Posted Jan 29, 2015 8:45 AM CST
by Michael Roster
The legal profession is under immense pressures. Clients are demanding steep discounts and increasingly insist on fixed prices or other forms of value-based fees. Law firm realization rates (that is, revenue received versus what was reported on time sheets) once averaged 92 percent, fell to the lower 80 percent range in recent years and are now moving to the 70 percent range. Many clients won’t allow junior associates to work on their matters, and many law firms aren’t even hiring recent graduates. And many well-known firms have failed or alternatively undertook mergers that one knowledgeable observer calls disguised liquidations.
Meantime, law school applications are down 38 percent since 2010. To maximize U.S. News rankings, generous scholarships are offered to first-year applicants with high GPAs and LSAT scores while other qualified applicants are placed on waiting lists so the yield looks good. Schools are simultaneously admitting as many as 80 or more second-year transfer students and up to 200 or more LLMs in order to help close the widening budget gap. Never mind that law schools were cash cows until the past 20 years when other priorities took over.
And yet law school graduates, having gone deeply into debt, find they actually don’t know how to practice law and increasingly can’t find work. They were taught interesting theory but typically weren’t taught the skills and even the substantive material they need for their profession.
For example, all first-year U.S. law students take a course in contracts. Later, they take courses in corporate law, real estate and other substantive areas that all rely heavily on contracts. Yet most have never seen or drafted a contract in any of their courses by the time they graduate. Any rational layperson would ask: How can you teach contracts without looking at a contract?
Here’s another example. It’s been reported that half or more of the lawyers in London’s Magic Circle law firms—firms that compete directly with top tier U.S. firms—didn’t go to law school. They spend three years for their undergraduate degree and then complete a one-year program on the knowledge and skills needed to practice law, for four years total. In the U.S., we require four years solely for the undergraduate degree and then three more years for law school, for a total of seven years and up to $450,000 in cost. And yet after seven years of this advanced education, our law school graduates largely lack the knowledge and skills to be lawyers.
As law firms return to a business model where profitability turns on expertise and efficiency versus how many hours can be racked up, law school graduates who are much farther up the learning curve will have a competitive edge.
An Audacious Goal for Legal Education
With that background, let me propose an audacious* but very realistic goal for legal education:
By 2018, every graduate from a U.S. law school will have the knowledge and skills currently expected of a second-year lawyer or higher and as such can function as a midlevel associate, a solo practitioner, an agency or judicial officer, a junior faculty member or in similar capacities. To achieve this proficiency, every student will have had courses or comparable experiences involving all of the following: traditional substantive law, client skills, social service, advocacy and dispute resolution, government and administrative processes, and teaching and scholarly inquiry.
This goal is readily achievable with existing resources. And to put it bluntly, there’s no excuse for not doing it, especially given the market pressures that are sending clear messages to lawyers and educators alike.
Key elements
Here’s what is meant by each of the elements in the proposed goal for legal education:
• Traditional substantive law. This includes the rigorous training that helps first-year law students learn to challenge assumptions, consider alternative views and defend their positions. That’s a two- to three-month process which then can be enhanced while at the same time developing substantive expertise and professional skills.
• Client skills. This means knowing how to communicate with clients, assess the competing issues at stake, counsel clients on risks and alternatives, develop a formal or informal project management plan, execute on that plan and interact with other parties. It includes a wide range of professional and ethical issues, such as what to do with clients who are skirting or breaking the law, what to do when you have information that is important but not known to the other side, and the like.
• Advocacy and dispute resolution. This means an ability to present a client’s position, whether in court, before an arbitrator or mediator, in front of legislative and regulatory bodies, or vis-à-vis opposing parties.
• Government and administrative processes. A significant part of modern law, in the U.S. and worldwide, is through governmental and administrative processes. An understanding of these processes and how to effectively represent clients is essential for a modern-day lawyer
• Teaching and scholarly inquiry. Some law schools pride themselves on the number of law school professors they produce, and among law school deans, this often is the most important factor when assessing competing law schools. Whether or not this is a valid standard doesn’t matter. Every law student should have a minimum exposure to scholarly research, and likewise, one of the best ways to learn a subject is to teach it. Teaching likewise can help develop the skills needed to supervise and mentor others, and if you think about it, what lawyers do vis-à-vis clients, judges, administrative bodies and others is largely a form of teaching.
Not a trade school
Every profession has certain substantive knowledge at its core (basic sciences in medical school, for example). But professional school graduates then need to acquire the more advanced knowledge and skills that are required to practice their profession. Professions by definition can’t be reduced to a series of rules but involve learning how to constantly make difficult trade-offs and judgment calls. And to assure law school graduates have these skills doesn’t make law school a trade school. Rather, it’s what any professional school should, at a minimum, be doing.
Block scheduling
A related reform will be to move to block scheduling, as many leading U.S. medical schools already have done and at least some business school faculty are doing. In block scheduling, rather than taking three to five courses in fits and starts through a semester, students take one or two courses in intensive blocks of time. I teach one section of my advanced contracts course, for example, in five Saturday sessions, three going a half-day and two going for the entire day.
