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Tuesday, September 3, 2013

Practice-Ready Law School Graduates: A Millennialist Fantasy

PracticeRobert Condlin (Maryland), 'Practice Ready Graduates': A Millennialist Fantasy:

The sky is falling on legal education say the pundits, and preparing “practice ready” graduates is the best strategy for surviving the fallout. This is a millennialist version of the argument for clinical legal education that dominated discussion in the law schools in the 1960s and 1970s. The circumstances are different now, as are the people calling for reform, but the two movements are alike in one respect: both view skills instruction as legal education’s primary purpose. Everything else is a frolic and detour, and a fatal frolic and detour in hard times such as the present.

No one would dispute that the United States legal system has a labor market problem, but law schools cannot revive the labor market, or improve the employment prospects of their graduates, by providing a different type of instruction. Placing students in jobs is a function of a school’s academic reputation, not its curriculum, and the legal labor market will rebound only after the market as a whole has rebounded (and perhaps not then). The cause of the present troubles is a lack of jobs, not a lack of graduates (of any kind), and producing more “practice ready” graduates will have no effect on the supply of jobs. The proposal is a spectacular non sequitur to the present troubles.

The concept of “practice ready” also is unintelligible and would be impossible to implement if it were not. There are as many different types of practice, for example, as there are levels of readiness for it and proponents of the proposal do not say which of these various possibilities (and combinations of possibilities), they have in mind. If the expression had a clear meaning, law schools still could not implement it because proficiency at practice depends upon dispositions (i.e., habits informed by reflection), and dispositions take longer than a law school course to develop. Like a lot of blog commentary, the “practice ready” proposal is more slogan than idea. Perhaps that is why it is so popular.

Wall Street Journal, The Practice-Ready Law Graduate is a ‘Fantasy,’ Says Professor:

The rupture in the legal job market has provoked a lot of soul searching about the mission of law schools. Perhaps the most popular idea that’s emerged is the notion that schools should focus more on training students to be “practice ready” lawyers.

Schools have been urged to offer more clinics, simulations and “externships,” or in the words of former New York State Bar Association president Vincent E. Doyle III, to “look outside the classroom and focus on real world opportunities.”

In a new paper, University of Maryland law professor Robert Condlin takes aim at the “practice ready” concept, arguing that it’s a nostrum that won’t cure the ills of legal education.

Mr. Condlin’s basic point is that the market forces roiling BigLaw are beyond the control of law schools and that the second-guessing about what they ought to be teaching is a “non sequitur.” ...

Mr. Doyle, a commercial litigator in Buffalo, thinks Mr. Condlin has his head in ivory towers. “The academic world has a feeling that what they do in law school is something different than preparing people for the practice of law,” he told Law Blog. “It’s very hard for those of us who practice law to understand that attitude.”

http://taxprof.typepad.com/taxprof_blog/2013/09/practice-ready-.html

Legal Education | Permalink

Comments

Law faculty are completely divorced from the practical world of law. What a century ago was icing on the cake of a thoughtful practitioner was taught by the Landellian law school model. But young hopeful lawyers still were taught to make cake.

Now, apart from perhaps one or two faculty members on most LS rosters, the overwhelming majority have no idea how law is practiced, let alone what tools lawyers will need to be successful practitioners or even to "think like lawyers." What law professors teach is "what I think students will need to think like lawyers" which is markedly different from teaching students to think like lawyers.

If the faculty have no real concept of how law is practiced or how practicing lawyers think, one wonders how they are qualified to teach students to be lawyers or to think like lawyers.

Posted by: Inigo Montoya, esq | Sep 3, 2013 8:44:12 AM

"No one would dispute that the United States legal system has a labor market problem, but law schools cannot revive the labor market, or improve the employment prospects of their graduates, by providing a different type of instruction. "

Condlin is 100% correct. This is why law schools should be shuttered, a la dental schools back in the 1990's, to restore balance in the labor market between supply and demand.

Posted by: Unemployed_Northeastern | Sep 3, 2013 9:45:12 AM

I do not believe the following two statements are true: "Law faculty are completely divorced from the practical world of law." and " the overwhelming majority have no idea how law is practiced"
Rant ≠ Fact

Posted by: Anon | Sep 3, 2013 10:52:35 AM

I think it is more accurate to say that many of them know how law is practiced, but there is no current incentive for them to relate their teaching or writing to how law is actually practiced or how it ought to be practiced.

Posted by: Arthur | Sep 4, 2013 5:53:31 AM

Brian and Steve,

I stand by my remarks. If I had a legal problem, I can think of only 3 faculty at my T14 law school that I would hire to address it. Do you feel otherwise? Would you hire your colleagues to do your divorce, tort, criminal problem, contract, or house closing?

