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Friday, November 25, 2011

Clinical and Externship Experiences

For all its faults, ably documented both here on Prawfs and across the web, David Segal's NYT piece about law schools is another reminder (as if we needed one) of the importance of continually thinking about how we train lawyers.  Unfortunately, my sense is that a lot of us only know a small part of the full picture: tenure/tenure track faculty, for example, often know relatively little about the details of how our schools' clinics, externships and legal writing programs work.

I'm curious about how students and alums perceive(d) their schools' clinical and externship programs.  For someone (like me) who only has a passing familiarity with them, those programs seem to be an ideal way to address the problem of law schools' supposed failure to train students how actually to lawyer.  The programs involve practicing lawyers with real-life clients.  Ideally, they should be able to bridge the gap between the more theoretical training they get in the classroom and the world the students will confront when they graduate.  Indeed, one would think they'd deepen that theoretical training by giving the students a real-world context in which to place what they've learned.

Or maybe they don't.  Or maybe they do but there aren't enough of them.  Or maybe students aren't allowed to take enough of them.  I'm curious about this.  I'd love to hear thoughts from those who know: the clinical instructors themselves, and the students/alums who passed through those programs.  Those of us who don't know enough about these programs but who are in a position to influence where legal education goes from here would benefit from those impressions.  Thoughts?  Are clinicals and externships the silver bullet to fix any problem that exists out there?  Part of the solution?  Not at all?

Posted by Bill Araiza on November 25, 2011 at 09:45 AM | Permalink

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Larry: Thanks for your thoughtful response (not to mention the plug for the casebook!). I suspect we agree more than we disagree. Most importantly, I agree that writing is crucial, and under-taught (not because LRW programs aren't good, but because they're not enough). I'm impressed at the amount of time you're obviously willing to put in to review student writing out of class. In terms of class time usage, I tend to worry about how such assignments impact coverage, especially in a first year survey class like Con Law, where there are so many fundamental concepts to be introduced. Using problems strikes me as much more defensible in an upper-division class like First Amendment law (assuming it's a stand-alone course rather than part of Con Law), though again, as you suggest, using problems as the vehicles for meaningful writing assignments raises the issue of professors' time, especially in large classes.
Despite the coverage concern, even in my Con Law class I do a lot of exercises, although these tend to be focused on writing good exam answers rather than legal writing per se -- since in my view mastering the exam-writing process is very important for 1Ls. But doing those exercises means there's even less class-time for the substantive writing and advocacy work you describe.
As for what should happen to students before they walk into a clinic or law office, I remain torn, as I suspect a lot of professors are. I do think we should be focusing at least a little more on practice-oriented work in the classroom, though I also agree with those who argue that professors should play to their advantage, which is teaching substantive law and careful but creative, legal thinking. Maybe the best statement of my view is that these latter skills should be the primary focus of classroom work, but that they can't be taught solely by close reading of appellate opinions. The right mix is tricky. But that's the nub of the problem.

Posted by: Bill Araiza | Nov 28, 2011 5:51:27 PM

Bill:

I am happy to amplify:

When I have students write (admittedly in smaller classes), that writing is done outside of class, although I meet with students individually to review drafts, and devote some class time to instruction in advanced legal writing. Writing is the single most important skill that a law school graduate can have, and it is unrealistic, in my view, to expect even the very best 1L LRW program to get students to the point where they can write at a professionally acceptable level. For this reason, I am willing to trade some curricular coverage for work on legal writing. Since my classes generally focus on briefwriting, I do hand out sample briefs on related issues. One of strange things about law school is that we spend so much time dissecting appellate opinions that one might think we are training students to write them. In reality, we are training students to be advocates, but they so rarely encounter advocacy writing. I did not learn the difference between a good and a bad brief until I became a law clerk. That is too late, IMHO, especially for those who never get the opportunity to clerk.

