Best Practices for Legal Education

AALS Sessions

One Response

1. 

   vmerton, on January 11, 2008 at 11:25 am said:

   So I just have to recount a few of the responses to the Carnegie Report (Educating Lawyers) during the Dean’s Section program at the AALS Annual Meeting. These were not explicitly directed at BP (Best Practices) as such, but are readily applicable. I hope that others will chime in with BP/EL-related comments and observations heard at the AALS.

   The first top-10 dean I heard set me back a bit with his cheerful, seemingly surprised report that, having canvassed his alums in the firms (it did not appear to occur to him that a few odd alums might be elsewhere), he could assert on good authority that there is no real need to prepare students for the practice of law in law school because they would pick up all the “training” [so loathe that term] they need on the job. It seems to me that over the years I have read 50, or perhaps 500, different articles, book chapters, ABA reports, AALS Committee reports, etc. that have exhaustively debunked that particular urban legend — but the Dean, apparently, had not. As for those few poor fools (well, I suppose it is the overwhelming majority of legal clients) whose legal needs and interests are perforce addressed by solo practitioners, mid-size to small firms, the Government, and public interest agencies: they’ll get what they deserve, right, for not retaining a mega-firm at $600/hour.

   A recurrent theme among the panelists, echoed by members of the audience, was the utter absurdity of expecting THEIR faculty to be capable of integrating into their classes and seminars even rudimentary principles of or instruction in the actual work of lawyering (i.e., the problem-solving, reflection on and learning from experience, information acquisition, communication, etc. tasks that we expect brand-new law graduates to be able to perform competently, if not adeptly, from their first licensed day). [Carnegie did not, I believe, suggest that unpartnered law professors handle complex litigation, major transactions, or a full caseload.] After all, the Deans kept proudly reminding each other, more than half their faculty have Ph.D’s. (I never before realized quite how debilitating that degree can be.) And of course, there is no way these non-practice-contaminated graduates of the very law schools at issue could be expected to have or develop the pertinent knowledge, skills, or familiarity with the professional literature/tools/techniques of lawyering (let alone the professional literature/tools/techniques of adult learning). So, it’s not a question of inclination, or incentives, or reward structure, or prioritization -– it’s simply that these faculty can’t learn how to teach more interactively, formatively, and effectively. It’s like asking a fish to ride a bicycle.

   This point was elaborated on from the audience by someone who explained that he had actually experimented with one of these Carnegie-esque, “let’s integrate practitioners” approaches, with, alas, disastrous results. I waited for the usual tch-tch about the inability of lawyers to teach: how just because someone is a fine lawyer doesn’t mean that person will be a good teacher or co-teacher –- with which I thoroughly agree. But that, it turned out, wasn’t the problem. The problem was that the occasional appearance of a real lawyer in the classroom gave the students the distinct impression that the professor hadn’t a clue what he was talking about, and hence the perception that most of what was happening in the classroom when the real lawyer wasn’t there was essentially useless. Imagine that! The professor had come up with a reliable solution to the “insecurity” [his word, not mine] this generated, however; he had dispensed with the practitioners, right quick. Who says law professors don’t know how to problem-solve!

   Finally, there was the customary lament that all this preparation for practice stuff costs too much. Especially clinics — omigod, those clinics are so expensive. Now, it is entirely reasonable for Deans to worry about cost. That is, arguably, one of the important things that Deans do. But no one mentioned how much it costs –- on top of salaries that seem quite decent to your average working lawyer –- to extract law review articles from these Ph.D.-burdened faculty who, they say, can’t be expected to do much else anyway. What is the going rate now — $15,000? $20,000? $25,000? Every summer, for twenty or thirty or forty faculty? That’s about half a million a year. You could hire at least three more full-time faculty with that. And how many of these “highly productive” faculty -– both the pre-tenure hothouse flowers and the post-tenure superstars -– teach only three out of four semesters, or three courses instead of four, including three-credit seminars with 12 students (that is, the exact student credit-hour equivalent of a six-credit clinic with eight students)?

