maybe this isn't what they want, after all.
That's a good thing to learn now."
Marcia Facey, a 1998 U.W. graduate, says taking diverse clinicals
helped her eliminate practice areas ill-suited to her. Those experiences
and a blossoming interest in property law stemming from a class and a
summer job helped steer her to her current position as a real estate
lawyer in a large Milwaukee firm. None of her clinicals related to her
current field, but she's glad she did them. Now that she's in practice,
"the main thing is knowing how to communicate," Facey says. "In the
clinicals you're dealing with real people. You gain a comfort level in
communicating to clients. And that prepares you to get out and continue
to develop those skills."
Nuts and Bolts
 "What should law schools be doing to better equip new
lawyers for practice? I think it goes beyond getting across the point
that law is a business. It's getting young lawyers to focus on their
choices and the implications of their choices. That's something we
struggle with, and we haven't solved it yet."
– Kenneth B. Davis Jr., dean, U.W. Law School
|
Law schools everywhere hear demands that they provide more practical
training for students. As one example, the U.W.'s Assessment 2000 survey
found that 40 percent of responding employers and recent graduates
suggested making the curriculum "more practical." Some observers would
advocate more hands-on courses and clinicals in law school. But such
programs are more expensive to run than regular classes, law school
administrators point out. Fordham's Dean Feerick notes that clinicals,
for example, require a ratio of eight or nine students to one full-time
faculty member.
Also surfacing in discussions of practical education is disagreement
about what's "practical" enough. For instance, is it the law school's
job to teach students about the business and economic aspects of law
practice, or is that part of on-the-job training? Evidence of that
debate crops up in the quotes from the 1950s noted earlier, and it's
still an issue today. From a national perspective, practitioners and
academics are at an impasse. "The academics argue they're not trade
schools and that the practicing bar should teach this," Yu says. "The
practicing bar says it's far more efficient for students to get that
grounding in law school because it can be taught in a mass education
way, rather than each firm doing it."
Beyond business savvy, young lawyers need "more nuts and bolts," says
Milwaukee attorney Tristan Pettit, immediate past-president of the State
Bar Young Lawyers Division and a 1995 Marquette graduate. "I'm talking
about such things as how you serve somebody who's dodging service," he
says, "or how you collect a retainer from a client - basic stuff that,
ideally, young lawyers should learn from their law firms. But
unfortunately, many firms aren't taking the time to teach that. So I
think law schools have to do it."
But time is also short in law schools, which already have much to
teach in only three years. Cagle, for instance, tries to cover many of
those nuts-and-bolts topics in his general practice skills course. But
there's a limit to what he can cover, and not all students need to learn
the same details. He believes students are better served by learning
broader skills. "I think if you teach people how to communicate with
others and how to solve problems," he contends, "then they will figure
out how to collect from a client or deal with other problems when they
arise."
Agreement on how to handle practical legal training isn't likely to
emerge anytime soon. Entering into this discussion is the subject of
mentoring, or lack of it. On-the-job guidance for new lawyers has fallen
victim to the time and economic pressures of modern practice. In his
first job out of law school, Pettit not only received no mentoring, "I
couldn't even talk to a partner," he says. "He was never available. When
you have that one big question and you can't get in to talk to the
partner, then everything you learned in law school doesn't matter at
that point. You're stuck, and then you mess up." Frustration built to
the point that Pettit almost dropped out of law altogether. Fortunately,
his father, also a lawyer, was able to reassure him that not all
practice settings were like his son's first one.
Not all new attorneys face as severe a sink-or-swim environment as
Pettit did. But he's certainly not alone among young lawyers who have
considered leaving law, or actually did leave, because of poor or
nonexistent on-the-job training and guidance. Meanwhile, all this comes
back to haunt law schools, as legal employers demand that law graduates
be ready to practice, and new attorneys feel left in the lurch.
