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Thursday, May 24, 2012

Consensus at Last!

In her guest stint at Paul Campos's blog, Deborah Jones Merritt writes today about various proposals intended to make "legal education more responsive to clients." And the responding comments are . . . resoundingly negative.

I don't mean that as a criticism of her proposals, which seem reasonable to me. Nor, exactly, do I mean it as a criticism of the commenters. They make a number of points that strike me as sound and sometimes very educational. It is still a fact worth noting in and of itself: among the various constituencies reading that blog, including current students, recent graduates, and experienced lawyers, the interest in client-centered reform of the law school is close to nil. (But not quite: a couple of comments approved or engaged with Merritt's suggestions.)

Why? For many, the reason is simple:

it's a distraction from the issue of law school [jobs/debt/transparency]. "Reforming the curriculum is all well and good, but the glut of new lawyers entering the market each year is the far bigger problem," writes one. "I fear that focusing attention on models of legal education merely deflects attention to a relatively minor problem and obfuscates the human tragedy that flows from producing more than twice as many lawyers as are needed over a period of at least two and perhaps as much as four decades," writes another. From several (but not all) commenters who are or appear to be recent graduates, there is a distinct message: reduce the cost or the market competition for jobs, then you can worry about curricular reform.

A similar sentiment appears in one comment from a more experienced practitioner. Referring to Merritt's proposal to have more students shadow lawyers, the lawyer writes: "Even if I had the time (which I don't) to explain everything I'm doing to some youngster, I really would be enthusiastic about training more competitors in an already over-crowded profession." (One may assume the sarcasm in the second clause of that sentence.) One is not a large sample, to be sure, but similar "I'm not going out of my way to do anything for young lawyers in this crowded market, 'client-centered education' or not" sentiments have popped up on that blog before.

Again, I'm not judging, and I'll repeat that I think the commenters made some good points. But I find it striking just the same. It is fair to say that blog's commenters are a highly interested constituency; but there is very little interest in or discussion of clients there. And what I find equally striking is that, among the law professors who write regularly about law school "crisis" issues, law school reform, and so on, there is also remarkably little mention of clients. That's not true of all of them; some of those writers who focus specifically on the changing legal profession have had a good deal to say about clients. But many of those who write more specifically about law schools and how they ought to change regularly talk about administrators, professors, lawyers, students--but not, or not often, clients themselves. There appears to be a relative consensus among all the constituencies discussing this issue, including those that are often in some degree of opposition: in thinking about law schools, the client comes, if not last, then a distant second. That seems worth pondering.   

Posted by Paul Horwitz on May 24, 2012 at 01:36 PM in Paul Horwitz | Permalink

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The crisis for the vast majority of would be clients is not poor representation, it's no representation. The bargain legal market doesn't exist and no amount of curricular changes is going to fix that. What's needed are a sharp reduction in the barriers to entry to the legal profession and a modification of the regulations governing legal services to legalize fewer services for less money.

These two issues are addressed by some in the broader reform community, but unfortunately those voices are often drowned out by those want to tighten the cartel.

I'm not saying it isn't understandable - it is. If you have just spent six figures and three years of your life to enter a closed profession it is easy to understand why you'd be upset about it opening before you have had any benefit. But some generation has to bite the bullet. Perhaps the government, the law schools or the bar in general can raise money to ease the transition.

Posted by: Brad | May 24, 2012 2:11:03 PM

The student constituency is simply failing to see the connection between more client-cognizant materials and their position in the "market." (I strongly prefer "client-cognizant" to "client centric" because the latter always seems to imply that "clients" and "the law" are somehow antipodal and mutually-exclusive teaching objectives.)

Aside from improving the most objective and widely-available indicia of student quality (e.g. LSAT), the best thing a school can do for the professional desirability of its graduates is to acquire a reputation as a place that produces lawyers that have great client instincts.

Having students shadow in-the-flesh lawyers strikes me as a institutionally improbable way of promoting client-cognizance and acquiring the pertinent professional reputation. But that ill-conceived pedagogical device shouldn't be confused with the merit of the broader project. Although most most curricular reform wouldn't require professors to flash a neon light that says "client-centric exercise," I think the faculty constituency recognizes the connection. I don't think the student constituency does.

Posted by: kovarsky | May 24, 2012 2:11:05 PM

Reform is needed throughout the legal ecosystem, and this is why it really needs broadbased consideration. It's curriculum, jobs, ethics, client-focus (seen the deceptive crap that passes for marketing these days?), everything. Clients lack access to lawyers, but if we lower the barrier to entry, we'll have a plenty of lawyer who can't afford to feed their families, but no assurance that underserved communities will suddenly be served.