I pretty consistently use the problem method to develop experiential simulations for class. I assign students to "clients" in advance. I usually begin by having a potential plaintiff's lawyer present that client's position and how it would be advanced procedurally, and then ask opposing counsel to respond (when I teach First Amendment Law I have sometimes used the problems in your First Amendment casebook as the basis for these exercises!). The student presentations become an important part of the final grade. In this way, students are expected to use authority the same way that practitioners do -- to develop a defensible position on behalf of a client. And, since my students do not know in advance when I will call on them, they have to develop a position on behalf of their client for every problem, and can evaluate the soundness of that position in light of what happens in class. This is the process by which the Carnegie Commission argues (consistent with my own experience in practice) that a student can begin to develop "professional judgment."

More generally, I suppose that the point on which you and I are most likely to disagree is what should happen before students go to a clinic, an externship, or a part-time or summer job. I believe that law school needs to impart more practice-oriented work into the basic curriculum so that students are better prepared for success when they begin their three-month job interview, whether at a clinic, an externship, or outside summer or part-time employment.

Larry

Posted by: Larry Rosenthal | Nov 28, 2011 5:17:33 PM

I appreciate both Estrella's and Larry's comments. I take Larry's main point about externships to be that, if the experiences are insufficiently monitored by faculty supervisors, they are liable to degenerate into useless scut-work situations for the student. To me that suggests simply improving that supervision. Of course, improving supervision costs money. But it's still less costly for the law school than trying to replicate those experiences in-house.
As for clinics, aside from their cost (a big "aside," I concede), Larry's point seems to be that students can't do much sophisticated work in them, given their limited knowledge base coming into the clinical and the limited time a semester-long clinical presents. I see the point, but that observation strikes me as a little beside the point. One could surely same the same thing about summer associate stings (indeed, they're even shorter, so even though the student is there full-time she won't see much by way of litigation progress over the course of the summer). And they'd be even less able to do the work, since it won't necessarily be work tailor-made for students, unlike many of the cases that are selected for clinical work.
As for students' perceptions, I'm a little skeptical of the NALP survey (although I haven't looked at it beyond Larry's reporting of the numberts). In particular, I'm not surprised that students find legal employment helpful, since presumably they are working in offices where they hope to get jobs. Of course if a summer or academic-year legal job does result in an offer, that's great. But it doesn't make the case that objectively the student got more out of the experience.
I'm intrigued by Larry's comments about incorporating experiential learning in doctrinal courses. Of course that's a great thing to do. But it comes, as we all know, with severe costs in terms of coverage and the professor's own time (depending on how carefully he reviews the work-product of his students). As for the first cost, do you have students do the work outside of class, Larry? As for the second, do you review the work individually, or by means of discussing/distributing a model document (a pleading, or whatever else the assignment requires)?

Posted by: Bill Araiza | Nov 28, 2011 3:53:17 PM

Clinics and externships are a valuable component of legal education, but their virtues can be overstated.

The problem with externships is the conflict of interest between the student and the placement. The placement's interests are not necessarily congruent. Especially in an era of limited resources, placements have an interest in shifting their most menial work to unpaid labor, while also minimizing supervisory costs. This is why, for excample, judicial externs so often write opinions in what are frivolous cases. Under ABA standards, law schools are supposed to ensure that there is also supervision by full time faculty, but it is not clear to me that this rule is meaningfully enforced. After all, law schools' incentives are also suspect; externships enable schools to reap full tuition while externalizing supervision costs. To be sure, externships can be invaluable when they work as what I call the "three-month interview." But, if students have little in the way of practical skills when they arrive for that interview, they are unlikely to impress. Moreover, externships have opportunity costs, and can send unintended signals to employers -- an externship at a DA's office, for example, might suggest to a commercial law firm that an applicant is not serious about a long-term careeer in commercial law.

Clinics involve supervision by highly capable full-time faculty, and therefore do not usually involve the problems with supervision found in externships. Clincs, however, are quite expensive and for that reason add to the costs of law school. Beyond that, because students generally enter clinics with so little in the way of practical skills, they can rarely be given very sophisticated work; most clinical work involves very basic kinds of tasks with limited potential to prepare students for the rigors of most kind of practice. Some clinics get involved in more sophisticated work, but given the limited skills of students, they generally can be given only highly limited responsibilities. Moreover, in typical litigation of even modest sophistication, it is rare that much of consequence happens over the course of a semester. Again, many employers, especially those with more sophisticated practices, can be skeptical about the value of clinical courses.

