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Tuesday, December 3, 2013

'Practice-Ready' Grads: The Latest Law School Scam

PracticeDavid Barnhizer (Cleveland State), "Practice Ready" Law Graduates:

Whatever view one holds on the idea of “practice ready” law graduates in the abstract it seems clear that it does not and could not mean that a new graduate can be fully capable of providing high quality services across the board to clients unfortunate enough to be using the services of the neophyte lawyer. If that were the case I can hear a client’s conversation with the brand new lawyer in a complex corporate merger with numerous parties, millions of dollars at stake, estate and tax issues, patent rights and differing valuations for the deal. “How many of these have you been involved in?” “I haven’t actually done any but I’ve read up on them and am ready to “hit the ground running. Don’t worry. I had really good Corporations and Tax courses. No problem. I got a high score on the LSAT and aced my Mergers & Acquisitions class so what could go wrong?” Or, “I made the 50th Percentile on the LSAT and got a “C” in M&A but didn’t do bad in the Negotiation course so cut me some slack. Somebody has to be my first client.” Or put “practice ready” in the context of a serious drug felony involving a criminal organization or a murder case. What does “practice ready” require in that situation?

Perhaps the matter becomes clearer if we ask ourselves the conditions we would prefer in having a doctor perform surgery on our brain or heart. What would we expect (demand or require) in terms of a “practice ready” doctor? What would we do if the person responded to our inquiries with the information that he had just graduated from medical school, hadn’t yet done an internship or residency, but had sat through a “really good course” on brain or heart surgery and medical diagnosis that included some “great videos” and observed similar operations on several occasions from behind the glass of a medical theater.

For me the clamor for a “practice ready” law graduate by the organized bar and lawyers is akin to the earlier demands that law schools teach professional responsibility. A reality of the professional responsibility demands by the American Bar Association and state supreme courts was by and large evidence of the fact that those institutions were incapable of or unwilling to take the difficult actions needed to “clean up” the abysmal situation of regulation of lawyers in the US. Demanding that law schools bear the “Professionalism” burden and that law students pass a national “legal ethics” examination is one of the greatest scams ever foisted on the law schools and the general public. It was little more than a pretense by the powers-that-be in the legal profession and judiciary that they had taken action that made lawyers “more ethical” even while avoiding their responsibility for actually cleaning up the system. “Practice Ready” is the latest professional “scam”.

http://taxprof.typepad.com/taxprof_blog/2013/12/practice-ready.html

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Comments

Color me perplexed. In this new paradigm, where legal employers are increasingly unwilling to hire new graduates or make them practice-ready, do law schools bear any of the burden of teaching their students, you know, how to practice law? If not the law schools and not the employers, then who?

Posted by: Unemployed Northeastern | Dec 3, 2013 8:00:44 AM

What a foolish argument! A straw man (the brand-new grad ready to handle the multimillion dollar merger) is successfully set up and then knocked down.

Medical training and licensure require vastly more hands-on practice experience than law, even if it doesn't produce new doctors immediately capable of complex brain surgery. How does the author of this article account for that basic difference between law and medical training?

Posted by: Eric Muller | Dec 3, 2013 8:40:32 AM

The analogy to doctors is not completely on-point. The State of Ohio will not license you as a medical doctor until you have completed at least one year of an internship or residency. http://med.ohio.gov/pdf/Applications/geninfo.pdf However you can be licensed as an attorney after only three years of law school.

Posted by: NotMyRealName | Dec 3, 2013 9:08:24 AM

I would think that a "Practice Ready" law school curriculum would include hands-on experience in the form of internships, externships, apprenticeships, clinics, etc, and not be based solely on exam scores or coursework grades. In Professor Barnhizer's scenarios, I agree that no recent "Practice Ready" grad would be "Client Ready". However, a firm might be more likely to hire a "Practice Ready" grad because the leap to "Client Ready" would be less steep, than hiring a non "Practice Ready" grad. I work in a major law firm, and we don't hire grads with less than about 5 years of experience. Why??? Our clients have told us, through numerous surveys and benchmarking studies, that they will not pay for them because of wasted time and money. However, if firms felt confident that the students were getting real-law experience as students, that situation would change. Call it what you will ... many traditional law school grads require a huge learning curve in a law firm setting, and that is simply not cost-effective anymore. They're also competing against lawyers in India and elsewhere who can do first-third year law firm work at a better cost to clients.

Posted by: CCChristie | Dec 3, 2013 10:00:51 AM

Read the full paper. Then argue with me. I guess I should have included in the Abstract the fact that law schools can educate in important ways, including providing students a conceptual and experiential "template" into which subsequent experience is infused and interpreted in ways that create a stronger likelihood they will be better lawyers. I accept that maybe this perspective (which is the paper's) might appear better in the Abstract. But the comments themselves indicate a strong bias toward "practice ready" law schools as well as the fact that the commenters didn't look at the paper itself.

Posted by: David | Dec 3, 2013 11:09:57 AM


The above comments are fascinating and illuminating. The fascinating aspect is that given my history in clinical education, teaching of Trial Advocacy, Negotiation, Strategy, technical analysis, Jurisprudence as a “performance” course, Professionalism and Ethics instruction—and years spent as a trainer for the Legal Services Corporation and for public defenders I think it is fair to conclude I am not against attempting to educate law students in both skills and the qualities of professionalism from the perspective of clients and social obligations.