It's not a competition between interest groups, who cry that their problem is the worst and must be fixed. Everything must be fixed, and fixed in a way that the solution on one end doesn't create another problem elsewhere.

We have the ability to look at all the problems and seek global solutions. Whether we have the interest or will to do so is another matter. From what I've seen, each constituency only cares about its own problems, refusing to recognize that it's all connected.

Posted by: shg | May 24, 2012 3:02:59 PM

I'm an ITLSS reader and practitioner who has not commented in response to DJM's post; I'm doing so here instead.

I thought that DJM's post to which you linked was not only interesting, but one of the best posts ever made on Campos' blog. But I must admit that it had never occurred to me, for this reason: I think that a client-centric model of legal education would require almost entirely replacing the faculty - at least those teaching upper-level courses - with new professors who had at least 10-15 years of experience directly serving clients.

I don't mean to be rude about this. It's just that I'm a felony public defender. I deal with clients who come from difficult circumstances and have been accused or convicted of extremely violent crimes. Often as a product of their life circumstances and mental impairments, these clients can be extremely interpersonally difficult to work with. I took multiple criminal law classes at my T14 law school, and none of my professors had EVER had the client-counseling experiences that I have had.

Yes, I would like for law students who are interested in my field to be taught how to deal with quandaries like how to advise an 18-year-old non-triggerman charged with felony murder for whom the prosecution is offering to drop the death penalty if he will accept a sentence of life without parole. I would like them to learn what it is like to work with paranoid clients who try to fire every court-appointed lawyer they are assigned, sometimes physically attacking the lawyers to trigger their withdrawal, because they believe that public defenders are conspiring with the DA's office to harm them. I would like them to learn how one does postconviction interviews to search for evidence of ineffective assistance of counsel with clients who - once burned by their trial lawyers - are highly resistant to working with another state-funded lawyer and may even refuse to meet with the new attorney. And so on. But these things are so far from the realm of personal experience of every (non-clinical) criminal law professor that I've personally encountered that it had not occurred to me to suggest client-centric classroom education. How can professors credibly teach what they do not know and have not lived? It seems to me that the best they could do is read books about our (practitioners') experience, talk to us, or ask us to come and talk to their classes. And each of these things seems like an imperfect solution to the problem of not having practice-experienced professors in the classrooms in the first place.

You write: "It is fair to say that blog's commenters are a highly interested constituency; but there is very little interest in or discussion of clients there ... in thinking about law schools, the client comes, if not last, then a distant second."

I comment at ITLSS because I am highly skeptical of the current state of legal education, and that is for two reasons: (1) the academy's deemphasizing teaching relative to its increasingly interdisciplinary (i.e., not even purely legal) research; and (2) the academy's failure to prepare law students to serve clients. As a provider of direct services to indigent clients, in a field that is both underpaid and emotionally exhausting - but tremendously important - let me assure that the clients come first for me. Every day. And the reason that I don't mention them very much over at ITLSS or here is because I have no hope that the academy will ever take a basic prerequisite step in "caring about clients" - to prioritize in its hiring decisions those aspiring academics who bring at least a decade of practice experience *in the field that they intend to teach* to the table, and who can therefore offer students: (1) strong legal knowledge of their field, its statutes and caselaw; (2) deep experience in using that legal knowledge to advocate for clients; (3) experience of the non-doctrinal challenges inherent in their field of practice (which they can integrate in teaching the doctrine); and (4) ideas for academic scholarship that are strongly grounded in practical reality. With all due respect, I don't think it is possible for a faculty with extremely limited client counseling experience to undertake the task of making legal education genuinely more responsive to clients.

Posted by: AnonAttorney | May 24, 2012 4:52:43 PM

Further to the above: I wanted to acknowledge Rick Hills' 2009 post advocating that 30-40 percent of the ideal law school faculty would constitute experienced practitioners: http://prawfsblawg.blogs.com/prawfsblawg/2009/08/our-duty-to-keep-law-schools-amphibious.html

While I think that that number should be much higher - *at least* 75 percent - I appreciate Hills' recognition that practitioner (I assume, tenure-track) hiring should be occurring to any extent.

Posted by: AnonAttorney | May 24, 2012 5:05:17 PM

Finally, apologies for the typo - that should have been "would be comprised of experienced practitioners"

Posted by: AnonAttorney | May 24, 2012 5:05:52 PM

Paul, I was struck by the same consensus. Sure makes advocating for education reform fun :) I was surprised by the negative reactions on client contact and shadowing because legal practitioners so often hold up medical school clinics as the ideal for legal education. But the work that medical students do in those clinics consists largely of client contact (taking patient histories) and shadowing more senior doctors. It's residents, not medical students, who start treating patients; I think lawyers often confuse medical school rotations with post-MD residencies. That's not surprising given the number of doctors who visit any patient in a teaching hospital. (Clue for the curious: you can distinguish the students from the residents and other "real" doctors because they wear shorter white coats.)

