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Thursday, August 27, 2015

Get "PRACTICE READY." Get set. Go!

The ABA’s new standard 303(a)(3) instructs law schools to require graduating students satisfactorily complete “one or more experiential course(s) totaling at least six credit hours.” This standard (along with the subsequent standard 304) goes on to explain that the requirement can be satisfied through a simulation course, a law clinic, or field placement (externship).  This experiential requirement seems aimed at fulfilling the ABA House of Delegates Recommendation 10B from the 2011 Annual Meeting of the ABA that legal education implement curricular programs “intended to develop practice ready lawyers including, but not limited to enhanced capstone and clinical courses that include client meetings and court appearances.”  The California Bar has gone even further, requiring that graduates take 15 “skills” credits in order to be admitted to practice in the state. These enhanced experiential requirements are responsive to calls from all quarters – from the Carnegie Report and the MacCrate Report to Brian Tamanaha’s book and the scam-blogosphere – that law schools revamp their curricula in order to ensure that their graduates are “practice ready.” 

Creating experiential learning opportunities for students is a great idea.  But mandates that law schools produce “practice ready” graduates seem incompletely thought out.  Fundamental questions about “practice ready” graduates remain and will continue to plague the system:

  • What does “practice ready” mean in a world where the practice of law involves widely disparate types of work?  
  • What sorts of skills, efforts, and methods are required to make a law student “practice ready”?  Is it ready to be a first-day lawyer? Or are schools somehow supposed to produce graduates that can function as a second or third year associate or as an unsupervised solo practitioner on day one in practice?
  • Empirically, precisely what sorts and amounts of “practice ready” deficiencies exist now and what must be done to remedy these?
  • Epistemically, how can you judge anyone’s “practice readiness” to begin with?
  • Theoretically, can (or should) “skills” instruction be separated from learning legal “doctrine”? After all, today’s heralded doctrinal goal of teaching students to “think like a lawyer” was originally promoted as skill training!  For excellent food for thought on this topic, see Linda Edward’s fantastic article, The Trouble with Categories: What Theory Can Teach Us About the Doctrine-Skills Divide , and a review/summary of it here.
  • Even if we could teach practice readiness and we could somehow measure and assess it, are law schools really the best places for lawyers to learn practice skills?
  • And even if law schools are the best places for “practice readiness” instruction (whatever that means), what are the costs – opportunity costs and out-of-pocket costs – that will be incurred by schools and by students from the re-allocation of resources toward improving graduates’ practice-readiness? 

Basically, although many clamor that law schools need to increase their focus on “practice readiness”, we still don’t know if “practice readiness” instruction is merited, if is it ever achievable (measurable, teachable, possible) in law school, and whether it is worth the cost.

These important, complex, and sobering questions are raised in Robert J. Condlin’s recent paper, “Practice Ready Graduates”: A Millenialist Fantasy”

First, as Condlin points out, “practice ready” is not so much a standard as it is a slogan. Condlin characterizes practice readiness as today’s fad – as something without true substance or understanding. Lawyers, after all, must not just be “ready” to practice upon admission to the bar, but must be prepared for “a lifetime of professional growth and service under conditions of challenge and uncertainties.” Are we better off focusing on the long-term rather than the short-term “readiness” of our graduates? Maybe teaching students how to teach themselves in whatever varied area of law they practice now and in the future is more worthwhile than teaching any specialty-specific skill set.

Second, Condlin shines light on the fact that resources spent in teaching skills are re-allocated resources, and that the ABA, as well as individual schools and professors should seriously consider whether such reallocation is justified.  Every hour spent teaching a student how to ask a question in a client interview is an hour that the student does not spend pondering the underlying values related to personal autonomy in our contract law, for example. Condlin admits that “skills instruction” is not in itself impoverishing, but points out that law schools and law students have limited time, money, and resources. There are thus significant opportunity costs from a shift in focus that prioritizes lawyering “motor skills” over thinking skills. 

