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Thursday, March 01, 2012

Is there a doctor in the house?

A friend/colleague relayed the following about a conversation she had with her sister, a doctor: The sister told about flying the day after her graduation from medical school from the northeast (where she went to school) to Florida, where she was going to do her residency. She said she spent the entire flight worried that someone would get sick on the flight and the flight attendants would ask if there was a doctor or someone with "medical training" on the flight. The answer to either question would have been "yes," but she said she would have had no clue what to do.

I was intrigued by the story because so many discussions of reforming legal education (on this blog and elsewhere) have proceeded from two premises, either explicit or implicit: 1) legal education must change to produce "practice-ready" attorneys, i.e., attorneys ready to represent clients on their own the day they graduate; and 2) medical school is a good or appropriate model for what legal education should become.

But my friend's story demonstrates that the first premise states an entirely unreasonable expectation. No one leaves med school ready to practice medicine without several years (6, 8, 10 or more as to some specialties) further training, supervision, and on-the-job education from people in the field. And I wonder if an experienced doctor would talk about new residents or fellows in terms very similar to what a senior partner says about new associates. So it seems strange to demand that lawyers be ready on day one to do something that doctors (or nurses or social workers or physcial therapists) are not ready to do on day one. And it seems unfair (and unwise) to demand that law schools make this happen.

Posted by Howard Wasserman on March 1, 2012 at 10:31 AM in Howard Wasserman, Teaching Law | Permalink


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From my article What Law Schools Should Teach Future Transactional Lawyers: Perspectives from Practice (http://ssrn.com/abstract=1430087):

"Any attempt by law school to replicate real practice will necessarily be much too artificial. This is one area where attempts to compare legal education to medical education break down. A teaching hospital is a real hospital. A medical student is able to imitate the performance of an expert doctor in a real life situation on a real patient while the expert provides feedback to guide the student in making the activity his or her own. This is simply not the case at law schools. Another area where the analogy breaks down is that, to get into medical school, a student has to have already taken a significant number of substantive courses. For example, most medical schools require applicants to have completed at least one full year of each of Biology and Physics and two full years of Chemistry (including Organic Chemistry), together with associated lab work. In law school, many students are, in effect, starting from scratch, with no prior legal or business training or experience. As a result, more substantive training is necessary, leaving less time for practical training. In addition, those holding medical school up as a model of hands-on practical training that law school should follow often skip over the fact that medical school is four years, the first two of which are devoted to teaching substantive courses."

Posted by: MAW | Mar 12, 2012 2:37:44 PM

I apologize for the multiple comments, but I'm intensely interested in the subject. I was doing a quick search to confirm or negate my intuition that "public funding" of medical education (by Medicare or Medicaid or private insurance like Blue Cross or Harvard Pilgrim) when applied to residents or med students actually pays for care, in the sense that the residents or students are actually delivering part of the medical care - and if they didn't somebody else would have to. I came across this Emergency Medical Rotation Student Manual for the University of Maryland Medical School which suggests that even third year med students do indeed contribute something to the care (whether it is cost-effective is another question; I don't know).

But I thought this paragraph (at page 15 of the Manual) on the situation with which Howard began his original post was pertinent and interesting:

3. The Macy Report and the Liaison Committee for Medical Education (LCME)

What in the world is the Macy Report and why should you care? The Macy Foundation Report was published in 1995 and stated that “All students who graduate from medical school should be capable of handling emergency situations.” In addition, the LCME (governs accreditation of US medical schools) has stated that all medical students should be exposed to emergency medicine.

Regardless of what specialty you choose, you will be called upon to evaluate and treat patients with urgent and emergent conditions. The skill set that you will learn during this rotation will be invaluable to you in your career.

Posted by: Jeff Lipshaw | Mar 3, 2012 10:05:35 AM

Professor Wasserman,

Surely a typo in your comment but such a powerful one, I must offer correction. It is Medicare's, and not Medicaid's, payment for residency training (roughly 100,000 residency slots at $80,000+ per resident per year) that creates our current expensive and warped medical residency system.

We would do well to stop and think much harder before advocating the adoption of the COGME-allocated government-funded medical residency model for legal education. Why is that? As currently designed, the needs of teaching hospitals determine much of the allocation of medical specialization and there is a relatively poor fit between the nation's needs and an acute care in-patient teaching hospital's needs.

Finally, you may note that corporate funding of residency spots is a hot topic. Amgen-sponsored medical residency, anyone? We might be jumping on a sinking ship.

