Working with State Bar Associations on Best Practices

The New York Bar Association’s Committee on Legal Education and Admission to the Bar invited me to present to them on Best Practices — the book, the BLOG and the movement!  I did so this past Wednesday September 10th.  Committee members were very interested and asked many questions.  Some members were concerned that Best Practices’ call to teach professionalism “pervasively” throughout the three years would lead to less professional responsibility actually being taught.  That committee member argued that many traditional faculty don’t really care what the rules are and don’t want to raise such issues in property, torts or contracts.  Other members noted that teaching pervasively doesn’t mean eliminating the basic ethics course but adding to it.  Another concern raised was that many/most current faculty members have little practice experience and recent hiring trends have emphasized scholarship over practice experience.  

The discussion was wonderfully robust and rich. I provided a few ideas:   1) hiring –  I gave as an example my school, Albany,  where we have included in our hiring criteria “teaching in accordance with Best Practices”; 2) current teachers – I spoke a bit about the opportunity for co-teaching between adjunct practioners and traditional faculty or clinical faculty and traditional.   In addition, we discussed the use of simulations, small groups and other teaching methods.  One committee member expressed concern about creating “striations” of law schools or graduates; in other words, one would graduate only being able to perform in a particular area of law.  Other members found this to be an argument that has been used too often to ignore the basic skills and competence we know all lawyers need.  The committee also engaged in discussion about how the bar exam seems to fly in the face of the Best Practices approach.  The questions was raised:  how can you prepare students for practice using more formative evaluations and outcomes assessments but then demand these same students take the bar exam before practicing?  The committee noted that another Bar committee was studying the bar exam and that information should be exchanged between both.  We also discussed the ABA’s Outcome Measures Report.   

I hope the Committee’s final question will trigger interest on this BLOG.  How SHOULD Bar Association’s go about trying to participate in the Best Practices/Carnegie movement?  Should they survey their members to find out what concrete, criteria-based skills law graduates should possess upon graduation?  Should they look at what England, Scotland and Australia has done and see if it matches what US lawyers need? 

I suggested that, at the very least, members query their alma maters about Best Practices and that they consider these issues when hiring graduates. I also promised to keep in touch and communicate ideas from the Best Practices project folks!  I feel that there must have been so much more I could have encouraged the committee to do.  What are your thoughts? I’d truly appreciate suggestions and discussion.

Mary Lynch, Editor

3 Responses

  1. Hi Mary, sounds as if you did a super job for the ABCNY and really engaged them and made some great contacts. Congrats.

    Certainly the bar exam question remains the moose (I’ve decided that’s more appropriate than an elephant, these days) in the room and yet like other mooses we’ve heard a lot about of late, how relevant is it in reality? After all, how good is the CURRENT law school curriculum and pedagogy at preparing students to pass the bar? Not very good at all. Is there a real conflict between getting prepared for even an unreformed NY bar exam and spending the law school years in active learning, acquiring and exercising real professional decision-making capacity (which doesn’t exactly hurt you on the bar, either)?

    One facile answer is, it doesn’t much matter WHAT you do in law school beyond the first year; if you start out with at least basic literacy, any halfway decent bar review course can inculcate enough technique and bottled doctrine for you to pass (remember, no extra credit for getting more than two-thirds right). So don’t let the bar worry you during law school, do what you want , realizing that at the end you’ll have to suck it up and spend the extra $$$ and eight weeks of your life (and for many states other than NY, the bar doesn’t necessarily require even that much). The people who have serious trouble passing the bar are very often those who’ve taken the greatest number of “bar courses”, i.e., spent the bulk of their law school years sitting passively in large classrooms listening to others recite about appellate decisions. Or their life issues during the post-law school, pre-bar weeks have overwhelmed their best-laid plans. As I think everyone, at this point, knows, there is zero correlation between law school traditional bar courses and bar exam passage, at least when you control for other factors like having to work during the bar review period. So why are we even having this conversation?

    But of course the rational response doesn’t cut it, in this as in other things: not that it’s going to happen, but law schools could tell law students day and night for three/four years that all they really need to get through the bar is absolute totally undistracted devotion to a bar review course (including all the practice tests and extra reviews that many graduates foolishly skip), and a lot of the students still wouldn’t believe it and would protest and demand “More bar courses! You must make us take more bar courses!”

    And will they get an argument from the faculty who have all those beautiful preps they just need to update every semester? No, they will not.

    So, not sure whether those of us who think our students are getting kind of ripped off in law school should buy into the “first we have to reform the bar exam” argument — heaven knows the bar desperately needs work, but even if it remains the essentially silly exercise of stuffing graduates like Strasbourg geese and then, well, you know, that it is, I don’t believe that means law school can’t be used for the far more difficult and important tasks of preparing new lawyers for professional practice.

    Vanessa Merton

  2. Mary, Some law professors say they cannot integrate the teaching of doctrine, skills, and values because they don’t understand skills and values well enough to teach them. And now you report that some bar examiners actually believe this.

    This is an illogical reason for legal education to remain stuck in the 19th century. Law teachers are bright people. The did very well in school. They are educable. They can learn to teach skills and values along with doctrine and analysis.

    The problem, of course, is that they don’t want to do this. Some don’t want to do it because they do not understand why they should. Those are the people who have not read the Carnegie Report. The number of such people will diminish over time as more and more law teachers learn about the compelling case that the Carnegie Report makes for significantly reforming legal education in the United States.

    The other group is the bigger problem. These are the teachers who understand the problem but don’t want invest the time and effort to change their approach to teaching. People outside of the academy do not understand how difficult it is to “make” a law teacher do anything, even when the school has strong leadership. Bar examiners and licensing authorities can help reform-minded teachers affect the attitudes of teachers who resist change.

    Bar examiners and licensing authorities are responsible for determining the knowledge, skills, and values that new lawyers should possess. Most bare examiners I know would like for the bar examination to evaluate a broader range of attributes than current bar examinations evaluate. Bar examiners should not shy away from tryng to improve their bar exams because they think law teachers are incapable of teaching skills and values. This is an invalid reason to maintain the status quo.

    If bar examiners indicate that they are seriously interested in improving their bar examinations, many law teachers will respond positively and even work with bar examiners to fashion bar examinations that more fully evaluate an applicant’s readiness to become a lawyer. Other law teachers will come along later, when it becomes obvious that their students are not being adequately prepared for the new bar exam or for law practice.

    As long as the bar exam continues to resemble a traditional law school exam, a sizeable percentage of law professors will continue their 19th century ways. This would make it more difficult – and take much longer – for legal education to implement the changes that must be made sooner or later.

  3. Putting aside the issue of the bar exam, the Committee on Legal Education and Admission to the Bar of the NYSBA is interested in knowing what you in legal education think we, as a committee in a bar association with over 74,000 memberes (mostly practicing lawyers) can do to move forward the Best Practices reccommendations and the insights of the Carnegie Report. For example, would it be useful to survey the membership about assessment models used by lawyers and law firms? or (assuming we could identify willing faculty members) set up a small pilot project to have conversations about curriculum/syllabi with excellent practitioners in a field ? Or look at law schools in NY for best practices of using practitioners? Etc./ etc.

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