There are many anecdotes about the values of clinics and externships, although students are often inclined to overestimate the value of these experiences in the eyes of potential employers. I prefer statistical to anecdotal evidence, however, and the only empirical study of which I am aware is a NALP survey of recent graduates that found that of those with relevant experience, 62% found clinical courses helpful in the practice of law, 58% found externships helpful, while 67% found legal employment during the school year helpful and 78% found summer employment helpful. It seems to private sector is doing a better job of preparing students for practice than law school clinics or externships.

The Carnegie Commission makes a powerful cases that skills training should not be confined to a discrete set of courses. In particular, it argues for experiential education. I am completely persuaded (and perhaps not coincidentally, I spent an unusually long time in practice before moving to the academy). I teach doctrinal courses, but I integrate experiential education, often by using the problem method favored in business school and/or requiring legal writing. While I think all students ought to be offered the chance to take clinical courses and externships -- with the necessary caveats -- skills training cannot be put on hold until students enroll in those courses. There is little to be gained by sending the unarmed into battle.

Larry Rosenthal
Chapman University School of Law

Posted by: Larry Rosenthal | Nov 25, 2011 2:54:54 PM

Clinics and externships are a valuable part of the law school curriculum, but their merits should not be overstated.

The principal problem with externships is the conflict of interest between the placement and the student. The student's interests are clear, but especially in an era of limited resources, placements have an interest in moving as much of the undemanding but necessary work as possible to unpaid labor, while minimizing the resources allocated to supervision. Law school's incentives are also suspect since externships allow them to keep tuition money while externalizing supervision costs. Moreover, it is far from clear that the ABA enforces the standards requiring meaningful supervision of externs by full-time faculty in any serious way. Given the incentive structure, externs frequently wind up doing work of little pedagogical value. Judicial externs, for example, all to often wind up writing opinions in the cases brought by mentally ill pro se litigants. This kind of undemanding work rarely prepares students for the rigors of practice, and it is unlikely to impress prospective employers. Yet, it is accompanied by opportunity costs, and it may even deter potential employers who may regard an externship in a prosecutor's office, for example, as signaling a lack of real interest in a career in commercial litigation. In other cases, externships can be invaluable when they function as what I call the "three month job interview." If, however, the student comes to the externship with a paucity of practice-oriented skills, the student is unlikely to be able to impress anyone with influence over hiring decisions.

Clinics involve direct supervision of students by highly capable faculty, and in that sense have fewer quality-control problems. Nevertheless, given the paucity of skills that students generally bring to clinical courses, they can be trusted to handle only very basic matters that are unlikely to offer all that much preparation for the level of sophistication required in many if not most practice areas -- especially those where the pay is high. Some clinics get involved in sophisticated litigation, but students cannot be trusted to play very meaningful roles in such cases, and in any event not a whole lot actually happens over the course of a semester in most types of sophisticated litigation.

One will encounter many anecdotes about the value of clinics and externships -- although in my experience students usually overestimate the value that employers are likely to give to these experiences. For my part, I will take statistical over anecdotal evidence. The only study of which I am aware on this issue was a NALP survey of recent graduates. Of those who had the experience in law school, 62% found clinical experience valuable in the practice of law, and 58% found externships valuable. In contrast, 67% found legal employment during the school year valuable and 78% found legal employment in the summer valuable. It seems that the private sector is doing a better job preparing students for practice than are clinics or externships.

The Carnegie report contains an exhaustive analysis of these issues. It recommends incorporating more experiential learning into the traditional curriculum. I am completely persuaded (perhaps not coincidentially, I spent an unusually long time in practice before moving to the academy). I teach doctrinal courses, but I integrate experiential learning -- such as the problem method favored in business school and legal writing assignments -- so that students acquire some practice-oriented skills before they begin their externships, clinics, or part-time and summer jobs. Sending the unarmed into combat is no answer to the problems facing legal education.