Posted by: Ann Marie Marciarille | Mar 2, 2012 6:38:08 PM

My father used to tell me that a doctor wasn't really any good till about five years after he had completed his residency - which would be about 8-9 years after finishing medical school. No one with any knowledge of the medical profession would willingly trust their treatment to a medical student or even an intern or resident. My experience with lawyers is similar. It takes 7-10 years of practice and training for a lawyer to really be any good - which I would define for this purpose as being able to handle a complicated transactional or litigation matter without supervision by a more senior lawyer. The path to partnership at most law firms has long recognized this fact.

In other words, law school doesn't make you a lawyer any more than medical school makes you a doctor. It's just the first step in a long training period. The changing economics of the legal business is disrupting the methods used in the past for training lawyers and it remains to be seen what will take their place.

Posted by: Douglas | Mar 2, 2012 12:34:59 AM

A bit more. I asked my son to look at this post. His reaction was that the airplane situation rarely called for a doctor's skills, but for CPR, which is something you can learn in several hours, and get certified in a three week course.

I am still convinced that medical education, apart from internship and residency, perhaps for all the reasons Howard suggests, effectively creates "doctors" by the time med students are in their third year. The great bulk of medical education takes place in three years - the first two in the classroom (culminating in the USMLE Step 1 exam), and the fourth being largely devoted to rotations in specialties and the residency placement process. The third year is the one that is brutally intense. On a outpatient service, the students spend something 10.5 hours a day, five days a week in the clinic, then go home and study for 2-3 hours more. On inpatient rotations, they go from 6:30 am to 5:00 pm in the hospital, and again go home to study for 2-3 hours. They have an exam at the end of each rotation.

Whether there are institutions capable of replicating this kind of intensity for law students is an important question, but the point is that no law student is going to approach the kind of practice readiness I perceive in a med student of equivalent years in school by doing fifteen credit hours (three hours a day of class time) a semester of even the most pragmatic skills oriented course work. Are students, faculties, administrators, law firms, courts, corporations prepared to create the kind of full-time (I mean thirteen hours a day) experience for the final two years of law school that might well leave one thinking "that's somebody who's a lawyer"? Because to do both the theory and the practice (as the med students do) would take that kind of commitment.

Posted by: Jeff Lipshaw | Mar 1, 2012 6:23:40 PM

Having received my J.D. 25 years ago, I think I received an excellent education at a Tier 1 (although bottom half of Tier 1) law school. There were, at that time, many "skills courses" and "clinics" available to students who wanted to get hands-on experience. I found that if one availed oneself of these opportunities (or even some of them) there was no reason to feel deficient upon graduation. Did I graduate knowing everything I needed to know? Of course not. Did I learn much more along the way? Yes--just as every law grad must do. Given the greater number of "practical" courses and opportunities at the law schools today (I make it my business to get current updates from young associates who are recent grads), I simply don't see how the fundamental changes in curriculum or operation championed by many are necessary. And by the way, I am not now, nor have I ever been, a law professor, instructor, or even an adjunct faculty member. Rather, other than two years as a court staff lawyer and another two as a judicial law clerk, I have been in the active practice of law (litigation) since law school.

Posted by: Leonard Vasquez | Mar 1, 2012 6:10:55 PM

I am skeptical whether articling is as valuable as some have made it out to be. My sense is that the training provided is very much ad hoc and that many articling students are treated as though they are already called to the bar, although their principals/employers can pay them less. For a recent criticism of articling in my home province of Ontario, see http://www.canadianlawyermag.com/the-articling-dilemma.html

Perhaps more importantly, many law students already participate in externships while in law school, and I don't see how it helps already indebted law students or the public-at-large to require yet another year of "education" on top of four years of undergrad and three years of law school.

Posted by: Milan Markovic | Mar 1, 2012 3:18:41 PM

Why shouldn't we try to improve legal education? Science advances; why shouldn't legal education? There are lots of tools out there to teach in new ways, such as the Skills and Values and the Context and Practice Series. There are also lots of conferences on new teaching practices (ILTL, LWI, ALWD). There is even a blog on teaching legal skills (the Legal Skills Prof Blog).

Posted by: Scott Fruehwald | Mar 1, 2012 3:10:46 PM

@Howard: what does clerking for a federal judge (or any judge) do for a transactional lawyer? Nothing. To further your point, I don't think there are ANY public institutions capable of providing residency equivalents to non-litigating lawyers.

As to comparing the training with med school, my observation of what my son is going through (now finishing his M3 year, which combines study with clinical rotations) is that he is significantly farther along in his professional training and growth than a typical law student with one semester to go. And he won't be a resident for another year and a half. That is to say that the difference in medical between medical and legal education doesn't begin at residency - it begins in the school curriculum itself.