   But the real point that seemed to elude these Deans in their roles of vigilant cost controllers was the issue of value: of the return you get on your investment. What is the increment in learning, in actual progress toward competence, delivered to your average law student who repeats the same type of classroom casebook-based class that s/he took all through first year 12 more times during the last three semesters of law school? Can you measure that increment? Can you demonstrate it? How does it compare with the “value added”, to adopt the parlance of cost-benefit analysis, when law students instead take clinical or other experiential, problem-solving courses? Is something “expensive” when it does produce desired results and meaningful change, and “cheaper” even if it doesn’t? Suppose Carnegie’s coherent integration of learning objectives and methodologies was achieved not solely through addition, but also with some judicious substitution and attrition? Might the overall institutional cost turn out to be quite comparable – especially supplemented with the possible reduction in “externalities” as the tort scholars like to say, such as harm to clients, anxiety and misery on the part of new lawyers, and the necessity for additional supervision and, yes, training (if it’s available) once they hit the workplace ?

   The Deans’ collective if unspoken assumption seemed to be that the gross failure of law schools to prepare students for the practice of law -– their avowed purpose, the alleged justification for all that tuition –- isn’t worth getting twitterpated about because in the end all the graduates get where they need to go: after a few years of practice, perhaps with a certain amount of wear ‘n tear on the clients and colleagues in the early years, eventually everyone figures it out.

   That of course is balderdash poppycock and horse manure rolled into one. Many many lawyers never “figure it out”, and remain scared, tense, confused, frantic, ineffectual, or largely incompetent for most if not all of their careers. These are the lawyers who never admit ignorance or error to clients, never share records and files with clients, never explain what they are doing because they themselves learned by rote. These are the, what, nearly 40% of lawyers who wouldn’t be lawyers if they had it do over again. The average quality of the American bar, while it includes individuals of stellar intellect, heroic integrity and formidable distinction, is pretty abysmal. If physicians functioned at the same level, iatrogenic death and disease would be a far greater public health menace. But since it’s even harder to establish that lousy lawyering produced a bad outcome than to demonstrate iatrogenesis, and since our mechanisms of legal malpractice liability and professional discipline for lawyers are, to say the least, underinclusive and underactive, we preserve the illusion that legal education is doing its job.

   The rotten, fiercely resisted truth is, it is not. And it is not just that legal education is wildly more time-consuming and exorbitantly costly for the student than it need or should be, for the limited bang the bucks buy; it is not just that it is inefficient and wasteful. Legal education doesn’t accomplish, for the vast majority of its graduates, what it promises and claims to: it does not prepare them for the professional, responsible, competent practice of law. This deficit often cannot be or in any event is not made up through the random, unframed, unanalyzed experiences of practice. Law professors are failing our students much as the students, once lawyers, go on to fail their clients. And too often, in both instances, there is a foul whiff of the rip-off of the vulnerable party, who must depend on the bona fides and expertise of the other party to the transaction. The analogy of students to clients may be oversimplified, but they do pay our salaries, don’t they?

   I would have much less trouble with all this if these same Deans were willing to announce plainly and clearly to prospective students, to alums, to donors, and to the bar and bench what they said in this AALS session: that 1) law schools don’t need to prepare students for practice; 2) the faculty selected by law schools can’t prepare students for practice and would feel threatened by collaboration with practitioners because it would reveal professorial inadequacies, and 3) preparing students for practice would take too much in the way of resources away from the subsidization of scholarship and the traditional Langdellian, purely doctrinal curriculum. If this set of premises were featured on the Websites and in the viewbooks of all these institutions, well then I guess I couldn’t complain, at least not about exploitation of students. But as Roy Stuckey and John Elson (wasn’t it absolutely fabulous to see John honored at the Clinical Section luncheon? As of course Roy would have been, had he not already won the Pincus Award long ago) have said 1000 times, as long as these schools purport (I might say “pretend,” but Roy and John wouldn’t –- well, at least Roy wouldn’t) to perform the function of professional education, they should be held accountable for their conscious decisions such as faculty appointments and resource deployment that impede that function. Being at the 2008 AALS Deans’ Section reminded me of the multitude of miracles, however, that will take.

   Vanessa Merton

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