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Nov 20 2011

On Law Schools and Lawyering

This will be a quick post about a topic that can be discussed for pages and pages and hours and hours (at least by me and my fellow law folks). Today’s NY Times had an article that declared: “What They Don’t Teach Law Students: Lawyering.” The article describes how large firms are finding that they have to hold training sessions for their new recruits as they are graduating law school without the kind of practical skills that makes them useful to clients. He places the blame on the law school accreditation system which rates law schools higher based on the amount of their scholarly publication and not on how much hands-on training they give to their students. He also blames it on a related problem: that law schools choose to hire scholars and not practitioners. This is an excerpt from a section of the article entitled Experience Unnecessary:

The academy views seasoned pros with a certain suspicion. In fact a number of veterans of legal practice who failed to land tenure-track jobs say that experience was a stigma they could not beat. It can be fatal, because the academy wants people who are not sullied by the practice of law.

Think about that statement. Experience in the real world is viewed with “suspicion.” It is a “stigma” to have practiced law for too long. When you teach from the ivory tower, how can you expect to produce anything but prince and princesses who can feel a pea beneath 20 mattresses. I have seen such a problem first hand. As an adjunct professor at NY Law School for the last 7 years, I have proposed many practice-based classes to add to the curriculum which have been shot down for fear that they will interfere with the larger subject based classes taught by the academicians. They suggested that I wait until a clinic position opened up and to apply for that spot when available.

But the article has a problem of its own. It employed commentary and statistics from law schools like Harvard, Georgetown and Northwestern. The fact is that many mid-tier and lower-tier law schools do have a focus on the practice of law. For example, my law school offers classes in “Lawyering,” “Negotiation,” “Drafting of Documents,” and clinics in “Criminal Trial Advocacy,” “Securities Arbitration,” and “Elder Law Clinic” all of which provide real opportunities to practice law and to learn the actual practice of law. Law schools in these tiers have been trying to distinguish themselves in these arenas because they know they can’t compete with the Ivies and top tier schools in academia and publication. While the article pays some lip service to these efforts it is focused on Big Law and on the small amount of law students who get those high paying jobs at white shoe firms. For example, the article begins with a question taken from a seminar taught at a large firm to newbie lawyers: “What steps do you take to accomplish a merger?” Students at NYLS who had participated in the securities law clinic and had taken the “transactions” class would have answered this correctly.

Those large firms in turn have no one to blame but themselves when they find out that they have hired the coddled and unexposed. They would never hire associates from “public interest” or “clinic-based” law schools no matter how ready they were to assist clients and actually practice law. They would not take students (even the best and brightest) from NYLS who had successfully navigated complex legal matters for actual a clients in the Securities Arbitration Clinic or Elder Law Clinic. They would rather hire from Harvard or Yale regardless of those students’ practical abilities. So the fault lies not in their stars, but in themselves.

Ideally, law schools would operate like medical schools, where you would have post graduate experience as interns and residents being supervised by seasoned lawyers who have both practical and academic experience. But here’s the problem – THERE ARE TOO MANY LAW SCHOOLS. Unlike med schools, it takes very little for academic institutions to put up a law school. You don’t need labs, operating theaters, cadavers and an associated hospital. All you need is a building with some lecture halls, seats and warm bodies to teach. In turn, the school gets $30K-$40K per student. Is a huge profit center. My son is applying for law school right now – as I write this as a matter of fact he is at his laptop next to me doing his applications – and his grades and LSAT scores allow him to apply to some of the best schools in the country. But while perusing the list of all the law schools in the country, I was amazed that there are dozens of schools that accept students with a 2.5 high school GPA and a 140 LSAT score (very low). Why are these schools allowed to remain open? Law schools should be forced to set minimum GPA levels that indicate some academic ability. There should be threshhold levels of LSAT scores that mean you cannot get into law school anywhere. So many law students means many are going just as the default next step in their education without a true drive to practice law.

Many professions take time to learn their actual practice. Would any of us entrust our bodies to a first year doctor if we didn’t have to? Would we entrust our business to a first year accountant? Would we even entrust our car to a first year mechanic? No, of course not. So its no surprise that first year lawyers don’t have all the practical knowledge necessary to represent clients. But law schools and law firms alike need to be forced to place value on practice and clinical experience before we release these newbies onto the world. Law schools should also be accredited based on their entry requirements and their job placement and not just on how many law review articles their inexperienced, lofty professors write.

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