Thoughtful critique of the 2L and 3L curriculum has traction. Med students don't stop studying and taking tests when they start their clinical rotations. They work their asses off both as students studying out of books and other materials and real physicians in training in hospital wards and treatment rooms. If we were to do the same in legal education, it's NOT just a sea change for faculty, but for students as well.

Posted by: Jeff Lipshaw | Mar 1, 2012 3:06:50 PM

At bottom, shg demonstrates why the med school comparison, as it currently stands, can't work. Residency programs are funded in large part by Medicaid, not solely by the hospitals themselves. And it seems to me that public financing makes a difference in incentive and ability to bring people on for the purpose of training them. For this to work for the legal profession, I believe you would need a similar (and similarly large) source of public funds. And I'm not sure the courts will do it. My sense is that experienced lawyers are no more satisfied with the person coming out of two years clerking for a federal judge as they are with the person coming straight out of school.

Posted by: Howard Wasserman | Mar 1, 2012 2:08:23 PM

2L and 3L are for other important courses that can't fit into the first year (Evidence, Administrative Law, International Law, Corporations) and clinics/trial advocacy/moot court practical experience

Posted by: anon | Mar 1, 2012 1:25:07 PM

1L is spent learning how to read cases for their holdings, and to write essay answers to issue-spotter exams. If you're lucky, you'll also get a legal writing instructor who will make sure you come to your first summer employer capable of writing a decent memo.

What are 2L and 3L for, again?

I'm terribly sorry that it's you and not some past generation of law professors being asked to change your fundamentally useless curriculum for the benefit of graduates who won't get any job in the law but one they make for themselves. Nonetheless, here you are. If you don't feel it's worth your time or their money to reexamine your curriculum, then say so and leave it at that.

Posted by: John | Mar 1, 2012 1:18:35 PM

@shg — There is no reason why articling has to be done by law firms; it can also be done by courts, public interest groups, etc. If articling were implemented, I would expect a lot of nonprofits and government agencies to hire articling attorneys for the one year, without any plan to keep them on long-term. Plus, some smaller firms that might not have the money to hire a permanent employee at $100k a year might hire a one year articling student at $40k.

Posted by: Charles Paul Hoffman | Mar 1, 2012 12:28:55 PM

Since lawyers, upon admission to the bar, becoming "attendings," the question is where does the residency fit into the scheme of things. It can either be part of law school or part of practice. If the former, it doesn't require the death of theory, but the addition of a practical period. If the latter, where does it happen and who pays for it?

There aren't enough law firms capable of handling the articling of all the young lawyers emerging from law school. And if we increase the opportunity costs of becoming a lawyer by adding, say, a year of articling, how much more can society afford to give them on the back end to make it pay off?

Posted by: shg | Mar 1, 2012 12:19:35 PM

The inexorable conclusion must be that med schools are a scam because they don't prepare their graduates to practice. Someone get David Segal on the phone!

Posted by: Anon | Mar 1, 2012 12:00:46 PM

Exactly. If the concern is that attorneys admitted to the bar are not sufficiently experienced to represent clients, the solution is not to demand that law schools focus entirely on practical skills; it is to require prospective attorneys go through something akin to a residency. In fact, most other common law countries require this exact thing: it is called "articling" in Canada, "training contracts" in England and Wales, etc. It would not be terribly difficult for major jurisdictions in the US (I'm looking at you, New York and California) to implement a one year articling requirement that would typically overlap with the first year of practice out of law school. And, so long as states granted reciprocity for articling done elsewhere, it shouldn't create any substantial barriers for moving from state to state.

It would probably, however, mean the death of a number of lower ranked law schools, since articling rates would be much easier to track than employment figures, even if they are effectively the same thing.

Posted by: Charles Paul Hoffman | Mar 1, 2012 11:21:40 AM

Not to impugn the value of residency or post-residency training, but the survey of doctors in my household found that one out of one thinks your friend's sister would still have been more useful than anyone without medical training, "except for an ophthalmologist or a psychiatrist." Airplane medicine is triage and stabilization, not open-heart surgery. Yes, she would have been less useful than a mid-career doctor, nurse, or paramedic, but by the end of medical school, someone who has been paying attention during rotations is "practice-ready" in the same sense we want law-school graduates to be.

(Good for your friend's sister for her humility, which no doubt helped her learn more effectively during her residency.)

Posted by: James Grimmelmann | Mar 1, 2012 11:18:30 AM

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