Larry Rosenthal
Chapman University School of Law

Posted by: Larry Rosenthal | Nov 25, 2011 1:48:53 PM

I participated in 2 clinics in law school and those classes were the only 2 I took where I felt I was truly learning anything practical. Based on my experience I do think clinics could do a great deal to improve the law school experience for students, not only because of the skills learned, but it may also be a good way for some students to discover that they might not want to spend a career doing that particular kind of work.

I think that the main problem with clinics are related to logistics. Though I can only speak to the experience at my school, there weren't enough clinics offered, so being able to do more than 1 was extremely rare. I don't think we were officially capped at any number, but most clinics gave priority to students who hadn't yet been able to take advantage of the clinical experience and since there were so few offered, taking a clinic was logistically impossible for some, especially given the number of pre-requisites attached to some of the clinics. The other issue is that they were rather time-consuming and lacked the "prestige" of a journal. Perhaps if clinics were treated more like journals where students were invested in their clinic and stayed on for multiple years it would do a great deal to improve not only the experience of law students, but the ability of law schools to serve their communities.

Posted by: Estrella | Nov 25, 2011 1:12:29 PM

There are considerable virtues to clinical and externship programs, but these should not be overstated.

The great danger with externships is the potent conflict of interest between the placement and the student. The student's interests are clear, but a moment's reflection should make clear that the placement, especially in times of stress, has an interest in pushing the maximum amount of unpleasant and very straightforward work to unpaid labor, while minimizing the resources devoted to supervision. What rational firm, for example, will have its best attorneys spending their time supervising externs? I supervised and observed externs as a judicial law clerk and in a number of government law firms, and remember very clearly how much meaningless work they received that would be of little value in preparing them for practice, or in landing a job. Law schools, in turn, have an incentive to minimize the resources devoted to supervising externs. Externships, after all, enable law schools to keep tuition dollars while externalizing training costs. With this incentive structure, the result is that externs often receive mindless work that has to be done, but which does little to prepare them for truly meaninful practice. For just this reason, employers are often skeptical of the value of an externship. Not many commercial law firms are impressed by an externship with a prosecutor's office; it may evern prove a negative not only because of the opportunity costs of the externship, but also because it suggests that the student's long term ambitions do not lie in commercial law. An externships has real value, in contrast, when it serves as a three month job interview, but that occurs only when the extern is assigned meaningful work, supervised by someone with real influence in hiring, and, most important, when the student has already received sufficient practical skills to be able to impress a potential employer.

Clinics, in contrast, are run by law schools themselves, and generally involve higher-quality supervision. Aside from their expense and concommitant contribution to higher tuition, the major problem with clinics is that if students have not already received some sort of practical skills, their capacities are so limited. Litigation of any complexitity, moreover, rarely makes much progress over the course of a semester. As a consequence, students must either be given such very basic cases that they are unlikely to learn much likely to impress a future employer involved in more complex work, or they receive very minor roles in complex litigation also not likely to teach them much.

Some will counter with anecdotal evidence, but there are great dangers in relying on the anecdote. I'll take statistical evidence every time. The only evidence of this type that I have seen comes from a NALP survey of recent graduates. 62% of those with clinical experience in law school found it helpful in practicing law and 58% of those with externships found it helpful, as opposed to 78% of those with summer employment who found it helpful, and 67% of those with legal employment during the school year. It seems that the private sector is doing a better job of preparing students for practice than either clinics or externships.

I regard none of this as an argument for abolishing clinics or externships. All students should have a chance to take them, after receiving the appropriate cautions. But, law school needs to prepare students to be able to make the most of these opportunities, rather than just sending the unarmed into battle.

There is, in contrast, a good argument that learning involving simulations of the type of problems arising in a somewhat realitic (not oversimplified) practice setting provides good preparation. The Carnegie Commission is quite persuasive on this score. Although I teach "doctrinal" courses, I use this approach, often involving either the case method of business schools or work on legal writing at higher level than can be achieved through 1L writing programs, or both, to help students develop the skills that they will need to do good work at a clinic, externship, summer or part-time job, and after graduation.

Larry Rosenthal
Chapman University School of Law

Posted by: Larry Rosenthal | Nov 25, 2011 11:13:42 AM

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