This is a tangent, but it's another part of the "make law school more like medical school" push that makes me scratch my head: A major part of what medical students do during their clinical rotations is respond to a barrage of academic questions posed by the more senior doctors. The students call this "pimping." And the questions would make even the most voraciously socratic law professor proud: "What causes an R wave in V1 on an EKG? What is the blood supply to the pupil? How many layers are in the gallbladder?" Those examples are from an online med student forum.

During their clinical rotations, in other words, medical students spend a lot of time answering fairly academic questions--which may not relate directly to the patient before them. They spend their nights and breaks memorizing cram-books that offer set answers to these pimping questions. It's not a bad way to learn; the students answer questions in context and reinforce information they've already learned. And it's possible that the number of layers in the gallbladder could influence some patient's treatment (although the med student who posted that example certainly didn't think so). But there are many critics who sweepingly suggest that law schools adopt the medical school model without knowing what that model really is.

Posted by: Deborah J Merritt | May 24, 2012 5:16:54 PM

I too find the reactions to DJM's proposed reforms most curious. Whatever one thinks of law schools' recent track record when it comes to disclosing the employment prospects of their graduates, this is clearly a horse long out of the barn. At this point, there is plenty of pertinent information available to potential law school applicants; indeed, the market is probably overcorrecting after a tidal wave of publicity, some of which puts things in an unduly negative light. For those of us who are concerned about improving legal education, clearly the most urgent reforms do not involve additional disclosure of the risks facing graduates. Anyone who has attended sessions with potential applicants recently can attest that there is plenty of awareness in the market of the risks involved in going to law school.

Why, I wonder, is more attention not paid to what caused the change in job prospects for law school graduates? Surely one important contributing cause is that recent graduates from schools that focus on theoretical education are not able to provide clients with sufficient value to support the fee structure necessitated by their salaries. Sooner or later, there was bound to be a market correction. Now, in my judgment, the most critical challenge facing law schools is to enhance the ability of their graduates to provide sufficient value to clients to justify the kind of fee that can provide law graduates with reasonable compensation, especially in light of their debt loads. Yet, it seems that one thing that most of the the "law school scam" crowd and most law professors seem to have in common is a disinclination to address that question.

Larry Rosenthal
Chapman University School of Law

Posted by: Larry Rosenthal | May 24, 2012 9:10:15 PM

Prof. Merritt:

I applaud your focus on clients. In my experience, for well over a decade the sophisticated clients did not want to pay for services from newbie lawyers, but the clients had no choice. Now that corporate clients have the upper hand, they have been refusing to pay for the services that newly minted lawyers can provide. In response to Larry's question, my sense is that the change occurred because in-house counsel finally have options (e.g., in-sourcing to the larger law departments inside corporations, out-sourcing to non-lawyers, disaggregating the legal work and sending fewer tasks to the most expensive firms, a deeper market of experienced, free agent solos and small firms that can use the internet to hold down overhead and still provide sophisticated services, etc.)

When you described the sorts of questions that senior doctors ask newbies during rounds, you said that the questions were "academic." Is that really the right word? To me, those questions sounded intensely practical, factual, and focused. In fact, they sound like the sorts of questions that the lawyers were asking the newbies in that widely disparaged NYT article by David Segal. ("What They Don’t Teach Law Students: Lawyering") As I recall, more than a few academics thought that questions like that were out of place in a law school.

Posted by: John Steele | May 24, 2012 10:43:36 PM

Larry -

What of all those in need of legal services who will never be able to pay 'the kind of fee that can provide law graduates with reasonable compensation, especially in light of their debt loads.'?

Are we to have a bar soley composed of: government attorneys, public defenders, law professors and corporate attorneys (transaction and litigation)?

Posted by: Brad | May 24, 2012 11:31:23 PM

I too am troubled by the response to DJM's post. However, there is a group of law students interested in legal reform at Law Schooled http://lawschooled.org/. I should also note the Massachusetts bar task force report, which my co-blogger, Jim Levy, has discussed on the Legal Skills Prof Blog at http://lawprofessors.typepad.com/legal_skills/2012/05/massachusetts-bar-task-force-says-third-year-of-law-school-should-focus-more-on-practical-training.html. In short, this report urges law schools to provide a more practical education including more opportunities to practice legal writing after the first year.