Realistic Expectations
Yet, Wausau attorney
Christina Plum, also a past-president of the State Bar Young Lawyers
Division, says she understands many legal employers' viewpoints on
mentoring. She notes, "A reasonable response from employers is, 'Let me
get this straight. There's a 60 percent chance you're going to leave
here within five years. And you want me to set up a
mentoring program and help you with your professional development, so
you can leave to become an in-house lawyer or go work for my
competitor?'" In fact, the attrition rate for associates by the end of
the third year of employment is 38.3 percent, according to Beyond the
Bidding Wars, a recent study of the classes of 1991-1998 by the National
Association for Law Placement. By the end of five years, attrition
climbs to 59.6 percent among associates.
Why do they leave? Lack of mentoring is only one of many reasons.
Some law graduates jump at the $130,000 starting salaries now offered by
big firms - whether they're simply lured by the big bucks or forced to
go in that direction because of law school debts of $50,000 or more -
only to discover they hate the harried pace of big firms, where they
cope with minimums of 2,000 billable hours per year. So they leave.
Others become disillusioned with the law profession and the ways lawyers
behave. They question whether they want to be part of it. After
graduates enter practice, "sometimes they see things in their experience
that we would prefer they not learn," says Marquette's Dean Eisenberg.
"They come back and tell us they're bothered by something they've seen
because it may be either ethically or morally questionable."
Or, perhaps, some new graduates simply lack patience to see where a
job may take them. "We're the MTV generation," Plum says, "that wants it
hot, fast, and now. If we don't get that, we're ready to bounce around
until we do. So maybe we need to let it ride a little longer, and not
worry about having the perfect job six months out of law school." On the
other hand, this is also a generation that wants a life outside of work
- a message that merits their elders' attention. New lawyers look around
their law offices at people who have no time for anything but lawyering,
and decide that's no way to live.
Or chalk it up to the career mobility of our times, when people in
all professions are more inclined to explore multiple career
opportunities. The list of reasons why associates leave and job-hop
could go on and on. Meanwhile, employers wonder: Why aren't associates
more committed to the profession? Why don't they comprehend what it
takes to make a practice economically viable? Why don't they understand
the realities of law practice? Often the blame circles back to the law
schools, which are viewed as not doing enough to prepare young lawyers
for practice - with all the multiple meanings of what being prepared
means.
Eisenberg is convinced that law schools are doing much more now to
address the needs of the profession and society than they did when he
was a law student. But, the expectations have become much greater in
that period.
"From my perspective," Eisenberg says, "there's been a troubling
change in the expectations of both the profession and our students. In
addition to providing substantive knowledge, they also want us to
provide all the skills training, the ethical training, the values
training, and increasingly we're seeing pressure to provide the business
and office management training. But we have a finite amount of time. The
pressures on us to do more and more are quite extraordinary. We hear we
should be teaching additional courses, and yet no one says what we
should not be teaching."
To U.W.'s Dean Davis, one of the most troubling current trends is the
level of dissatisfaction among new lawyers once they're in practice.
"What should we as law schools be doing to better equip them for
practice? I think it goes beyond getting across the point that law is a
business," Davis says. "It's getting young lawyers to focus on their
choices and the implications of their choices. That's something we
struggle with, and we haven't solved it yet."
Nor can law schools alone solve the dilemmas surrounding young
lawyers' preparedness for the profession. "The law schools can play a
role," Davis says, "but it's unrealistic to say we need to be the sole
purveyor of the message. This is a challenge for the profession as a
whole."
Endnotes
1 Sources of quotes, in order: first
two from ABA Journal, Nov. 1952 at 907, 909; Journal of Legal
Education, 1954 at 308; Journal of Legal Education, 1953 at
443.
2 See, e.g., ABA Legal
Education and Admissions to the Bar Section, Legal Education and
Professional Development - An Educational Continuum, Report of the
Task Force on Law Schools and the Profession: Narrowing the Gap
(Chicago, August 1992), better known as the MacCrate
Report. See also State Bar
of Wisconsin Commission on Legal Education, Final Report and
Recommendations (1996).
Wisconsin Lawyer
