ER Lawyering

Newsflash! The education of lawyers does not prepare them for what awaits them in their professional lives. No kidding.

The Carnegie Foundation for the Advancement of Teaching actually seems to believe that lawyers can be trained for what lies ahead. That is, perhaps, the conceit of a foundation that believes in the efficacy of teaching.More teachers?

The foundation wants better training on legal ethics. But there is nothing about the classroom that prepares lawyers for the human dimension of lawyering. Not can there be.

The third and fourth year of a medical school education focuses largely on clinical practice. Disease is made manifest in people. Doctors in training set aside theory for the grimy reality of practice. Law schools would do well to require clinical practice.

The emphasis in legal education on such things as law reviews is a telling sign of why lawyers aren't educated well. Law review articles are fun to read, and law school professors are necessary. But the law is not reason made manifest in the world. The ife of the law, Holmes once reminded, is experience. And in the case of the life of a practicing lawyer, that experience often comes in the form of need that is impervious to reason.

Want better trained lawyers? Spend the third year of legal education outside the classroom. Require all lawyers to intern for a month or so in the local emergency room so that they can see the ordinary chaos that many folks call day-to-day living. Then send the lawyers for a month or so to a drug or alcohol rehabilitation clinic, where they can rub elbows with life-destroying need. Then send the lawyers to a psychiatric facility or two. Top off the year with work in a soup kitchen or homeless shelter.

In each of these settings, assign the would-be lawyers the task of interviewing people. Let the lawyers identify one area of the interviewee's life in which legal advice is needed. Then let the would-be lawyers provide counsel.

That is the reality of the law the small firm practitioner.

Nothing prepares lawyers for the need they face in their clients. And no classroom experience undertaken in the cool light of reason can prepare a lawyer for the emotional travail of a client in fear, terror or anger.

So let's change lawyering education, but not by creating another breed of teachers who can pontificate about what they haven't done, and perhaps cannot do. Remember: Practice conceived isn't theory relieved.

Comments

[Mahan Atma]

I agree. The clinical programs were one of the main reasons I chose the school I did, and I'm very grateful for it.

In fact I think there should be a fourth year of law school devoted entirely to it.

Unfortunately, many schools are obviously more geared towards churning out fodder for the big firms. While I haven't worked at a big firm, I'm not sure whether a clinical program would be necessary or beneficial for that particular route.

[Moe Levine]

Norm,

You are absolutely right that "education of lawyers does not prepare them for what awaits them in their professional lives. No kidding." In fact, your few paragraphs are about the best stuff I have ever read in a blawg about the practice of law.

there is a point, however, where I must depart and that is with the suggestion that law schools should be changed to do what you suggest. Having taught in a law school, I can assure you that law school deans and the other powers at be have always realized that law schools can never truly prepare students to be lawyers in the manner you describe.

First, there is just way too much law. A good criminal lawyer---except white collar crime---or good PI lawyer only needs to know about 10% of the law. However, a good corporate transactional lawyer, white collar criminal defense, or serious corporate litigation lawyer needs to know "the whole law" or at least 90% of it.

Second, it is not cost nor time effective. Take a semester long 3 hour clinics class--45 hours of instructor time. That is equal to about 1/2 of a week for a new associate, and the associate is getting paid, not paying tuition.

What law schools should do is be honest with students, telling them what they are not learning. Your point that law profs pontificate is true, but only because so do people who write blawgs.

Take crime, for example. Law schools need to be far more honest about what it means to either prosecute or defend. Take defending. I have talked with so many young lawyers who are stunned when they get out of law school, start as a public defender, and come to realize that they could spend an entire life in the system and never have an innocent client. (I am not aware of any lawyer who limits her practice to innocent clients and makes a living). I wholly fault law schools for this. Crime should be taught based on the "grimy reality" that the defendant is guilty and the stress is all in the "what sentence will you take" and the games with the client who will not cooperate in attempting to get some acceptable bargain.

[mythago]

I agree, Norm (although I think legal-aid clinics are far better than ER visits for training young lawyers).

[Mark Jakubik]

Great post, Norm. I agree completely. I think that roughly the last 1 1/2 years of law school are worthless. Why not institute reforms such as you suggest that would make that time less useless, and at least teach law students something about the real world practice of law.

[Mahan Atma]

"I think that roughly the last 1 1/2 years of law school are worthless."

I've never understood why people say this. When I was in school, I wanted another year because there were so many courses to take. As it was, I never got to take half the things I wanted to - tax, more corporations, IP, T&E, real estate, etc etc.

There is SO MUCH to learn about the law. How could anybody possibly say the last year was worthless? Did you take every course that was offered? If not, why not learn more?

[mythago]

Not everybody is interested in tax, IP, real estate, etc. etc.

[S.cotus]

There are a couple of issues here.

First of all, not all small firms are alike. There are many small firms that are simply not “general practice” firms. They operate very sophisticated boutique practices in one field only.

Second of all, I am with Mahan. I would make law school longer. I would require more philosophy, and require that all law students are exposed to the different substantive areas of the law. This means: 1) tax and crim pro; 2) jurisprudence and ADR; and 3) sentencing and evidence. There are far too many lawyers out there who have absolutely no idea what is going on in several areas of the law. And, as a result, they miss issues.