Third, Condlin asserts that the emphasis on “practice readiness” is unfounded because it is unachievable, at least in the context of law school. Socializiation and disposition take longer than a semester (or two) to develop.  Even a law school clinic class, which is something Condlin says comes the closest to preparing students for the reality of practice, is of limited efficacy, principally because of its short window (13 weeks, usually).  Furthermore, because practice readiness depends on the type of practice, and it is simply impossible to prepare all students for all types of practice, efforts spent could be misapplied in a context where some or all students will not know in law school precisely what sort of law job they’ll eventually have.  Even if you could come up with a list of the required “practice readiness” skills for all possible legal jobs, Condin asserts, that list would be too long to be achievable.

Fourth, Condlin also criticized recent calls for “practice readiness” because being “practice ready” will not actually help graduates get a job.  The loss of legal jobs in 2008 and beyond was not a function of lack of graduates’ practice-readiness. In spite of its implicit promise, in reality, it isn’t lack of skills training that is leaving new graduates unemployed.  Condlin explains: The legal job market shifted in the early part of this century because of forces outside of it. At its core, the legal system, like many other sectors of our society, is now struggling under the twin problems of shrinking demand for labor and growing student debt.  Legal jobs in particular were hit hard with the post 2007 economic downturn, client demands for lower fees, increased competition from non-law-firm service providers, and technology changes. None of these problems were caused by law school graduates’ level of skills preparedness or by law schools’ pre-2008 curricular focus.  Furthermore, Condlin asserts that “[p]lacing students in jobs is principally a function of a school’s academic reputation, not its curriculum.”  He points out the unfortunate reality that the massive overhaul in Washington & Lee’s third year curriculum, to emphasize practical skills over study of doctrine led to a decrease rather than an increase of their graduates’ rate of employment. (See story on this here.) Perhaps the reason a “practice ready” focus doesn’t necessarily translate into better employment is because it doesn’t really work. An ABA study recently found that although 71% of new graduates believe they have “sufficient practice skills,” only 21% of lawyers who work with them believe that this is true.

Condlin worries that when law schools jump on the “practice readiness” bandwagon it will “destroy something that works in a futile attempt to revive something that does not.”

Condlin makes some excellent points, and I always enjoy reading an article that calls popular wisdom into question and makes me pause and reconsider assumptions I may have.  I am ever the optimist however, and I hope that Condlin may be overstating the extent to which the ABA and the law school industry are in fact emphasizing “practice readiness” as the ONLY goal of law schools.  Condlin worries that advocates for practice skills instruction believe that such instruction is “legal education’s primary purpose” and that “[e]verything else is a frolic and detour, and a fatal frolic and detour in hard times such as the present.”  Truly, it would impoverish the law and society as a whole if teaching the “motor skills” associated with practice becomes the goal of law school, rather than one of its several important goals. I, for one, don’t think that is the case (but I may be naïve).

For an example of an opposite view of skills instruction, consider the “audacious goals” that Michael Roster advocates for law schools in his article, “The New Normal” . Roster explains that law firms and their clients demand that recent law graduates be able to immediately add value to a case or a deal. Therefore, he concludes, law schools should overhaul their model to ensure that their graduates can immediately function as a 2nd year associate or an unsupervised solo practicioner.  It is likely true that firms would like to pass the buck on training. But it doesn’t necessarily follow that the buck should be passed in this way.  Once upon a time, I’m told, law firms actually did mentor and develop young associates – and some firms still do (smaller and mid-sized firms seem more likely to engage in explicit mentoring and development than big-law firms famous for a chew-em-up-and-spit-em-out approach to new grads).  Condlin suggests that the lack of in-firm training results from selfishness or short-sightedness of baby boomer partners. Roster doesn’t explain precisely why firms currently don’t want to allocate resources to training, but treats firms like a law school’s clients, and argues that the customer is always right.

I hope that the majority of those supporting more “practice readiness” do not actually envision tomorrow’s law schools as mere trade schools.  But I believe that many of today’s efforts to build bridges from school to actual law practice are worthwhile. It is valuable to teach legal doctrine in a way that gives it context and meaning and gives law students a glimpse into the world of practice.  I find it natural and effective to integrate the practice context into teaching. In a 1L Contracts class, for example, I do believe that students should read actual contracts, struggle with actual interpretation disputes, and try their hand at drafting clauses or even entire documents. In upper division courses (such as Real Estate Transactions), there are still more opportunities to use glimpses into practice as ways to give context and meaning to legal doctrines. But of course in a mere 39 hours of a law school course, there is insufficient time and no client reality – so these experiences may firm up a students foundation for practice, but that doesn’t necessarily make him or her “practice ready” (again, this all comes back to what this phrase means to begin with!). 