Posted by: Scott Fruehwald | May 24, 2012 11:45:08 PM

AnonAttorney,

There is an inherent contradiction in your proposal that faculty have 10-15 years of experience directly serving clients in the field in which the faculty teaches. Why 10-15 years? Your unspoken assumption is that that is how long it takes to develop the judgment and experience to deal effectively with difficult client issues. Granted. But then how does one transmit that 10-15 years of experience to students over the course of a 14-week semester? One could spend 14 weeks telling "war stories," which students tend to love because it doesn't require that they actually, you know, use their brains. But does telling someone how you've dealt with a difficult situation really get anywhere close to teaching them how to deal with a similar difficult situation? Is it information that they will be able to recall, and behavior they will be able to mimic, years down the road when they face that situation?

Let's take one of your examples: "I would like them to learn what it is like to work with paranoid clients who try to fire every court-appointed lawyer they are assigned, sometimes physically attacking the lawyers to trigger their withdrawal, because they believe that public defenders are conspiring with the DA's office to harm them." Okay, tell us how you would teach that in 14 weeks. And, please, be specific.

Posted by: Michael J.Z. Mannheimer | May 25, 2012 9:22:17 AM

Brad:

The problem, of course, is that you get what you pay for. We could provide very cheap training to lawyers, who might graduate with little if no debt, and be in a position to charge clients quite low fees, thereby broadening access to legal service. Poorly trained professionals, however, are far more likely to provide poor service. There are already a lot of bad lawyers out there at the low end of the market, and their numbers will only increase if the low end expands. Highly trained professionals provide better service, but they are more expensive to train, and therefore they must command higher fees to recoup the cost of their training. Perhaps we should relax credentialing, permit lawyers with little training to enter the practice of law charging low fees, but we should expect a whole lot of malpractice, and an effective two-tier system of legal representation based on ability to pay to persist. There is, in short, no simple answer to the problem you identify, short of a massive public subsidy.

Larry Rosenthal
Chapman University School of Law

Posted by: Larry Rosenthal | May 25, 2012 9:24:47 AM

I would favor *some* more practical training in school. But, the idea that school can prepare you for practice - of anything, not just law - is misguided. Clinics, lectures on how you *really* negotiate a contract - these are nice exercises, but until someone actually has primary responsibility for something, they're just neat experiences (in the case of clinics) or war stories.

Ideally, we'd have some government- or industry-funded apprentice program post law school to support training. Back here in the real world, where there is no political support for that in law (in contrast to medicine), it's hard to argue law schools should just become more practical.

My bar review class was practical. Guess what I remember from it? Zero. Law school (at a T14) was I suppose "impractical," and I remember - and use - a lot of it, it's just more on the level of reasoning and types of arguments to make rather than what the name is of form you file with the SEC for X reason.

Posted by: Anon | May 25, 2012 9:57:55 AM

Law school debt is not why poor people cannot afford lawyers. Are unemployed lawyers turning away clients because no income is better than some income?

After graduating, law school is a sunk cost, which cannot be recovered by not working.

Posted by: Knows economics | May 25, 2012 2:01:16 PM

There's a similar debate on the Circuits Split blog: http://www.circuitsplits.com/2012/05/should-law-schools-focus-on-lawyering-skills.html

@Anon Attorney: I am so glad you are keeping these important issues front & center in this debate:

"I am highly skeptical of the current state of legal education, and that is for two reasons: (1) the academy's deemphasizing teaching relative to its increasingly interdisciplinary (i.e., not even purely legal) research; and (2) the academy's failure to prepare law students to serve clients. . . . I have no hope that the academy will ever take a basic prerequisite step in "caring about clients" - to prioritize in its hiring decisions those aspiring academics who bring at least a decade of practice experience *in the field that they intend to teach* to the table, and who can therefore offer students: (1) strong legal knowledge of their field, its statutes and caselaw; (2) deep experience in using that legal knowledge to advocate for clients; (3) experience of the non-doctrinal challenges inherent in their field of practice (which they can integrate in teaching the doctrine); and (4) ideas for academic scholarship that are strongly grounded in practical reality."

Posted by: Anon | May 27, 2012 8:34:47 AM

Ugh.

"The problem, of course, is that you get what you pay for.... Highly trained professionals provide better service, but they are more expensive to train, and therefore they must command higher fees to recoup the cost of their training." Larry from Chapman Law School

So, Larry, are you in fact saying that every attorney who graduated earlier than, say, 1990 was poorly trained? They surely didn't need to spend hundreds of thousands of dollars to get through law school. See Also: Daniel Webster, John Adams, Abraham Lincoln, etc. In other words, your argument is fatuous and dishonest.

Posted by: One of America's Tens of Thousands Unemployed Law School Grads | May 27, 2012 1:43:13 PM

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