My first year I was concerned whether this would be too much for students to handle, even though this is what their working lives will be like. It turns out the students remained intensively involved throughout the sessions, and as others also have seen, there was much greater comprehension and retention since this approach allows for ongoing interactions and a mastery of the material.
This approach also gets away from the semester-end or year-end pressure of all exams coming at once. Plus it allows students to use the ongoing feedback to improve themselves as they take on subsequent segments of the curriculum.
Why it’s doable
I said at the outset that achieving this goal for legal education is doable with existing resources. It would require only modest adjustments in what we teach and why we teach it. Adjunct faculty can provide the substantive knowledge and skills that the tenured faculty might lack. This also means better coordination between the tenured and adjunct faculty so that, for example, the basic elements of a contract are taught at the same time as the theory of contracts, or the interaction of evidence and civil procedure can be explored at the same time advocacy skills are developed.
If there are doubts about the traditional curriculum versus one with these modifications, one approach would be to create a separate track, even at the so-called top 20 schools. That track would deliver a three-year course of study, including all of the traditional curriculum but also the elements needed to achieve the audacious goal above. Students could then select which version of curriculum they want to pursue.
Resulting careers
The legal education goal intentionally includes preparing students for a wide range of possible careers—an important element since no career path today is guaranteed.
• Midlevel associate. Some would ask, how can a law school graduate already be at a second-year lawyer level? I used the knowledge and skills matrix used by a number of leading U.S. law firms in developing my advanced contracts course so that most students are at a second-year lawyer level by the end of the course, and many are well above that.
• Solo practitioner. Because of the scarcity of jobs—which is likely to become all the worse as law firms reduce leverage and the turnover of lawyers in response to client and economic pressures—more students are starting their own solo practices or working in areas tangential to law. A target for the audacious goal in legal education must be that our JD graduates have the knowledge and skills to immediately enter the profession without the further mentoring we had otherwise expected would come from starting at a law firm.
• Public service. There’s a lot of talk that we have too many lawyers, and yet most observers believe we don’t have enough lawyers serving the needs of lower- and even moderate-income individuals, families and businesses. Plus, law is a profession that rightly emphasizes pro bono and other forms of public service. Every law school graduate should have experience and be prepared for what is needed in public service, whether they subsequently engage in it full time or as volunteers.
• Agency or judicial officer. Another career path is to go into the judiciary or become administrative hearing officers, mediators, arbitrators or providers of alternative legal services. Part of a required law school course of study should include the basic substantive knowledge and skills for any graduate to be able to go into these areas of law. And for those who start at law firms or pursue other career paths, having a basic understanding of the agency and judicial processes will actually make them better lawyers when practicing before these tribunals, or when later in their careers they move into the judiciary or other government entities.
• Junior faculty member. In other parts of the university, graduates with advanced degrees often go into university teaching. Forty years ago, U.S. law schools started granting a doctorate degree (JD) instead of the long-standing bachelor’s in law (LLB). But if we want to justify that what we do in law school produces actual doctorates, at very least students should be exposed to the challenges and rigors expected of other doctorate degree-holders. That includes basic teaching and research. Moreover, one of the best ways to learn a field is to teach it and engage in basic research, and this should apply to everyone getting a doctorate in law—that is, a JD. It’s also a way to identify early on those who have extraordinary skills in both teaching and research and to assist them to enter into true academic (albeit also professional) careers.
Conclusion
Many areas of education use what is called backward curriculum planning. In this process, you first identify what outcomes you want. In law, this means what substantive knowledge and professional skills are needed for becoming a lawyer. Having identified those areas, you would next ask, how would we know a given student has mastered the relevant knowledge and skills? Through written exams? Other approaches?
Once those questions have been answered, and only then, do you ask, so what is the best way to teach that knowledge and those skills?
I think anyone who undertakes this kind of inquiry in a neutral fashion would likely design a law school curriculum similar to the audacious goal proposed here.
This goal is readily doable, and with existing resources. There’s no excuse for not doing it, especially given the legitimate expectations of our students, our profession, our clients and society itself.
* This article’s audacious goal for legal education borrows from the concept of a “big hairy audacious goal” in the book by Stanford business school professors James C. Collins and Jerry I. Porras, Built to Last—Successful Habits of Visionary Companies. New York: Harper Collins.
Michael Roster is former managing partner of Morrison & Foerster’s Los Angeles office and co-chair of the firm’s financial institutions practice group worldwide. He subsequently was general counsel of Stanford University and Stanford Medical Center and then of Golden West Financial Corporation. He is a former chair of the Association of Corporate Counsel and the Stanford Alumni Association, a former outside director and vice chair of Silicon Valley Bank and currently a director of MDRC in New York. For the past five years he has been teaching an advanced contracts course at the University of Southern California Gould School of Law.