Clearly, the primary goal of law school courses must remain to teach students thinking skills – how to conceptualize a problem, how to parse out legal issues, how to research those issues, how to think analytically about facts and legal applications, and how to incorporate social values and policies into advocacy. In short, teaching students to “think like a lawyer.” That is the primary “skills” instruction that readies graduates for legal practice.  But the entire industry needs to remember that being “ready” to start as a first-year associate or a mentee does not mean that a new lawyer leaves law school ready to practice without supervision and mentorship. In fact, for most graduates, going it on their own without some sort of apprenticing experience would likely end in disaster.

It seems to me that lack of legal mentorship in practice is the real story, and one that the law industry must confront. Because even when law schools do all they can and should to prepare students for a career in the law, new lawyers will only adequately bloom and develop professionally when they have adequate supervision in practice. 

Posted by Andrea Boyack on August 27, 2015 at 11:29 AM in Life of Law Schools, Tamanaha, Teaching Law, Things You Oughta Know if You Teach X | Permalink

Comments

"But mandates that law schools produce “practice ready” graduates seem incompletely thought out."

They also seem incompletely existent. The mandate is for 6 hours of experiential learning, not that graduates be practice ready.

I'd also note that much of the above criticism could be applied to the law school's mission of teaching students to "think like a lawyer."

What does "thinking like a lawyer" mean in a world where law involves wildly disparate types of work?
What sorts of skills, efforts, and methods are required to make a law student “think like a lawyer”? Is it ready to think like a lawyer on the first day? Or are schools somehow supposed to produce graduates that can think as a second or third year associate on day one in practice?
Empirically, precisely what sorts and amounts of “thinking like a lawyer” deficiencies exist now in entering 1L students and what must be done to remedy these?
Epistemically, how can you judge anyone’s “thinking like a lawyer” to begin with?
Even if we could teach thinking like a lawyer and we could somehow measure and assess it, are traditional doctrinal law school classes really the best places for lawyers to learn thinking like a lawyer?

If we're going to have an ill-defined, hard-to-evaluate, expensive-to-implement objective, how do we choose which to go with?

Posted by: Derek Tokaz | Aug 27, 2015 12:29:50 PM

Imagine a medical school which focused exclusively on teaching future doctors to "ponder the underlying values" related to the practice of medicine, eschewing any teaching of the "motor skills" of medicine like suturing a wound or intubating a patient. What students would attend such a school, and what patient would opt for a doctor who graduated from such a school?

Perhaps the reticence to teaching "practical skills" in law school stems from the fact that most law professors know they lack both those practical skills and the ability to teach them, having themselves never practiced law in any meaningful sense.

Posted by: pd | Aug 27, 2015 12:36:10 PM

I'm actually a HUGE believer in teaching practical "motor skills." I do it in all my classes, in fact. Maybe I see the value in that because I practiced for so long before teaching. On the other hand, surely that isn't the ONLY thing that law schools should be doing. Like Linda Edwards, I find the Skills vs. Doctrine divide artificial and unhelpful. You learn best in context, and theory is only correctly understood and assessed in context.

Posted by: Andrea Boyack | Aug 27, 2015 12:38:43 PM

"On the other hand, surely that isn't the ONLY thing that law schools should be doing."

It's not. This is a requirement that relates to only 6 credit hours (less than half of one semester).

Posted by: Derek Tokaz | Aug 27, 2015 12:47:53 PM

Maybe the solution is to have a "residency" sort of post-law-school program for lawyers. Thoughts?

Posted by: Andrea Boyack | Aug 27, 2015 1:53:24 PM

I don't think a "residency" program makes any sense. There isn't the same sort of teaching hospital-type infrastructure in the legal profession and salaries of most entry level legal jobs are already low enough that there isn't much lower to go. It seems like all "residencies" would do is allow some prestigious government agencies and biglaw firms to maybe cut entry level salaries, which seems like the opposite of any goal we might want to have.