Posted by: Inigo Montoya, esq | Sep 4, 2013 6:57:43 AM

@Arthur

It's anecdotal, sure, but at least in my experience, I only had one class in law school that met the following three conditions:

1) tenured professor
2) who had more than a token amount of legal experience
3) who had that experience more recently than the 1960's

Posted by: Unemployed_Northeastern | Sep 4, 2013 7:37:26 AM

Who are Brian and Steve?

Posted by: Anon | Sep 4, 2013 8:31:58 AM

Law schools should only hire faculty who have several years experience practicing law. The prima donnas teaching theoretical stuff like fee tail, with no experience other than reading old books are useless.

Posted by: MarkInFlorida | Sep 4, 2013 8:34:39 AM

Improving legal education to produce better-prepared law school graduates will only result in one thing: better-prepared applicants for unemployment benefits. The problem is not education (although it can be improved). The problem is JOBS. There are not enough law jobs to support the number of law school graduates. The bottom 2/3 or so of law schools need to close their doors. There is no valid economic reason to have more than about 62 law schools – one for each state plus another dozen or so elite private law schools in population-dense areas – to provide America with an ongoing supply of new lawyers. But subsidized student loans have disrupted the real-world economics, resulting in a glut of law students. Stop making it so easy to borrow money to go to law school, and the problem will self-correct.

Posted by: David Gulliver | Sep 4, 2013 11:25:18 AM

Law schools can influence the economy by producing many, many fewer graduates. There is a negative correlation between the number of lawyers per thousand and the percent growth of the GDP. Therefore, fewer lawyers means more economic growth.

Posted by: wjr | Sep 4, 2013 11:27:44 AM

Practice of law is not a federal clerkship for a year, getting an llm, and then getting hired on as a professor. The practice of law is not working for a big law firm 2-4 years, doing document review, or maybe even getting to help out on the drafts of summary judgment motions, maybe even something "juicy" like sitting in on depositions, and then getting hired on as a professor.

What other field of commerce is there where the teachers are sometimes (frequently?) the least experienced practitioners? There are so many aspects to the practice of law, it is difficult to adequately encapsulate it into a mere comment but, the practice of civil law and to some extent criminal law involves:

--Evaluating a case after spending time with a client to determine the possible range of outcomes, because you have been personally responsible for enough cases from beginning to end, including some that were tried, that you know what the range of outcomes are.

--Conducting enough depositions that you know all the tricks lawyers use to trip up deponents.

--Anticipating evidentiary objections because you have encountered them before, successfully or unsuccessfully, and learning how to get around them if you have been unsuccessful.

---learning to listen to witnesses, so you can cross examine them adequately; basically learning to think on your feet.

--Learning to weigh the pros and cons of settling versus going to trial, because you need to help your client understand whether to settle in mediation.

--Staying on top of client's bill, to make sure you aren't unintentionally becoming a pro bono lawyer.

--Being a business person on top of being a salesperson, orator, writer, and researcher, as well as director (after all a jury trial is like a play with an audience, and the lawyers are the writers, directors, and in some sense the star of the show, the narrator)

--Realizing that sometimes neither the facts nor the law matter, if a judge is mad at your client (or you?) for some action taken. Sometimes a judge will hang onto one issue and allow it to color everything else. Judges are not always predictable arbiters of law and fact, like some kind of judicial computer that you plug elements and law into, to get a result. And what are you going to do if you don't like the result? Appeal? Bwahahaha. On many issues, the standard is abuse of discretion. (BTW, I have successfully appealed and reversed a case under an abuse of discretion standard). The best viewpoint is that Judges own their courtroom, and you better act accordingly.


My question to any law professor that thinks they know what the practice of law is about (this is not for transactional lawyers and professors)

How many cases have you been personally responsible for, from beginning to end?

How many depositions have you conducted?

How many responses for interrogatories and requests for production have you personally been responsible?

How many mediations have you been involved in?

For some areas of litigation, How many motions for summary judgment have you prosecuted or defended?

How many trials have you conducted?

How many jury trials have you conducted?

How much did you bill and collect for how many years (because you can be a great litigator and not a great business person)?


There is a labor market. There just is not as much of a PAYING labor market, at least a privately paying labor market. There is usually plenty of appointed work available in the criminal, juvenile court, and family law realm. This type of work often goes to new and relatively inexperienced lawyers. My professionalism committee has recently discussed this problem. These folks are put out onto the street without having even been alongside someone for the things I mentioned above.

I have practiced law for 18 years, and by no means am I suggesting that I am the world's greatest practitioner, but I have learned a lot by experience. There may be a better way than personal experience, such as apprenticeship, or lots of mock trial/adversarial hearing experience in front of lawyers who can relate how their performances would work in the real world.

Posted by: Andy Fox | Sep 4, 2013 11:56:44 AM