My point is that we have done a relatively poor job of professional, societal and what I would call “deep practice” education. We need to focus far more than we have on what is the best use of the special three-year period represented by formal academic legal education. What do we mean by “skills” and even with the MacCrate Report etc., what should be given priority and what is actually possible in the quite finite term of formal legal education? In the body of the paper I sought to explain this position through addressing the need for fundamental principles in a reasonably unique jurisprudential sense because I consider them to underlie and support our system of law as well as legal interpretation. Along with this is joined a perspective on strategic thought and action that to me provides a coherent framework for the performance of lawyers in virtually all they do.

I would also note that when someone comments that there is a radical difference between medical and legal education that the difference is far more in the systems of education and post-graduate requirements than in the inherent differences in the professional function. In fact it may be more important to impose stronger requirements on law graduates than on new medical graduates because the functions conducted by lawyers are largely invisible and the client has little way of knowing if he has been provided sub-standard representation. Along with this goes the significant decline in mentoring for young lawyers. Given the fact that there is scant oversight, that quite a few law graduates are now (of necessity) going in to solo or small associational practices for purposes of sharing expenses the fact is that clients are at the mercy of people who really have a limited idea of what they are doing.

So what I am saying is that we need to design ways to “do it better”. I am not saying that education for the challenges of being a lawyer should not occur but that we must visualize the task better than we do within the realm of what is realistically possible given issues of time, talent, resources, institutional behaviors and biases. I am also saying that the organized legal profession and state supreme courts need to quit “palming off” their responsibilities on law schools and pretending they have taken care of the situation. As I said in “Abandoning an “Unethical” System of Legal Ethics” a year or so ago when it was published in the Michigan State Law Review, the legal profession is running a scam on society and clients, pretending that a system of lawyer regulation is in place that protects society and clients even while that system has extremely limited sanctions and accountability and is a “cover” for a significant range of professional misconduct and incompetence. If that part of the system does not step up and begin to make significant qualitative contributions to the continuing development of good lawyers (and weeding out of bad lawyers) then no matter what law schools do it really will not make much difference.

David Barnhizer

Posted by: David | Dec 3, 2013 12:26:24 PM

Hmmm. Let me guess. Written by someone who never really practiced law. Yep.

Posted by: Ann | Dec 3, 2013 1:07:20 PM

It's a silly straw man argument to say experiential education is a farce because a first year associate can't manage a complex merger. Many of our students at KU Law complete one or two clinics, plus work experience through internships. While they might not be able to handle complex commercial transactions, they certainly have been used by employers to handle misdemeanor hearings and trials, handle everyday litigation (landlord-tenant, commercial disputes, etc.), work in family court, etc. Based on feedback from our employers, they do consider it a positive if students have had some experience and are ready to manage responsibility from day one. Just like a fresh doctor should be able to set a broken bone or diagnose someone with the flu, fresh lawyers who want to do small and medium sized practice law should be ready to file a simple complaint or handle a motion in limine. But only if their law school prepared them for it.

Posted by: Steven Freedman | Dec 3, 2013 1:42:20 PM

The above comments are fascinating and illuminating. The fascinating aspect is that given my history in clinical education, teaching of Trial Advocacy, Negotiation, Strategy, technical analysis, Jurisprudence as a “performance” course, Professionalism and Ethics instruction—and years spent as a trainer for the Legal Services Corporation and for public defenders I think it is fair to conclude I am not against attempting to educate law students in both skills and the qualities of professionalism from the perspective of clients and social obligations.

My point is that we have done a relatively poor job of professional, societal and what I would call “deep practice” education. We need to focus far more than we have on what is the best use of the special three-year period represented by formal academic legal education. What do we mean by “skills” and even with the MacCrate Report etc., what should be given priority and what is actually possible in the quite finite term of formal legal education?

I would also note that when someone comments that there is a radical difference between medical and legal education that the difference is far more in the systems of education and post-graduate requirements than in the inherent differences in the professional function. In fact it may be more important to impose stronger requirements on law graduates than on new medical graduates because the functions conducted by lawyers are largely invisible and the client has little way of knowing if he has been provided sub-standard representation. Along with this goes the significant decline in mentoring for young lawyers. Given the fact that there is scant oversight, that quite a few law graduates are now (of necessity) going in to solo or small associational practices for purposes of sharing expenses the fact is that clients are at the mercy of people who really have a limited idea of what they are doing.

So what I am saying is that we need to design ways to “do it better”. I am not saying that education for the challenges of being a lawyer should not occur but that we must visualize the task better than we do within the realm of what is realistically possible given issues of time, talent, resources, institutional behaviors and biases. I am also saying that the organized legal profession and state supreme courts need to quit “palming off” their responsibilities on law schools and pretending they have taken care of the situation. As I said in “Abandoning an “Unethical” System of Legal Ethics” a year or so ago when it was published in the Michigan State Law Review, the legal profession is running a scam on society and clients, pretending that a system of lawyer regulation is in place that protects society and clients even while that system has extremely limited sanctions and accountability and is a “cover” for a significant range of professional misconduct and incompetence. If that part of the system does not step up and begin to make significant qualitative contributions to the continuing development of good lawyers (and weeding out of bad lawyers) then no matter what law schools do it really will not make much difference.

Posted by: David | Dec 3, 2013 4:33:05 PM

Obviously, no recent grad can supervise a multimillion dollar corporate merger. No one has ever suggested that she should.

What law firms do want is graduates with immediately saleable skills. Ideally, when the partner gives a new associate a file and says, "I'd like you to defend this deposition next Tuesday," the associate should say, "I'm on it," not, "What's a deposition?"

Law firms sell time. They have become increasingly reluctant to hire grads for whose time clients are not willing to pay. A "practice-ready" grad is simply one whose time is worth the hourly rate at which she's charged out.

Posted by: Theodore Seto | Dec 3, 2013 5:48:38 PM