Posted by: Prof | Aug 27, 2015 3:14:21 PM

We could go back to apprenticing being a valid way of becoming a lawyer.

Posted by: Sam | Aug 27, 2015 4:01:47 PM

On the idea of residency programs:

We should be making the path from student to functioning lawyer shorter, not longer. A residency-style program is also totally unworkable given the number of law schools that exist, and the ABA lacks the will of the AMA to regulate its schools to produce an appropriate number of graduates each year. It is also unconscionable to expect people to fork over $150k in tuition and then accept a near-poverty-level "residency" job when the majority of those exiting the residencies will still end up on the low end of the bimodal salary curve making ~$60k.

Replace the third year of law school with a residency or practicum-style program where students rotate through different practices for 2 months each while attending classes focused on practical skills. This would also require a drastic reduction in the number of law schools and law students. Professors will never accept it because it will drive their salaries down (most are of no practical use during this new third year).

Posted by: pd | Aug 27, 2015 4:12:45 PM

It would make more sense to speak of the goal as being making students "practice aware" than "practice ready." The goal should be to expose students to and familiarize them with different ways of practicing law. The idea that students can be trained to be "practice ready," in the sense that they can just walk out of the classroom and walk into the courtroom (or wherever else they are practicing) ready to represent clients seems unrealistic.

Posted by: Orin Kerr | Aug 27, 2015 5:31:03 PM

I think you're 100% correct, Orin!

Posted by: Andrea Boyack | Aug 27, 2015 5:39:23 PM

"Placing students in jobs is principally a function of a school’s academic reputation, not its curriculum, and the legal labor market will rebound only after the market as a whole has rebounded (and perhaps not then). Law school curricular reform is not an economic stimulant and trying to use it for that purpose will destroy something that works in a futile attempt to revive something that does not. Legal education’s principal purposes should be (and always have been) to develop an intellectual understanding of law and legal institutions and the way they work, as well as the critical thinking skills that underlie law practice tasks generally."

I think Condlin is wrong to draw such a divide between legal education and job placement. We all know that much of one's education will come on the job. Law school is but one of many steps, and neither the first nor the last.

While he may be right that curricula should not be changed in an attempt to stimulate the economy, it should be reformed if its current state hinders students' ability to continue with their education.

And to piggyback on Orin's comment, he does seem far too hung up on a literal understanding of "practice ready." If we replace it with "ready to proceed with the next step in the legal profession," does this solve most or all of the problems?

Posted by: Derek Tokaz | Aug 27, 2015 6:37:20 PM

The reference to W&L's employment outcomes is a bit outdated. The Merritt study looked at the first two years of transparency in employment outcomes - Class of 2011 and Class of 2012 -- both after the third year program was in effect, and did not make any comparison to the pre-third year program, pre-transparency employment outcomes. Transparency probably revealed a weakness in the career services office which had long been there. W&L's class of 2014 did much better in the employment market, and its at graduation numbers for the class of 2015 are the strongest since the recession. The difference has been an overhaul in the career services office under Cliff Jarrett. W&L has been moving up in rankings tied to employment -- at #30 in both the NLJ rankings and the Above The Law rankings, and figures to move further up when Class of 2015 results are considered.

Posted by: Denny | Aug 28, 2015 2:59:46 PM

Experiential courses do more than teach practice skills. Students must make choices, based on a whole host of factors, before taking action. Students are then accountable for those choices. In clinics, students make choices that affect real people using factors that exist in real life. When students make such choices in a law school setting, a trained faculty member helps the student understand what worked and why, and what didn't work and why, so that future choice-making is better informed. Students are explicitly taught to then perform this type of post-mortem (called "self-reflection") in practice. This is a different, yet essential, kind of "thinking like a lawyer." In my experience, this type of "thinking like a lawyer" is not often taught in other law school courses in any intentional way.

Posted by: Kim O'Leary | Aug 31, 2015 12:50:43 PM

It's clear that things are not going to change. It's clear that law schools need to train lawyers, not just students who can think like lawyers (whatever that may mean), but there is so much disdain for the practice of law in the academy that the needle is not going to move in any meaningful way. Enrollment will continue to drop and we will have nobody to fault but ourselves.

Posted by: Anon | Sep 19, 2015 2:29:47 AM

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