The fact that some people are not interested in other areas of the law doesn’t justify making law school shorter, or replacing it with some form of clinical experience. Lots of people are not interested in ANYTHING taught in law school. In fact, since law school is considered a virtual rite of passage in some families, they are just biding their time. But, that doesn’t mean that law schools don’t have an obligation to require them to learn more in order to give them their degree that they are entitled to.

[steve]

My law school required us to work either in the walk in clinic or intern somewhere for a semester, or more. It was quite worthwhile to work in the clinic and work on real cases and counsel real clients. Hard to imagine graduating law school without that experience.

[S.cotus]

Clinics can be good experience, but there is no guarantee of that. The recent trend of more “intellectual” clinics, in which students write amicus briefs probably does not help matters, as there are few lawyers that actually are “thrown” into a position of having to write an amicus brief (which often reads like a policy statement) at a moment’s notice. While I am generally in favor of other clinics, some of them are not well-supervised, and it is possible that the student will learn very little. Some of them are not taught by professors with a lot of experience, so, YMMV.

On a deeper level, clinical work teaches about “practice.” But the “practice” of law is different from the study of law. The “practice” of law involves a familiarity with the current state of the law. It doesn’t involve any inquiry into the deeper issues surround the law. So, there are, unfortunately, some new lawyers out there who see the world as a series of forms and numbered motions, but can’t coherently argue that the “practice” is incorrect.

As to internships – unpaid ones – I am against them. There is generally no attempt to maintain a high quality experience. There is no guarantee that the student will either 1) learn something; or 2) be respected. Since the student isn’t being paid, there is no incentive to utilize his or her skills. Instead, at many places the younger lawyers just like to show off. (And, many places have a policy of not hiring former interns.)

[Nani D]

All good points Norm. I would like to actually see someone do one of thse tips before even GOING to lawschool. That would prevent some broken hearts and loans.

[scooby]

I agree with the idea that we need to rethink legal education. I am not entirely sure how it should be different, however.

People coming out of law school (including me ten years ago) know zilch about representing a real person with a real problem. To some degree, I think that there needs to be emotional detachment from the problem, or effective advocacy can be compromised. I do agree, however, that prosecuting and defending is a meat grinder, and that some "real world" should be drilled into the heads of newly minted lawyers.

PA has a "Bridging the Gap" session that new attorneys need to take after admission, and I have helped present that in my county. My personal "Bridging the Gap" session would be much, much different:
1. How to say no to prospective clients
2. Economics of a law practice
3. Don't steal from the trust fund
4. Why good people become bad judges

I think to some degree that I'd like to head into a law school and give seminars to 1Ls and 3Ls about what practice is like in different environments (big firms, small firms, PD's office, DA's office, clerking, etc.). I'd like to drag in friends of mine who have been through each respective mill to talk to people so that they can get more information about the "first job" from someone who has been there and done that. I think it would be eye-opening and a service to the graduates and the students.

[S.cotus]

Scooby, I think you are getting closer to the mark.

Strangely enough, many law schools actually come out and say that they are concerned about teaching law students to “please partners.” I guess, at some level, this is an important skill to have, but it is a somewhat perverse perspective.

Unfortunately, most guest speakers can only offer platitudes. They don’t want to talk about the “zeros” and stupid politics that infests most jobs.

[Sam]

re: Whether law school should be more than 3 years or less than 3 years. On the whole, and based on what I have been doing, I think it should be less and I didn't need the extra expense of the 3rd year. But in the days of consumer hegemony, who decides that and, if the consumers, does anyone else review whether they really know what they were getting into? What is obvious is that law schools need to rethink (and probably are rethinking) what worked in the past and attorney admission requirements need to be revisited. The 3 years of courses, with a bar exam and morals check at the end, does not fit all, and the reasons for this are all around us. In 1970 the population of my county was 36,000, with 20 attorneys; in 2000 the population was 37,000 with 75. In 1970 one needed about 5 pages for a simple divorce; in 2000, 30 (most of which are to satisfy federal and state requirements about children). Law has exploded, entering areas heretofore left alone and generating words and words that need to be read and deciphered. The result is that a good percentage of the practice of law is technical, and today's excellent lawyer doesn't necessarily need the skills of one who held up well when subjected to the socratic method about Justice O'Connor's approach to privacy. I shudder to think this, but when the government is the largest employer of lawyers, perhaps it should organize its own law schools (like teachers' colleges)and regulate what it needs. A new civil service with its own ethics and relationship to the court system. There are examples that can be looked to for help with this. Much as I wish our society valued the classically educated common law lawyer a la John Adams, Thomas Jefferson, Oliver Wendell Holmes, and had fewer laws, regulations and civil servants, that's not where we're at or where we're heading.

[mythago]

and require that all law students are exposed to the different substantive areas of the law. This means:

...teaching subjects that S.cotus likes. I mean, really, what use is crim pro or sentencing to anyone who will not practice criminal law? I could argue just as well that everybody ought to be required to take products liability.

Scooby makes some good points, and practical rather than theoretical ethics should be taught everywhere.

[S.cotus]

You don’t know if you like something until you spend a semester learning it. All those kids that go into law school claiming that they want to practice a certain kind of law ended up changing because they were exposed… or forced by the cruel hand of scheduling… into a certain kind of law.